ADA In Focus - Volume 8, Number 1 Winter 2003
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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 Director
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.
NEW CONSTRUCTION, ALTERATIONS, & BARRIER REMOVAL: Advancing Access
The ADA has various requirements related to architectural access. It may seem confusing to try to sort through the numerous factors that affect the application of the ADA Accessibility Guidelines (ADAAG), not to mention other building codes and regulations which often apply as well! Where to begin? Well, let's start with the basics.
Covered Entities
It's important to remember that the ADAAG only comes into play when a building is related to a "covered entity". The ADA is a civil rights law; the ADAAG is part of the ADA. The ADAAG is referred to in Title II, which covers state and local governments, and Title III, which covers private entities that own, lease, lease to, or operate places of public accommodation or commercial facilities. Title III applies to both for-profit businesses and non-profit agencies.
Places of public accommodation are generally open to the public, whereas commercial facilities are not. Commercial facilities are generally places where only employees go, such as assembly plants and warehouses.
There are many examples of the different types of places of public accommodation, but only twelve types: places of lodging (hotels, etc.); exhibition/entertainment (theaters, concert halls, etc.); display/collection (galleries, museums, etc.) public gathering (convention centers, auditoriums, etc.); sales/rental (hardware stores, bakeries, etc.); service (banks, doctors' offices, dry cleaners, etc.); social service (homeless shelters, food banks, etc.) recreation (amusement parks, etc.); education (nursery schools, colleges, etc.); exercise (gyms, bowling alleys, golf courses, etc.); certain terminals/depots; and places serving food or drink.
Places which do not fall within one of these twelve types are not covered by Title III of the ADA, although they may be covered by other laws or requirements. For example, typical private apartment complexes, where people reside on a long-term basis (unlike shelters, motels, etc.) are not covered by the ADA. The accessibility of such dwelling units, as well as "common areas" (laundry rooms, exercise facilities, etc.) that are restricted to the use of residents and their guests, is addressed under the Fair Housing Act (FHA). The FHA was amended in 1988 to extend particular protections to people with disabilities, but there are some distinct differences between the provisions of the FHA and those of the ADA.
Exempt Entities
There are two types of private entities which are exempt from Title III; religious entities and "bona fide" private membership clubs. What is a "bona fide" private membership club? Generally, one where the membership process is highly selective, membership fees are substantial, and members have a high degree of control over club operations. Bona fide private clubs operate as non-profits, and can not be founded specifically to avoid compliance with Federal civil rights laws.
There is a further distinction between the two types of exempt entities. The "private membership club" exemption is not available to the extent that goods or services are "open" to the general public. For example, if a private membership club rents out its "party" room to non-members, it must comply with the provisions of Title III, at least as far as access to the party room.
On the other hand, the exemption for religious entities is very broad. Even if a religious entity offers goods or services to the general public, it is still exempt from all the provisions of Title III. Many religious entities operate day care centers, schools, thrift stores, and so forth. If these endeavors are controlled by the religious entity, they are exempt.
New Construction and Alterations
When covered entities design and build new buildings, or alter existing ones, there are specific requirements that must be met. Title II allows state and local governments ("public entities") to choose either the Uniform Federal Accessibility Standards (UFAS) or the ADAAG.
The UFAS and the ADAAG are similar, but there are a few differences. The U. S. Access Board is working to fuse a unified set of standards which would be used by Federal agencies under the Architectural Barriers Act (ABA), as well as by entities covered under the ADA. The ADAAG includes guidance on how to apply the specifications of the standards to new construction projects, additions and alterations, and historic properties.
The requirement to ensure full compliance with accessibility standards in new construction is diminished only in very rare circumstances, such as building on extreme terrain. Departure from the standards is also permitted in cases of "equivalent facilitation". This means something different can be done if it provides an equal or better level of access.
Alterations to existing facilities can present additional challenges. There may be constraints related to the structure of the building itself, as well as the terrain of the site. There are additional provisions in the ADAAG that allow certain departures from standards to address some of the particular issues that arise with alterations.
Altering Primary Function Areas
Alterations to a "primary function area" may trigger obligations related to the "path of travel" to that area, and to certain elements (such as restrooms) that serve the area. Primary function areas are those where customers or employees engage in the major activities for which the building is intended. For example, the dining room and the kitchen would be considered primary function areas in a restaurant. Restrooms, telephones and drinking fountains are associated elements that may serve a primary function area.
