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Implementing the “New” ADA and DOJ Regulations A Policy Tele-Institute for Higher Education
Session 3: Program Access and Policy Changes under the New Regulations Presenters Irene Bowen, ADA One, LLCL. Scott Lissner, The Ohio State University November 16, 2010
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
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
OVERVIEW: What has changed? • New Building Standards • Service animals • Mobility devices • Communication • Hotel reservations • Event ticketing
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”
Change Cycle • Review the changes • Work with those affected: planners, facilities, residential life, athletics, IT, academic affairs, …. • Take stock and organize training • Identify choice points and inform decision makers • Implement new policy
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
APPROACH TO FACILITIES • What Standards to Use When • Safe Harbors for Program Access • An Opportunity to Take Stock: Assessing Facilities • Partners On & Off Campus
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.
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
…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
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.
…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
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
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 19
…Campus housing Differences 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
…Campus housing In 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) 21
Policies: by March 2011 Significant changes to address • Effective communication • Service animals • Ticketing for events • Hotel reservations (by March 2012) • Mobility devices
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
§ 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
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.
§ 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.
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
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?
…Staff directives • Can’t ask about disability • Can’t request documentation • Tasks can be for people with physical, sensory, psychiatric, intellectual, or mental disabilities.
...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
…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
…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
…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
Miniature Horses • Make reasonable modifications to permit if appropriate • Allowed if • Reasonable • Individually trained
…Miniature Horses • Use assessment factors • Type, size, weight (whether facility can accommodate) • Handler’s control • Whether housebroken • Legitimate safety requirements of specific facility
…Miniature Horses • Many service animal provisions also apply • Admit individual without animal • Care and supervision • No surcharges • Other laws may apply
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
Sections of regulations • Title II: Sections 35.104, 35.136 • Title III: Sections 36.104, 36.302(c)(2)-(9)
TICKETING & RESERVATIONS • Selling Accessible Seats • Is there Room at the Inn? • Assisting Athletics and Auxiliary services
§ 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
Ticketing • Hold and Release • Secondary Market • Prevention of Fraud • Singel Event • Series • Investigations
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.
§ 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
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
MOBILITY DEVICES • General Policy for Wheelchairs • Segways, Golf Carts & Other Mobility Devices • Setting the boundaries • Transportation & Parking, Campus Security or Both?
…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