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									                                  AHEAD July 2012
                     DOJ’s 2010 Regulations, Part 2 Session 6.3
         Communication, Reservations, Examinations, OPDMDs, and Technology

Slide 1 – AHEAD JULY 2012, DOJ’s 2010 Regulations, Part 2, Communication, reservations, examinations
OPDMDs and technology. Irene Bowen and James A. Bostrom
Slide 2 – logos for ADA One and DOJ; Presenters Irene Bowen, J.D., President
ADA One, LLC and James A. Bostrom, Deputy Chief, Disability Rights Section, DOJ
Slide 3 – triangle with exclamation point inside; CAUTION: 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
Slide 4 -- 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
Slide 5 -- ADA Amendments Act
     • ADAAA reset the definition of “individual with a disability”
     • EEOC has issued regulations
     • DOJ has not begun rulemaking
Slide 6 -- 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 www.ada.gov
Slide 7 – March 2011 calendar page with 15th circled; 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
Slide 8 -- March 2012 calendar page with 15th circled; 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 35.151(c),
         36. 304(d).
Slide 9 – AGENDA:
     •    Effective communication
     • Reasonable modifications
             – Event ticketing
             – Lodging reservations
             – Examinations and courses
     • OPDMDs
     • Technology and the web
     • Twelve tips
Slide 10 -- DON’T HANG UP THAT PHONE! Effective communication
Slide 11 – fingers on Braille document; 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 35.160 (a), 36.303(c)(1).
     • Provide appropriate auxiliary aids and services “where necessary.” 28 CFR 35.160(b),
Slide 12 – Sticky note graphic labeled “New” on slide title. Diagram showing triangle with three points:
(a) TTY user, with line going to (b) relay operator and from there to (c) voice user. Line from a to b is
dotted and labeled 1. Line from b to c shows sound waves and is labeled 2. TRS calls.
     • Entity must answer telecommunications relay calls in same manner as it answers others. 28 CFR
         35.161(c), 36.303(d)(4)
     • See Wells Fargo settlement. http://www.ada.gov/wells_fargo/wells_fargo_settle.htm
Slide 13 – Sticky note graphic labeled “New” on title. Graphic of telephone with large buttons and
bubble saying “Press one for publications.” 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 35.161(b), 36.303(d)(4).
Slide 14 -- Sticky note graphic labeled “New” on title. Graphic of e-readers. Photo of two interpreters at
table with many microphones. 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 35.104, 36.104.
Slide 15 -- Sticky note graphic labeled “New” on title. Companions.
    • 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 35.160(a), (b), (c), 36.303(c).
Slide 16 -- Sticky note graphic labeled “New” on title. Photo: Two men at table. One in background
facing forward and wearing headset. Computer screen on table. Man in foreground facing screen and
signing. Woman’s face and upper body on screen. 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 35.160(d), 36.160(f).
Slide 17 -- Missed appointments.
     • DOJ guidance to section 36.301 (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 56282 (Sep. 15, 2010)
Slide 18 -- Missed appointments  classes?
     • See Utah Valley University OCR letter, 08102026, 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
Slide 19 -- Sticky note graphic labeled “New” on first bullet, on bullet that reads “Title III: consult with
individual whenever possible,” and on third bullet (not on title). 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
        35.160(b)(2), 36.303(c)(ii)
Slide 20 -- Primary consideration: pending appellate cases (not under 2010 revisions).
    • Both about students with cochlear implants
    • DOJ filed briefs on questions in both, under original regulations
              Primary consideration
              Have to show otherwise “effectively excluded” from programs?
    • K.M. v. Tustin (C.D. Cal, July 2011)
    • Argenyi v. Creighton University Medical School (D.Neb. Sept 2011) -- DOJ brief
Slide 21 -- …Pending appellate cases.
    • DOJ filed briefs on questions in both, under original regulations
              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.
Slide 22 -- The Web: NAD v. Netflix.
    • June 19, 2012, decision of Massachusetts District Court http://dredf.org/captioning/MJP-
    • 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
Slide 23 -- …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: http://www.ada.gov/briefs/netflix_SOI.pdf
Slide 24 – five stepping stones, getting smaller from front to back (bottom to top of photo). 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
Slide 25 -- REASONABLE MODIFICATIONS: Event ticketing; Hotel reservations; Examinations and courses
Slide 26 – Woman walking on street with dog on harness; Reasonable modifications.
    • Entity must make reasonable modifications in policies where necessary to avoid discrimination.
        28 CFR 35.130 (b) (7)
    • 2010 regulation revisions:
              – Service animals
              – Miniature horses
              – Mobility devices
              – Event ticketing
              – Hotel reservations
              – Examinations and courses
Slide 27 -- Sticky note graphic labeled “New” on title. 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 35.130(b)(1)(i-iii), 36.202(b)
Slide 28 – graphic of two tickets. Each says ticket, and row/seat. Row/seat is circled in red. Event
     • Distribution outlets
     • Clear seating charts
     • Ticket transfers
     • “Sell outs” and accessible seats
     • Equivalent pricing and access limitations
     • Verification
28 CFR 35.138, 36.302(f). See DOJ technical assistance piece.
Slide 29 -- Sticky note graphic labeled “New” on last bullet (not on title). Examinations and courses.
     • Title III: entity that offers exams or courses re: licensing, credentialing… shall offer them in a
         place and manner accessible to people with disabilities. 28 CFR 36.309.
     • 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.
Slide 30 -- Sticky note graphic labeled “New” on title. Man with hand on head, chin on table, with huge
stacks of paper on either side of him. Documentation. Any request for documentation should be
narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid.
Slide 31 -- Sticky note graphic labeled “New” on title. 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.
 Slide 32 -- Sticky note graphic labeled “New” on title. 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)
Slide 33 -- 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: http://www.ahead.org/resources/documentation_guidance
Slide 34 -- Sticky note graphic labeled “New” on title. Photo of old building on a campus, with people
riding bikes and walking on path, sitting on steps in front (Indiana University at Bloomington’s memorial
union and hotel). 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 36.302(e)
Slide 35 -- Sticky note graphic labeled “New” on title. … 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
Slide 36 – 1 photos of a power wheelchair and 2 photos of OPDMDs. Title -- Wheelchairs and Other
Power-Driven Mobility Devices
Slide 37 -- Search Terms...
       § 35.137 Mobility devices ‘‘Other Power-Driven Mobility Device’’ and ‘‘Wheelchair’’
       § 36.311 Mobility devices ‘‘Other Power-Driven Mobility Device’’ and ‘‘Wheelchair’’
Slide 38 -- Mobility Devices: Overview of Changes
    • Adds a definition of “wheelchair.”
    • Adds a definition of “other power-driven mobility device.”
    • Provides a number of general provisions regarding these two categories of mobility devices.
Slide 39 – 2 photos, one of a 3-wheel scooter and one of a power wheelchair. Definition of Wheelchair.
        “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.”
Slide 40 -- Use of Wheelchairs.
    • 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.
Slide 41 – 2 photos: a view from behind of two men with prosthetic legs using Segways; a man at an
outdoor event using a Segway with a seat, holding a helmet and a crutch. 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.”
Slide 42 – Photo of a man seated on a Segway in what appears to be a workshop. Definition of
“OPDMD,” Continued
              ‣ 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.
Slide 43 -- Use of OPDMDs
    ‣ 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.
Slide 44 – Photo of a Segway with golf clubs in a golf bag. Reasonable Modifications Regarding
    • Burden on entity to show it is not reasonable to allow OPDMD on premises or portion of
    • Assessment is made regarding the class of devices, instead of an individual's use of the device.
Slide 45 -- OPDMD Assessment Factors.
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;
Slide 46 -- 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.
Slide 47 -- Legitimate Safety Requirements
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.
Slide 48 -- 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.
Slide 49 -- 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.
Slide 50 -- 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.
    • 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.
Slide 51—Screen shot of the University of Maryland’s website. Technology and the Web
Slide 52 -- Screen shot of the University of Maryland’s website, link to watch video now. Web
Slide 53 -- Screen shot of the University of Maryland’s website, image with links to information on
summer programs. Web Accessibility
Slide 54 -- Screen shot of the University of Missouri’s disability services website, 3 ways to get the intake
form. Website Accessibility
Slide 55 -- Screen shot of Stanford University free online courses website. Free Courses Online
Slide 56 -- Screen shot of Stanford University free online courses website, listing of courses, arrow points
Slide 57 – DOJ Web TA Piece
“Accessibility of State and Local Government Websites to People with Disabilities”

