ADA in Focus: Winter 2017

Volume 21, Number 1

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Winter 2017, Volume 21, Number 1 (suitable for printing)

Winter 2017, Volume 21, Number 1, in large print (suitable for printing)

In this issue:

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Center Update

TransCen’s Mid-Atlantic ADA Center: Five More Years

TransCen, Inc. has been selected by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR) to operate the Mid-Atlantic ADA Center for another five years! We look forward to working together with our partners, networks, associates, and friends throughout the region to provide information, guidance, and training that supports and facilitates the effective implementation of the ADA.

Many of our tried and true programs and services will continue, while new areas of focus and research will enable us to develop outreach methods and strategies, materials and publications, and training events that enhance knowledge and understanding of the ADA.

Our partners at the University of Maryland will be conducting research to help us identify areas of need among ADA stakeholders, including state and local government agencies, businesses, and individuals with disabilities. Research-informed activities can target areas of need and increase opportunities to provide meaningful information and guidance.

Some of our efforts will focus on the needs of specific populations, such as youth and young adults with disabilities preparing to transition to post-secondary education or employment, and elders with disabilities engaging in community activities or employment. Other efforts will focus on the ongoing need for guidance on specific topics, such as customer service issues across a wide variety of businesses and agencies.

Meanwhile, our core services will continue to be available: training activities in various formats, including webinars, webcourses, and in-person events (look for new locations for our popular annual ADA Update conference!) will offer learning opportunities; our websites, e-bulletins, newsletters, and social media activities will help to keep you informed; specialists will continue to be available to answer your specific questions about the ADA and help you find available resources. Contact us with your questions or to find out more about our programs and services! 

ADA Resource Networks: Connect and Learn

Resource Networks logoThe Mid-Atlantic ADA Center’s professional resource networks now have nearly 400 members throughout the region. Network members learn the latest information on the ADA through exclusive webinars and group mailing lists, networking with others who have similar jobs and challenges, and sharing resources and ideas to enhance ADA implementation. We have five networks to address various aspects of the ADA and professional interests:

  • ADA Leadership Network (ADA-LN): A select group of experienced trainers who train on ADA topics
  • Community Partners Network: Advocates and others who are active in their communities in sharing information about the ADA
  • Title II - State and Local Government ADA Network: ADA Coordinators and other professionals in state and local government agencies who work to ensure implementation of the ADA
  • Corrections and Law Enforcement Network: Professionals in law enforcement and corrections charged with ensuring implementation of the ADA in their agencies and facilities
  • Transit Network: ADA Coordinators in public transportation agencies who share unique concerns in implementing the ADA

Recent network activities include the Leadership Network’s annual face-to-face meeting in conjunction with the annual Mid-Atlantic ADA Update conference. Laura Owens, President of TransCen, spoke about the importance of the work ADA trainers do in implementing the ADA. The ADA-LN added two new groups of trainers to the evergrowing list of members.

The Title II Network discussed complex program access issues during an interactive webinar, and the Community Partners Network shared activities, ideas, and strategies on promoting disability awareness during a webinar in December.

The Network listservs give members a great opportunity to share events, news, and resources. Membership is free, but requires application. Get more information or find out how to join the Mid-Atlantic ADA Resource Networks.

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Focal Point

The ADA, Structural Accessibility, and Existing Buildings

The ADA includes some unique provisions that affect businesses and agencies that operate in older buildings and facilities. Our office continues to receive a lot of questions about structural accessibility issues, including:

  • the distinctions between the two parts of the ADA – Title II and Title III – that require the use of the ADA Standards for Accessible Design;
  • the “safe harbor” provisions for spaces and elements that comply with the original 1991 ADA Standards, but which may not comply with the updated 2010 Standards;
  • the distinction between “alterations” and activities undertaken with the sole purpose of improving accessibility in existing buildings;
  • the application of ADA requirements to historic places;
  • the distinctions between ADA requirements and local or state building codes; and
  • how to ensure accessibility when there are no specific standards for particular facilities, furnishings, or equipment that are used to offer goods, services, or activities to the public.

