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Highlights of: the Americans with Disabilities Act Title II Regulatory Revisions. Office for Civil Rights AHEAD in Virginia March 25, 2011. Title II of the ADA . Title II of the Americans with Disabilities Act:

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highlights of the americans with disabilities act title ii regulatory revisions

Highlights of: the Americans with Disabilities Act Title II Regulatory Revisions

Office for Civil Rights

AHEAD in Virginia

March 25, 2011

title ii of the ada
Title II of the ADA

Title II of the Americans with Disabilities Act:

Prohibits state and local governments from discriminating on the basis of disability (regardless of whether entity receives Federal financial assistance)

definition of disability title ii of the ada and section 504
Definition of Disability: Title II of the ADA and Section 504

Has a physical or mental impairment that substantially limits one or more major life activities,

Has a record of such impairment, or

Is regarded as having such impairment.

other related issues not addressed in this presentation
Other related issues—Not Addressed in this presentation
  • The ADA Amendments Act of 2008
    • Changed the interpretation of the term “disability” but did not change the definition.
    • The 2010 Accessibility Standards (permitted as of September 15, 2010, mandatory beginning March 15, 2012)
      • Will notprovide discussion of specific new scoping requirements
      • Will provide limited overview of some major changes
title ii select list of new definitions 28 c f r 35 104
title II –Select List of New Definitions (28 C.F.R. § 35.104)
  • 2010 Standards; 1991 Standards; 2004 Standards
  • Auxiliary Aids and Services
  • Direct Threat
  • Existing Facility
  • Housing at a Place of Education
  • Other Power-Driven Mobility Device
  • Qualified Reader
  • Qualified Interpreter
  • Service Animal
  • Video Remote Interpreting Service
  • Wheelchair
changes to nondiscrimination requirements highlights
Changes to Nondiscrimination Requirements - Highlights
  • Service Animals
  • Other Power-Driven Mobility Devices
  • Manually-Powered Mobility Aids
  • Effective Communication
    • Qualified Reader and Qualified Interpreter
    • Types of Auxiliary Aids or Services
    • Use of Adults Accompanying Individual with Disability
    • Use of Children as Interpreters
    • Video Remote Interpreting
    • Telecommunication
    • Ticketing
direct threat
Direct Threat
  • Definition: A significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. 28 C.F.R. §35.104
  • Applies to others, not self
direct threat8
Direct Threat

To determine direct threat public entity must:

  • make individualized assessment relying on current medical knowledge or on the best available objective evidence to ascertain the nature, duration, and severity of the risk;
  • Determine the probability that the potential injury will actually occur; and
  • Determine whether reasonable modifications or the provision of auxiliary aids or services will mitigate the risk
service animals
Service Animals
  • Definition- § 35.104
    • Limited to dogs
    • Individually trained to do work or perform tasks directly related to the individual’s disability (including physical, sensory, psychiatric, intellectual or mental)
    • Comfort or emotional support animals are not covered
service animals under individual s control
Service animals-under individual’s control
  • General Rule- public entity must permit service animal
  • Exclusion allowed if:
    • animal is out of control and individual does not take effective action or because the animal is not housebroken

§35.136(b)

service animals11
Service Animals
  • Overview-§ 35.136
    • Must be under individual’s control
    • May be removed if out of control or not housebroken
    • Public entity not responsible for care or supervision of animal
    • Two inquiries about use of animal permitted
    • Service animal permitted in all areas where public, participants or invitees permitted
    • No surcharge for animal permitted-but can be charged for damages
service animals under individual s control12
Service animals-under individual’s control
  • If animal is removed, the individual with disability shall be given the opportunity to participate in the service, program or activity without the service animal. §35.136(c)
service animal permissible inquiries
Service animal- Permissible Inquiries
  • Public Entities may only make two inquiries:
    • Is animal required because of a disability; and
    • What work or task the animal has been trained to perform
miniature horses
Miniature Horses
  • Must make reasonable modifications to permit use of miniature horse if horse has been individually trained to do work or perform tasks

