1. 1 2010 Revised ADA Regulations: An Overview 18 th Annual ADA Update Mid-Atlantic ADA Center Baltimore, Maryland September 21, 2011

2. DOJ’s Revised ADA Rules Overview of revised rule. Overview of revised rule. 2010 Standards: Compliance Dates, “Existing Facilities”, Safe Harbor, and Supplemental Requirements. 2010 Standards: Compliance Dates, “Existing Facilities”, Safe Harbor, and Supplemental Requirements. Selected changes to nondiscrimination policies. Selected changes to nondiscrimination policies. 2

3. Revisions to ADA Regulations Published September 15, 2010 First major updates/revisions in 19 years First major updates/revisions in 19 years  Update of nondiscrimination policies  Adoption of updated accessibility standards Two regulations Two regulations  Title II: State and local governments  Title III: Public accommodations and commercial facilities 3

4. Effective Date: Title II and Title III Rules General effective date - March 15, 2011 General effective date - March 15, 2011 As of this date, policies must be compliant with new requirements (except for hotel reservations – 18 months). As of this date, policies must be compliant with new requirements (except for hotel reservations – 18 months). 4

5. The 2010 Standards for Accessible Design: Compliance Dates “Existing Facility” Safe Harbor Supplemental Requirements 5

6. Compliance Date for 2010 Standards March 15, 2012 (18 months from date of publication in the Federal Register): March 15, 2012 (18 months from date of publication in the Federal Register):  2010 standards must be followed for new construction, alterations, barrier removal, and program access.  Immediate use allowed. 6

7. Title II: Applicable Standards Until Compliance Date Until March 15, 2012, title II entities can choose to use:  the 2010 Standards;  the 1991 Standards (no elevator exception); or  the Uniform Federal Accessibility Standards (UFAS).   Must follow choice consistently in a facility. 7

8. Title III: Applicable Standards Until Compliance Date Until March 15, 2012, entities can choose to use:  the 2010 Standards or  the 1991 Standards.  Must follow choice consistently in a facility. 8

9. As of March 15, 2012 The 2010 Standards replace the 1991 Standards and must be followed. 9

10. What Standards Apply to Existing Facilities? Title II — Program accessibility Title II — Program accessibility Title III — Readily achievable barrier removal Title III — Readily achievable barrier removal 10

11. Definition of “Existing Facility” Rules add a definition of “Existing Facility” Rules add a definition of “Existing Facility” An “existing facility” is “…a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.” An “existing facility” is “…a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.” 11

12. Safe Harbor – Existing Facilities Elements that comply with the corresponding requirements for those elements in the 1991 Standards do not need to be modified to meet the 2010 Standards unless those elements are altered on or after March 15, 2012. Elements that comply with the corresponding requirements for those elements in the 1991 Standards do not need to be modified to meet the 2010 Standards unless those elements are altered on or after March 15, 2012. Safe Harbor does not apply to those elements in existing facilities that are not subject to specific requirements in the 1991 Standards. Safe Harbor does not apply to those elements in existing facilities that are not subject to specific requirements in the 1991 Standards. 12

13. Supplemental Requirements: No Safe Harbor Amusement Rides; Amusement Rides; Recreational Boating Facilities; Recreational Boating Facilities; Exercise Machines and Equipment; Exercise Machines and Equipment; Fishing Piers and Platforms; Fishing Piers and Platforms; Golf and Miniature Golf Facilities; Golf and Miniature Golf Facilities; Play Areas; Play Areas; Saunas and Steam Rooms; Saunas and Steam Rooms; Swimming Pools, Wading Pools and Spas; Swimming Pools, Wading Pools and Spas; Shooting Positions with Firing Positions; and Shooting Positions with Firing Positions; and Miscellaneous: Team/Player Seating, Accessible Routes to Bowling Lanes and Court Sports Facilities. Miscellaneous: Team/Player Seating, Accessible Routes to Bowling Lanes and Court Sports Facilities. 13

14. Noncomplying Facilities Noncomplying title II and title III facilities, i.e., facilities built after the compliance date for the 1991 Standards, but that are not in compliance with those standards, must be modified as follows: 14

15. Noncomplying Facilities Continued Before March 15, 2012 choice of: Before March 15, 2012 choice of:  1991 Standards  2010 Standards  UFAS (Title II only) On or after March 15, 2012, covered entities must bring their noncomplying facilities into compliance with the 2010 Standards. On or after March 15, 2012, covered entities must bring their noncomplying facilities into compliance with the 2010 Standards. 15

