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AHEADJULY 2012

DOJ’s 2010 Regulations, Part 2Session 6.3

Communication, reservations, examinationsOPDMDs and technology

Irene BowenJames A. Bostrom

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Irene Bowen, J.D.PresidentADA One, LLC

James A. BostromDeputy ChiefDisability Rights Section, DOJ

Presenters

CAUTIONCAUTION The content provided in this presentation is for

informational purposes only. Neither the content nor delivery of the content is or shall be deemed to be legal advice or a legal opinion. The audience cannot rely on the content delivered as applicable to any circumstance or fact pattern. The information provided is not a substitute for professional legal advice.

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The Americans with Disabilities Act of 1990

Broad ban on discrimination• Title II (public entities) – state and local colleges and universities• Title III (private entities) – private colleges and universities -- regardless of federal funding

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ADA Amendments Act

• ADAAA reset the definition of “individual with a disability”

• EEOC has issued regulations• DOJ has not begun rulemaking

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DOJ’s new ADA regulations

• Issued July 26, 2010• Updates to 1991/1994 regulations under titles

II (28 C.F.R. part 35) and III (28 C.F.R. part 36)• Two parts– Policy changes– New accessibility standards

• Regulations and guidance are at www.ada.gov

2010 revisions: effective date

March 15, 2011• Policies to be compliant• Applies to service animals,

mobility devices, etc.• For hotel reservation policies

(including campus conference centers), an extra 12 months

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2010 revisions: compliance dateMarch 15, 2012• New construction and alterations MUST comply with the Standards• Existing facilities to be compliant with barrier removal and program accessibility requirements (using new Standards as measure)

NOTE:On March 15, 2012, DOJ modified compliance date for existing

pools.

Sections 35.151(c), 36. 304(d).

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AGENDA

• Effective communication• Reasonable modifications– Event ticketing– Lodging reservations– Examinations and courses

• OPDMDs• Technology and the web• Twelve tips

DON’T HANG UP THAT PHONE!Effective communication

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Generally• Under title III, communications

with individuals with disabilities must be “effective.” 28 CFR 36.303.

• Under title II, communications with individuals with disabilities must be “as effective as” communications with others. 28 CFR 35.160 (a), 36.303(c)(1).

• Provide appropriate auxiliary aids and services “where necessary.” 28 CFR 35.160(b), 36.303(c)(1).

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TRS calls

• Entity must answer telecommunications relay calls in same manner as it answers others. 28 CFR 35.161(c), 36.303(d)(4)• See Wells Fargo settlement.

http://www.ada.gov/wells_fargo/wells_fargo_settle.htm

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Automated attendant systems

• Automated voice mail, interactive voice response systems

• If provided, must ensure effective communication in real time with individuals using auxiliary aids and services (TTYs, TRS).

28 CFR 35.161(b), 36.303(d)(4).

Changes to definitions

2010 regulation revisions• Added to examples of

auxiliary aids/services– Written notes, accessible

electronic technology– Screen reader software

• “Qualified” interpreters and readers defined/clarified

28 CFR 35.104, 36.104.

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Companions

• Companions– Covered entities must communicate effectively

with companions, as appropriate– Family members, friends, associates

• Can’t require person to bring own interpreter• Can’t rely on companions to interpret except

in emergency or by request• 28 CFR 35.160(a), (b), (c), 36.303(c).

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Video remote interpretingPerformance standards

– Quality of video and audio• High quality, clear, real-time, full-motion

– Dedicated high-speed connection– Picture:

• Clear, sufficiently large, and sharply delineated

• Heads, arms, fingers– Voices: clear and easily understood

transmission– Quick set-up: training of users

28 CFR 35.160(d), 36.160(f).

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Missed appointments• DOJ guidance to section 36.301 (c) of title III rule:

As such, medical providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ``no- show'' for the scheduled appointment. The medical provider, however, may charge for the missed appointment if all other patients are subject to such a charge in the same circumstances.

75 Fed Reg 56282 (Sep. 15, 2010)

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Missed appointments classes?• See Utah Valley University OCR letter, 08102026, July 16, 2010• Factors re: acceptable policy and practice as to charging for

excessive no-shows– Written policy signed by students– 2 hours notice– 6 ways to cancel– 3 no-shows allowed– Counseling provided– Opportunity to reduce fee

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Other general principles• Type of auxiliary aid or service varies per – Individual’s method of communication– Nature, length, and complexity of communication– Context

• Consultation– Title III: consult with individual whenever possible– Title II: primary consideration to requests of individual

• Effective communication must be provided in – Accessible format– Timely manner– Way that protects privacy and independence

35.160(b)(2), 36.303(c)(ii)

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Primary consideration: pending appellate cases(not under 2010 revisions)

• Both about students with cochlear implants• K.M. v. Tustin (C.D. Cal, July 2011) • Argenyi v. Creighton University Medical School (D.Neb.

