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Implementing the “New” ADA and DOJ Regulations

A Policy Tele-Institute for Higher Education

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Session 3: Program Access and Policy Changes under the New

Regulations

PresentersIrene Bowen, ADA One, LLC

L. Scott Lissner, The Ohio State University

November 16, 2010

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Presenters

Irene Bowen, J.D.

•President of ADA One, LLC•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

•Former Deputy Chief, Disability Rights Section, DOJ•Former Deputy General Counsel, US Access Board•Co-founder, National Center for Law and Deafness

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Presenters

L. Scott Lissner

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

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OVERVIEW: What has changed?

• New Building Standards• Service animals• Mobility devices• Communication• Hotel reservations• Event ticketing

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What are the challenges?

• Learning the new Regulations• Learning the 2010 Standards: More than

ADAAG• Collaborating with others to modify

policies• The next two “March Fifteenths”

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Change Cycle

1. Review the changes 2. Work with those affected: planners,

facilities, residential life, athletics, IT, academic affairs, ….

3. Take stock and organize training4. Identify choice points and inform decision

makers5. Implement new policy

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Programs and Program Access

• Guidance for Policy & Implementation in the Preamble & Analysis

• What is a Program?• What is Program Access?• Who are Program Participants?• Recruiting Your Partners

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APPROACH TO FACILITIES

• What Standards to Use When• Safe Harbors for Program Access • An Opportunity to Take Stock: Assessing

Facilities • Partners On & Off Campus

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Time frames for facilities

“Compliance date”: 18 months after publication

• March 15, 2012• New construction and alterations MUST comply with the Standards (triggers similar to 1991’s)• In the meantime, choose a standard

- Title III: 1991 or 2010 Standards- Title II: 1991 Standards, 2010 Standards, or UFAS

(Uniform Federal Accessibility Standards)• Sections 35.151(c), 36.406(a)

Existing facilities and change of standards

• Change of standards: implications for– Program access– Barrier removal

• As of March 15, 2012, new measure of what’s a barrier and what’s an accessible facility (i.e., 2010 Standards)

• BUT if element already complies with UFAS (for title II) or 1991 Standards (and you don’t alter it), it’s still ok after March 15, 2012

– It gets a “safe harbor”– That is, it doesn’t have to be altered just for the sake of

program access or barrier removal.

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Elements not protected by the safe harbor

• Golf and miniature golf facilities• Play areas• Residential facility dwelling units• Exercise machines and equipment• Other recreation facilities

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…Elements not protected by the safe harbor

• Saunas and steam rooms• Swimming pools, wading pools, spas• Miscellaneous: team or player seating, accessible route to bowling lanes, accessible route in court sports facilities

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Evaluate elements that are

subject to safe

harbor

Complying elements: Document compliance with 1991

Standards (or UFAS)

Noncomplying elements: Bring up to standards

OR use alternative

means of providing

program access

Program access and safe harbor: action steps

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Program access and safe harbor: tips

• If resources or other limitations prevent changes before March 15, 2012, remember that you will have to use 2010 Standards when making later changes

• Local codes may not allow use of 1991 Standards or UFAS for alterations, even for this purpose

• Sounds like a self-evaluation and transition plan? This could be a good time for that.

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…Program access and safe harbor: tips

• Section 504 also requires program access

– Section 504 regulations are not yet updated (deemed to comply if follow UFAS)

– Expectations, per DOJ:• Guidance before March 15, 2011• Following ADA regulations will bring into

compliance with section 504

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Facilities not subject to safe harbor

Evaluate facilities/elements

not specifically included in 1991 Standards/UFAS

Alter them per 2010 Standards

OR use

alternate means to provide program access

For new construction

and alterations (even before

2012), use 2010 Standards

Barrier removal: Title III• Follow similar approach• Barrier removal requires an assessment of each

facility to identify and remove barriers where it is readily achievable to do so

• DOJ recommends implementation plan and ongoing method of assessing compliance

• Safe harbor protections are also element-by-element for title III entities

• Starting March 15, 2012, must use 2012 Standards, which may be more costly

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Campus housing• New definition of housing at a place of education

in 35.104, 36.104 includes dormitories, suites, apartments, etc.

