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The ADA An Overview of Title II Sandy Lahmann Nov. 16, 2011.

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Presentation on theme: "The ADA An Overview of Title II Sandy Lahmann Nov. 16, 2011."— Presentation transcript:

1 The ADA An Overview of Title II Sandy Lahmann Nov. 16, 2011

2 Disclaimer Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. ADA Center authorized by NIDRR to provide information, materials, and technical assistance to individuals and entities that are covered by the ADA.

3 Regional ADA Centers 1-800-949-4232

4 ADA Center services Technical assistance / ADA information Referral and networking with other disability organizations Training Material dissemination Research

5 Rocky Mtn ADA Center Newsletter Keep up to date! Monthly e-newsletter Hardcopy newsletter Sign up: Or sign up sheets at materials table Free!

6 Meeting the Challenge, Inc. Operates the Rocky Mountain ADA Center project Generates materials and products that support accessibility Offers customized consulting services Provides training on various disability rights laws

7 MTC Consulting Services Providing customized solutions for: Title II Self Evaluations and Transition Plans Title II Facility and Program Accessibility Commercial Facility Accessibility School District Accessibility Architectural Plan Review Public Housing Accessibility Transit System Accessibility

8 ADA Basics Civil rights - prohibits discrimination against persons with disabilities It’s about equal rights and equal opportunity, not special privileges Focus is on integration The ADA is a minimum standard. Nothing prevents any entity from providing access beyond the minimum.

9 ADA Basics Title I – Employment Title II – State and local government (including public post-secondary education) Title III – Places of public accommodations (i.e. private businesses and nonprofit organizations, including private post-secondary education) Title IV – Telecommunications Title V – Miscellaneous

10 ADA Basics Each part of the ADA must be applied on an individualized, fact-specific, case-by-case basis. The ADA is not black-and-white. Our favorite answer to every question: it depends.

11 Title II No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a local governmental entity or be subjected to discrimination by a local governmental entity. Under the ADA, a local governmental entity may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities.

12 Title II A public entity is not relieved of its obligation to make its programs accessible if no individual with a disability is currently known to be accessing such a program. The absence of individuals with disabilities cannot be used as the test of whether programs and activities must be accessible.

13 General Title II Requirements For qualified individuals with disabilities, a Title II entity must: Provide equal opportunity (does not guarantee equality of results) Not deny participation Not apply surcharges Not make unnecessary inquiries Strive for integrated programs, not separate programs Make reasonable modifications to permit participation Accessible transportation when transportation is provided Ensure contracted service providers adhere to Title II requirements

14 Qualified Individual with a Disability Qualified Individual with a Disability – meets the essential eligibility requirements of the program, activity, or service with or without: – Reasonable modification – Barrier removal – Auxiliary aids or services

15 Eligibility/Inquiries/Surcharges May not impose eligibility criteria for participation in programs that screen out or tend to screen out persons with disabilities, unless can show that requirements are necessary for the provision of the program May not make unnecessary inquiries into the existence of a disability May not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover expenses of compliance.

16 Integrated vs. Separate Programs Cannot exclude a person with a disability from a regular program May offer special programs but cannot require that an individual participate in the special program and deny participation in the regular program Cannot require an individual to accept benefits specifically designed for people with disabilities

17 Revised Title II Regulations Published September 10, 2010 Most went into effect March 15, 2011 Some go into effect March 15, 2012

18 Revised Title II Regulations Areas affected – 2010 Standards for Accessible Design (3-15-12) – Exams and Courses (Title III but can be applied to Title II) – Service Animals – Effective Communication – Ticketing – Wheelchairs and Other Power Driven Mobility Devices – Lodging reservations (3-15-12)

19 ADA Coordinator A public entity with 50 or more employees must have an ADA Coordinator – Coordinates efforts to comply with all aspects of the ADA – Receives and investigates ADA grievances – Must have knowledge, authority and motivation to implement regulations effectively

20 Providing Public Notice All public entities must provide information regarding rights and protections under Title II as applied to their programs and policies – Nondiscrimination policy – ADA Coordinator’s name and contact information

21 Providing Public Notice Post on website Post on recruiting and application materials Include in catalogs, manuals, and pamphlets that are distributed to students and the public which describe programs and activities Post throughout buildings Provide alternate formats as appropriate

22 Grievance Procedure A public entity with 50 or more employees must adopt and publish grievance procedures for prompt and equitable resolution of ADA complaints – Detailed description of procedure to submit grievance – Two step process that allows for appeals – Reasonable time frame for review and resolution – Good record keeping

23 Self-Evaluation All public entities must: Evaluate current programs, policies and practices for accessibility Identify programs, policies, practices not in compliance Make modifications to bring them into compliance Allow individuals with disabilities and other interested persons and organizations to participate in evaluation process

24 Self-Evaluation All public entities must make self-evaluation available for public inspection A list of interested persons consulted A description of areas examined and any problems identified A description of modifications made

