2. 1 Mike Marshall, CSP,CMSP Loss Control Consultant Division of Risk Management Department of Justice Final Rules September 15, 2010 28 CFR Parts 35 and 36

6. Roadmap to ADA Compliance

7. Changes in the 2010 ADA Standards CHANGE

8.  1991 Standards: The original ADA Standards for Accessible Design  1991 Title II and III Regulation: The original Title II and III regulations  2004 ADAAG: Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines  NPRM: Notice of Proposed Rulemaking for Title I  Title II and Title III 2010 Regulations Effective March 15, 2011  2010 Standards for Accessible Design: Incorporation of 2004 ADAAG and New Elements for which there are neither scoping or technical specifications the 1991 standards  The Final Rules: The original 1991, Title II and Title III regulations, and the adoption of the 2010 Standards www.access-board.gov/ada-aba/final.cfm

9. Dates to Remember  March 15, 2011 ◦ Effective date of Final Rule  March 15, 2012 ◦ Effective date of 2010 Standards for Accessible Design

10. March 15, 2011 New Regulations Begin For:  Service Animals  Ticketing (companion seating requirement)  Use of wheelchairs, manually powered mobility devices and other power-driven mobility devices  Effective Communication  Auxiliary aids and services  Examinations and courses

11. March 15, 2012 New Regulations Begin For:  Hotel Reservation Systems  New construction and alterations compliance with the 2010 ADA Standards for Accessible Design

12. Compliance with 2010 Standards Title II (State and Local Governments  Compliance for New Construction and Alterations ◦ If the start of physical construction is on or after March 15, 2012 then the new regulations apply. (This does not include ceremonial ground breaking, structure raising prior to site preparation or setting up construction trailers equipment, etc.)

13.  Public (Title II) and Private (Title III) entities still have obligations to comply with DOJ 1991 Regulations  Public and Private covered entities have obligation to comply with 1991 ADA Standards for Accessible Design  Public and Private entities may have options to comply with 2010 Standards for Accessible Design

14. Transition Plan 28 CFR 35.150 (d)  Every Inaccessible Facility identified in the self evaluation as needing structural modification must be in the transition plan  Specify steps needed to complete the modifications  Solicit input from interested parties (with disabilities)  Copy of the plan must be available for public inspection  Should be completed ASAP or no later than March 15, 2012

15.  Physical Access If physical construction begins before March 15, 2010 you can choose to comply with the 1991 standards, UFAS or the 2010 standards. If there are planning/construction delays and physical construction does not start until on or after March 15, 2012 then the courthouse would need to comply with the 2010 Standards.  Program Accessibility ◦ What will it cost later to modify for program accessibility?

16. Physical Access Response: Since the start of construction cannot be guaranteed use the 2010 Standards.  Program Accessibility ◦ What will it cost later to modify for program accessibility?

17. 16

18. Direct Threat: New Definition If an individual poses a direct threat to the health or safety of others that cannot be eliminated by modification of policies, practices or procedures, or by the provisions of auxiliary aids or services. ◦ An entity is not required to allow an individual to participate in or benefit from  Programs  Services  Activities

19. Direct Threat Examples  Individual is issued a Job offer to operate an electric saw conditioned on a medical examination.  On the medical examination form, the Individual discloses her psychiatric disability and states that she takes a medication to control it.  This medication is known to sometimes affect coordination and concentration.  The doctor determines that the individual experiences negligible side effects from the medication because it is a relatively low dosage.  Individual has an excellent safety record at a previous job, where she operated similar machinery while taking the same medication. Does this person represent a Direct Threat in any: Services, Programs or Activities ?

20.  A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.

21.  Applies to: ◦ All operations of all services and programs regardless of construction date  Benefits cannot be denied because facilities are inaccessible  Every building need not be made accessible  May provide services at an accessible site or an aide ◦ Services to Contractors  Testing, Services, Shelters and Events Required even if no people with disabilities are known to utilize the program

22. 2010 Standards Supplemental Requirements Public entities must use supplemental requirements in existing facilities unless undue burden results  Public entities also must use, effective March 15, 2012, for elements that had no scoping or technical requirements in the 1991 Standards or UFAS EX: swimming pools, play areas, fishing piers, residential facilities.  Program Access  What will it cost later to modify for program accessibility?

