Implementing the “New” ADA and DOJ Regulations

A Policy Tele-Institute for Higher Education

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Session 1: Transforming Law into Policy and Practice

Presenters

Irene Bowen, ADA One, LLC L. Scott Lissner, The Ohio State University October 5, 2010 2

Presenters Irene Bowen, J.D.

ADA One, LLC

• President of ADA One, LLC • Consulting, training, speaking • ADA, ABA, section 504 • Self-evaluations and transition plans, policy compliance • Former Deputy Chief, Disability Rights Section, DOJ • Former Deputy General Counsel, US Access Board • Co-founder, National Center for Law and Deafness • AHEAD presenter and trainer (national, state) • Board member, National Association of ADA Coordinators • Part-time senior policy advisor with LCM Architects • City of Chicago title II plan • Higher education: reviews and plans 3

Presenters L. Scott Lissner

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The Ohio State University

• • University ADA Coordinator & 504 Compliance Officer Associate, John Glenn School of Public Policy Lecturer at the Knowlton School of Architecture, Moritz College of Law & Disability Studies • •

AHEAD

President Elect Co-Chair, Public Policy & Government Relations Committee • • • •

OTHER

Appointed, Ohio Governor's Council For People With Disabilities Chair, ADA-OHIO Appointed, State HAVA Committee Appointed, Columbus Advisory Council on Disability 4

INTRODUCTION

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THE ADA @ 20 “We are experiencing a Renaissance In enforcement and support” 6

AGENDA

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Agenda

• • • It takes a campus Overview of DOJ’s rules – Examinations and courses – – Assembly areas and ticketing Housing – – Effective communication Service animals – – Mobility devices Facilities: new construction, alterations, existing facilities Q and A 8

…Agenda

• • • • • • Other legislation and rulemaking – HEOP and the Commission on Alt Media – 21 st Century Video Act – Others DOJ’s ANPRM’s (pre-rules) – Accessibility of web information and services – Movie captioning and video description – Next generation 9-1-1 – Equipment and furniture Policy and planning Approaches and strategies: who to involve and how Tools and assistance Q and A 9

IT TAKES A CAMPUS

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New accessibility standards

• “2010 Standards” – Wholesale adoption of 2004 ADAAG (Access Board’s ADA Accessibility Guidelines) PLUS – DOJ additions to 2004 ADAAG • Will be published in “one book” version 11

Beyond buildings: other changes

• • • • • • • Service animals Mobility devices Communication Hotel reservations Event ticketing Certification process (state/local codes) Complaint investigation 12

Challenges

• • • • • Learning the new Standards Figuring out what to do in the next six months or 18 months Understanding the “safe harbors” (new concept) Modifying certain types of policies Keeping up with other regulatory developments 13

Off to a good start

• • • • First, learn the facts Start alerting those affected: planners, facilities, residential life, athletics, IT, academic affairs, others Some basic training?

Make some decisions 14

EXAMINATIONS AND COURSES

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Title III Section 36.309 (b)(1)

Request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid.

Title III Section 36.309 (b)(1)

Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations including those provided in response to an Individualized Education Program or Section 504 Plan.

Title III Section 36.309 (b)(1)

Generally, a testing entity should accept without further inquiry documentation provided by a

qualified professional who has made an individualized assessment of the applicant.

Appropriate documentation may include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.

Title III Section 36.309 (b)(1)

• • • • Focus on need for accommodation Give weight to accommodation history Give deference to treating professionals Give deference to clinical and professional narrative Title II Entities are unlikely to be held to a lesser standard

HOUSING

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Title II Section 35.151(f) Title III Section 36.406(e) Housing at a Place of Education

New category for residence halls. Meet the requirements for transient lodging and specific requirements for accessible routes throughout the unit and accessible turning spaces and work surfaces in kitchens from the residential facilities standards

Apartments or townhouse facilities that are provided with a lease on a year-round basis exclusively to graduate students or faculty and that do not contain any public use or common use areas available for educational programming must comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards.

