You're listening to the Disability Law Lowdown Podcast, show number
56.
Beth Case: Hi, this is Beth Case, the producer and editor of the
Disability Law Lowdown Podcast. Just a quick note. Last episode, you
were introduced to Lex Frieden, who will be the new host of this
podcast. But, in the episode you're about to listen to, you will hear
a very familiar voice. Jacquie Brennan has been grcious enough to
agree to continue to do some of the recordings for the Disability Law
Lowdown Podcast. So, I hope you enjoy hearing her voice again.
Jacquie Brennan: Hi, this is Jacquie Brennan. And I'm glad you could
join us for this podcast today. As probably most of you know the
Americans with Disabilities Act is a civil right statute and it
prohibits discrimination by employers, state local governments, and
places of public accommodation. The ADA provides for accommodation and
access so that individuals with disabilities can fully participate in
and enjoy the benefits of employments and programs and activities of
state and local government in addition to providing access to places
of public accommodation. The ADA does not, at least within the statute
provides specific measurements or standards for providing access.
These specific standards are provided by the United States Department
of Justice and the United States Architectural and Transportation
Barriers Compliance Board which is called the access board. The new
standards at the access board released in 2010 are called, not
surprisingly, the 2010 Standards for Accessible Design and will just
call in the 2010 Standards for purposes of this podcast.
The 2010 Standards became effective on March 15, 2011. On March 15,
2012, all new construction alterations and barrier removal must be
done in compliance with the 2010 standards. New construction,
alterations, and barrier removal that takes place before March 15,
2012 must be done in compliance with either the 1991 standards are the
2010 standards. The 2010 standards have a general safe harbor
provision that provides that covered facilities that were built are
altered in compliance with the 1991 standards are not required to be
brought in the compliance with the 2010 Standards, and so those
elements are subject to a planned alteration. Another safe harbor
provision with the same sort of safe harbor applies to elements
associated with the past as travel to an altered area. Also in 2010,
the Department of Justice released new regulations that apply to the
Americans with Disabilities Act as again you probably know the ADA was
amended through the ADA Amendments Act in 2008 and those amendments
required that some new regulations be released and the Department of
Justice did this.
So we're going to talk today in this podcast show, just about some of
the major changes that were brought about by the new 2010 standards
for accessible design as well as the new regulations in Titles II and
III that were brought about by the ADA Amendments Act. So a couple of
those changes. One has to do with service animals, and actually I'm
doing another show specifically on service animals because there's a
lot to say about the changes in service animals but I'll just say
that, I guess, the big change to summarize is that service animal is
now defined as a dog that has been individually trained to do work or
perform task for the benefit of an individual with disability. So the
difference in that definition is that it's defined now as a dog. So
before we had a lot of animals who could have qualified as service
animals if they were individually trained to do work or perform tasks
but the Department of Justice now has that definition as just a dog.
Now we'll say... I know there's a narrow exception for miniature
horses in some cases, but the definition still reads dog so I'll go
into that in the other podcast where we really go in depth into the
service animal issue.
But that's a very important change. And also emotional support animals
including dogs that are not trained to perform task that mitigate the
effects of disability are not service animals. That was not addressed
before in the old regulations and that is specifically addressed now.
So we always do that they did not meet the definition but still it
wasn't very clear because they just weren't addressed one way or the
other. So now that has been addressed in the regs. But there is a
difference between emotional support animals, or therapy animals, or
comfort animals, they're called by different names, and animals that
actually are psychiatric service dogs and service dogs for people with
cognitive disabilities. So as long as the animals are trained to
perform a specific task that mitigates the effects of disabilities
then... And that the animal is a dog or as I said in some specific
cases, miniature horses, then those animals will be protected by the
ADA.
Another change in the regulations is that there's been an extended
definition of auxiliary agent services. You know that setting local
governments and in some cases and situations, places of public
accommodation under Title III, they're required to provide effective
communication for people who are deaf or hard of hearing. And we
always have a definition of auxiliary aids and services and that
needed to be used in order to provide effective communication and that
definition has changed mostly because of new technology. So now the
definition of auxiliary aids and services includes qualified
interpreters on site or through video remote interpreting which is
called VRI Services, note takers, real time computer-aided
transcription services which are typically known as CART, written
materials, exchange of written notes, telephone handset amplifiers,
assisted listening devices, assisted listening systems, telephones
that are compatible with hearing aids, close caption decoders, open
and close captioning including real-time captioning, voice, text and
video based telecommunications products and systems including texts,
telephones which are known as TTYs, video phones and caption
telephones or equally effective communications devices.