• Two categories, 36.406(e)– Residence halls and similar: comply with transient

lodging requirements, 224 and 806– Apartments or townhouses leased year-round to

graduate students or faculty (if no areas for educational programming): comply with residential facility standards, 223 and 809

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…Campus housingDifferences between standards• Transient

– Usually smaller number accessible rooms– But more accessibility for people with hearing impairments– Some roll-in showers– Elevators to all levels

• Residential– Usually elevator not required– No roll-in showers required– Adaptable features allowed– 5% of units accessible

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…Campus housingIn addition, per DOJ• When mobility-accessible unit or floor with such

units has a kitchen, kitchen shall have turning spaces and accessible work surfaces that comply with 809.2.2 and 804.3

• Multi-bedroom units with mobility-accessible sleeping rooms shall have accessible route throughout units per 809.2

• Sections 36.406(e), 35.151(f)

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POLICIES

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Policies: by March 2011

Significant changes to address • Effective communication• Service animals• Ticketing for events• Hotel reservations (by March 2012)• Mobility devices

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EFFECTIVE COMMUNICATIONS

• Deference to the Individual• Standard for Remote Services• Standard for Effective Readers• Are Notes a Form of Communication• Does Mediating Technology Factor Into

Effective Communication?• Who Do I Go to if I Can’t Spell HTML

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§ 36.303 & § 35.160 Effective Communication

• includes an obligation to provide effective communication to companions – Title II “as effective as” Title III Effective

• Automated-attendant systems (e.g. voicemail or an interactive voice response systems) must provide effective real-time communication with individuals using auxiliary aids and services, including text telephones, all forms of FCC-approved telecommunications relay systems and Internet-based relay systems

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Video Remote Interpreting – Real-time, full-motion video and audio over a dedicated

high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;

– A sharply delineated image that is large enough to display the interpreter´s face, arms, hands, and fingers, and the participating individual´s face, arms, hands, and fingers, regardless of his or her body position;

– A clear, audible transmission of voices; and – Adequate training to users of the technology and other

involved individuals so that they may quickly and efficiently set up and operate the VRI.

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§ 36.104 Qualified Reader• A person who is able to read effectively,

accurately, and impartially using any necessary specialized vocabulary

• Reader or interpreter as benchmark for note takers– Qualified interpreter means an interpreter who, via a

video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

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SERVICE ANIMALS• It’s a Dog’s Life!• What you can Ask & Boundaries You Can Set• Is Housing Different? Cats, Parrots and Ferrets

Oh My!• Miniature Horses• Working with Residence Life &

Campus Security

Develop policies reflecting new regulations• Published policy for nonresidential

areas:– Dogs only– Work or tasks for individual with

disabilities• Includes people with various types of

disabilities• Not emotional support animals

– Control and care by handler– Locations of rest areas (not required

under ADA)

• Consider more detailed internal directives as well 29

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Staff directives• Only two permissible inquiries:

– Is this a service animal required because of disability?

– What work or tasks is the animal trained to perform?

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…Staff directives

• Can’t ask about disability

• Can’t request documentation

• Tasks can be for people with physical, sensory, psychiatric, intellectual, or mental disabilities.

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...Staff directives• Examples of types 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

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…Staff directives• Under ADA, if only purpose is emotional

support, comfort, companionship, not a “service animal”

• No surcharges• Allow handler even if animal is excluded• Particular considerations in health care

• Examples of situations

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…Staff directives• Guidance about what to do about “control”

issues• An entity can exclude a service animal if

• it is not controlled or• it is not housebroken

• More than one chance• Provocation• College/university is not responsible for care or

supervision of a service animal• Examples of situations

Service Animals: Other laws and requirements

• Other laws or codes may call for admission of animals -- • Other than dogs• That provide emotional support

or comfort • Examples

• HUD (residence halls)• DOT (transportation)• State/local requirements

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…Service Animals: Other laws and requirements

• DOJ: ADA rules don’t affect coverage of other animals under other laws

• Higher education: FHAA and section 504 go “beyond” ADA– Allow emotional support animals– Allow more intrusive questions

• Air Carrier Access Act is similar

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Miniature Horses

• Make reasonable modifications to permit if appropriate

• Allowed if – Reasonable– Individually trained

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…Miniature Horses

• Use assessment factors– Type, size, weight (whether facility can

accommodate)– Handler’s control– Whether housebroken– Legitimate safety requirements of specific facility

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…Miniature Horses

• Many service animal provisions also apply– Admit individual without animal– Care and supervision– No surcharges

• Other laws may apply

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Animals in housing

• Consider separate policies for housing vs. other facilities

• Some animals that are allowed in residential settings may not be appropriate in classes and other settings – and vice versa

• Be aware of state/local requirements, licenses and certifications

• Consider how much is public policy and how much is internal guidance

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Sections of regulations

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

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TICKETING & RESERVATIONS• Selling Accessible Seats• Is there Room at the Inn?• Assisting Athletics and Auxiliary services

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§ 35.138 & § 36.302 Ticketing• Sales during the same hours • During the same stages of ticket sales • Through the same methods of distribution• In the same types and numbers outlets• Under the same conditions

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Ticketing

• Hold and Release• Secondary Market• Prevention of Fraud

–Singel Event–Series–Investigations

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Ticketing• Tickets for accessible seating priced the same

as other tickets• Tickets for accessible seating must be made

available at all price • If accessible seating at a particular price level

is not available because of inaccessible features, then the percentage of tickets for accessible seating that should have been available at that price level shall be offered for purchase, at that price level, in a nearby or similar accessible location.