24.  Elements that comply with the corresponding requirements for those elements in the 1991 Standards or UFAS need not be modified to comply with the 2010 Standards unless they are altered on or after March 15, 2012 (sec.35.150(b)(2)(i))  Safe harbor does not apply to elements in existing facilities that were not covered by specific requirements in the 1991 Standards or UFAS  Program Access Requirements must be met

25.  Residential Facilities and dwelling units  Recreational boating facilities  Exercise machines and equipment  Fishing piers and platforms  Golf facilities  Miniature Golf  Amusement rides  Play areas  Saunas and steam rooms  Swimming pools, wading pools, and spas  Shooting facilities with firing positions  Miscellaneous

26. The accessible route must connect the boundary of each area of sport activity Court Sports – the route must connect both sides of the court One route must connect accessible buildings, facilities, elements and spaces on the same site

27. 26 Accessible Routes to all Elements

28. 27

29. 28

30. Sloped Entry or Pool Lift are Preferred At least one route to the deepest point

31. 30 Spa lift Sloped Ramp Transfer Systems

32. What Golf Facilities Scoping at least 1 accessible route connects golf car rental, toilet rooms, shelters, and at least 5%, but no fewer than 1, of practice putting greens, teeing grounds, and teeing stations at driving ranges designed and constructed for golf car entry and exit Technical requirements – golf car routes

33.  They must be designed for ages two and above.  Specific requirements for: ◦ Parks ◦ Schools ◦ Child Care Centers ◦ Shopping Centers  Accessible Ground and Elevated Components  Accessible Routes and Transfer Systems  Accessible Ground Surfaces

34. Playground for larger children Playground for smaller children

38. Scenario: Grand High School calls regarding a pool facility with adjoining children’s play area first constructed in 2004 in compliance with 1991 standards Question: Do they have to make any changes to their pool facility and/or play area as a result of the publication of the 2010 Regulations and Standards? Response: They must review their programs and make necessary changes to the pool and play areas in accordance with the 2010 standards because there were no standards for pool and play areas previously. The “Safe Harbor” does not apply. #1. Verify with them whether or not they followed any accessibility guidelines when constructing the pool and play areas. #2. They would not have to comply with the 2010 standards for the remainder of the facility if it was built in compliance with 1991 standards. #3. What program access problems could exist.

39. Exercise Machines and Equipment 30” x 48” clear floor or ground space served by an accessible route clear floor space allowed to overlap for more than 1 piece of equipment clear floor space positioned for mobility device user

40. Scoping at least one of each type machine

41. What Technical 30” x 48” clear floor space served by an accessible route

42. Court sports facilities Accessible route to each area of sport activity (defined in sec. 106) Exempt from firm, stable, and slip resistant (sections 206.2, 206.7 and 221.2)

43. Platform lift is acceptable but Level area is encouraged

44.  Question #1. Is the entity required to make the facilities accessible to all sports activities?  Question #2. Is access to the public transportation required this year or next year?  Question #3. What accessible features are required for the tennis courts?

45. 44  Definition: “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.  Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” §35.104

46. 45  A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  May Consider Type, Size and Weight and the Specific Needs of the Facility and;  Whether the facility can accommodate these features.  Must be housebroken and in sufficient control. Title II §35.136 Title III §36.302(c)(3)

47. 46  Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.

48. 47 Service Animals: Special Issues  Businesses that sell or prepare food must allow Service Animals in public areas even if state or local health codes prohibit animals on the premises.  Allergies are typically not a reason to exclude service animals.

49. 48  A service animal shall be under the control of its handler.  A service animal shall have a harness, leash, or other tether, unless handler is unable to use one or it interferes with the service animal’s safe, effective performance of work or tasks.  May be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

50. 49  A public entity may ask an individual with a disability to remove a service animal from the premises if— ◦ the animal is out of control; and ◦ the animal’s handler does not take effective action to control it; or ◦ the animal is not housebroken.

