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Teleconference on Changes to the ADA September 16, 2010 Gregory F. Hurley, Shareholder Robert S. Fine, Shareholder Kathleen E. Finnerty, Shareholder Richard.

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Presentation on theme: "Teleconference on Changes to the ADA September 16, 2010 Gregory F. Hurley, Shareholder Robert S. Fine, Shareholder Kathleen E. Finnerty, Shareholder Richard."— Presentation transcript:

1 Teleconference on Changes to the ADA September 16, 2010 Gregory F. Hurley, Shareholder Robert S. Fine, Shareholder Kathleen E. Finnerty, Shareholder Richard H. Hikida, Of Counsel ©2010, Greenberg Traurig, LLP Attorneys at Law All rights reserved. GT-Orange County GT-Miami GT-Sacramento GT-Orange County

2 September 16, 2010 [ 1 ] ADA Rule 2010 Changes: DOJ’s Final Rule Issued on July 23, 2010 to coincide with 20 th anniversary of enactment of the ADA. Adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3-10 of the “Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines” a/k/a “2004 ADA/ABA Guidelines” or “2004 ADAAG”. 36 C.F.R. part 36, app. B and D. □ Architectural Barriers Act (ABA) applies to federally-funded facilities “The 2010 Standards for Accessible Design” consist of 2004 ADAAG and requirements contained in subpart D of 28 C.F.R. part 36. Richard Hikida – GT Orange County, CA

3 September 16, 2010 [ 2 ] ADA Rule 2010 Changes: Effective Date —New Construction and Alterations Publication Date in Federal Register is September 15, 2010 Effective Date is 6 months from date of publication in Federal Register (with certain exceptions). □ Effective Date is March 15, 2011 (with exceptions). □ New reference point for assessing an entity’s barrier removal obligations once the 2010 Standards become effective. New construction and alterations must comply with 1991 Standards if triggering event is before September 15, New construction and alterations must comply with either 1991 Standards or 2010 Standards if triggering event is on or after September 15, 2010, but before March 15, □ DOJ requests compliance with one or the other standard, but not both. New construction and alterations must comply with 2010 Standards if triggering event is on or after March 15, Richard Hikida – GT Orange County, CA

4 September 16, 2010 [ 3 ] ADA Rule 2010 Changes: Effective Date- Barrier Removal Prior to 18 months after the date of publication in the Federal Register (publication date is Sept. 15, 2010): □ Noncompliant elements (i.e., don’t comply with 1991 ADAAG) that have not been altered are subject to readily achievable barrier removal standard as measured against either 1991 Standards or 2010 Standards. □ 18 months after the date of publication in the Federal Register is March 15, 2012 On or after 18 months after the date of publication in the Federal Register: □ 2010 Standards must be followed for barrier removal. Practice Pointer: Reevaluate barrier removal on a regular basis. Richard Hikida – GT Orange County, CA

5 September 16, 2010 [ 4 ] ADA Rule 2010 Changes: Triggering Event to Apply 2010 Standards for New Construction and Alterations Two-pronged approach □ If permit is required, then date of last application for building permit [or permit extension] □ If no permit is required, then commencement of physical construction  Site preparation counts (e.g., regrading or laying a foundation).  Groundbreaking doesn’t count.  Razing an existing structure doesn’t count. Richard Hikida – GT Orange County, CA

6 September 16, 2010 [ 5 ] ADA Rule 2010 Changes: Safe Harbor Element-by-element safe harbor: All businesses currently in compliance with the 1991 Standards (that are not altered on or after 18 months after the publication of the final rule in the Fed. Register, i.e., March 15, 2012) will not need to undertake further retrofits to comply with the ADA’s barrier removal obligations. No safe harbor for attempted barrier removal falling short of full compliance with 1991 Standards. No safe harbor for elements not included in 1991 ADAAG. Safe harbor for path of travel serving primary function area if it already complies with 1991 Standards. Practice pointer: Keep documentation of changes and maintenance and compliance with 1991 Standards. Richard Hikida – GT Orange County, CA

7 September 16, 2010 [ 6 ] ADA Rule 2010 Changes Robert Fine – GT Miami Segways and “ Other Power- Driven Mobility Devices ” □ Rule adopts 2-tiered approach to mobility devices. □ "Other power-driven mobility devices" include devices not designed for individuals with mobility impairments, such as the Segway® PT, but which are often used by individuals with disabilities as their mobility device of choice.