Alterations to a primary function area should ensure that the path of travel to the area, as well as the associated elements, are accessible, unless the cost is disproportionate. "Disproportionate" is defined as cost exceeding 20% of the cost of the overall alteration to the primary function area. If providing access to all these elements is disproportionate, priority should be given first to the path (parking, entrance, etc.) and then, in subsequent order, to the restrooms, telephones, and drinking fountains, if there are any.
Program Access and Barrier Removal
Title II of the ADA covers all programs, services, and activities of state and local governments ("public entities"). Since public entities often operate the same types of "places" that are covered by Title III (schools, senior centers, museums, parks, etc.), confusion sometimes arises about the different obligations that the two types of entities have.
The overarching standard for public entities is related to the programs, as opposed to the buildings. Of course, new buildings constructed or altered by public entities will be required to meet accessibility standards, but there may be a variety of ways to ensure the accessibility of programs which take place in older buildings.
A public entity might provide services at alternate locations, for example, based on an individual's need. However, since programs must be offered in the "most integrated setting appropriate to the needs of qualified individuals with disabilities", making architectural changes to older buildings, when possible, often produces a more long-term solution.
Public accommodations, on the other hand, are required to remove architectural barriers when it is readily achievable to do so. This obligation is on-going, and is present regardless of whether any construction or alterations are being done. Public accommodations may consider alternate means of providing goods and services (for example, meeting a customer at a different location) only when barrier removal is not readily achievable.
Commercial facilities are only subject to the requirements related to new construction and alterations. They are not required to engage in "barrier removal" activities the way public accommodations are.
Building Codes
Most states and even many localities, such as cities and counties, have building codes. Some of them incorporate the ADAAG standards and some are based upon them at least to some extent; many have even more stringent requirements, at least in relation to particular elements. For example, Maryland's code requires a greater number of van-accessible parking spaces.
Some codes differ significantly in their application. For example, entities that are exempt from Title III are usually subject to local and/or state building codes. So when they construct new buildings, or alter existing ones, accessibility requirements may be triggered. It is always a good idea to check with local authorities to ensure compliance with appropriate standards.
PARKING: Common Questions
Q: Does the ADA require that accessible parking spaces be added in older parking lots?
A: When covered entities alter existing parking lots, they must comply with applicable accessibility standards. Additionally, public entities covered by Title II must also ensure "program access" in existing facilities, and private businesses covered by Title III must remove barriers when it is readily achievable. Restriping parking spaces is often relatively inexpensive and easy to accomplish. Tax incentives may be available in some cases to help offset the cost.
Q: Does the ADA require that parking be provided for people with disabilities?
A: Only if parking is provided in general. The ADAAG does not require that a covered entity build a parking lot or facility just for people with disabilities; it requires that IF parking is provided, a minimum number of spaces be accessible.
Q: Does the ADA require that accessible parking be offered free of charge?
A: Only if other, "non-accessible" parking is free. The ADA does not prohibit charging the same fees or rates for accessible parking that are charged in general.
Resource Documents
The U.S. Department of Justice has two helpful documents on accessible parking, posted on their "ADA Business Connection" page at www.ada.gov/business.htm
"ADA Business Brief: Restriping Parking Lots"
"Readily Achievable Barrier Removal and Van-Accessible Parking"
The U.S. Access Board also has a "Parking Technical Bulletin" posted; visit their Publications page at www.access-board.gov/indexes/pubsindex.htm
These documents can also be obtained from the ADA & IT Information Center; call 1-800-949-4232 V/TTY or visit www.adainfo.org/publications
The ADA & Reasonable Accommodations in the Workplace
ON-LINE COURSE......................FEBRUARY 3 - MARCH 17, 2003
This course is offered by the Rehabilitation Research & Training Center (RRTC) on Workplace Supports at Virginia Commonwealth University (VCU). The course will cover a wide range of topics; the roster of presenters includes an impressive group of national experts. This course is approved for re-certification credit hours toward PHR & SPHR through the Human Resource Certification Institute; CRC and CEU Credits are also available.
For more information, visit www.worksupport.com,
or e-mail Terry Blankenship at tcblanke@saturn.vcu.edu
Pennsylvania Workforce: Growing Stronger Through Business, Government and Education Partnerships
KING OF PRUSSIA, PA.......................APRIL 30 - MAY 2, 2003
The 19th annual Pennsylvania Employment, Training, and Education Conference will be held at the Radisson Valley Forge Hotel and Convention Center.