51. 50  If a public entity properly excludes a service animal, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

52. TThe Center for the Arts refused access to a patron whose service dog previously yipped or barked at intermission. DDog did not disturb performances and barking was rare. NNo patron ever complained. PPatron was arrested when she refused to leave her dog in the car or remove the dog. CCenter argued a fundamental alteration of services when the dog barked because it would deter other patrons from attending and artists from appearing. HH: Upheld damages for Plaintiff $5,000 LLENTINI v. CALIFORNIA CENTER FOR THE ARTS ESCONDIDO 10

53.  If the Impairment is NOT Obvious Two Questions are Permitted: ◦ Is the animal needed for a disability and; ◦ What task(s) the animal has been trained to Perform.

54.  Make inquiries when it is apparent the animal is a service animal;  Ask for ANY kind of documentation including certification, training or licensing;  Ask them to demonstrate the task;  Inquire about the nature of the individual’s disability;  Require special ID cards for the animal.

55. 54  Animals that are for Comfort or Emotional Support are Not Service Animals  However: ◦ FHA Recognizes them (HUD also) ◦ State or Local Law may recognize them

56. 55  Include:  wheelchairs  manually-powered mobility aids, walkers, crutches, canes, braces, or  other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian use.

57. 56  A 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.  Includes mobility scooters  No size or weight maximum §35.104 and §36.104

58. 57  Any mobility device powered 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, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. §35.104 and §36.104

59. 58  May request credible assurance that the mobility device is required because of the person’s disability.  May Not inquire about the person’s disability.  Must accept the presentation of a valid, State- issued, disability parking placard or card, or other State-issued proof of disability as a credible assurance.  Must accept a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability.

60. 59  Develop a Policy that clearly states: ◦ Types and sizes permitted ◦ Places, times, and circumstances permitted ◦ Speed limits ◦ Storage availability ◦ Policy related to credible assurance  Include a Safety Analysis ◦ No fuel driven engines indoors (Powered by fuel, batteries or other engines)  Publish for advance notice http://www.gsa.gov/graphics/pbs/Interim_Segway_Poli cy_121007.pdf http://www.gsa.gov/graphics/pbs/Interim_Segway_Poli cy_121007.pdf

62. 61

63. Chapter 2 - Scoping Requirements Sections 201 - 243 Chapter 3 - Building Blocks Sections 308 - 309 Chapter 4 - Accessible Routes Sections 402 - 403 Chapter 7 - Communication ElementsSections 702 Chapter 8 - Special Rooms and Spaces Sections 801 – 811 Chapter 10- Recreation FacilitiesSections 1001-1010 U.S. Department of Justice 2010 ADA Standards

64.  A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.  However, the public entity must ensure that its safety requirements are based on actual risks, not ◦ speculation ◦ stereotypes ◦ generalizations

65. Accessibility If it can demonstrate that being able to swim is necessary for safe participation in the class. Program Access This is permitted even if requiring such a test would tend to screen out people with certain kinds of disabilities

66. Existing Buildings and Facilities (Old) Under section 4.1.6(1)(c) of the 1991 Standards If alterations to single elements, when considered together, amount to an alteration of a room or space in a building or facility, the entire room or space would have to be made accessible.

67. Entities can alter as many elements in a space as they like without triggering a requirement to make the entire space accessible based on the alteration of individual elements If the intent was to alter the entire space, the entire space must be made accessible and comply with the applicable requirements of Chapter 2 of the 2010 Standards

68. .

69. “Primary function area”: Any area where a major activity takes place: Customer services areas Work areas Offices and work areas in commercial facilities Does NOT include mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms. Primary Function

70. (NEW) Alterations to Primary Function Areas Under the revised title II regulations Uniform Federal Accessibility Standards (UFAS) do not apply. 1991 Standards / or adoption of the new 2010 Standards, are now the regulations. Now subject to the path of travel requirement.

