Implementing the “New” ADA and DOJ Regulations

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Implementing the “New” ADA and DOJ Regulations Powered By Docstoc
					The ADA Amendments Act and
  Post-Secondary Education

    Presented by L. Scott Lissner
       Friday, April 15, 2011
            CAN BE DANGEROUS

NASA's Columbia Accident Investigation Board
identified simplistic thinking from an over-reliance
on PowerPoint presentations as a contributing
factor in the Columbia shuttle disaster.
                (New York Times Magazine 12/14/2003)
       Provide equally effective access to
      programs, benefits and services for
  qualified individuals with disabilities in the
        most integrated manner possible

Section 504 of the Rehabilitation Act 34 CFR 104 &
Title II of the Americans With Disabilities Act 28 CFR 35
              WHAT IS COVERED?
• Programs, Benefits & Services
• Communications
• Facilities (June 1977/January 1991/March 2012)
              PUT ANOTHER WAY
• Employment
  – Faculty, Staff, Work Study, Teaching Assistants, Adjuncts...
• Education
  – Matriculated, Non-matriculated, Distance, Practica, …
• Public events
  – Athletics, Lectures, Concerts, Job Fairs, Conferences, …
        Keeping up with What’s New
• ADA As Amended
• New Regulations
  – Title II
  – Title III
  – New Design Standards
• Emerging E&IT Standards
  –   Kindle
  –   Joint Letter
  –   Penn State
  –   NPRM for Web Access
  –   AIM Commission
  –   21st Century Communications
      and Video Accessibility Act    5
•   1973 - Section 504
•   1977- 504 Regulations
•   1990 – ADA
•   1999 – Sutton Trilogy
•   2002 – Toyota v. Williams
•   2009 – ADAAA

•   September 2008 signed by Pres. Bush
•   January 2009 became law
•   October 2009 EEOC draft regulations
•   March, 2011, final regulations from the EEOC


• A physical or mental impairment
  that substantially limits a major life activity
• A record of such an impairment
• Being regarded as having such an impairment       8
• Rules on Applying the Definition Have Changed
  – An impairment need not prevent, or significantly or
    severely restrict, performance of a major life activity to
    be “substantially limiting.”
  – Disability “shall be construed in favor of broad coverage”
  – An individual’s ability to perform a major life activity is
    compared to “most people in the general population,”
    often using a common-sense analysis without scientific
    or medical evidence.
  – Major life activities clarified and expanded

            What is Substantial?
• The definition of disability should be construed
  broadly favoring expansive coverage
  – Not Toyota’s “prevents or severely restricts”
  – Not limited to activities “of central importance to
    daily life” (activities of daily living) used in Toyota
• Excludes ameliorative impact of mitigating
  measures in determining coverage
• Episodic conditions or those in remission are
  based on impact during active or acute phase

Limited in What Way?
   CONDITION       MANNER                   DURATION

• Relevant inquiry is how a major life activity is
  substantially limited, not on what an individual can
  do in spite of an impairment
• May consider:
  – effort or length of time required to perform major life

  – total amount of time major life activity may be
  – the way an impairment affects the operation of a major
    bodily function

• The comparison of an individual's limitation to the
  ability of most people in the general population
  often may be made using a commonsense standard,
  without resorting to scientific or medical evidence.

• Includes but not limited to, caring for oneself,
  performing manual tasks, seeing, hearing,
  eating, sleeping, walking, standing, lifting,
  bending, speaking, breathing, learning,
  reading, concentrating, thinking,
  communicating, and working.

“Major Life Activities” also include the operation of
major bodily functions including but not limited to :

•   Immune                     •   Neurological
•   Respiratory                •   Brain
•   Circulatory                •   Normal Cell Growth
•   Endocrine                  •   Bowel
•   Digestive                  •   Bladder
•   Reproductive                                        14
• Major Life Activities (EEOC Regulatons)
  – Include but are not limited to caring for oneself,
    performing manual tasks, seeing, hearing, eating,
    sleeping, walking, standing, lifting, bending, speaking,
    breathing, learning, reading, concentrating, thinking,
    communicating, sitting, reaching, interacting with
    others, and working

    New Title II & III Regulations
              Cave Idus Martias
• Service Animals
• Documention
• Effective Communications
   – Remote Services
   – Readers
• Mobility Devices
   – Segways, Golf Carts & More
• Housing
   – New Category for Residence Halls Ticketing
   – Stage & Podium Access
• Standards for Design                            17
The Higher Education Opportunity Act
  – Commission on Alternative Media
  – Funding for ID demonstration projects
  – Data Collection in IPEDS ?
  – Demonstration Grants ?

