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Annual ADA Update Conference National Institute on Disability and Rehabilitation Research

ADA In Focus - Volume 8, Number 2 Spring/Summer 2003

In Focus this Issue

ADA IN FOCUS is published three times yearly by the ADA & IT Information Center for the Mid - Atlantic Region. It is posted to the web on the "Publications" page at adainfo.org. It is also available by request in large print, Braille, audio cassette, and computer disk.

Richard G. Luecking, President
Marian Vessels, Project Director
Nancy Horton, Assistant Director
Kathleen Desmond Porter, Training and Organization Development Director
Wesley R. Young, Technical Assistance Specialist
David Stewart, Technical Assistance Specialist
Mark Derry, Training Consultant
Donna Stewart, Administrative Assistant

TransCen, Inc. is a Rockville, MD - based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.

This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D010212). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.

ADA & IT Information Center
451 Hungerford Dr., Suite 607
Rockville, MD 20850-4151
TEL: 301-217-0124 v/tty
FAX: 301-217-0754
Toll-free: 800-949-4232 v/tty
URL: www.adainfo.org
© 2003 by TransCen, Inc.

ADA ISSUES:

TRANSPORTATION: ADA Requirements

The ADA's provisions related to transportation are extensive, but need not be overwhelming. Title II covers everything that state and local governments do, so it covers a wide variety of public transportation options, as well as the facilities associated with them. Title III covers many types of private businesses, including those that offer transportation services, such as taxi and shuttle service companies. Detailed regulations implementing the transportation provisions of both titles were issued by the U.S. Department of Transportation (DOT).

The regulations include specific requirements and time-lines to ensure that the accessibility of a system, including vehicles and facilities, is increased over time. There are also provisions related to communication and other service issues, such as requirements for maintenance of accessible features, providing information, announcing stops on fixed routes, permitting passengers to travel with service animals, and training personnel.

Title II: State and Local Governments

State and local governments have traditionally provided a broad array of transportation services, from fixed route bus and commuter rail services in urban areas, to individually scheduled rides for elders or people with disabilities in limited circumstances. The ADA does not require that public entities provide any transportation services at all, but does require that when they do, these services be provided in a non-discriminatory way.

Transportation for public elementary and secondary school children is not covered by this part of the ADA, but transportation provided by public universities and other institutions of higher education is covered.

Public entities (i.e. state and local governments) that provide fixed route services (typically by bus) must provide comparable "paratransit" service to people who can not use the fixed route due to their disabilities. This requirement does not apply to commuter bus, commuter rail, or intercity (Amtrak) rail systems. Commuter systems are those that are often characterized by limited route structures, with service predominantly in one direction during peak hours, and multi-ride ticketing. The purpose of commuter systems is usually to connect a central business district with outlying areas, or with other transportation modes which make such connections.

Complementary Paratransit

Eligibility for paratransit service is based on very specific criteria. Some people will never need paratransit service, some will need it only for certain trips or at certain times, and some will need it only until the accessibility of the fixed route improves.

There are three categories of eligibility for paratransit services:

  • People who, because of a disability, can not independently board, ride, or disembark, even if the vehicle is accessible.

  • People who can not use the system because it lacks accessible vehicles or stops.

  • People who have a specific impairment-related condition which prevents them from getting to or from a stop.

Each public entity that provides paratransit service is required to develop a process to determine eligibility. The process must identify those applicants who are eligible according to the criteria outlined in the regulations. Although service can be provided beyond minimum requirements, only the cost of required services can be considered if a covered entity requests an undue financial burden waiver.

A personal assistant, if needed, must be allowed to accompany a paratransit rider. One companion must also be allowed to travel, with other companions allowed if space is available. Transit providers can charge riders and companions fares which are double the cost of what a comparable ride on the fixed route would cost. Personal assistants, however, ride at no charge.

Complementary paratransit service must operate within a narrow "corridor" that extends for 3/4 of a mile on either side of the fixed route, with a 3/4 of a mile radius at the ends of the routes. They must also serve small areas that are surrounded by corridors in the "core service area." The "core service area" generally encompasses the urban center of the system. The paratransit service area for rail systems consists of a 3/4 of a mile radius around each station.

There is no obligation to provide paratransit services beyond these limited areas, nor is there any obligation to extend fixed routes into unserved areas in order to ensure that people with disabilities have access to transportation.

A public entity may choose to offer paratransit-type "premium services", such as providing service to people who are not eligible, or providing service outside the required service area. A transit provider is free to establish extra charges or higher rates for such services.

Paratransit Scheduling and Reservations

Paratransit must operate during the same days and times as the fixed route. People must be able to make reservations during the provider's normal business hours the day before a ride is needed, even if the provider's offices are closed the day before a service day. People must also be permitted to make reservations up to fourteen days in advance.