16. Selected Changes to Nondiscrimination Requirements: Wheelchairs and Other Power-Driven Mobility Devices Communication and Auxiliary Aids Service Animals Ticketing 16

17. New Definitions Wheelchair Wheelchair Other Power-Driven Mobility Device Other Power-Driven Mobility Device Direct threat in title II (mirrors title III) Direct threat in title II (mirrors title III) Revised definitions of Auxiliary Aids and Services and Qualified Interpreter Revised definitions of Auxiliary Aids and Services and Qualified Interpreter Qualified Reader Qualified Reader Video Remote Interpreting (VRI) Service Video Remote Interpreting (VRI) Service Service Animal Service Animal 17

18. Wheelchairs and Other Power-Driven Mobility Devices 18

19. Mobility Devices: Overview of Changes Adds a definition of “wheelchair.” Adds a definition of “wheelchair.” Adds a definition of “other power-driven mobility device.” Adds a definition of “other power-driven mobility device.” Provides a number of general provisions regarding these two categories of mobility devices. Provides a number of general provisions regarding these two categories of mobility devices. 19

20. Definition of Wheelchair § 35.104 (title II); § 36.104 (title III) “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.” 20

21. Use of Wheelchairs Covered entities must permit individuals with mobility disabilities to use wheelchairs in any area open to pedestrian use. Covered entities must permit individuals with mobility disabilities to use wheelchairs in any area open to pedestrian use. Must also allow individuals with mobility disabilities to use manually-powered mobility aids (includes include walkers, crutches, canes, braces, or other similar devices) in areas open to pedestrian use. Must also allow individuals with mobility disabilities to use manually-powered mobility aids (includes include walkers, crutches, canes, braces, or other similar devices) in areas open to pedestrian use. 21

22. Other Power-Driven Mobility Device (OPDMD) Defined “[A]ny 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.” 22

23. Definition of “OPDMD,” Continued Includes:  Golf cars;  Electronic personal assistance mobility devices (e.g., Segway®); or  Any mobility device that is not a wheelchair that is designed to operate in areas without defined pedestrian routes. 23

24. Use of OPDMDs § 35.137 (title II); § 36.311 (title III) Covered entities must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs, unless... Covered entities must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs, unless...  the entity can demonstrate that the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity. 24

25. Reasonable Modifications Regarding OPDMDs Burden on entity to show it is not reasonable to allow OPDMD on premises or portion of premises. Burden on entity to show it is not reasonable to allow OPDMD on premises or portion of premises. Assessment is made regarding the class of devices, instead of an individual's use of the device. Assessment is made regarding the class of devices, instead of an individual's use of the device. 25

26. OPDMD Assessment Factors Covered entities must consider specific assessment factors to determine whether a reasonable modification can be made. Covered entities must consider specific assessment factors to determine whether a reasonable modification can be made.  Type, size, weight, dimensions and speed of device;  Facility’s volume of pedestrian traffic;  Facility’s design and operational characteristics; 26

27. OPDMD Assessment Factors  Whether legitimate safety requirements can be established to permit safe operation of the OPDMD in the specific facility; and  Whether there is a substantial risk of substantial harm to immediate environment or natural or cultural resources; conflicts with Federal land management laws and regulations. 27

28. Legitimate Safety Requirements Described in § 35.130, new for Title II entities. Described in § 35.130, new for Title II entities.  Legitimate safety requirements necessary for safe operation are permissible.  Must be based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities. 28

29. Impermissible Questions Entities may not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability. 29

30. Permissible Questions The rules allow covered entities to ask persons using an other power-driven mobility device to provide a “credible assurance” that the device is required because of the person’s disability. 30

31. Credible Assurance A valid, disability parking placard or card, or other State-issued proof of disability: one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements. A valid, disability parking placard or card, or other State-issued proof of disability: one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements. In lieu of valid placard, card, or other State- issued proof of disability, verbal representation, not contradicted by observable fact, that the OPDMD is being used because of a mobility disability. In lieu of valid placard, card, or other State- issued proof of disability, verbal representation, not contradicted by observable fact, that the OPDMD is being used because of a mobility disability. 31