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§ 36.302 Reservations

• Ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms

• Describe accessible features in the hotels and guest rooms in enough detail to permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs

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Reservations

• Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented

• Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems

• Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others

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MOBILITY DEVICES• General Policy for Wheelchairs• Segways, Golf Carts & Other Mobility Devices• Setting the boundaries • Transportation & Parking, Campus Security or

Both?

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Two tiers of devices

Manually powered mobility devices

• Wheelchairs, walkers, crutches, canes, braces

Other power-driven mobility devices

• Devices not necessarily designed for use by people with disabilities

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…Two tiers of devices

• Use of manually powered mobility devices must be permitted -- – by individuals with mobility disabilities – in any area open to pedestrian use.

• New category: other power-driven mobility devices (OPDMD’s)

Sections 35.104, 35.137, 36.104, 36.311

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.”

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Use of OPDMD’s• Must make reasonable modifications to

permit use by people with mobility disabilities • Burden is on entity to demonstrate

use is not reasonable: that the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity.

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OPDMD Policies: DOJ guidance

• Develop policy– Clearly state circumstances under which

permitted (follow assessment factors)– Specific rule– Procedure for assessment– Consider grouping by type– Example: GSA policy (see p. 56200 of Federal

Register notice)• Give advance notice of policy

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OPDMD Assessment Factors1. Device: type, size, weight, dimensions, and

speed 2. Facility’s volume of pedestrian traffic3. Facility’s design and operational

characteristics – indoors/outdoors – square footage– density and placement of stationary devices – availability of storage

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…OPDMD Assessment Factors4. Whether use creates a substantial risk of

serious harm to – the immediate environment or – natural or cultural resources

5. Whether use poses a conflict with Federal land management laws and regulations.

Sections 35.137(b)(2) and 36.311(b)(2)

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Limits on inquiries

• Can request a “credible assurance” that an OPDMD is required because of the person’s disability.– Give examples in policy: placard, I.D.

• May not ask about nature and extent of disability.

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SAFETY & DIRECT THREAT

• Setting Speed Limits and Safety Analysis• Codifies past guidance • Working With Campus Risk Management

Groups

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§ 35.139 Direct Threat• (b) In determining whether an individual poses

a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.

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§ 35.130 Direct Threat

• A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

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Resources

DOJ web site: www.ada.govDOJ information line: 800 - 514 - 0301 (voice)

800 - 514 - 0383 (TTY) ADA TA Centers: 800-949-4232 (Voice/TTY)Access Board: www.access-board.gov Handout: Tips for the Transition to 2012

(revised)

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QUESTIONS AND ANSWERS

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Irene Bowen, J.D.President, ADA One, LLC9 Montvale CourtSilver Spring, MD 20904

Web site: http://ADA-One.com Email: IreneBowen@ADA-One.com

301 879 4542 (O)301 236 0754 (F)

CONTACT

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CONTACT

L. Scott Lissner, ADA Coordinator, The Ohio State University 1849 Cannon Drive Columbus, OH 43210-1266 Lissner.2@OSU.EDU Http://ada.osu.edu

(614) 292-6207(v); (614) 688-8605(tty) (614) 688-3665(fax)

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Other opportunitiesNAADAC webinars• November 17: ADA Standards - Toilets, Bathing, Kitchens, &

Plumbing Elements • December 1: ADA Standards - Specialized Rooms, Spaces &

Elements Incl. Residential & Rec. • All seven sessions available on CD and for MP3, etc.

To register and for more information: http://www.krm.com/NAADAC (direct registration) or http://askjan.org/naadac/ (NAADAC website)

Next NAADAC conference (four days of training): April 11-14, 2011, Miami, FLInformation available in mid-December at NAADAC’s website: www.NAADAC.info

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Next tele-institute session• Session 4 – Establishing Policy, Practice and

Resources for Virtual Environments Tuesday, November 30, 2010