28 C.F.R. §35.136(i)(1)

miniature horses15
Miniature Horses
  • Assessment Factors-

To determine if reasonable modifications can be made, public entity shall consider:

miniature horses16
Miniature Horses
  • Type, size and weight of horse and whether facility can accommodate them
  • Whether individual has sufficient control
  • If horse is housebroken, and
  • If horse in specific facility compromises legitimate safety requirements for safe operation
  • 28 C.F.R. §35.136(i)(2)
wheelchair and other power driven mobility device
Wheelchair and Other Power-driven mobility device
  • Regulations add a definition of “wheelchair”
  • Add a definition of “other power-driven mobility device.” (OPDMD)
  • Each have different requirements regarding use in public places
  • 28 C.F.R. §§ 35.104 and 35.137
wheelchair and other power driven mobility device18
Wheelchair and Other Power-driven mobility device
  • Wheelchair –
  • manually-operated or power-driven device
  • designed primarily for use by an individual with a mobility disability
  • for the main purpose of indoor, or of both indoor and outdoor locomotion.
wheelchair and other power driven mobility device19
Wheelchair and Other Power-driven mobility device
  • Public Entities must permit the following in any areas open to pedestrian use:
    • use of wheelchairs
    • use of manually-powered mobility aids (i.e. walkers, crutches, canes, braces) or other similar devices designed for use by individuals with mobility disabilities.

28 C.F.R. § 35.137(a)

wheelchair and other power driven mobility device20
Wheelchair and Other Power-driven mobility device
  • Other power-driven mobility device –(OPDMD)
  • Any mobility device powered by batteries, fuel, or other engines whether or not designed primarily for use by an individual with a disability
wheelchair and other power driven mobility device21
Wheelchair and Other Power-driven mobility device
  • Other Power Driven Mobility Device-
  • used by individual with disability for locomotion,
  • includes golf cars, electronic personal assistance mobility devices (EPAMDs),(e.g. Segway® PT) or
  • any mobility designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section
wheelchair and other power driven mobility device22
Wheelchair and Other Power-driven mobility device
  • Public entities shall make reasonable modifications in their policies, practices, or procedures to permit the use of OPDMD by individuals with disabilities

UNLESS …

wheelchair and other power driven mobility device23
Wheelchair and Other Power-driven mobility device
  • the public agency can show that the class of OPDMD cannot be operated in accordance with legitimate safety requirements pursuant to § 35.130(h)
  • NOTE: Burden is on entity to show it is not reasonable to allow OPDMD
wheelchair and other power driven mobility device24
Wheelchair and Other Power-driven mobility device
  • The regulations have added a provision that permits public entities to impose legitimate safety requirements necessary for safe operation of their services, programs or activities.
wheelchair and other power driven mobility device25
Wheelchair and Other Power-driven mobility device
  • Requirements must be based on actual risks, not mere speculation, stereotypes or generalizations about individuals with disabilities. § 35.130(h)
wheelchair and other power driven mobility device26
Wheelchair and Other Power-driven mobility device
  • To determine whether a particular OPDMD can be allowed as a reasonable modification, the public entity shall consider 5 factors

§35.137(b)(2)(i)-(v)

wheelchair and other power driven mobility device27
Wheelchair and Other Power-driven mobility device
  • The 5 factors to consider are:

1. Type, Size, Weight, Dimensions and Speed

2. Volume of pedestrian traffic at facility

3. Facility Design (e.g. indoors, square footage, storage area)

wheelchair and other power driven mobility device28
Wheelchair and Other Power-driven mobility device

5 Factors continued…

4. Whether legitimate safety requirements can permit the safe operation of OPDMD in a specific facility; and

5. Whether use of OPDMD creates substantial risk of serious harm to environment or natural/cultural resources or conflicts with Federal land laws

wheelchair and other power driven mobility device29
Wheelchair and Other Power-driven mobility device
  • May NOT ask individual using a wheelchair or an OPDMD questions about nature and extent of disability

§35.137(c)

wheelchair and other power driven mobility device30
Wheelchair and Other Power-driven mobility device
  • Inquiry by public entity to person using an OPDMD:
    • May ask for “credible assurance” that device is required because of disability
    • Credible assurance = valid, State-issued disability parking placard or card, other State-issued proof of disability
wheelchair and other power driven mobility device31
Wheelchair and Other Power-driven mobility device
  • If individual does not have State-issued proof, public entity shall accept as a “credible assurance” a verbal representation that is not contradicted by observable fact.