32. Communications and Auxiliary Aids and Services 32

33. General Rule: Title II “A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 33

34. General Rule: Title III “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….” 34

35. Individuals with Disabilities Individuals who are deaf or hard of hearing; Individuals who are deaf or hard of hearing; Individuals who are blind or have low vision; and Individuals who are blind or have low vision; and Individuals who have speech-related disabilities. Individuals who have speech-related disabilities. 35

36. Effective Communication § 35.160 Title II (“Communications”) § 35.160 Title II (“Communications”) § 36.303 Title III (“Auxiliary Aids and Services”) § 36.303 Title III (“Auxiliary Aids and Services”) Definition of auxiliary aids revised to include additional examples such as: Definition of auxiliary aids revised to include additional examples such as:  Accessible electronic and information technology.  Qualified interpreters on-site or through video remote interpreting services. 36

37. Other Examples... Other examples of auxiliary aids and services:  Voice, text, and video-based telecommunications products and systems.  Braille or tactile displays.  Screen reader software. 37

38. Qualified Reader “Qualified reader” defined as “…a person who is able to read effectively, accurately, and impartially, using any necessary specialized vocabulary.” 38

39. Qualified Interpreter “Qualified interpreter” defined as “An interpreter who, via 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…” 39

40. Types of Auxiliary Aids or Services: Factors to Consider Type of auxiliary aid or service will vary in accordance with:   Method of communication used by individual;   Nature, length, and complexity of communication involved; and   The context in which communication is taking place. Provide auxiliary aids in accessible formats, in timely manner, and in manner that protects privacy and independence of individual. 40

41. Revisions to Effective Communication Requirements Companions with disabilities. Companions with disabilities. Discussion of types of auxiliary aids and services that are necessary to ensure effective communication. Discussion of types of auxiliary aids and services that are necessary to ensure effective communication. Limitations on use of individual accompanying person with a disability as an interpreter. Limitations on use of individual accompanying person with a disability as an interpreter. Performance standards for video remote interpreting services. Performance standards for video remote interpreting services. 41

42. Companions Covered entities must communicate effectively with companions with disabilities, as appropriate. Covered entities must communicate effectively with companions with disabilities, as appropriate. Companion defined as “family member, friend, or associate of an individual seeking access to a service, program or activity of a public entity, who along with such individual is an appropriate person with whom the public entity should communicate.” Companion defined as “family member, friend, or associate of an individual seeking access to a service, program or activity of a public entity, who along with such individual is an appropriate person with whom the public entity should communicate.” 42

43. Video Remote Interpreting Definition: “An interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images…” 43

44. Video Remote Interpreting: Standards DOJ standards require: Quality of video and audio that is high quality, clear, real-time, with clear uninterrupted images; Quality of video and audio that is high quality, clear, real-time, with clear uninterrupted images; Dedicated high-speed connection; Dedicated high-speed connection; Picture: Clear, sufficiently large, and sharply delineated, showing face, arms, hands and fingers; Picture: Clear, sufficiently large, and sharply delineated, showing face, arms, hands and fingers; Voices: clear and easily understood transmission; and Voices: clear and easily understood transmission; and Quick set-up and training of users. Quick set-up and training of users. 44

45. Use of Adults Accompanying Individual With a Disability Public entities shall not require individual to bring own interpreter. Public entities shall not require adults accompanying individual to interpret except:   In emergency involving imminent threat to safety or welfare of individual or public and no interpreter available, or   Where specific request by person with disability, accompanying adult agrees, and reliance on that person is appropriate under circumstances. 45

46. Use of Children as Interpreters Only permissible in emergency involving imminent threat to safety or welfare of an individual or the public where there is no interpreter available. 46

47. Service Animals 47

48. Service Animals Revises “service animal” definition in title III; Revises “service animal” definition in title III; Adds “service animal” definition and service animal provisions to title II; and Adds “service animal” definition and service animal provisions to title II; and Codifies a variety of the Department’s longstanding policies and interpretations regarding service animals. Codifies a variety of the Department’s longstanding policies and interpretations regarding service animals. 48

49. Definition of Service Animal (§ 35.104 in Title II and § 36.104 in Title III) “Service animal means 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… The work or tasks performed by a service animal must be directly related to the individual's disability…” “Service animal means 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… The work or tasks performed by a service animal must be directly related to the individual's disability…” 49