ASSEMBLY AREAS AND TICKETING

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Section 35.151(g) & Section 36.308

Assembly Areas Vertical Dispersion & Line of Sight Stage Access No additional requirements for captioning of communications or emergency information

Event ticketing •Distribution outlets •Clear seating charts •Ticket transfers •“Sell outs” and accessible seats •Equivalent pricing and access limitations •Verification

EFFECTIVE COMMUNICATION

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Sections of regulations

• • Title II: Sections 35.104, 35.160, 35.161

Title III: Sections 36.104, 36.303

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Types of auxiliary aids and services • Additions to examples - Exchange of written notes - Accessible electronic and information technology - Computer-aided transcription services 28

…Types of auxiliary aids and services • Other examples of auxiliary aids and services - Brailled displays - Screen reader software - Video remote interpreting (VRI) 29

“Qualified reader” and “qualified interpreter” • • “Qualified reader” defined: – One who reads effectively, accurately, impartially – One who can use necessary vocabulary “Qualified interpreter” modified – Includes sign language, oral, and cued speech interpreters – Oral and cued speech interpreter defined 30

Companions • • • Companions – Covered entities must communicate effectively with companions, as appropriate – Family members, friends, associates Can’t require person to bring own interpreter Can’t rely on companions to interpret except in emergency or by request 31

Other issues

• • • • Medical care settings Privacy considerations Missed appointments Emergency communication 32

Automated attendant systems These include automated voice mail, interactive voice response systems 33

…Automated attendant systems If provided, must ensure effective communication in real time with individuals using auxiliary aids and services (TTY’s, TRS). Sections 35.161, 36.303(d)(1).

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TRS calls • Entity must answer telecommunications relay calls in same manner as it answers others.

• Sections 35.161(c) and 36.303(d)(2). 35

Video remote interpreting

• • Increasingly used More common in hospitals 36

…Video remote interpreting

DOJ sets performance standards – Quality of video and audio • High quality, clear, real-time, full-motion – Dedicated high-speed connection – Picture: • Clear, sufficiently large, and sharply delineated • Heads, arms, fingers – Voices: clear and easily understood transmission – Quick set-up: training of users Sections 35.160(d), 36.303(f) 37

Areas not addressed in final rules

• • • • ATM’s: no safe harbor for communication related elements Captioning at sporting venues Movie captioning See discussion of each of these in title III preamble, pages 56284-56287 of Federal Register publication.

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SERVICE ANIMALS

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Sections of regulations

• • Title II: Sections 35.104, 35.136 Title III: Sections 36.104, 36.302(c)(2)-(9)

Definition

• Definition: a dog that does work or performs tasks for the benefit of an individual with a disability (including psychiatric, cognitive, mental) M. COLLEEN MCDEVITT, Columbiamissourian.com

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Examples of tasks

• • • Assist during seizure Retrieve medicine or other items Help individual with • • • dissociative identity disorder to remain grounded Prevent/interrupt impulsive or destructive behavior Assist with balance, stability Provide non-violent protection or rescue work 42

Emotional support/comfort?

If this is the only function, not considered a service animal Dilip Vishwanat/Getty Images, for The New York Times 43

Can ask only two questions

• Is this service animal required because of a disability?

• What work or tasks is the animal trained to perform? Can’t ask about disability 44

Other issues

• • An entity can exclude a service animal if • it is not controlled or • it is not housebroken • Covered entity is not responsible for care or supervision of a service animal No “service animal” license or documentation required 45

Miniature horses

• • Allowed if – Reasonable – Individually trained Assessment factors – Type, size, weight – Handler’s control – Whether housebroken – Safety requirements of facility 46

Caution: other laws also apply

• • • • • Fair Housing Act: Department of Housing and Urban Development Department of Transportation (airlines, airports, bus travel) Air Carrier Access Act Section 504 regulations, e.g., HUD’s State and local requirements 47

MOBILITY DEVICES

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Sections of regulations

• • Title II: Sections 35.104, 35.137 Title III: Sections 36.104, 36.311

Wheelchairs

• • Definition of “wheelchair” Use of wheelchairs and manually-powered mobility aids such as walkers, crutches, canes, braces must be permitted - – by individuals with mobility disabilities – in any area open to pedestrian use.