EEOC is final ADA AA Definition of Disability
  – Regulatory Definition of Disability

Office of Federal Contracts Compliance Programs
   – Strengthening Affirmative Action

Title III Section 36.309 (b)(1)
                          WHAT DOES
                       JUSTICE SAY ABOUT
• Based on DOJ’s enforcement experience, research,
• Addresses concerns about sometimes
  inappropriate and burdensome requests for
  documentation about existence of disability and
  need for accommodations
• Note: title III preamble says same principles apply
  to title II entities                             20
• Examples of documentation that should generally
  be accepted
  – Recommendations of qualified professionals familiar
    with the individual
  – Results of professional evaluation
  – History of diagnosis
  – Observations by educators
  – Past use of accommodations.
• Generally, a testing entity should accept, without
  further inquiry, documentation
  – provided by a qualified professional who has made an
    individualized assessment of the applicant
  – that supports the need for the modification        21
• Specific ADA provision applies to
  private entities that offer exams or
  courses related to applications,
  licensing, certification, or credentialing.
• Exams or courses must be given
  in a place and manner accessible
  to persons with disabilities, or alternative
  accessible arrangements provided.
• Purpose: to prevent exclusion from educational,
  professional, or trade opportunities because of
  inaccessible exams or courses.                    22
Give considerable weight to documentation
of past modifications, accommodations, or
auxiliary aids or services received in similar
testing situations including those provided
in response to an Individualized Education
Program or Section 504 Plan.
                     Request for documentation
                     should be narrowly tailored to
                     ascertain the individual's need for
                     the requested modification or
                     auxiliary aid.
Generally, a testing entity should accept without
further inquiry documentation provided by a
qualified professional who has made an
individualized assessment of the applicant.
Appropriate documentation may include a letter
from a qualified professional or evidence of a prior
diagnosis, accommodation, or classification, such as
eligibility for a special education program.
•   Focus on need for accommodation
•   Give weight to accommodation history
•   Give deference to treating professionals
•   Give deference to clinical and professional

Title II Entities are unlikely to be held to a
lesser standard
It is only through understanding an
individual's experience in the context that we
can translate diagnostic evaluations into
useable information on the barriers and
facilitators to access and full participation.


 •   Tasked by Congress to Take the Lead
 •   Stayed Close to the Statute
 •   Congruent with DOJ Rulemaking
 •   Employment Law has Driven Practice

• The EEOC: Use a Common-Sense Assessment
  – An impairment need not substantially limit more than
    one major life activity
  – Impairments need not prevent, significantly restrict or
    severely restrict performance of a major life activity to
    be substantially limiting
  – An individual’s ability to perform a major life activity in a
    similar manner under comparable conditions as “most
    people in the general population”
  – Should not require extensive analysis
  – Typically using a common-sense approach without
    scientific or medical evidence
 Regarded As
• Broad Construction
• Focus on the substantive issues of failure to
  accommodate or exclusion not class membership
• Two elements:
   – Employer took employment action
   – Because of an individual’s actual or perceived
• Excludes transitory (<6 months) or minor
• Not entitled to accommodations
Justice William J. Brennan
      Arline v. Nassau County, 1987

      “Congress acknowledged that
      society's accumulated myths
      and fears about disability and
      disease are as handicapping as
      are the physical limitations that
      flow from actual impairment.”


          21st Century Communications &
                 Video Accessibility Act
– Accessibility of advanced communications equipment
  and services
– Requires devices capable of displaying closed
  captioning, to deliver available video description, and to
  make emergency information accessible.
– Captioning of internet delivered television

                            Web Access
• Leading up to the proposed rule making
   – Kendel complaints
      • Comparable time, effort and expense.
   – DOE and DOJ joint “Dear Colleague Letter” June 2010
      • Interpret broadly
• Public statements from DOJ
   – From “Can be an effective communication tool: in the ADA
     Tool Kit to:

   “There is no doubt that the internet sites of State and local
     government entities are covered by Title II of the ADA.
     Similarly, there is no doubt that the websites of recipients of
     Federal financial assistance are covered by Section 504 of the
     Rehabilitation Act.”
                      Web Access
• Proposed rule making questions
  – Standard to adopt:
     • WCAG 2.0´s "Level AA Success Criteria“
     • Section 508
     • Performance standards
  – Barriers, Facilitators and technical assistance needed
  – Are there distinct or specialized features used on
    websites that render compliance with accessibility
    requirements difficult or impossible?
     • If so, viable alternatives?

• Advance Notices of Proposed Rulemaking published
  July 26 (
   – Accessibility of web information and services
   – Movie captioning and video description
   – Next generation 9-1-1
   – Equipment and furniture

   “Qualified reader” and “qualified
• “Qualified reader” defined:
  – One who reads effectively, accurately, impartially
  – One who can use necessary vocabulary
• “Qualified interpreter” modified
  – Includes sign language, oral, and cued speech
  – Oral and cued speech interpreter defined


      …Video remote interpreting
DOJ sets 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
Sections 35.160(d), 36.303(f)
E   S
R   U
V   P
I   O
C   R
E   T
?   ?