50. What does this mean? Limits the species of service animals to dogs; Limits the species of service animals to dogs; Makes clear that comfort or emotional support animals are not covered; and Makes clear that comfort or emotional support animals are not covered; and Makes clear that individuals with physical, sensory, psychiatric or other mental disabilities can use service animals. Makes clear that individuals with physical, sensory, psychiatric or other mental disabilities can use service animals. 50

51. Definition : Species Limitation Service animals are now limited to one species — dogs. Service animals are now limited to one species — dogs. The definition provides that other animals besides dogs, whether wild or domestic, do not qualify as service animals. The definition provides that other animals besides dogs, whether wild or domestic, do not qualify as service animals. The Department’s rules do not affect coverage of other animals under other laws, like the Fair Housing Act or Air Carrier Access Act. The Department’s rules do not affect coverage of other animals under other laws, like the Fair Housing Act or Air Carrier Access Act. 51

52. Definition: Do Work or Perform Tasks Requires that the dog be individually trained to do work or perform tasks. Requires that the dog be individually trained to do work or perform tasks. The work or tasks performed by a service animal must be directly related to the individual's disability. The work or tasks performed by a service animal must be directly related to the individual's disability. 52

53. Definition: Do Work or Perform Tasks ……. Continued Includes a non-exhaustive list of examples of work and tasks, such as retrieving items, e.g., medicine or telephone. Includes a non-exhaustive list of examples of work and tasks, such as retrieving items, e.g., medicine or telephone. Covers individuals with psychiatric, intellectual, or other mental disability that use service animals. Covers individuals with psychiatric, intellectual, or other mental disability that use service animals. Example: Helping persons with psychiatric and neurological disabilities by reminding to take medication, preventing or interrupting impulsive or destructive behaviors. 53

54. Emotional Support Animals Because service animals must do work or perform, emotional support and comfort animals are not included in the definition of service animal. Because service animals must do work or perform tasks, emotional support and comfort animals are not included in the definition of service animal. The provision of emotional support, well-being, comfort, or companion- ship do not constitute work or tasks for the purposes of the service animal definition. The provision of emotional support, well-being, comfort, or companion- ship do not constitute work or tasks for the purposes of the service animal definition. 54

55. Revisions to General Service Animal Provisions § 35.136 (title II); § 36.302(c) (title III) Overview of changes:  Provides when a service animal can be excluded.  Requires animal to be under handler’s control.  Provides guidance on inquiries.  Care and supervision.  Access to all areas open to public.  Surcharges. 55

56. Exclusion of Service Animals General rule is that covered entities must permit service animals. The revised rules, however, add two specific exceptions for when service animals can be excluded: General rule is that covered entities must permit service animals. The revised rules, however, add two specific exceptions for when service animals can be excluded:   The animal is out of control and the handler does not take effective action to control it; or .  The animal is not housebroken. The handler should be given the opportunity to participate without the animal. The handler should be given the opportunity to participate without the animal. 56

57. “ Under Handler’s Control” Must have harness, leash, or other tether. Must have harness, leash, or other tether. If handler is unable to use these because of his or her disability or because use would interfere with the safe and effective performance of work or tasks, then the animal must otherwise be under the handler’s control ( i.e., voice control, signals, or other effective means.) If handler is unable to use these because of his or her disability or because use would interfere with the safe and effective performance of work or tasks, then the animal must otherwise be under the handler’s control ( i.e., voice control, signals, or other effective means.) 57

58. Permissible Inquiries Only two inquiries may be made by covered entities: Only two inquiries may be made by covered entities:  Whether the animal is required because of a disability; and  What work or task the animal has been trained to perform.  Generally, inquiries may not be made when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. 58

59. Miscellaneous Provisions Covered entities are not responsible for the care or supervision of a service animal. Covered entities are not responsible for the care or supervision of a service animal. Service animals may accompany their handlers to areas of a public accommodation or public entity. Service animals may accompany their handlers to areas of a public accommodation or public entity. Covered entities may not require people with disabilities to pay pet fees or surcharges that are not applicable to individuals without pets. Covered entities may not require people with disabilities to pay pet fees or surcharges that are not applicable to individuals without pets. 59