Title II and Title III

Both Title II, which covers all state and local government agencies, and Title III, which covers a variety of private businesses, require that the ADA Standards for Accessible Design be followed when buildings and facilities are newly constructed or altered.

Safe Harbor

The U.S. Department of Justice (DOJ) sets facility standards for entities covered by Title II and Title III, other than transportation facilities, which are subject to standards set by the U.S. Department of Transportation (DOT). DOJ updated their ADA Standards for Accessible Design in 2010, but carved out a “safe harbor” for facilities, spaces, and elements that already comply with the older (1991) ADA Standards. Changes that may be needed to comply with the new Standards are not required until these compliant facilities undergo planned alterations.

Alterations

building being renovatedAlterations are typically planned in order to renovate or rehabilitate facilities, or to change the configuration of spaces by building, removing, or rearranging walls, partitions, and other structural elements. Any alteration that affects usability must comply with accessibility standards to the maximum extent technically feasible, given the physical constraints of the existing structure and site.

While certain routine repair and maintenance activities (such as repairing roofs or mechanical systems) are not usually considered “alterations,” some activities that are often viewed as maintenance may be alterations because of the way they affect usability. Replacing stained, worn carpet may feel like simple building upkeep, but the features of floor surfaces are related to usability in important ways. Thick, spongy carpets are difficult to navigate for many people with disabilities, particularly those who use manual wheelchairs, while some highly polished floor surfaces can be hazardous because they are too slippery. Accessible surfaces are firm, stable, and slip resistant.

The scope of alterations can be large or small. For example, replacing door hardware is an alteration, since such hardware affects the usability of doors. If round door knobs are being replaced on doors that are required to be accessible, hardware of a more accessible type (for example, lever handles) must be installed.

When an alteration affects the usability of a “primary function” area, an obligation is triggered to expand the scope of work and address accessibility beyond the space or element being altered. Primary function areas are the spaces where the main activities of the facility take place, including employee work areas and spaces used by the public. For example, in a restaurant, both the dining room and the kitchen are primary function areas. Spaces like mechanical rooms, storage or janitorial closets, employee lounges and locker rooms, entrances, corridors, and restrooms are generally not primary function areas.

When a primary function area is altered, the entity must determine if there are barriers on the “path of travel” to the area, and spend up to 20% of the cost of the alteration on improving that path of travel. This can involve features such as parking, exterior sidewalks and routes, curb ramps and ramps, entrances and doors, corridors, elevators, and other features, as well as restrooms, public telephones, or drinking fountains (if any are provided) that serve the altered area.

Not New, Not Altered: What Now?

The ADA Standards outline very specific requirements for new construction and planned alterations, but what about older buildings or spaces that aren’t due for renovation, where no alterations are planned? The ADA addresses those situations, as well.

Title II requires that state and local government agencies ensure that programs and activities conducted in existing buildings are available and accessible to people with disabilities who are eligible to participate in them. This may require that structural improvements be made to older buildings, or that other methods are used to ensure equal opportunities for participation.

Alternatives to structural modifications might include relocating activities to more accessible facilities, providing assistance to individuals with disabilities, or other measures. Alternatives should facilitate integrated participation whenever possible. For example, if an individual with a disability registers for a class that is scheduled to be held in an inaccessible building, it would be preferable to relocate the class to an accessible building rather than offer home instruction to the individual, because home instruction segregates the individual and eliminates the opportunity for class interaction.

Title III requires that private businesses serving the general public (e.g., stores, restaurants, theaters, hotels, amusement parks, fitness facilities, day care centers, banks, offices of health care providers and other professionals, and many others) remove barriers in existing buildings to the extent that is “readily achievable.” To determine what is readily achievable, a business will take into account the existing site and structural constraints, the resources available to the business, potential disruption to operations, and other factors. Obligations and outcomes will vary from one business to another.