71.  Physical Access  What is required  Program Access  What is required

72. Path of Travel(NEW)  When doing alterations, there has to be an accessible path of travel-route that goes to the entrance.  Includes sidewalks, lobbies, corridors, rooms, and elevators; as well as restrooms, phones, and drinking fountains serving the area.  Does NOT include windows, hardware, knobs, controls, electrical outlets, and signs unless they affect usability.

73. 72

74. #1. Accessible Entrance #2. Accessible Route to Altered Area Visible alarms installed only when an existing fire alarm system is upgraded, replaced, or a new system is installed 215.1 #3. At least one restroom for each sex or one single unisex restroom #4. Accessible Telephones #5. Accessible Drinking fountains #6. Accessible Parking

75.  Title II regulation now mirrors the Title III path of travel requirements. (sec. 35.151(b))  Safe harbor exists for paths of travel constructed or altered in compliance with the 1991 Standards or UFAS before March 15, 2012, even when a primary function area has been altered. (sec. 35.151(b)(4)(ii)(C))

76. Disproportionate Costs/Path of Travel (NEW)  Alterations made to provide an accessible path of travel to the altered area will be disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.

77.  If the 2010 Standards reduce the technical requirements of an element or feature, or reduce the scoping below that required by the 1991 Standards, the public entity may reduce the level of accessibility to that required by the 2010 Standards EX: wheelchair seating in assembly areas 1991 – 5000 Seat Stadium = 51 wheelchair seats 1% + 1 space. 2010 – 5000 Seat Stadium = 36 wheelchair seats 36 wheelchair spaces

78.  Changes to design requirements for assembly areas: ◦ Appropriate vertical and horizontal dispersion of accessible seating, sightlines over standing spectators ◦ The provision of companion seating ◦ Lawn seating areas and exterior overflow areas without fixed seats must now connect to an accessible route.

79. 78  Public (Title II) 28 CFR 35.138  Private (Title III) 28 CFR 36.302(f) Sales: Equal opportunity to the purchase accessible seating during: Same hours available to all Same stages; pre-sales, general sales, promotions, lotteries, wait lists etc. Same distribution Same types and numbers Same terms and conditions

80. 79 Scenario: You receive a call from Snow College South Campus regarding it’ sports and activities building on or after March 15,2011. Question: What information do we need to provide to individuals about our accessible seating locations. Response: Availability of accessible seating via all methods that you currently use to communicate with patrons including telephone, website, email, flyers, etc. If maps/brochures showing seating are provided to general public similar information showing accessible seating locations must be provided to individuals with disabilities.

81. 80  Accessible same as other for single events or series of events for all price levels.  If no accessible seating at a particular price level, the percentage of tickets for accessible seating that should have been available at that price level (determined by the ratio of the total number of tickets at that price level to the total number of tickets in the assembly area) shall be offered for purchase, at that price level, in a nearby or similar accessible location.

82. 81  Two Seating Areas (3000 Total Seats) ◦ Floor 2,700 Seats ($100) = Has 20 Accessible Seats ◦ Balcony 300 ($50) = Has no wheelchair or companion seats  3000 Total Seats ÷ 300 Upper Seats = 10%  To get the additional 10% needed at a lower price on the floor, 2 of the 20 $100 seats must be priced at $50

83. 82  For each ticket for a wheelchair space, three additional contiguous seats in the same row shall be made available unless all ticket sales are limited to a fewer number.  If there are insufficient number of accessible seats, a public entity shall offer the next highest number of such tickets available for purchase and shall make up the difference by offering tickets for sale for seats that are as close as possible to the accessible seats.

84. 83  Single event tickets – May ask if the purchaser “has a mobility disability or disability that requires the use of the accessible features provided in the accessible seating or if they are purchasing for someone who has a mobility disability or disability that requires the use of the accessible features provided in the accessible seating.”  Series of Events/Subscription – May ask purchaser of accessible seating to attest in writing to the above.