8 September 16, 2010 [ 7 ] ADA Rule 2010 Changes Robert Fine – GT Miami Segways and “ Other Power-Driven Mobility Devices ” □ Wheelchairs (and other devices designed for use by people with mobility impairments) must be permitted in all areas open to pedestrian use. □ "Other power-driven mobility devices" must be permitted to be used unless the covered entity can demonstrate that such use would fundamentally alter its programs, services, or activities, create a direct threat, or create a safety hazard. □ Lists factors to consider in making this determination.

9 September 16, 2010 [ 8 ] ADA Rule 2010 Changes Robert Fine – GT Miami Service & Comfort Animals □ Defines "service animal" as a dog that has been individually trained to do work or perform tasks that mitigate the effects of a disability. However, dogs that are used purely for emotional support, are not service animals. □ Other animals, whether wild or domestic, do not qualify as service animals. □ Clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. □ Permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations.

10 September 16, 2010 [ 9 ] ADA Rule 2010 Changes: Major Scoping Change on Side Reach Ranges 48” max height for obstructed high side reach (10” max lateral reach) □ Former standard was 54” max 46” max height for obstructed high side reach (over 10” and up to 24” lateral reach) 15” min height for unobstructed low side reach (10” max lateral reach) Existing self-service food stations and vending areas that already are in compliance with the 1991 Standards will not be required to meet 2010 Standards unless they engage in alterations. Richard Hikida – GT Orange County, CA

11 September 16, 2010 [ 10 ] ADA Rule 2010 Changes: Major Scoping Change on Water Closet Clearances in Single-User Toilet Rooms “Side” or “parallel” method of transferring from a wheelchair to a toilet is required (i.e., 60” min width). □ Lavatories are prohibited from overlapping with the clear floor space at water closets. □ Disabled war veterans are taught to transfer onto toilets from the side. □ 1991 Standards only require a front-transfer method.  Wheelchair users could need assistance if a side or parallel method is not available. No unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the Final Rule. Richard Hikida – GT Orange County, CA

12 September 16, 2010 [ 11 ] ADA Rule 2010 Changes: Major Scoping Change on In-swinging Door of Single- User Toilet Room In-swinging door of a single-user toilet room may swing into the clearance around any fixture if clear floor space (30” x 48” min) is provided somewhere within the toilet room beyond the door swing arc. Richard Hikida – GT Orange County, CA

13 September 16, 2010 [ 12 ] ADA Rule 2010 Changes: Major Scoping Change on Door Swing into Turning Space Toilet room doors shall be permitted to swing into turning space, provided that there is sufficient clearance space for the wheelchair outside the door swing. Richard Hikida – GT Orange County, CA

14 September 16, 2010 [ 13 ] ADA Rule 2010 Changes: Major Scoping Change on Detectable Warnings Required on boarding platform edges No longer required at curb ramps □ Exception: Transportation facilities covered by DOT Standards No longer required at hazardous vehicular areas Rulemaking on Public Rights-of-Way is ongoing The 1991 Standards still remain in effect for now. Richard Hikida – GT Orange County, CA

15 September 16, 2010 [ 14 ] ADA Rule 2010 Changes: Places of Lodging [Hybrid Facilities] 30-Day Guideline for a Short-Term Stay Factors to Qualify as a “Place of Lodging” Scoping for Timeshares or Condominium Hotels Application of ADA to Places of Lodging that Contain Individually Owned Units Facilities May Qualify Under Both the ADA and FHA Richard Hikida – GT Orange County, CA

16 September 16, 2010 [ 15 ] Hotel Reservations for Individuals with Disabilities General Rule on Reservations □ Modification of Policies, Practices, or Procedures to Make Reservations “During the Same Hours” and “In the Same Manner” □ Liability for Reservations Made Through Third-Party Reservations Services (e.g., Travel Agents) Information About Accessible Features in Hotels and Guest Rooms Hold and Release of Accessible Guest Rooms Requirement to Block Accessible Guest Room Reservations Guarantees of Reservations for Accessible Guest Rooms Application of New Reservation Requirements to Rental Units in Timeshare, Vacation Communities, and Condo-Hotels 18-Month Transition Period Richard Hikida – GT Orange County, Ca

17 September 16, 2010 [ 16 ] ADA Rule 2010 Changes Kathleen E. Finnerty – GT Sacramento Assembly Areas (theaters, auditoriums, etc.) (Sections 221, 802) □ Design requirements have been revised □ Now provides more specific guidance about the dispersion of accessible seating, sightlines over standing spectators, and the provision of companion seating. □ Lawn seating areas and exterior overflow areas without fixed seats must now connect to an accessible route. □ Scoping of seating in large facilities has been reduced.

