Implementing the “New” ADA and DOJ Regulations

1. Implementing the “New” ADA and DOJ Regulations A Policy Tele-Institute for Higher Education

2. Session 1: Transforming Law into Policy and Practice Presenters Irene Bowen, ADA One, LLCL. Scott Lissner, The Ohio State University October 5, 2010

3. 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

4. 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

5. Introduction

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

7. agenda

8. 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

9. …Agenda • Other legislation and rulemaking • HEOP and the Commission on Alt Media • 21st 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

10. IT takes a campus

11. 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

12. Beyond buildings: other changes • Service animals • Mobility devices • Communication • Hotel reservations • Event ticketing • Certification process (state/local codes) • Complaint investigation

13. 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

14. 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

15. Examinations and courses

16. 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.

17. 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.

18. 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.

19. 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

20. Housing

21. 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

22. 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.

23. Assembly areas and ticketing

24. 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

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

26. EFFECTIVE COMMUNICATION

27. Sections of regulations • Title II: Sections 35.104, 35.160, 35.161 • Title III: Sections 36.104, 36.303

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

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

30. “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

31. 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

32. Other issues • Medical care settings • Privacy considerations • Missed appointments • Emergency communication

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

34. …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).

35. TRS calls • Entity must answer telecommunications relay calls in same manner as it answers others. • Sections 35.161(c) and 36.303(d)(2).

36. Video remote interpreting • Increasingly used • More common in hospitals

37. …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)

38. 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.

39. Service animals

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

41. 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

42. 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

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

44. 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

45. 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

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

47. 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

48. Mobility devices

49. Sections of regulations • Title II: Sections 35.104, 35.137 • Title III: Sections 36.104, 36.311

50. 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.