§ 35.137(c)(2)

ticketing
Ticketing
  • Added a provision to provide explicit direction and guidance on discriminatory practices for entities involved in the sale or distribution of tickets.

§35.138

communications
Communications
  • Qualified Interpreter
  • Qualified Reader
  • Video Remote Interpreting
  • Telecommunications Relay Services
  • Automated Attendant Systems
  • Companions
  • Auxiliary Aids or Services
qualified interpreter
Qualified Interpreter
  • An interpreter who
      • via video remote interpreting or on-site
      • is able to interpret effectively, accurately, and impartially
      • both receptively and expressively
      • Using any necessary specialized vocabulary

§35.104

qualified reader
Qualified Reader
  • A person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.

28 C.F.R. § 35.104

video remote interpreting vri service
Video Remote Interpreting (VRI) Service
  • Interpreting service that
    • Uses video conference technology
    • Over dedicated lines or wireless technology
    • Offering high-speed, wide-bandwidth video connection that
    • Delivers high-quality video images

§35.104

video remote interpreting vri service37
Video remote interpreting (VRI) service
  • VRI services must:
    • Be high-quality, in real-time, clear, void of irregular pauses
    • Have sharp, delineated picture, that displays interpreter and participating individual’s face, arms, hands and fingers
    • Provide clear, audible transmission of voices;
    • Include Adequate training for quick and efficient set up and operation of the VRI

28 C.F.R. §35.160(d)

telecommunications
Telecommunications
  • If public entity uses phone to communicate, must use text telephones (TTYs) or equally effective telecommunications systems

§35.161(a)

automated attendant systems
Automated Attendant Systems
  • Examples: Voicemail, interactive voice and messaging
  • System must provide real-time communications with individual using auxiliary aids and services such as, TTY, relay systems

28 C.F.R. § 35.161(b)

companions
Companions
  • Public entity must ensure communications with:
    • Applicants
    • Participants
    • Members of public; and
    • Companions with disabilities

Are as effective as communications with others

28 C.F.R. § 35.160(a)(1)

companions41
Companions
  • Companion is:
    • Family member
    • Friend, or
    • Associate of individual

Who is seeking access to a service, program, or activity of a public entity and is an appropriate person with whom the public entity should communicate. §35.160(a)(2)

auxiliary aids and services
Auxiliary aids and services
  • Public entity must provide Auxiliary Aids and Services to:
    • Applicants
    • Participants
    • Companions and
    • Members of the public

to afford an equal opportunity to participate in and enjoy the benefits of service, program or activity

§35.160(b)(1)

auxiliary aids and services43
Auxiliary aids and services
  • Types necessary will vary according to:
    • method of communication used by individual
    • Nature, length and complexity of communication involved; and
    • Context of communication

§35.160(b)(2)

auxiliary aids and services44
Auxiliary aids and services
  • Must give primary consideration to preference of individual with a disability
  • Must be provided in accessible formats, in a timely manner and in a way that protects privacy and independence of individual with a disability.

§35.160(b)(2)

accompanying adults as interpreters
Accompanying Adults as Interpreters
  • Public entity shall not rely on accompanying adult to interpret EXCEPT:
    • Emergency–imminent threat to safety
    • Specific request by individual with a disability
        • Adult agrees and
        • Is an appropriate circumstance for the adult to interpret.