Video text displays, accessible electronic and information technology
or other effective methods of making orally delivered information
available to individuals who are deaf and hard of hearing. The
definition of auxiliary aides and services also includes qualified
readers, taped text, audio recording, Braille's materials and
displays, screen reader software, magnification software, optical
readers, secondary auditory programs called S-A-P or SAP, large print
materials, accessible electronic and information technology or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision. It also includes
acquisition or modification of equipment or devices and of course,
other similar services and actions since new technology are being
devised all the time. There's also updated definition for qualified
interpreter. It now means an interpreter who via video remote
interpreting service or an onsite appearance is able to interpret
effectively, accurately and impartially both receptively and
expressively using any necessary specialized vocabulary. Qualified
interpreters include, for example, sign language interpreters, oral
transliterators and cued language transliterators.
There is also a definition of VRI which we didn't have when the 1991
Standards were released. And the definition of VRI, which is Video
Remote Interpreting Service, means an interpreting service that uses
video conference technology over a dedicated lines or wireless
technology offering high-speed, wide bandwidth video connection that
delivers high quality video images. We also have some new definitions
around the use of wheelchairs and manually-powered mobility aids. So
of course, entities have to permit individuals with mobility
disabilities to use wheelchairs and manually-powered mobility aids
such as walkers, crutches, canes, braces or other similar devices
designed for use by individuals with mobility disabilities in any
areas that are open to pedestrian use. Entities also have to allow the
use of other power-driven mobility devices. And we'll get into that
definition in a minute. But the only way that entities cannot permit
these devices is if the entity can demonstrate that the class of other
power-driven mobility devices can not be operated in accordance with
legitimate safety requirements.
So this definition for other powered-driven mobility device means any
mobility device, powered by batteries, fuel or other engines, whether
or not designed primarily for use by individuals with mobility
disabilities but is used by individuals with mobility disabilities for
the purpose of locomotion including golf cars, electronic personal
assistance mobility devices and those include things like the Segway
and that's the main one of those kind of devices that is included in
that definition or any mobility device designed to operate in areas
without defined pedestrian routes but that is not a wheelchair within
the definition of wheelchair that the ADA has. So as I said, entities
can't... They have to permit these devices, unless it can show that
that class of devices can't operate in accordance with legitimate
safety requirements. So there are some specific assessment factors
they can use to make this decision.
An entity can consider the type, size, weight, dimensions, and speed
of the device as well as the facilities' volume of pedestrian traffic
which might vary at different times of the day, or week, or month, or
year. And also the facilities' design and operational characteristics
like whether it's service program or activity is conducted indoors,
it's square footage, the density in placement of stationary devices
and the availability of storage for the device if requested by the
user of the device. Whether legitimate safety requirements can be
established to permit the safe operation of the other power-driven
mobility device in that specific facility and whether the use of the
other power-driven mobility device creates a substantial risk of
serious harm to the immediate environment, or natural, or cultural
resources. So they can consider those factors when deciding whether to
allow a person to bring that device in. But of course the fear was
what if just people who don't have mobility disabilities want to bring
their Segway places, you know how do we deal with that? So they want
to make sure that the person actually has the disability.
Well, a public entity or a place of public accommodation cannot ask an
individual using a wheelchair or an other power-driven mobility device
questions about the nature or extent of the person's disability. But
what that entity can ask for, they can ask the person who's using that
power-driven mobility device to provide credible assurance that the
mobility device is required because of the person's disability. If the
entity permits the use of the power-driven mobility device by an
individual with a mobility disability then it has to accept the
presentation of a valid state issued disability parking placard or
card, or other state issued proof of disability as credible assurance
that the use of the power-driven mobility device is for the
individual's mobility disability. Instead of the valid state issue
disability parking placard or card, or other state issued proof of
disability, an entity has to accept as credible assurance a verbal
representation from the person. So if the person just says, "Yes, I
have a mobility disability that requires the use of this power-driven
mobility device," then the entity has to accept that unless it's
contradicted by an observable fact. So they have to accept that as
credible assurance that the power-driven mobility device is being used
for a mobility disability. By the way they do say that a valid
disability placard or card is one that's presented by the individual
to whom it was issued and is also otherwise in compliance with states
issuance requirements for disability cards and placards.