25 Transition Plan Public entities with 50 or more employees If structural changes to facilities are needed to create program accessibility must develop transition plan to identify steps that will be taken to create accessibility – Identify physical obstacles – Describe in detail methods that will be used to create accessibility – Specify schedule for completion – Identify responsible official

26 Transition Plan Allow individuals with disabilities and other interested persons and organizations to review and comment on transition plan Must be available for public inspection

27 Facility Access New construction and alterations – Must be built in compliance with the ADA Standards for Accessible Design Existing facilities (built before 1992) – Evaluate in terms of program accessibility

28 Program Accessibility A public entity’s services, programs, or activities, when viewed in their entirety must be readily accessible to and usable by people with disabilities Not necessary to make each of existing facilities accessible Achieving program accessibility – Reasonable modification to policies and procedures – Acquisition or redesign of equipment – Provision of program at alternate site – Structural modification or physical barrier removal

29 ADA Standards for Accessible Design 1991 ADA Standards (previously called ADAAG) 2010 ADA Standards – Enforceable March 15, 2012 – Safe harbor for those features compliant with 1991 ADA Standards in buildings built prior to March 15, 2012 – Must be used in all new construction and alterations as of March 15, 2012

30 ADA Standards Accessible parking Accessible routes Accessible entrances Accessible areas of primary function Accessible restrooms Accessible transportation facilities Accessible places of lodging Accessible recreational facilities

31 ADA Standards Includes – Doors, reach ranges, ramps, elevators, stairs, curb ramps, protruding objects, grab bars, drinking fountains, alarms, signs, ATMs, assembly areas, dressing rooms, counters, etc. Advance Notice of Proposed Rulemaking – Public rights-of-way, medical equipment

32 New 2010 Standards – No Safe Harbor Residential facilities dwelling units Amusement rides Recreational boating facilities Exercise machines and equipment Fishing piers and platforms Golf facilities Miniature golf facilities

33 New 2010 Standards – No Safe Harbor Play areas Saunas and steam rooms Swimming pools, wading pools, and spas Shooting facilities with firing positions Miscellaneous – Team or player seating – Accessible route to bowling lanes – Accessible route in court sports facilities

34 Historic Structures Not required to take any action that would threaten or destroy the historic significance of an historic property Alternative measures to achieve program accessibility must be undertaken

35 Maintenance of Accessible Features Must maintain in working order equipment and features of facilities that are required to provide ready access to individuals with disabilities. Isolated or temporary interruptions in access due to maintenance and repair of accessible features are not prohibited Accessible route must remain accessible and not blocked Snow removal Adequate maintenance, prompt repairs

36 Reasonable Modification Changes to policies, practices, and procedures that allow persons with disabilities access to programs and services. For example: – Providing materials in an alternate format – Providing assistive listening devices – Holding a class in an accessible location – Providing a sign language interpreter – Allowing a service animal – Testing accommodations (extra time, distraction free setting)

37 Direct Threat Don’t have to do anything that’s a direct threat - a significant risk of substantial harm. May impose legitimate safety requirements necessary for the safe operation of programs. Must ensure safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities. Factors to consider: – Nature, duration, and severity of risk, – Probability that injury will occur – Potential for mitigation by reasonable modification

38 Fundamental Alteration and Undue Burden Don’t have to do anything that’s a fundamental alteration or undue burden Fundamental alteration – a modification so significant that it alters the essential nature of the program or service offered. Undue burden – significant difficulty, expense, or disruption; financial or administrative cost beyond the resources of the public entity.

39 Fundamental Alteration and Undue Burden Determination of fundamental alteration or undue financial or administrative burden – Made by the head of the public entity or his or her designee – Accompanied by a written statement of the reasons for reaching that conclusion – Based on all resources available to the public entity. Must take other actions that would not result in alterations or burdens but would ensure that individuals with disabilities receive the benefits and services of the program

40 Reasonable Modification When choosing a method of providing program access, must give priority to the one that results in the most integrated setting appropriate to encourage interaction among all users, including individuals with disabilities Not required to provide personal devices or services – Wheelchairs, hearing aids, eye glasses – Assistance eating, dressing, and using the toilet Procedure to request modifications

41 Wheelchairs Manually operated or power driven, designed primarily for use by an individually with a mobility disability for the main purpose of indoor, or both indoor and outdoor locomotion (includes scooters) Must permit wheelchairs and other manually powered mobility aids (walkers, crutches, canes, braces) in any area open to pedestrian use

42 Other Power-Driven Mobility Devices (OPDMD) Mobility device operated 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 Not a wheelchair Includes – Segway ® PT – Golf cars

43 Other Power-Driven Mobility Devices (OPDMD) To determine if a class of OPDMDs can be allowed as a reasonable modification, apply assessment factors – Type, size, weight, dimensions and speed of device – Facility’s volume of pedestrian traffic – Facility’s design and operational characteristics – Whether legitimate safety requirements can be established to permit safe operation – Whether use is a substantial risk of serious harm to the immediate environment or natural or cultural resources

