AHEAD JULY 2012 DOJ’s 2010 Regulations, Part 2 Session 6.3 Communication, reservations, examinations OPDMDs and technology Irene Bowen James A. Bostrom 1

Irene Bowen, J.D. President ADA One, LLC James A. Bostrom Deputy Chief Disability Rights Section, DOJ Presenters 2

The content provided in this presentation is for informational purposes only. Neither the content nor delivery of the content is or shall be deemed to be legal advice or a legal opinion. The audience cannot rely on the content delivered as applicable to any circumstance or fact pattern. The information provided is not a substitute for professional legal advice. 3

The Americans with Disabilities Act of 1990 Broad ban on discrimination Title II (public entities) – state and local colleges and universities Title III (private entities) – private colleges and universities -- regardless of federal funding 4

ADA Amendments Act ADAAA reset the definition of “individual with a disability” EEOC has issued regulations DOJ has not begun rulemaking 5

DOJ’s new ADA regulations Issued July 26, 2010 Updates to 1991/1994 regulations under titles II (28 C.F.R. part 35) and III (28 C.F.R. part 36) Two parts – Policy changes – New accessibility standards Regulations and guidance are at 6

2010 revisions: effective date March 15, 2011 Policies to be compliant Applies to service animals, mobility devices, etc. For hotel reservation policies (including campus conference centers), an extra 12 months 7

2010 revisions: compliance date March 15, 2012 New construction and alterations MUST comply with the Standards Existing facilities to be compliant with barrier removal and program accessibility requirements (using new Standards as measure) NOTE: On March 15, 2012, DOJ modified compliance date for existing pools. Sections (c), (d). 8

AGENDA Effective communication Reasonable modifications – Event ticketing – Lodging reservations – Examinations and courses OPDMDs Technology and the web Twelve tips 9

DON’T HANG UP THAT PHONE! Effective communication 10

Generally Under title III, communications with individuals with disabilities must be “effective.” 28 CFR Under title II, communications with individuals with disabilities must be “as effective as” communications with others. 28 CFR (a), (c)(1). Provide appropriate auxiliary aids and services “where necessary.” 28 CFR (b), (c)(1). 11

12 TRS calls Entity must answer telecommunications relay calls in same manner as it answers others. 28 CFR (c), (d)(4) See Wells Fargo settlement.

13 Automated attendant systems Automated voice mail, interactive voice response systems If provided, must ensure effective communication in real time with individuals using auxiliary aids and services (TTYs, TRS). 28 CFR (b), (d)(4).

Changes to definitions 2010 regulation revisions Added to examples of auxiliary aids/services – Written notes, accessible electronic technology – Screen reader software “Qualified” interpreters and readers defined/clarified 28 CFR ,

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 28 CFR (a), (b), (c), (c). 15

Video remote interpreting 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 28 CFR (d), (f). 16

Missed appointments DOJ guidance to section (c) of title III rule: As such, medical providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ``no- show'' for the scheduled appointment. The medical provider, however, may charge for the missed appointment if all other patients are subject to such a charge in the same circumstances. 75 Fed Reg (Sep. 15, 2010) 17

Missed appointments  classes? See Utah Valley University OCR letter, , July 16, 2010 Factors re: acceptable policy and practice as to charging for excessive no-shows – Written policy signed by students – 2 hours notice – 6 ways to cancel – 3 no-shows allowed – Counseling provided – Opportunity to reduce fee 18

Other general principles Type of auxiliary aid or service varies per – Individual’s method of communication – Nature, length, and complexity of communication – Context Consultation – Title III: consult with individual whenever possible – Title II: primary consideration to requests of individual Effective communication must be provided in – Accessible format – Timely manner – Way that protects privacy and independence (b)(2), (c)(ii) 19

Primary consideration: pending appellate cases (not under 2010 revisions) Both about students with cochlear implants K.M. v. Tustin (C.D. Cal, July 2011) Argenyi v. Creighton University Medical School (D.Neb. Sept 2011) 20

…Pending appellate cases DOJ filed briefs on questions in both, under original regulations. Issues:  Primary consideration  Have to show otherwise “effectively excluded” from programs? DOJ’s views  Standards are effective communication, equal opportunity to participate.  No need to show effective exclusion. Mere access is not enough. 21

The Web: NAD v. Netflix June 19, 2012, decision of Massachusetts District Court JUDGE-PONSOR-ORDER pdfhttp://dredf.org/captioning/MJP-DENIED- JUDGE-PONSOR-ORDER pdf Allowed case re: captioning of streaming videos to proceed A web-only business can be a “place of public accommodation” under the ADA (following NFB v. Target Corporation and DOJ’s brief) Congress intended ADA to adapt to changes in technology 22