             Service Animal

• Definition: a dog that
  does work or performs tasks
  for the benefit of an individual
  with a disability (including
  psychiatric, cognitive, mental)

          Examples 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
     Emotional support/comfort?
If this is the only function,
not considered a
service animal

  Can ask only two questions

• Is this service animal required
  because of a disability?
• What work or tasks is the animal
  trained to perform?
Can’t ask about disability

             Other issues
• An entity can exclude a service animal if
   • it is not controlled or
   • it is not housebroken
• Covered entity is not responsible for care or
  supervision of a service animal
• No “service animal” license or
  documentation required

               Miniature horses
• Allowed if
  – Reasonable
  – Individually trained
• Assessment factors
  – Type, size, weight
  – Handler’s control
  – Whether housebroken
  – Safety requirements of

  Caution: other laws also apply
• Fair Housing Act: Department of Housing and
  Urban Development
• Department of Transportation (airlines,
  airports, bus travel)
• Air Carrier Access Act
• Section 504 regulations
• State and local requirements

Other Power-Driven Mobility Device

―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.‖

             Use of OPDMDs
Covered entity 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

     OPDMD Assessment Factors
1. The type, size, weight, dimensions, and speed of device
2. The facility’s volume of pedestrian traffic
3. The facility’s design and operational characteristics
   (e.g., indoors/outdoors, square footage, the density and
   placement of stationary devices, and the availability of
   storage, if requested)
4. Whether legitimate safety requirements can be
   established to permit the safe operation of OPDMD in
   the specific facility
5. Whether use creates a substantial risk of serious harm
   to the immediate environment or natural or cultural
   resources, or poses a conflict with Federal land
   management laws and regulations.
Can request a ―credible assurance‖ that an OPDMD is
required because of the person’s disability.

May not ask about nature and extent of disability.

Develop a policy clearly stating circumstances
when use of OPDMD’s is permitted.

Title II: Sections 35.104, 35.137
Title III: Sections 36.104, 36.311
 Housing at a Place of Education
    Title II Section 35.151(f)
    Title III Section 36.406(e)

New category for residence halls.
Meet the requirements for transient lodging
and specific requirements for accessible
routes throughout the unit and accessible
turning spaces and work surfaces in kitchens
from the residential facilities standards
Apartments or townhouse facilities that are
provided with a lease on a year-round basis
exclusively to graduate students or faculty
and that do not contain any public use or
common use areas available for educational
programming must comply with the
requirements for residential facilities in
sections 233 and 809 of the 2010 Standards.
            Assembly Areas
Vertical Dispersion & Line of Sight
Stage Access
No additional requirements for captioning of
communications or emergency information

                          Section 35.151(g) & Section 36.308
Event ticketing

•Distribution outlets
•Clear seating charts
•Ticket transfers
•―Sell outs‖ and accessible seats
•Equivalent pricing and access limitations

   The Basics: new construction and
• New standards for new construction and
  – DOJ adopts 2004 ADAAG, based on model codes
    and ANSI (sections 35.151(c), (d); 36.406)
  – For the first time, certain areas are included in the
    Standards (and 2004 ADAAG), e.g., judicial,
    correction, detention facilities; play areas,
    swimming pools

  …The Basics: new construction and
• DOJ adds specific provisions (see sections
  35.151(a),(b),(c)(5),(d)-(k); 35.152; 36.406(b)-(g))
   –   Path of travel in title II
   –   Places of lodging
   –   Assembly areas
   –   Medical care facilities
   –   Social service centers
   –   Housing at a place of higher education
   –   Detentions and corrections

                 Time frames
“Effective date” -- March 15, 2011
• Applies to Title II and Title III regulations
• Exceptions
   – Hotel reservation policies -
   – 2010 ADA Standards for Accessible Design

              …Time frames

“Compliance date” -- March 15, 2012
  • New construction and alterations MUST comply
    with the Standards
  • In the meantime, choose a standard
       – Title III: 1991 or 2010 Standards
       – Title II: 1991 Standards, 2010 Standards, or UFAS
         (Uniform Federal Accessibility Standards)

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


Yes when you can and no when you have to.

                rather than

No when you can and yes when you have to.

L. Scott Lissner

       •   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

       •   President Elect
       •   Co-Chair, Public Policy

• Appointed, Ohio Governor's Council For People With Disabilities
• Chair, ADA-OHIO
• Appointed, State HAVA Committee
• Appointed, Columbus Advisory Council on Disability
• Editorial Board, Thompsons 504 Compliance Handbook

L. Scott Lissner,
ADA Coordinator, The Ohio State University
Office of Diversity And Inclusion
1849 Cannon Drive
Columbus, OH 43210-1266

Lissner.2@OSU.EDU Http://

(614) 292-6207(v); (614) 688-8605(tty)
(614) 688-3665(fax)