44 Ticketing Guidance is now provided on: Sale of tickets for accessible seating Information covered entities must provide about accessible seating, Ticket prices Options for purchasing multiple tickets Hold and release of tickets for accessible seating Ticket transfer Secondary ticket market Prevention of fraud

45 Service Animals Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability Exception: miniature horse Other species other than dogs and miniature horses do not qualify as service animals Work or tasks performed by service animal must be directly related to the handler’s disability

46 Service Animals Because service animals must “do work or perform tasks” emotional support and comfort animals are not included in the definition of “service animal” Certification, identification papers, or vest cannot be required Animal must be under handler’s control – Must use harness, leash or tether unless disability prevents or unless it interferes with task being performed

47 Service Animals Care and supervision is the responsibility of the handler Animal must be housebroken Cannot deny service animal because of allergies or fears

48 Service Animals Two questions are permitted only if not obvious: – Is this animal required because of a disability? – What work or task has this animal been trained to perform? Don’t inquire about the nature or extent of the handler’s disability ADA does not include service animals-in-training. State law may.

49 Equally Effective Communication A public entity must ensure that its communications with individuals with disabilities are equally as effective as communications with others Includes participant in program, companions (e.g. parent with a disability), and members of the general public

50 Auxiliary Aids and Services- Deaf Qualified sign language interpreters (including video remote interpreting) vs. exchange of written notes – length and complexity of the communication involved – context, number of people involved, importance – English as a second language to American Sign Language – Public entity provides and pays for interpreter (No surcharge!) – Cannot require individual to bring their own interpreter – Qualified interpreters vs. certified interpreters – Accurate, impartial and confidential

51 Auxiliary Aids and Services- Deaf, Hard of Hearing and Speech Impaired Assistive listening devices and systems (loop, FM) Real time computer-aided transcription services (CART) Open and closed captioning TTYs, videophones (VRS), relay services, captioned telephones – Train staff to use TTYs and handle relay call s Telephone handset amplifiers Telephones compatible with hearing aids

52 Auxiliary Aids and Services – Blind and Low Vision Materials in alternate formats – Whenever you provide information to the public in written form, make that information available to individuals with vision impairments in a form that is usable by them – Braille, electronic documents for screen readers, large print, audio recordings, high contrast, magnification software – Individualize: Only 10% of people who are blind can read Braille

53 Auxiliary Aids and Services – Blind and Low Vision Qualified reader – Can read effectively, accurately, and impartially – Can use any necessary specialized vocabulary – Is qualified in language and subject matter Transcriber

54 Primary Consideration Consult with individual to determine most appropriate auxiliary aid or service Give primary consideration to the first choice of the individual, unless – Another equally effective means is available – Use of means chosen would result in fundamental alteration in the service, program, or activity or in undue financial or administrative burdens – Still must provide effective communication by another means

55 Website Accessibility The ADA requires all programs of public entities to be accessible, including websites The ADA does not currently provide standards Advanced Notice of Proposed Rulemaking – 2010.htm 2010.htm Section 508 or W3C are best practice

56 Disability Etiquette Attitudes are the biggest barrier of all! Watch your language! – These terms are offensive: Handicapped Mentally retarded Wheelchair bound – Avoid negative, disempowering words (suffering from, victim of)

57 Etiquette basics People first language- Put the person first and the disability second Don’t make assumptions about needs, abilities or limitations Be aware of varying levels of abilities and limitations Be aware and respectful of hidden disabilities Always ask before helping and listen to instructions Respect independence

58 Etiquette basics Treat adults as adults Speak directly to the person with the disability, not their companion, aide or interpreter Be sensitive about physical contact Don’t touch mobility aids Do not pet, feed or distract service animals.

59 Resources Title II ADA Regulations 10_regulations.htm Title II Highlights Title II Action Guide ce&articleid=185

60 Resources Fact Sheet: Highlights of the Final Rule to Amend the Department of Justice's Regulation Implementing Title II of the ADA 2_factsheet.html

61 Resources Revised ADA Requirements: Service Dogs df Revised ADA Requirements: Ticket Sales Revised Regulations: Effective Communication /docs/National%20ADA%20Fact%20Sheets/Na tional%20ADA%20Center%20Fact%20Sheet%2 02%20EFFECTIVE%20COMMUNICATION.pdf

62 Resources 1991 ADA Standards 2010 ADA Standards x.htm

63 Resources Department of Justice (DOJ) - Enforcement agency for Title II and Title III 800-514-0301 The Access Board – Develops standards for accessible design 800-872-2253

64 Sandy Lahmann Information Specialist Rocky Mountain ADA Center Meeting the Challenge, Inc. 1-800-949-4232 from CO, WY, UT, MT, ND, SD 719-444-0268 719-444-0252 (Meeting the Challenge) 3630 Sinton Rd, Ste 103 Colorado Springs, CO 80907

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