…The Web: NAD v. Netflix Copyright (“control”) issues may be raised later Cost/economic hardship will be considered later as to “undue burden” exception No “positive repugnancy” between ADA and Twenty First Century Communication and Video Accessibility Act of 2010 (delivery of video programming from US television) DOJ’s statement of interest:

Facing forward: five steps to effective communication 1.Let the public know your policies 2.Review policies re: TRS, automated attendant systems, companions, VRI 3.Train staff 4.Be prepared but… be flexible with approaches 5.Evaluate web sites 24

REASONABLE MODIFICATIONS Event ticketing Hotel reservations Examinations and courses 25

Entity must make reasonable modifications in policies where necessary to avoid discrimination. 28 CFR (b)(7), regulation revisions: – Service animals – Miniature horses – Mobility devices – Event ticketing – Hotel reservations – Examinations and courses Reasonable modifications 26

Event ticketing Application of equal opportunity concept: A covered entity may not, on the basis of disability … provide a qualified individual with a disability an opportunity that is not equal to that afforded others. 28 CFR (b)(1)(i-iii), (b) 27

Event ticketing Distribution outlets Clear seating charts Ticket transfers “Sell outs” and accessible seats Equivalent pricing and access limitations Verification 28 CFR , (f). See DOJ technical assistance piece. 28

Examinations and courses Entity that offers exams or courses re: licensing, credentialing… shall offer them in a place and manner accessible to people with disabilities. 28 CFR Generally, exam must ensure that results accurately reflect aptitude, achievement level, etc. rather than reflecting impaired sensory, manual, or speaking skills. DOJ: Colleges and universities should follow. 29

Documentation Any request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid. 30

Details Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services -- those received in similar testing situations including those provided in response to an Individualized Education Program or Section 504 Plan. 31

Limited inquiries Generally, accept without further inquiry documentation provided by a qualified professional who has made an individualized assessment of the applicant. May be in form of letter from a qualified professional and/or evidence of a prior diagnosis, accommodation, or classification (e.g., eligibility for a special education program) 32

New AHEAD Guidance on Documentation Practices Three levels of documentation Primary: student’s self-report Secondary: observation and interaction Tertiary: information from external or third parties Documentation process Individual review Commonsense standard Non-burdensome process Current and relevant information May 14, 2012: 33

Reservations for places of lodging Individuals with disabilities must be able to make reservations for accessible guest rooms during the same hours and in the same manner as other guests 28 CFR (e) 34

35 … Reservations Access to reservations systems Information about features Hold back accessible rooms Block accessible rooms Guarantee of holding specific accessible room that is reserved Ensure that third parties act consistently with rule – Reasonable efforts – Information provided

OPDMDs 36

TECHNOLOGY AND THE WEB 37

Four advance notices of proposed rulemaking published July 26, 2010 Four areas in which DOJ may propose rulemaking – Accessibility of web information and services – Movie captioning and video description – Next generation – Equipment and furniture All are at DOJ’s ADA website 38

TWELVE TIPS 39

2010 changes: Twelve Tips* 1.Update policies on service animals. 2.Alert staff to new provisions on miniature horses. 3.Develop clear policies about OPDMD’s. *See Alert article, “Are You There Yet?” 40

Twelve Tips 4.If you use VRI, be sure it works and meets DOJ’s standards. 5. Check your phone systems for effective real-time communication. 6. Don’t drop the call (TTY or TRS). 41

…Twelve Tips 7.Study the provisions about exams and courses. 8.Align your event ticketing policies with the 2010 provisions. 9.For any facilities with overnight guests (conference centers, hotels), update your reservation systems for 2010 compliance. 42

…Twelve Tips 10. Follow the 2010 Standards for new construction and alterations. 11. Complete barrier removal and program accessibility changes. 12. Keep up with your homework. BONUS: Evaluate web sites and other electronic communication. 43

ADA One articles: Ahead of the ADA Access Curve Part 4 DOJ’s new regulations: It’s about time! one.com/articles-tips/ahead-of-the-ada-access-curve-part-4/ one.com/articles-tips/ahead-of-the-ada-access-curve-part-4/ Part 5 The Ides of March are upon us: Are you complying with DOJ’s new regulations about service animals? one.com/articles-tips/ahead-of-the-ada-access-curve-part-5/ one.com/articles-tips/ahead-of-the-ada-access-curve-part-5/ Part 6 DOJ’s new ADA requirements: Six common myths and mistakes access-curve-part-6/ access-curve-part-6/ Part 7 DOJ’s new ADA requirements: Six more common myths and mistakes ada-access-curve-part-7/ ada-access-curve-part-7/ 44

Resources DOJ web site: DOJ information line: (voice) (TTY) ADA TA Centers: (Voice/TTY) Access Board: 45

CONTACT Irene Bowen, J.D. President, ADA One, LLC 9 Montvale Court Silver Spring, MD Web site: (O) (F) 46

Jim Bostrom CONTACT 47

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