Transit providers can not limit the number or purpose of an eligible rider's trips, as long as the requested trips fall within the normal operating days and times, and within the service area corridor.

Providers can negotiate pick-up times with riders, but can not require a rider to schedule a pick-up more than one hour before or after the desired time.

A transit agency can suspend service, at least for a period of time, to riders who establish a "pattern or practice" of missing scheduled trips. When an individuals's service is suspended for multiple "no-shows", he or she must be provided with a written notice and an opportunity to appeal the decision.

Title III: Private Companies

Private entities that provide certain transportation services to the public are also covered by the ADA. Transportation may be the primary business in some cases, such as many over-the-road bus, taxi, or limousine services. There are also many private companies which provide transportation only as an adjunct to their primary businesses, and these companies have obligations as well.

For example, many hotels, car rental agencies, and parks offer shuttle services utilizing various types of vehicles. Their obligations for acquiring accessible vehicles and providing non-discriminatory service will vary depending on whether they operate a fixed route or a demand-response service, and what kinds of vehicles they have.

Vehicles used primarily for recreation purposes, such as amusement rides or ski lifts, are not subject to the DOT regulations, but rather to Department of Justice regulations if they are operated by entities covered under titles II or III. The Access Board has recently issued a final rule on recreational facilities. These guidelines will provide direction for covered entities building and altering amusement rides, boating and fishing facilities, golf courses, swimming pools, and other recreational elements.

TAXIS: Common Questions

Q: Do taxi companies have to purchase vans or other accessible vehicles in order to provide service to wheelchair users who can not transfer into a car?

A: No, private taxi companies are not required to purchase or lease accessible vehicles. A taxi company that operates solely with "regular" automobiles will never need to buy a van or bus with a lift in order to serve people with disabilities. However, if such a company does purchase or lease a vehicle other than an automobile (such as a van or bus), then that vehicle must be accessible, or the company must provide equivalent service.

Q: What is "equivalent service"?

A: Equivalent service basically means that schedules, information, geographic service area, hours and days of service, reservation capability, response time, and fares are the same for people with disabilities as for other individuals, even though they may use different vehicles.

Q: Can taxi drivers refuse to allow a service animal in their cars?

A: No, taxi companies, like other businesses, can not refuse to serve a person with a disability who is accompanied by a service animal, unless the animal poses a direct threat to health or safety or is "out of control". Vicious, dangerous, or disruptive behavior is extremely rare among service animals. Speculation or fear about possible dangerous behavior, absent any evidence of such, does not constitute a "direct threat". Likewise, concern about potential drooling or shedding is not a legitimate reason to exclude a service animal.

Q: Can taxi drivers refuse to load wheelchairs, or charge extra for doing so?

A: No, taxi drivers typically load suitcases and other items for passengers as part of the service they provide. They can not refuse to provide service to an individual who uses a wheelchair and can transfer into the car, nor can they refuse to load a wheelchair, walker, or other mobility device that will fit in the car or trunk. If they do charge a fee for loading luggage and other items, they can charge the same, but not more, for loading mobility devices.

RESOURCES AND PUBLICATIONS

U.S. DOT


"ADA Paratransit Eligibility Manual: Final Report"


Easter Seals Project ACTION


"Commonly Asked Questions about Service Animals in Places of Business"


Various publications about the accessibility of transportation facilities and vehicles are posted by the Access Board:
www.access-board.gov/indexes/pubsindex.htm

ADA&IT Information Center:

    1-800-949-4232 V/TTY

TRAINING NEWS AND EVENTS

Organization Development: Enhanced Training Capacity at the ADA&IT Information Center

ADA and disability awareness training has been a key service offered by the Center since its inception. Training can be a wonderful opportunity to learn information and develop skills. However, there are times when an organization is not ready for training, or training has not resulted in any measurable impact. Perhaps motivation is lacking or plans are unclear. Even an organization with a desire to implement the ADA can get stuck. It may be time to look at old challenges in new ways.

A Center staff member has recently completed graduate-level training to enable us to expand our menu of services to include Organization Development (OD) activities. OD activities offer an opportunity for an organization to look more comprehensively at how it may build capacity, implement the ADA, and support lasting outcomes. OD activities may include a facilitated research-action process, with information gathering followed by dialogue and planning, or perhaps an appreciative inquiry to help an organization identify its strengths and build on previous successes. What makes OD different from typical consulting is that the organization is a true partner in the process. The organization decides what it is ready to address and how it will move forward. This process does not force change, it supports change.