60. Miniature Horses Beyond Service Animals 60

61. Miniature Horse Requirements Rules require reasonable modifications to permit a miniature horse that has been individually trained to do work or perform tasks. Rules require reasonable modifications to permit a miniature horse that has been individually trained to do work or perform tasks. Rules provide assessment factors to assist entities in determining whether reasonable modifications can be made. Rules provide assessment factors to assist entities in determining whether reasonable modifications can be made. 61

62. Miniature Horses Miniature horses range in weight from 70 to 100 pounds. Miniature horses range in weight from 70 to 100 pounds. Miniature horses can range in height from 24 to 34 inches. Miniature horses can range in height from 24 to 34 inches. 62

63. Assessment Factors The type, size, and weight of the horse and whether the facility can accommodate those features. The type, size, and weight of the horse and whether the facility can accommodate those features. Handler has sufficient control of the horse. Handler has sufficient control of the horse. Horse must be housebroken. Horse must be housebroken. Whether the horse’s presence in a specific facility compromises legitimate safety requirements. Whether the horse’s presence in a specific facility compromises legitimate safety requirements. 63

64. Other Requirements for Miniature Horses  § 35.136(c)-(h)’s and § 36.302(c)(3)-(8)’s service animal requirements also apply to miniature horses.  Admit person with a disability even if animal is properly excluded.  Care and supervision.  Inquiries.  Access to all public areas.  Surcharges. 64

65. Ticketing: A VERY Brief Overview 65

66. Ticketing: General Provisions § 35.136 (title II); § 36.302(c) (title III) Policy is not new - always been our understanding that ticketing policies are covered to provide equal opportunity. However, policy had never been fully articulated in one document before. Why? 66

67. Who Can Purchase a Seat? Individuals who use wheelchairs; Individuals who use wheelchairs; Individuals with other mobility disabilities who cannot walk for long distances (cardiac, respiratory, circulatory conditions; severe arthritis); and Individuals with other mobility disabilities who cannot walk for long distances (cardiac, respiratory, circulatory conditions; severe arthritis); and Others who require the features of accessible seat (i.e., service dog user whose dog cannot fit under a non-accessible seat or would obstruct the aisle). Others who require the features of accessible seat (i.e., service dog user whose dog cannot fit under a non-accessible seat or would obstruct the aisle). 67

68. Overview of Ticketing Provisions Ticket sales: tickets for accessible seats must be sold in the same manner and under the same conditions as all other ticket sales. Information about where accessible seats are located: must provide the same information about accessible seats as provided about non-accessible seats, using the same text and visual representations. 68

69. Ticketing Provisions – Cont’d Ticket prices: May not charge higher prices for accessible seats than for non-accessible seats in the same seating section. Purchasing multiple tickets: People purchasing an accessible seat may purchase up to three additional seats for their companions in the same row and contiguous with the accessible seat. Accessible seats may be used as companion seats. 69

70. Ticketing Provisions – Cont’d Unsold accessible seats may be released and sold to the general public only in three specific circumstances. Hold and Release of tickets for accessible seating: Unsold accessible seats may be released and sold to the general public only in three specific circumstances. Ticket transfers: An individual with a ticket for an accessible seat may transfer it to anyone, including someone who does not have a disability. Ticket transfers: An individual with a ticket for an accessible seat may transfer it to anyone, including someone who does not have a disability. 70

71. Ticketing Provisions – Cont’d Must allow individual with a disability who has purchased a non-accessible seat through the secondary market to exchange the ticket for a comparable accessible seat, if available. May move someone, but not required to do so. Secondary ticket market: Must allow individual with a disability who has purchased a non-accessible seat through the secondary market to exchange the ticket for a comparable accessible seat, if available. May move someone, but not required to do so. 71

72. Ticketing Provisions – Cont’d Fraud: Venues cannot require proof of disability as a condition for purchasing tickets for accessible seats. However, venues …..   May ask purchasers to attest to the need for the accessible seat.   May also mark tickets to clearly identify that they are for accessible seats.   May investigate the potential misuse of accessible seats where there is good cause to believe that seating was purchased fraudulently. 72

73. Resources Regulations, appendices, standards are available at DOJ’s ADA web site at www.ada.gov. For answers to specific questions, DOJ toll-free ADA information line: 800-514-0301 (Voice) 800-514-0383 (TTY) Mid-Atlantic ADA Center(DBTAC): 800-949-4232 (Voice/TTY) 800-949-4232 (Voice/TTY) www.adainfo.org U.S. Access Board web site: www.access-board.gov 73