For more information, call Dennis Rhen of Pennsylvania Partners,
717-612-1590, ext. 102,
or e-mail drhen@papartners.org
ADA Distance Learning Program 2003
ASK THE DEPARTMENT OF JUSTICE.......................MAY 20, 2003
DEMYSTIFYING FEDERAL ACCESSIBILITY REQUIREMENTS: ADAAG, UFAS, FAIR HOUSING .......JUNE 17, 2003
ADA UPDATE: 13 YEARS LATER.......................JULY 15, 2003
ACCESSIBILITY OF THE PERFORMING ARTS: ASSURING ACCESS FOR EVERYONE.......................AUGUST 19, 2003
BEST PRACTICES IN ACCESSIBLE ELECTRONIC & INFORMATION TECHNOLOGY POLICY
BEST PRACTICES IN REASONABLE ACCOMMODATION: BACK TO BASICS
.......................APRIL 15, 2003
.......................SEPTEMBER 16,2003
For more information, visit the "Training and Resources" page at www.adainfo.org
or call 1-800-949-4232 V/TTY.
Coming this Spring...................."Access to ADAAG"
The ADA Center is planning to offer another of this popular training series. This two part training (beginning and advanced levels) is facilitated by Mark Derry.
If you are interested in receiving further information as it becomes available,
please contact the Center at 1-800-949-4232, voice or TTY, in the Mid-Atlantic Region.
Young Engineers in Action at Penn State
The Pennsylvania ADA Coalition and the Affirmative Action Office at Penn State, with support from Bob Finley, the Assistant Vice President for Finance and Business, sponsored a unique project within the College of Engineering at Penn State. Over 400 students in freshman-engineering were challenged to address an accessibility barrier at one of the Penn State campus locations.
The Penn State Hazleton campus includes dormitory and food service facilities near the main entrance. All other facilities are located nearby, but at a significantly higher elevation. There are both a footpath and a vehicle road between the levels, but both are very steep. Limited parking space is available for those who arrive at the higher level by vehicle.
The engineering students were asked to design a mechanical, manual, service, or hybrid system to provide access between the levels. The systems had to comply with the accessibility standards of the ADA to ensure usability for people with disabilities.
The systems also needed to be convenient, free to users, reasonable to maintain, able to operate in all weather conditions, and accommodate users traveling in both directions simultaneously. The target cost for the project, including any operating costs, was less than $1 million.
These creative students came up with solutions utilizing a wide variety and combination of methods, including ramps, elevators, lifts, funiculars, moving walks, trams, and electric cars. They made materials lists and analyzed costs; they laid out project construction and implementation time-lines; they presented their designs with scale models, slides, and CAD illustrations and animations.
Fourteen final projects were selected by peers to be showcased in an expo held at the end of the semester. To see some of the innovative solutions that the teams of students proposed, visit the project web site at: www.ecsel.psu.edu/design_projects/fa01/sp.htm
ADA RULINGS:
Washington Opera to Increase Wheelchair Seating Availability
The Washington Opera and the Department of Justice reached a settlement agreement that will result in a greater level of seating availability for patrons who use wheelchairs and their companions. A patron complained that the Opera did not provide a sufficient number of wheelchair seating locations, and that they were all in the most expensive section. People who needed the accessible seats did not have the ticket price choices that were available to others.
The Opera is offering performances at both the Kennedy Center and at DAR Constitution Hall this season, due to renovations taking place at the Kennedy Center. During the renovation period, the wheelchair seating locations will be sold at various price levels.
Several other changes will be implemented, both during and after the architectural renovation period, including:
- Policies for holding and releasing accessible seating will ensure greater availability.
- One companion seat next to each accessible seat will be available at the same ticket price as the accessible seat.
- The Opera will designate an ADA Coordinator, who will attend at least one ADA conference or training each year.
- An ADA Advisory Committee will be formed, including people with various disabilities.
Jury Awards Damages for Denial of Services
A jury awarded over $19,000 in damages in a case that was initially brought under both the ADA and the D.C. Human Rights Act. The damages were awarded under the D.C. Human Rights Act.
The claim arose when Garth Alexander sought an appointment with United Optical. Mr. Alexander's wife was told that the practice could not see him because he is deaf. She asked for the refusal in writing, so that authorization to see another provider could be obtained. United Optical gave the Alexanders a note that stated they would be unable to see the "potential patient", due to their inability to communicate effectively.
D.C. Circuit: FCC Can't Require Video Description of Television Programs
The U.S. Circuit Court of Appeals for the District of Columbia recently ruled in favor of the Motion Picture Association of America, which had contested the FCC's authority to enact video description rules.