§35.160(c)(1) and (2)

minor child as interpreter
Minor Child as Interpreter
  • Public Agency shall not rely on minor child to interpret EXCEPT:
    • Emergency- imminent threat to safety or welfare and no interpreter available

§ 35.160(c)(3)

accessibility
ACCESSIBILITY
  • Accessibility Standards
  • Existing Facilities
      • Program Accessibility Requirements
  • New Construction and Alterations
      • Housing at a place of Education
accessibility standards for new construction and alterations
Accessibility Standards For New Construction and Alterations
  • 1991 Standards-ADA Standards for Accessible Design, (published July 26, 1991)
  • 2004 ADAAGmeans the requirements set forth in appendices B and D to 36 CFR part 1191 (2009).
  • 2010 Standards- means 2010 ADA Standards for Accessible Design-consist of 2004 ADAAG and requirements in §35.151
  • DOJ-2010 Standards and Guidance: http://www.ada.gov/2010ADAstandards_index.htm
compliance dates for new construction and alterations
Compliance Dates for New Construction and Alterations
  • March 15, 2012 (18 months from publication in Federal Register)
    • 2010 Standards must be followed for construction or alterations that begin on or after March 15, 2012
    • Construction or alterations on or after September 15, 2010 and before March 15, 2012 may use 2010 Standards, UFAS or 1991 Standards without the elevator exemption
existing facility
Existing Facility
  • If altering/building a facility for program access, until March 15, 2012, covered entities may choose to use either:
      • UFAS
      • 1991 Standards
      • 2010 Standards
      • On or after March 15, 2012, may only use 2010 Standards
existing facility cont
Existing facility (cont)
  • 2010 Standards provide requirements for elements not covered by the 1991 Standards
  • Also include revised requirements for a number of elements addressed in the 1991 Standards
existing facility safe harbor
Existing facilitySAFE HArbor
  • If no alterations on or after March 15, 2012
  • and elements comply with requirements in 1991 Standards or Uniform Federal Accessibility Standards (UFAS)
  • NOT required to modify to comply with 2010 Standards. §35.150(b)(2)
existing facility safe harbor53
Existing facilitySAFE HArbor
  • “Safe Harbor” does not apply to elements in existing facilities that are subject to supplemental requirements
      • In other words, specified elements for which there are no technical nor scoping specification in 1991 Standards, are not entitled to the safe harbor

§35.150(b)2)(ii)

existing facility safe harbor54
Existing facilitySAFE HArbor
  • Elements in 2010 Standards not eligible for the element by element safe harbor include:
    • Residential facilities dwelling units
    • Amusement rides
    • Exercise machines and equipment
    • Play areas
    • Swimming pools
maintenance of accessible features
Maintenance of Accessible Features
  • If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, covered entity may reduce the level of accessibility in accordance with the 2010 Standards.

§35.133(c)

new construction
New Construction
  • As stated previous, if physical construction or alterations commence on or after March 15, 2012, shall comply with 2010 Standards
  • Ceremonial groundbreaking prior to site preparation does not commence construction

28 C.F.R. § 35.151(c)(4)

noncomplying facilities
Noncomplying Facilities
  • Construction or alterations commenced after July 26, 1992, but that are not in compliance with applicable standards, must be made accessible as follows:

§35.151(c)(5)

noncomplying facilities58
Noncomplying Facilities
  • Constructed/Altered before March 15, 2012 choice of:
    • 1991 Standards without elevator exemption
    • 2010 Standards
    • UFAS
    • Constructed/Altered on or after March 15, 2012, public entities must make their noncomplying facilities accessible in accordance with the 2010 Standards
additional requirements in 35 151 applicable to facilities
Additional Requirements in §35.151 Applicable to facilities
  • Social service center establishments
  • Housing at a place of education
  • Assembly areas
  • Medical care facilities
  • Facilities with residential dwelling units
  • Detention and correctional facilities
housing at a place of education
Housing at a Place of Education
  • Requirements apply in Elementary and Secondary context and in the Postsecondary context
housing at a place of education61
Housing at a Place of Education
  • Use the 2010 Standards for transient lodging with additions from residential requirements.
  • Focus of preamble is on college dormitories and other college housing.
interaction with fair housing act
Interaction with Fair Housing Act
  • Compliance with Title II (and Title III) does not necessarily ensure compliance with other Federal statutes such as the Fair Housing Act.

75 Fed. Reg. 56166

slide63

Howard Kallem

Office for Civil Rights

U.S. Department of Education

400 Maryland Ave., SW

Washington, D.C. 20202

Howard.Kallem@ed.gov

202 453 5918