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Other Power-Driven Mobility Device (OPDMD)

“[A]ny mobility device powered by batteries, fuel, or other engines— whether or not designed primarily for use by individuals with mobility disabilities—that is used by individuals with mobility disabilities for the purpose of locomotion.” 51

Use of OPDMDs

• Covered entity must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs - unless the entity can demonstrate that the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity. 52

OPDMD Assessment Factors

Sections 35.137(b)(2) and 36.311(b)(2) 1. The type, size, weight, dimensions, and speed of device 2. The facility’s volume of pedestrian traffic 3. The facility’s design and operational characteristics (e.g., indoors/outdoors, square footage, the density and placement of stationary devices, and the availability of storage, if requested) 4. Whether legitimate safety requirements can be established to permit the safe operation of OPDMD in the specific facility 5. Whether use creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

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Questions

• • Can request a “credible assurance” that an OPDMD is required because of the person’s disability.

May not ask about nature and extent of disability.

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DOJ suggestion

Develop a policy clearly stating circumstances when use of OPDMD’s is permitted.

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FACILITIES: NEW CONSTRUCTION, ALTERATIONS, EXISTING FACILITIES

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The Basics: new construction and alterations • New standards for new construction and alterations – DOJ adopts 2004 ADAAG, based on model codes and ANSI (sections 35.151(c), (d); 36.406) – For the first time, certain areas are included in the Standards (and 2004 ADAAG), e.g., judicial, correction, detention facilities; play areas, swimming pools 57

…The Basics: new construction and alterations • DOJ adds specific provisions (see sections 35.151(a),(b),(c)(5),(d)-(k); 35.152; 36.406(b)-(g)) – Path of travel in title II – Places of lodging – Assembly areas – Medical care facilities – Social service centers – Housing at a place of higher education – Detentions and corrections 58

Time frames

• “Effective date” -- March 15, 2011 Generally applies to almost everything BUT the Standards – Service animals – Mobility devices – (Not hotel reservation policies -- 18 months) 59

…Time frames

“Compliance date” -- March 15, 2012 • New construction and alterations MUST comply with the Standards • In the meantime, choose a standard – Title III: 1991 or 2010 Standards – Title II: 1991 Standards, 2010 Standards, or UFAS (Uniform Federal Accessibility Standards) 60

Existing facilities under title II

• • • • Basic requirement stays: Each service, program, and activity must be accessible when viewed in its entirety (section 35.150(a)).

Existence of barrier is measured by looking to the Standards Remedy to barrier is measured the same way SO what happens when the “measure” changes? 61

Program accessibility and safe harbor (title II) New safe harbor: Existing elements that comply with current requirements are “safe” from further changes just for the sake of program accessibility.

Section 35.150(b)(2)(i).

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Safe harbor • • Safe harbor is not applicable to Alterations – Elements addressed by supplemental requirements in 2010 Standards Play and recreational facilities – Children’s facilities, etc.

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Existing facilities under title III

• • • • Under title III, ADA requires removal of barriers to extent “readily achievable” (section 36.304) Existence of barrier is measured by looking to the Standards Remedy to barrier is measured the same way SO what happens when the “measure” changes? 64

Title III safe harbor: barrier removal • • • New concept: If existing element complies with 1991 Standards, it’s “safe” from further barrier removal under any stricter or new requirements. Applies element-by-element Applies only if element hasn’t been altered 65

…Title III safe harbor: barrier removal • Actual language: 36.304(d)(2)(i). Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.

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…Title III safe harbor: barrier removal • Example: 1991 Standards: Controls can’t exceed 54” for side reach.

2010 Standards: Controls can’t exceed 48” for side or front reach.

Your controls are all at 50” for side reach.

If you don’t alter them after March 2012, controls can stay where they are.

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…Title III safe harbor: barrier removal • • The finer points Applies element by element It can’t be used for elements that had no requirements under the 1991 Standards, i.e., where “elements are subject to supplemental requirements” – – – Swimming pools Play areas Others listed in sec. 36.304(d)(2)(iii) 68

QUESTIONS AND ANSWERS AND MUSINGS

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