The FCC had issued regulations requiring commercial television broadcasters and multichannel video programming distributors to add video descriptions to a minimum number of hours of programming. Video descriptions are inserted during pauses in the audio portion of a program, to convey verbally some of the visual elements that appear on screen.
The FCC maintained that its authority derived from the Communications Act, which delegates responsibility to the FCC to make radio and wire communications available to all Americans. The Court said the FCC's duty is to ensure geographic availability, not to regulate the content of programs.
The Court drew a distinction between captions, which merely present the speech which is already part of the program, and video descriptions, which add an element that was never envisioned by the program producers.
CVS Stores Will Increase Access
A recent settlement will result in a greater level of access in CVS stores throughout the greater Washington metro area. CVS, a national chain with drug stores around the country, will add accessible parking, adjust doors and counters, and remove obstructions in aisles. Staff will also receive training on disability issues.
WHAT'S NEW
Resource for Law Enforcement: Responding to Crime Victims with Disabilities
The Office for Victims of Crime (OVC) at the U.S. Department of Justice has issued a new publication called "First Response to Victims of Crime Who Have a Disability." This handbook provides information for law enforcement officers on how to approach and help crime victims.
The text includes basic guidelines, an overview of the ADA and the Rehabilitation Act, and special chapters with information on how to help people who have Alzheimer's disease, mental illness, mental retardation, visual impairments, and hearing impairments.
The publication can be accessed directly on-line at: www.ojp.usdoj.gov/ovc/publications/infores/firstrep/2002/welcome.html
You can also contact the OVC Resource Center (OVCRC), P.O. Box 6000, Rockville, MD 20849-6000, or call 800-627-6872 (or 301-519-5500 locally); 877-712-9279 TTY.
New "ADA Quiz Book"M
The Rocky Mountain Disability and Business Technical Assistance Center has issued the 3rd edition of the popular "ADA Quiz Book." This collection of puzzles, questions, quizzes, and case studies on the ADA and accessible information technology makes training activities fun!
For more information or to order, visit the Rocky Mountain DBTAC's web site at www.ada-infonet.org or call 719-444-0268 (Voice or TTY).
Updates from EEOC
The U.S. Equal Employment Opportunity Commission (EEOC) has revised its guidance to reflect a recent Supreme Court decision that addressed reasonable accommodation and seniority systems (U.S. Airways v. Barnett).
Revisions to "A Technical Assistance Manual on the Employment Provisions of the ADA" are in the form of an addendum, which can be found on-line at www.eeoc.gov/docs/adamanual_add.html. The manual itself is not available on-line, but can be ordered through www.eeoc.gov/publications.html, or from the ADA & IT Information Center.
The updated version of the "Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act" can be found on-line at www.eeoc.gov/docs/accommodation.html
To obtain copies of these documents from the ADA & IT Information Center; visit www.adainfo.org/publications or call 1-800-949-4232 (voice or TTY) in the Mid-Atlantic Region.
Access Success
The Delaware Transit Corporation (DTC) placed into service the first of its new wheelchair accessible buses this past summer in New Castle County. DTC is replacing 63 old buses, making its entire fleet of buses accessible for wheelchair users. Riders will no longer need to call ahead to request a lift-equipped bus on their route.
The new buses also feature a wider interior aisle, a 5-camera safety system, an easier-to-read exterior LED destination sign, state-of-the-art radio communications, and satellite-based automatic vehicle locator (AVL) systems. Additionally, they are also equipped with an exhaust gas recirculation system which reduces pollution.
For more information on transportation services in New Castle and Kent Counties call 1-800-652-DART; for information on Sussex County service and statewide paratransit service call 1-800-553-DART; or visit www.DartFirstState.com
www.halftheplanet.org HalfthePlanet Foundation is a nonprofit organization that supports the application of technology to promote the values of independent living, social inclusion, equality of opportunity, economic self-sufficiency, and empowerment.
www.icdri.org The International Center for Disability Resources on the Internet (ICDRI) promotes best practices and universal design of technology.
www.think-and-link.org The Think-and-Link research project focuses on the use of e-mail by people with acquired cognitive disabilities, particularly traumatic brain injuries.
www.lita.org The Library and Information Technology Association (LITA), a division of the American Library Association (ALA), provides a forum for learning about technology in the library and information science field.
www.dssc.org The Disabilities Studies and Services Center (DSSC), a department of the Academy for Educational Development (AED), administers several projects, including: the National Information Center for Children and Youth with Disabilities (NICHCY), the Federal Resource Center for Special Education (FRC), the Comprehensive School Reform Demonstration (CSRD) Alignment Study and the Family Center on Technology and Disability.
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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