Activities and projects that are done with the sole purpose of improving accessibility are different from “alterations” which have other principal purposes. Barrier removal activities and structural modifications to achieve program access don’t trigger the “path of travel” obligation. However, the requirements to ensure access to programs and to engage in readily achievable barrier removal are ongoing obligations. Covered entities need to continue to address barriers until they are eliminated (in the case of Title III), programs are accessible and integrated when viewed as a whole (under Title II), or certain limitations are reached.

Limitations

There are a variety of factors that can delay or limit the improvement of existing facilities, including site or structural conditions, cost, disruption, and the historic significance of certain places or elements. Some of these factors may change over time (e.g., financial resources available) or can be addressed with good planning. Other factors (e.g., site or structural conditions, historic significance) are unlikely to change and will need to be addressed in other ways, such as using alternate facilities and relocating activities, offering assistance, providing curb-side service or home delivery, or creating audio-visual media, educational materials, or exhibits to depict historic preservation programs where access is limited.

Historic Places

Virginia State CapitolHistoric places are more than just old. Historic buildings and facilities are defined in the ADA Standards as those which are “listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate State or local law.” The designation of historic facilities, spaces, or elements may be based on a number of considerations. The design, materials, or workmanship may be meaningful, unique, or representative of a period or style. Some sites or facilities may be historic because of the people who designed them, built them, or lived in them; some places are significant because of the events that took place there.

Historic facilities are not exempt from ADA requirements, but historic significance should not be threatened or destroyed. Additionally, although large sites or entire districts can be historic, there are some places where historic significance is limited to very specific spaces or elements.

State and Local Building Codes

Most states, as well as some local governments, have building codes which include accessibility requirements. There are often similarities between such codes and ADA requirements, but there are also differences. Compliance with local or state codes does not necessarily guarantee compliance with the ADA (or vice versa).

It is not uncommon for state or local codes to have requirements that are more stringent or more specific than the ADA’s. For example, some states require wider accessible parking spaces, a greater proportion of van-accessible spaces, or accessible parking spaces marked with pavement striping of specific colors.

There may also be fundamental distinctions in the way codes are triggered and applied. Many codes, for example, apply to the construction or alteration of buildings the ADA does not cover, such as religious organizations’ buildings.

There’s No Standard for That

The ADA Standards for Accessible Design don’t address every type of facility, space, or element that a covered entity might construct; nor do the Standards technically apply to free-standing equipment, furnishings, or other elements that are not built-in or structurally “fixed” (attached to a building or facility). Nevertheless, the ADA Standards are just a part of the ADA; the law applies much more broadly – to the operation of businesses and how they offer goods and services to the public, to the services and programs provided by state and local government agencies, to how these entities communicate and interact with the public, to their policies and practices.

If activities are conducted in facilities not specifically addressed in the Standards, or using equipment or furniture, entities need to consider how people with disabilities can access goods, services, and programs.

Some elements or equipment are very similar to things that are included in the ADA Standards, and covered entities can often apply the fundamental criteria. For example, there are specifications in the Standards for accessible fixed or built-in ATMs, vending machines, seating in assembly areas, dining surfaces, lockers, and other elements that are often provided as free-standing equipment or furniture. It is relatively easy to consider the Standards when purchasing, renting, or placing these items.

Additionally, there are guidelines that are either under development or have been finalized by the U.S. Access Board, but have not yet been adopted by DOJ or DOT as standards under the ADA. Some have been set as standards under other laws. These materials can provide some excellent guidance for designers and operators.  Check out the Board’s guidelines and standards for information on these facilities, vehicles, technologies, and more:

  • public rights-of-way, including sidewalks, intersections, street crossings, and on-street parking;
  • medical diagnostic equipment such as examination tables and chairs, weight scales, radiological equipment, and other equipment used for diagnostic purposes;
  • outdoor developed areas, including trails, picnic and camping sites, and beach access routes;
  • emergency transportable housing units, which are designed and manufactured for transport over roadways and often provided by government agencies following emergencies and natural disasters; and
  • passenger vessels such as ferries, cruise ships, and excursion boats.