Let's face it, the ADA is about change. Change can be a challenge, but it is an opportunity to advance and improve. Values, awareness, and skills are all essential for positive and meaningful change. Wherever your organization is on the readiness scale, we can provide support. As you gear up for autumn disability awareness and ADA activities, let us know how we can help. We encourage CILs to consider applying for Training Challenge Grants, and One-Stop Centers to contact us about our Department of Labor initiatives. Training remains an important component of what we do and we expect Organization Development to become a valuable addition.

At Your Service: Welcoming People with Disabilities

This FREE WEB COURSE is designed to help service providers develop a better understanding of accessibility and accommodation issues for people with physical, sensory, psychiatric, or cognitive disabilities. A combination of lessons and case studies explore the legal and procedural aspects of serving customers with disabilities. Although it was developed for One-Stop Career Center staff, it is applicable in a variety of customer service situations. Find the course on-line at www.wiawebcourse.org

For information on other ADA, IT, and disability-related training events, check the "Training" page at the ADA&IT Information Center web site: www.adainfo.org/resources

COALITION/CONSORTIUM NEWS

Helping Tools: Information Technology in Education

Schools, from preschool through higher education and vocational training, use Information Technology (IT) to provide instruction, enhance learning, and facilitate communication. Web pages and online learning resources have become required tools for academic participation and achievement. Students, parents, faculty, and administrators, including those with disabilities, need to be able to access this technology.

Although Assistive Technology (AT) can support a person with a disability in accessing computers, applications, and the Internet, AT alone can not access IT systems with inaccessible structures or content.

Pennsylvania's Initiative on Assistive Technology (PIAT), a program of the Institute on Disabilities at Temple University, and a partner in the Mid-Atlantic Consortium on Accessible IT, developed a full-day Train-the-Trainer Model titled, "Helping Tools for Access to Information Technology in Education."

The project was designed to increase awareness about procurement of accessible IT and delivery of accessible information. Educational entities are encouraged to utilize the Federal government's "508" standards for accessible electronic and information technology, as well as principles of universal design, to enhance usability.

Training and Tool Kit

A complete training kit was assembled for use by participants. The kit includes an assortment of AT devices, a PowerPoint presentation, speaker notes, a video, a resource manual containing reference materials, hand-outs, training tips, and Internet resources. The AT devices demonstrate the difficulties that people with disabilities might experience when using inaccessible telecommunication products, computer equipment and software, or web sites.

To find out more about accessible IT in educational settings, or inquire about having a "Helping Tools" train-the-trainer presentation conducted for your faculty or staff, contact PIAT via e-mail at piat@temple.edu.

TO CONTACT THE ADA COALITIONS:

TO CONTACT THE ASSISTIVE TECHNOLOGY PROJECTS:

ADA RULINGS:Decisions and Settlements

Fourth Circuit Bars Private Claims for Damages Against States

The Fourth Circuit Court of Appeals affirmed the ruling of the lower court in the case of Wessel v. Glendening, which held that private individuals can not obtain damages from states under title II of the ADA. The court ruled that Congress exceeded its authority to override states' sovereign immunity from such damage claims.

The case arose when Dwayne Wessel, a prisoner in a state correctional facility in Maryland, sued for damages after he was deemed to be "medically unqualified" to participate in programs that would have reduced the length of his sentence.

The Court found that Congress did not establish a sufficient record of Constitutional violations by states to warrant abrogation of the states' immunity. It also held that Congress "imposed a remedy that is neither congruent nor proportional to the problem it identified," concluding that title II "requires far more than does the Constitution." Where the Constitution requires that states simply avoid irrational discrimination, title II imposes a duty to act positively.

The court noted that a state's immunity does not shield it from suits seeking injunctive relief (e.g. an "accommodation"), but since Mr. Wessel is no longer in state custody, no injunctive relief is available.

Bankrupt Airline's Successor "Free and Clear" of Discrimination Claims

The Third Circuit Court of Appeals issued its ruling in the case of Trans World Airlines (TWA) v. Knox-Schillinger, affirming the lower court's decision that American Airlines, which bought TWA's assets, can not be held liable for employment discrimination claims brought against TWA prior to its bankruptcy.

TWA had several unresolved employment complaints, brought under the ADA, title VII of the Civil Rights Act, and the Age Discrimination in Employment Act (ADEA) , when it filed a bankruptcy petition and sold its assets to American Airlines. When property is sold under these conditions, it is "free and clear" of "interests". The employees argued that their claims were not "interests in property", but the court disagreed, finding that the claims were "connected to or arise from the assets sold."