Also in the 2010 regulations, there is another new definition which is
a definition of housing at a place of education. This was added to
clarify the types of educational housing programs that are covered by
the ADA and this section defines housing at a place of education as
housing operated by or on behalf of an elementary, secondary,
undergraduate, or postgraduate school, or other place of education
including dormitories, suites, apartments, or other places of
residence. This definition does not apply to social service programs
that combine residential housing with social services such as a
residential job training program. Those where mostly changes that
occurred in the regulations that were issued in September of 2010, and
now we're going to look at the 2010 standards for accessible design
and I'm just going to sort of touch on the high points of some of the
changes there without going into a lot specific numbers and
measurements, although those are of course available when you need
more information on that.
Recreational boating facilities. If boat launch ramps have boarding
piers at least 5% but no fewer that one must be accessible. If a
boating facility has both slips, accessible boat slips must be
dispersed among the different kinds of boat slips. The number of
accessible boat slips required depends on the size of the facility.
Detention and correctional facilities. The requirements of the 2010
standards apply to detention and correctional facilities. Three
percent of newly constructed are altered cells must be accessible.
Ticketing. There been a lot of changes in ticketing because this
wasn't really addressed very well at all in the old regulations so we
now have a lot of requirements for ticketing and I'm doing a separate
podcast just on ticketing but the 2010 Standards have requirements for
selling tickets for accessible seats, selling season tickets, pricing
tickets, purchasing multiple tickets with other tickets for accessible
seating, preventing the fraudulent purchase of accessible seating and
holding and releasing accessible seating to persons other than those
who need accessible seating. So, we will address all of that in
another podcast.
Reservations at places of lodging. Places of lodging must have
procedures that allow individuals with disabilities to make
reservations for accessible guest rooms during the same hours and in
the same manner as other guests. They must also hold accessible guest
rooms for individuals with disabilities until all other guest rooms of
that kind have been reserved and they must identify and describe
accessible features of a room and make sure that an accessible room
that has been reserved is removed from the reservations system so that
it is not released to someone else accidentally. Places of lodging
have until March 15, 2012 to comply with this requirement. Transient
lodging guest rooms. Guest rooms with mobility access as well as those
with communication access must be dispersed among all the rooms.
Residential housing for sale to individual owners. Residential housing
programs offered by state or local governments are covered by the ADA
and have 2010 standards established design requirements for
residential housing units that are offered for sale by state or local
governments to individual owners.
Miniature golf courses. At least half of all holes on a miniature golf
course must be accessible. The accessible hole have to be consecutive
on an accessible route and the last accessible hole must be on an
accessible route that connects the course entrance and exit without
going through other holes. Water closet clearances in single user
toilet rooms. Water closet in single-user toilet rooms must have
clearance for both forward and parallel approaches. The lavatory
cannot overlap the water closet clearance. Although in swinging doors
of toilet rooms may swing into the clearance area around any fixture
as long as there's enough clear floor space beyond the arc of the
door. Amusement rides. Most amusement rides that are newly designed or
newly constructed must be accessible and located on accessible route.
There are exceptions however. Amusement rides that are primarily for
children, rides that are controlled or operated by the rider and rides
without seats do not have to provide wheelchair spaces, transfer seats
or accessible signage.
Judicial facilities. Every court room must be accessible including
jury boxes, witness stands, judges benches, employee workstations and
jury deliberation areas. The exception is that raised courtroom
workstations are not required to provide ramps or lifts when
constructed as long as the space is designed to permit the future
addition of a ramp or lift without substantial reconstruction.
Assembly areas. The 2010 standards have more specific requirements for
sight lines over standing spectators, the provision of companion
setting and appropriate vertical and horizontal dispersion of
accessible seating. Exterior overflow areas without fixed seats and
lawn seating areas must now connect to an accessible route. Direct
access entrances from parking structures. When levels in a parking
garage have direct connections for pedestrians to another facility.
All of the direct entrances must now be accessible. Golf facilities.
Newly constructed and altered golf facilities must have either an
accessible route or golf cart passages within a 48-inch minimum width
connected accessible elements and space within the boundaries of the
golf course. If weather shelters are provided, then a golf cart must
be able to enter and exit the shelter. Specific percentages of
practice teeing grounds, practice teeing stations at driving ranges
and putting greens must be accessible.
Saunas and steam rooms. These must be accessible having appropriate
turning space and doors that do not swing in to the clear floor space
and an accessible bench. Play areas. Play areas designed, constructed
and altered for children ages two and over in a variety of settings
including parks, schools, childcare facilities and shopping centers
are covered. Accessible ground and elevated play components,
accessible routes, ramps and transfer systems and an accessible ground
surfaces must be provided. You can find out more about the 2010
regulations and the 2010 Standards for Accessible Design at
www.ada.gov or by calling your ADA center at 1-800-949-4232. Thanks
for tuning in.
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