As always, call us with your quandaries and questions!

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Zoom in on Training

ADA Symposium

May 14 – 17, 2017
Chicago, Illinois
This premier conference on the ADA, presented by the ADA National Network, features dozens of sessions presented by national experts, exhibits, and plenty of opportunities for networking!

Mid-Atlantic ADA in Focus Webinar Series

All sessions take place from 2:00 to 3:30 p.m. Eastern Time. Check our Trainings/Workshops pages for more details!

ADA National Network Online Learning

Check out the ADA National Network’s programs, which include the ADA Audio-Conference Series, the ADA Legal Webinar Series, the Accessible Technology Webinar Series, and, in collaboration with the U.S. Access Board, the Accessibility Online Webinar Series. Upcoming sessions:

Annual Mid-Atlantic ADA Update

September 13 – 15, 2017
Tysons, Virginia
Save the date for our 24th annual conference!

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Trainings pages for a comprehensive listing!

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Close-Ups: What's New

DOJ Issues Final Rule on Movie Captioning and Audio Description

popcornThe U.S. Department of Justice (DOJ) updated its Title III regulations to address public accommodations’ obligations to ensure effective communications by provide auxiliary aids and services to people with disabilities.

The new rule requires movie theaters to:

  • have and maintain the equipment necessary to provide closed movie captioning and audio description at a movie patron’s seat whenever a digital movie which has these features available is being shown;
  • provide notice to the public about the availability of these features; and
  • ensure that theater staff is available to assist patrons with the equipment before, during, and after the showing of a movie with these features.

EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions

The U.S. Equal Employment Opportunity Commission (EEOC) issued Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights to explain how job applicants and employees with mental health conditions are protected from employment discrimination and harassment.

The publication addresses what it means to be “qualified” for a job, the process of requesting reasonable accommodations, the kinds of disability-related questions employers may ask and what kinds of medical examinations they may require, and in what circumstances, as well as employers’ duty to safeguard confidential medical information obtained.

Animation on Signs Now Available from the Access Board

The U.S. Access Board has added a new animation on accessible signage as part of its online guide to the ADA Standards. The 15-minute animated film reviews and illustrates requirements and clarifies common sources of confusion. It covers provisions for visual access, tactile signs, required access symbols, and other pictograms.

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Zoom in on Court Decisions and Settlements

Supreme Court: Parents Don’t Need to Follow IDEA Procedures for Non-IDEA Issue

The Supreme Court ruled unanimously in favor of a young girl who was denied the opportunity to bring her service animal to school. The student’s parents brought the case of Fry v Napoleon Community Schools under Title II of the ADA and Section 504 of the Rehabilitation Act (the school receives federal funds).

The school argued that the matter should have been addressed under the Individuals with Disabilities Education Act (IDEA). The IDEA has unique and very specific procedures which parents must follow and exhaust before they can bring a private lawsuit alleging that a school failed to adequately provide a “free appropriate public education (FAPE)” to a student with a disability who needs special education services.

The court confirmed that FAPE is solely within the orbit of the IDEA; parents must exhaust IDEA procedures to gain relief available under that law. Acknowledging that the IDEA, ADA, and Section 504 may at times overlap (“[t]he same conduct might violate all three statutes”), the court nevertheless underscored the distinctions between them: “… statutory differences mean that a complaint brought under Title II and Section 504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation.”

The plaintiffs had not argued that the student needed her service dog in school in order to obtain an education, but rather to have “equal access” and gain more independence in the school environment. The court noted that the student could have pursued essentially the same sort of claim if a “public library or theater had refused admittance” to her service dog, and that an “adult visitor to the school could have leveled much the same charges if prevented from entering with his service dog.” Such suits “would have nothing to do with the provision of educational services,” and should not be limited by procedural requirements under IDEA, which can only address educational services.

Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests.

~ Supreme Court

Arlington County, Virginia Sheriff’s Office Agrees to Settle ADA Claim, Improve Communications for Inmates Who Are Deaf or Hard of Hearing

The U.S. Attorney’s Office announced a settlement agreement under the ADA with the Arlington County Sheriff’s Office (ACSO), resolving allegations that the ACSO failed to provide appropriate auxiliary aids and services to effectively communicate with an individual who is deaf. The individual was incarcerated for 40 days, during which time he claimed he was not provided with interpreter services, telecommunications equipment, or other effective means of communicating.

The ACSO will pay $250,000 to the aggrieved individual, as well as take other steps to comply with the ADA, including:

  • appointing an ADA Coordinator who is familiar with the ADA’s requirements;
  • providing ADA training to staff;
  • adopting policies and procedures to ensure that auxiliary aids and services are provided promptly to individuals who are deaf or hard of hearing;
  • procuring telecommunication devices, including videophones, usable by individuals who are deaf; and
  • providing hearing aid and cochlear implant processor batteries in the detention facility. 

DOJ and Baltimore Police Department: Consent Decree

The U.S. Department of Justice (DOJ) and the Baltimore Police Department (BPD) have entered an agreement designed to improve community interaction and law enforcement activities. The agreement addresses a variety of issues, including police interaction with individuals with “behavioral health disabilities.”

Provisions of the agreement include:

  • a “gaps” assessment of the city’s behavioral health service system will be conducted;
  • a Crisis Intervention Team first-responder model of police-based crisis intervention will be implemented;
  • all officers will receive training on responding to individuals in crisis;
  • dispatchers will receive training on how to respond appropriately to calls that may involve individuals in crisis; and
  • data on suspected behavioral health disabilities or crisis status will be collected, analyzed, and reported.

DC Court Denies AARP Motion for Preliminary Injunction to Stop EEOC Rule on Wellness Programs

The U.S. District Court for the District of Columbia denied a motion for a preliminary injunction in the case of AARP v U.S. Equal Employment Opportunity Commission (EEOC). AARP sought a preliminary injunction to stop the application of the EEOC’s final rule on employer-sponsored wellness programs.

Employers are allowed to obtain employee health and disability-related information through wellness programs as long as participation is “voluntary.” The new EEOC rule considers a wellness program voluntary if an employee is not penalized more than 30% of the cost of self-only health coverage. AARP argues that such penalties are so significant (adding up to hundreds or even thousands of dollars a year for many workers) that they are coercive, and render associated wellness programs involuntary.

The court found a preliminary injunction inappropriate for a number of reasons, including the fact that individual plaintiffs’ claims are largely based on the financial harm they have experienced or will experience when they are penalized for refusing to provide medical information needed to participate in their employers’ wellness programs. The judge noted that financial harm is not “irreparable.” If plaintiffs should ultimately win their case, they will recover that money.

The judge found it unlikely, however, that AARP will eventually prevail on the merits in the case, noting that the EEOC’s regulation, which aligns with other laws (including the Affordable Care Act) is “not irrational.”

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Snapshots: Cool and Useful Websites

Rehabilitation Research and Training Center on Advancing Employment for Individuals with Intellectual and Developmental Disabilities

This project offers a collection of training materials, publications, and research findings that promote successful employment outcomes for individual with intellectual and developmental disabilities.

Aging and Disability Business Institute

This collaborative project serves as a resource to community-based organizations (CBOs) that provide health care services and supports to older individuals and those with disabilities. The Institute offers technical assistance and tools to help CBOs successfully adapt to a changing health care environment, enhance their organizational capacity, and capitalize on emerging opportunities to diversify funding.

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