18 September 16, 2010 [ 17 ] ADA Rule 2010 Changes Kathleen E. Finnerty – GT Sacramento Ticketing & reservations: □ Provides guidance on sale of tickets for accessible seating, for individual events, season tickets, the purchase multiple tickets and tickets on the secondary market. □ Requires ticket sellers to:  Implement procedures to ensure equal opportunity to purchase tickets  Be sufficiently knowledgeable of the locations of all unsold available accessible seating for event  Provide informational materials  Permit the purchase of additional tickets in the same row/ contiguous/ as close to the accessible seating as possible for each accessible seating space purchased by a disabled individual

19 September 16, 2010 [ 18 ] ADA Rule 2010 Changes Kathleen E. Finnerty – GT Sacramento Ticketing & reservations: □ Requires ticket sellers to:  Not release accessible seating tickets until all non-accessible tickets have been sold.  Permit disable patrons to transfer accessible seating tickets to third parties  Allow disabled individuals acquiring tickets in the secondary market to use tickets on the same terms and conditions as other individuals who acquire a ticket in secondary market.  Proof of disability, such as a doctor’s note, cannot be required before selling accessible seating tickets. □ But, there are exceptions to this rule.

20 September 16, 2010 [ 19 ] ADA Rule 2010 Changes New Media (Internet sales, etc.) □ Case law and the future – No longer about a place now about effective communication  Weyer v. Twentieth Century Fox Film Corp., (9th Cir. 2000) (internet is not a place of public accommodation) VS National Federation of the Blind v. Target Corporation ( N.D. Cal. 2006) (The court rejected the argument that the ADA applies only to services in a physical place)  State Laws may not require a nexus to the retail stores □ The Unruh Act regulates “all business establishments of every kind whatsoever.” Cal Civ. Code § 51(b).“ the broad language of the DPA comfortably encompasses websites as “places to which the general public is invited.”  Print and radio advertising □ Judge Patel in her Target opinions did not attempt to distinguish why Target could be liable under the ADA and California law for a web page, but ( arguably) not liable for that same content when printed in a newspaper or on the radio. Gregory Hurley – GT Orange County, CA

21 September 16, 2010 [ 20 ] ADA Rule 2010 Changes Web Accessibility Standards □ Regs not final, you will be able to comment □ My forecast is that they will never be adopted and all public communication will be subject to effective communication standard. Does navigating the site require a mouse ? □ Web Content Accessibility Guidelines or WCAG ( ) □ Test your web pages: □ The most popular reader is “JAWS” (freedomscientific.com). □ Phased Compliance- treating alterations to a web site as if it was a store Gregory Hurley – GT Orange County, CA

22 September 16, 2010 [ 21 ] ADA Rule 2010 Changes Captioning and descriptive audio for video presentations □ video remote interpreting (VRI): video conference technology for interpreters. DOJ has new performance standards and requires training for users.  sign language interpreters, oral transliterators, and cued- language transliterators Do you have an “Accessible Communications” policy ? □ Is information that you provide your customers available to individuals with hearing and visual limitations »Not just products or sales - store locators □ Does not have to be accessible in every medium ( print / radio)  But required warnings and limitations may have to be Gregory Hurley – GT Orange County, CA

23 September 16, 2010 [ 22 ] ADA Rule 2010 Changes Do you have an “Accessible Communications” policy ? □ DOJ says: “if retail goods or bank services are posted on an inaccessible Web site that is available 24 hours a day, 7 days a week to individuals without disabilities, then the alternative accessible method must also be available 24 hours a day, 7 days a week. “Accessible Communications” policy ? □ Is information that you provide your customers available to individuals with hearing and visual limitations »Not just products or sales - store locators □ Does not have to be accessible in every medium ( print / radio)  But required warnings and limitations may have to be Gregory Hurley – GT Orange County, CA

24 September 16, 2010 [ 23 ] ADA Rule 2010 Changes Point of sale devices (ATMs, Kiosks, etc.) and mobility, dexterity, visual, and auditory access issues  Mobility issues □ ADAAG requirements for counter height, point of sale counters, reach ranges, approach clearances, and clear areas.  Manual Dexterity Issues □ Can these machines be operated without "tight grasping" of any item (the pen ) ? Could they be operated with a closed fist ?  Visual / Auditory Impaired Access □ Is there audio or tactical feedback that allows a person with visual impairment to operate yet protects the privacy of their pass code ? Is there customer assistance for the visually impaired ? Will other staffed checkout stands always be open ? Gregory Hurley – GT Orange County, CA

25 Questions ? September 16, 2010 Gregory F. Hurley, Shareholder Robert S. Fine, Shareholder Kathleen E. Finnerty, Shareholder Richard H. Hikida, Of Counsel ©2010, Greenberg Traurig, LLP Attorneys at Law All rights reserved. GT-Orange County GT-Miami GT-Sacramento GT-Orange County


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