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Implementing the New ADA and DOJ Regulations A Policy Tele-Institute for Higher Education 1.

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Presentation on theme: "Implementing the New ADA and DOJ Regulations A Policy Tele-Institute for Higher Education 1."— Presentation transcript:

1 Implementing the New ADA and DOJ Regulations A Policy Tele-Institute for Higher Education 1

2 Session 3: Program Access and Policy Changes under the New Regulations Presenters Irene Bowen, ADA One, LLC L. Scott Lissner, The Ohio State University November 16, 2010 2

3 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 3

4 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 4

5 OVERVIEW: What has changed? New Building Standards Service animals Mobility devices Communication Hotel reservations Event ticketing 5

6 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 6

7 Change Cycle 1.Review the changes 2.Work with those affected: planners, facilities, residential life, athletics, IT, academic affairs, …. 3.Take stock and organize training 4.Identify choice points and inform decision makers 5.Implement new policy 7

8 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 8

9 APPROACH TO FACILITIES What Standards to Use When Safe Harbors for Program Access An Opportunity to Take Stock: Assessing Facilities Partners On & Off Campus 9

10 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 1991s) 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) 10

11 Existing facilities and change of standards Change of standards: implications for – Program access – Barrier removal As of March 15, 2012, new measure of whats a barrier and whats an accessible facility (i.e., 2010 Standards) BUT if element already complies with UFAS (for title II) or 1991 Standards (and you dont alter it), its still ok after March 15, 2012 – It gets a safe harbor – That is, it doesnt have to be altered just for the sake of program access or barrier removal. 11

12 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 12

13 …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 13

14 Evaluate elements that are subject to safe harbor Complying elements: Document compliance with 1991 Standards (or UFAS) Noncomplying elements: Bring up to standards OR use alternative means of providing program access Program access and safe harbor: action steps 14

15 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. 15

16 …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 16

17 Facilities not subject to safe harbor Evaluate facilities/elements not specifically included in 1991 Standards/UFAS Alter them per 2010 Standards OR use alternate means to provide program access For new construction and alterations (even before 2012), use 2010 Standards 17

18 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 18

19 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

20 …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 20

21 …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


23 Policies: by March 2011 Significant changes to address Effective communication Service animals Ticketing for events Hotel reservations (by March 2012) Mobility devices 23

24 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 Cant Spell HTML 24

25 § 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 25

26 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. 26

27 § 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. 27

28 SERVICE ANIMALS Its a Dogs 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 28

29 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 29

30 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? 30

31 …Staff directives Cant ask about disability Cant request documentation Tasks can be for people with physical, sensory, psychiatric, intellectual, or mental disabilities. 31

32 ...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 32

33 …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 33

34 …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 34

35 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 35

36 …Service Animals: Other laws and requirements DOJ: ADA rules dont 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 36

37 Miniature Horses Make reasonable modifications to permit if appropriate Allowed if – Reasonable – Individually trained 37

38 …Miniature Horses Use assessment factors – Type, size, weight (whether facility can accommodate) – Handlers control – Whether housebroken – Legitimate safety requirements of specific facility 38

39 …Miniature Horses Many service animal provisions also apply – Admit individual without animal – Care and supervision – No surcharges Other laws may apply 39

40 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 40

41 Sections of regulations Title II: Sections 35.104, 35.136 Title III: Sections 36.104, 36.302(c)(2)-(9) 41

42 TICKETING & RESERVATIONS Selling Accessible Seats Is there Room at the Inn? Assisting Athletics and Auxiliary services 42

43 § 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 43

44 Ticketing Hold and Release Secondary Market Prevention of Fraud – Singel Event – Series – Investigations 44

45 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. 45

46 § 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 46

47 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 47

48 MOBILITY DEVICES General Policy for Wheelchairs Segways, Golf Carts & Other Mobility Devices Setting the boundaries Transportation & Parking, Campus Security or Both? 48

49 Two tiers of devices Manually powered mobility devices Wheelchairs, walkers, crutches, canes, braces Other power-driven mobility devices Devices not necessarily designed for use by people with disabilities 49

50 …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 (OPDMDs) Sections 35.104, 35.137, 36.104, 36.311 50

51 Other Power-Driven Mobility Device (OPDMD) [A]ny mobility device powered by batteries, fuel, or other engines whether or not designed primarily for use by individuals with mobility disabilitiesthat is used by individuals with mobility disabilities for the purpose of locomotion. 51

52 Use of OPDMDs Must make reasonable modifications to permit use by people with mobility disabilities Burden is on entity to demonstrate use is not reasonable: that the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity. 52

53 OPDMD Policies: DOJ guidance Develop policy – Clearly state circumstances under which permitted (follow assessment factors) – Specific rule – Procedure for assessment – Consider grouping by type – Example: GSA policy (see p. 56200 of Federal Register notice) Give advance notice of policy 53

54 OPDMD Assessment Factors 1.Device: type, size, weight, dimensions, and speed 2.Facilitys volume of pedestrian traffic 3.Facilitys design and operational characteristics – indoors/outdoors – square footage – density and placement of stationary devices – availability of storage 54

55 …OPDMD Assessment Factors 4. Whether use creates a substantial risk of serious harm to – the immediate environment or – natural or cultural resources 5.Whether use poses a conflict with Federal land management laws and regulations. Sections 35.137(b)(2) and 36.311(b)(2) 55

56 Limits on inquiries Can request a credible assurance that an OPDMD is required because of the persons disability. – Give examples in policy: placard, I.D. May not ask about nature and extent of disability. 56

57 SAFETY & DIRECT THREAT Setting Speed Limits and Safety Analysis Codifies past guidance Working With Campus Risk Management Groups 57

58 § 35.139 Direct Threat (b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 58

59 § 35.130 Direct Threat 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 on mere speculation, stereotypes, or generalizations about individuals with disabilities. 59

60 Resources DOJ web site: DOJ information line: 800 - 514 - 0301 (voice) 800 - 514 - 0383 (TTY) ADA TA Centers: 800-949-4232 (Voice/TTY) Access Board: Handout: Tips for the Transition to 2012 (revised) 60


62 Irene Bowen, J.D. President, ADA One, LLC 9 Montvale Court Silver Spring, MD 20904 Web site: http://ADA-One.com Email: 301 879 4542 (O) 301 236 0754 (F) CONTACT 62

63 CONTACT L. Scott Lissner, ADA Coordinator, The Ohio State University 1849 Cannon Drive Columbus, OH 43210-1266 Lissner.2@OSU.EDULissner.2@OSU.EDU Http://ada.osu.eduHttp:// (614) 292-6207(v); (614) 688-8605(tty) (614) 688-3665(fax) 63

64 Other opportunities NAADAC webinars November 17: ADA Standards - Toilets, Bathing, Kitchens, & Plumbing Elements December 1: ADA Standards - Specialized Rooms, Spaces & Elements Incl. Residential & Rec. All seven sessions available on CD and for MP3, etc. To register and for more information: (direct registration) or (NAADAC website) Next NAADAC conference (four days of training): April 11-14, 2011, Miami, FL Information available in mid-December at NAADACs website: 64

65 Next tele-institute session Session 4 – Establishing Policy, Practice and Resources for Virtual Environments Tuesday, November 30, 2010 65

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