Penn's Landing: New Philadelphia Hotel to Increase Accessibility

The U.S. Attorney for the Eastern District of Pennsylvania negotiated a consent decree with Penn's Landing Partners and its architect, Brennan Beer Gorman, to resolve violations of the ADA's requirements for new construction. A compliance review begun during the construction of the Hyatt Regency Hotel at Penn's Landing in Philadelphia identified several deficiencies. Among the design changes that were agreed to:

  • Van accessible parking spaces will be made available in the parking facility.

  • Accessible routes throughout the facility and adjacent to public ways, including the river-side promenade, will coincide with those for the general public.

  • Accessibility in employee work areas will be improved.

  • The number of fully accessible rooms and the number of additional rooms equipped for guests with hearing impairments will be increased.

  • Accessible rooms will be dispersed to offer a wider range of options in terms of room sizes, amenities, and views; the VIP suite and the Presidential suite will also be accessible.

Additionally, Penn's Landing Partners paid a civil penalty of $15,000 and Brennan Beer Gorman paid a civil penalty of $25,000. The Brennan architectural firm will also provide ADA training to its architects specializing in hotel design.

WHAT'S NEW

New Fact Sheets from EEOC: Multinational Employment Rights and Responsibilities

The U.S. Equal Employment Opportunity Commission issued two new fact sheets that offer information for workers and employers. The fact sheets include information, for example, about how EEO laws apply to non-citizens working in the United States, or to U.S. citizens working abroad for U.S. companies. The publications are posted on the web:

Golf: Accessible and Inclusive Networks

The Golf: Accessible and Inclusive Networks (GAIN) project was recently launched in Baltimore County. Project GAIN is a national research and development project funded by the United States Golf Association Foundation and the PGA Tour. The project is designed to maximize opportunities for inclusion.

The Baltimore County component is coordinated through the Therapeutic Recreation Division of the Baltimore County Department of Recreation and Parks. The project is still seeking participants. Individuals with disabilities are paired with a mentor and provided with six lessons from PGA staff. Pre- and post- session assessments are completed.

Participants must be at least fifteen years old. Participants can "bring their own" mentor (for example, a parent, spouse, or friend), but if they do not have one, they will be paired with one. There is no cost for the program, and equipment is available for those who do not have their own.

Participation is not limited to Baltimore County residents. For more information, call the Therapeutic Recreation Division at 410-887-5370.

Success Story: Mediation

Both the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) have mediation programs to help resolve complaints.

Mediation is a form of Alternative Dispute Resolution (ADR) that offers an opportunity for parties to work out a mutually acceptable solution to their problem. Trained mediators facilitate the process, which is free and confidential. Successful mediation avoids the time consuming and expensive investigation and litigation process.

The EEOC, which investigates complaints under title I of the ADA, as well as the employment provisions of other civil rights laws, launched its program as a pilot in 1991, and expanded agency-wide in 1999. The program has conducted more than 44,000 mediations, resolving over 29,000 charges and obtaining over $400 million in benefits for aggrieved individuals, all within an average processing time of 86 days.

The DOJ ADA Mediation program was first established in 1994. Complaints under title II and title III can be mediated when appropriate. There are over 450 professional mediators available nationwide. The program has successfully resolved over 75% of the cases where mediation was completed.

For more information on mediation:

EEOC 1-800-669-4000 V; 1-800-669-6820 TTY
www.eeoc.gov/mediate/index.html

DOJ 1-800-514-0301 V; 1-800-514-0383 TTY
www.ada.gov/mediate.htm
OR contact Key Bridge Foundation at:
1-888-528-1609 V; 1-800-630-1051 TTY
www.keybridge.org

WEB SITES:

www.ncaonline.org The National Center on Accessibility, dedicated to promoting inclusive recreational activities and accessible outdoor environments, has added several new resources and features to its web site. Look for the monograph series in the Technical Assistance section, and the Product section, which includes listings for accessible products such as all-terrain wheelchairs, pool lifts, fish-cleaning stations, golf assistive devices, and telescopes.

www.paralympic.org The International Paralympic Committee web site includes information on world-class sporting activities for athletes with disabilities. Check the International Sports Calendar for events around the world. Look for the link to www.athens2004.com for information on the games to be held in Athens, Greece in the fall of 2004. There is visitor information, including events, lodging, transportation, and tickets, as well as job and volunteer opportunities.

http://airconsumer.ost.dot.gov/languages/index.html (Note that there is no "www" in this URL). The Aviation Consumer Protection Division at the U.S. Department of Transportation is making several of their documents about civil rights in air travel available in various languages. The publications relevant to disability are available in Spanish and in BRF files, which are suitable for printing in Braille on applicable devices. Other information is available in Arabic, Farsi, Hindi, Punjabi, and Urdu as well.

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.

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