Slide 58 – Section 508 Guidelines
[image from the section 508 Homepage: Electronic and Information Technology at www.access-
Slide 59 – Web Accessibility Initiative (WAI)
Slide 60 – Web Accessibility Initiative (WAI) – Web Content Accessibility Guidelines (WCAG) Overview

Slide 61 – WebAIM – Web Accessibility Training
Slide 62 – Guidance on Accessible Distance Learning or Accessible Distance Education.

Slide 63 – New Technology -- Electronic Book Readers

Slide 64 -- DOJ Rulemaking…
Advance Notice of Proposed Rulemaking – July 2010

Slide 65 – Other Advance Notice of Proposed Rulemaking -- July 2010.
            – Movie captioning and video description
            – Next generation 9-1-1
            – Equipment and furniture
Slide 66 – Future Rulemaking…

Slide 67 -- TWELVE TIPS
Slide 68 -- photo of woman in wheelchair, outdoors, with miniature horse. 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?”
Slide 69 -- Photo of three women at table in meeting, one woman standing up and pointing to words.
on board on easel, one woman signing on television monitor. 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).
Slide 70 -- end of pencil with eraser lying on filled-in bubble answer sheet for test. …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.
Slide 71 -- multi-story building under construction. …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.
Slide 72 -- ADA One articles
    • Ahead of the ADA Access Curve, Part 4 http://ada-one.com/articles-tips/ahead-of-the-ada-
        access-curve-part-4/ DOJ’s new regulations: It’s about time!
    •    Ahead of the ADA Access Curve, Part 5 http://ada-one.com/articles-tips/ahead-of-the-ada-
        access-curve-part-5/ The Ides of March are upon us: Are you complying with DOJ’s new
        regulations about service animals?
    •    Ahead of the ADA Access Curve, Part 6 http://ada-one.com/articles-tips/ahead-of-the-ada-
        access-curve-part-6/ DOJ’s new ADA requirements: Six common myths and mistakes
    •    Ahead of the ADA Access Curve, Part 7 http://ada-one.com/articles-tips/ahead-of-the-ada-
        access-curve-part-7/ DOJ’s new ADA requirements: Six more common myths and mistakes
Slide 73 -- Resources. DOJ web site: www.ada.gov; DOJ information line: 800 - 514 - 0301 (voice); 800 -
        514 - 0383 (TTY); ADA TA Centers: 800-949-4232 (Voice/TTY); Access Board: www.access-
Slide 74 -- ADA One logo (stylized capitol building). CONTACT: Irene Bowen, J.D., President, ADA One,
        LLC; 9 Montvale Court, Silver Spring, MD 20904; Web site: http://ADA-One.com;
        301 879 4542 (O); 301 236 0754 (F)
Slide 75 -- DOJ seal. Jim Bostrom, 202 - 307 – 2584, jim.bostrom@usdoj.gov
Slide 76 -- Large black question mark with three dots to right

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