85.  Alterations to historic properties must comply, to the maximum extent feasible, with the provisions applicable to these properties (depending on the date - 1991 or 2010 Standards or UFAS)  If it is not feasible to provide access to an historic property that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be used to meet sec. 35.150. (sec. 35.151(b)(3))

87. #1.Accessible Entrance 3 2 1 # 2. An accessible route from arrival Point to accessible entrance 3 3 #3 Accessible route to accessible facilities

88.  The 2010 Standards also adds exceptions that exempt site arrival points and accessible facilities within a site from the previous rules.  The 2010 Standards exempts facilities within a site from the accessible route requirements where the only means of access between them is a vehicular way that does not provide pedestrian access. 87

90.  An accessible route must connect the accessible seating and the stage and other ancillary spaces used by performers. (existing)  If a circulation path directly connects a seating area and a stage (either a permanent or temporary stage), entities must provide an accessible route that directly connects the accessible seating and the stage.  If a direct circulation path from the seating area to the stage does not exist, a direct accessible route need not be constructed.

91.  When the aggregate area of all press boxes in a sports facility does not exceed 500 square feet the accessible route requirement does not apply for : ◦ small press boxes that are located in bleachers with entrances on only one level ◦ small press boxes that are free-standing structures elevated 12 feet or more above grade

92. 91

93. 92

95.  In single-user toilet rooms, the water closet now must provide clearance for both a forward and a parallel approach. 94

96.  In most situations, the lavatory can overlap the water closet clearance. 95

97.  The in-swinging doors of single use toilet or bathing rooms may swing into the clearance around any fixture if clear floor space is provided within the toilet room beyond the door's arc. 96

98.  Under the 1991 Standards, its was necessary to design work areas to permit an employee using a wheelchair to approach, enter, and exit the area.  Under the 2010 Standards, it will be necessary for new or altered work areas to include accessible common use circulation paths within employee work areas, subject to certain specified exceptions. 97

99. 98 Van Accessible Parking Spaces OLD One in every eight spaces Must be van accessible NEW One in every Six spaces must be van accessible

100. Only required on public right of way NO LONGER REQUIRED on curb ramps, hazardous vehicle areas or reflecting pools

102.  General adult reach range is now: 48” maximum / 15” minimum Over obstruction with max. depth of 10”  Ex: Tops washers / dryers – 36” Fuel dispenser controls – 54”  Children ◦ 3 to 436” high 20” low ◦ 5 to 840” high 18” low ◦ 9 to 1244” high 16” low

103.  Operable parts are exempt from all of the technical requirements for operable parts in section 309. The exemptions cover: ◦ operable parts only for use by service or maintenance personnel ◦ floor electrical receptacles ◦ certain outlets at kitchen counters ◦ heating, ventilating and air conditioning diffusers ◦ redundant controls for a single element, other than light switches ◦ exercise machines and equipment 102

104.  Housing operated by or on behalf of a place of education ◦ Undergraduate, occupied school year only = ◦ follow “transient lodging ” standards ◦ Graduate = residential standards (5% / 2%)  Undergraduate – transient lodging ◦ Rooms with mobility and communication features dispersed among room types ◦ Accessible route throughout the unit ◦ Turning space (60” or T-shaped turn)

105. Existing Shelter -- Physical Access Checklist Accessible route to shelter Level entry or ramp Wheelchair accessible toilet stall or unisex accessible restroom 32 inch door clearance (Primary doors only) ADA Checklist for Emergency Shelters www.ada.gov/pcatoolkit/chap7emergencymgmtadd1.htm

106.  Fire Alarms  Plumbing  Telephones  2-way Communication  Assistive Listening Systems  Signage  Elevators (including LULA’s) and lifts  Kitchens 105

107. Remember the Priorities…  Getting to the door (parking, accessible route, entrances and doors)  Accessing the service ( information, food, services inside the schools)  Give direction to the closest accessible restrooms by signage if they are not all accessible.  Make sure that the information to the accessible features at all of our facilities is on our website.

108. What