Sept 2011)

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…Pending appellate cases

• DOJ filed briefs on questions in both, under original regulations. Issues: Primary consideration Have to show otherwise “effectively excluded” from

programs?http://www.justice.gov/crt/about/app/briefs/argenyibrief.pdf

• DOJ’s views Standards are effective communication, equal

opportunity to participate. No need to show effective exclusion. Mere access is

not enough.

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The Web: NAD v. Netflix

• June 19, 2012, decision of Massachusetts District Court http://dredf.org/captioning/MJP-DENIED-JUDGE-PONSOR-ORDER-6-19-12.pdf

• Allowed case re: captioning of streaming videos to proceed

• A web-only business can be a “place of public accommodation” under the ADA (following NFB v. Target Corporation and DOJ’s brief)

• Congress intended ADA to adapt to changes in technology

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…The Web: NAD v. Netflix

• Copyright (“control”) issues may be raised later• Cost/economic hardship will be considered later as to

“undue burden” exception• No “positive repugnancy” between ADA and Twenty

First Century Communication and Video Accessibility Act of 2010 (delivery of video programming from US television)

• DOJ’s statement of interest: http://www.ada.gov/briefs/netflix_SOI.pdf

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Facing forward: five steps to effective communication

1. Let the public know your policies

2. Review policies re: TRS, automated attendant systems, companions, VRI

3. Train staff4. Be prepared but… be flexible

with approaches5. Evaluate web sites

REASONABLE MODIFICATIONSEvent ticketing

Hotel reservationsExaminations and courses

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• Entity must make reasonable modifications in policies where necessary to avoid discrimination. 28 CFR 35.130(b)(7), 36.302

• 2010 regulation revisions:– Service animals– Miniature horses– Mobility devices– Event ticketing – Hotel reservations– Examinations and courses

Reasonable modifications

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Event ticketing

Application of equal opportunity concept:A covered entity may not, on the basis of

disability … provide a qualified individual with a disability an opportunity that is not equal to that afforded others.

28 CFR 35.130(b)(1)(i-iii), 36.202(b)

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Event ticketing

• Distribution outlets• Clear seating charts• Ticket transfers• “Sell outs” and accessible seats• Equivalent pricing and access

limitations• Verification28 CFR 35.138, 36.302(f).See DOJ technical assistance piece.

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Examinations and courses

• Entity that offers exams or courses re: licensing, credentialing… shall offer them in a place and manner accessible to people with disabilities. 28 CFR 36.309.

• Generally, exam must ensure that results accurately reflect aptitude, achievement level, etc. rather than reflecting impaired sensory, manual, or speaking skills.

• DOJ: Colleges and universities should follow.

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Documentation

Any request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid.

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Details

Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services --• those received in similar testing situations • including those provided in response to an

Individualized Education Program or Section 504 Plan.

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Limited inquiries

• Generally, accept without further inquiry documentation provided by • a qualified professional • who has made an individualized assessment of

the applicant. • May be in form of • letter from a qualified professional and/or• evidence of a prior diagnosis, accommodation, or

classification (e.g., eligibility for a special education program)

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New AHEAD Guidance on Documentation Practices

• Three levels of documentation• Primary: student’s self-report• Secondary: observation and interaction• Tertiary: information from external or third parties

• Documentation process• Individual review• Commonsense standard• Non-burdensome process• Current and relevant information

May 14, 2012: http://www.ahead.org/resources/documentation_guidance

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Reservations for places of lodging

Individuals with disabilities must be able to make reservations for accessible guest rooms during the same hours and in the same manner as other guests28 CFR 36.302(e)

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… Reservations• Access to reservations systems• Information about features• Hold back accessible rooms• Block accessible rooms• Guarantee of holding specific accessible room

that is reserved• Ensure that third parties act consistently with rule– Reasonable efforts– Information provided

OPDMDs

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TECHNOLOGY AND THE WEB

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Four advance notices of proposed rulemaking published July 26, 2010

• Four areas in which DOJ may propose rulemaking– Accessibility of web information and services– Movie captioning and video description– Next generation 9-1-1 – Equipment and furniture

• All are at DOJ’s ADA website http://www.ada.gov/anprm2010.htm

TWELVE TIPS

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2010 changes: Twelve Tips*

1. Update policies on service animals.

2. Alert staff to new provisions on miniature horses.

3. Develop clear policies about OPDMD’s.

*See Alert article, “Are You There Yet?”

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Twelve Tips

4. If you use VRI, be sure it works and meets DOJ’s standards.

5. Check your phone systems for effective real-time communication.6. Don’t drop the call (TTY or TRS).

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…Twelve Tips7. Study the provisions about

exams and courses.8. Align your event ticketing

policies with the 2010 provisions.

9. For any facilities with overnight guests (conference centers, hotels), update your reservation systems for 2010 compliance.

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…Twelve Tips10. Follow the 2010 Standards for

new construction and alterations.

11. Complete barrier removal and program accessibility changes.

12. Keep up with your homework.BONUS:

Evaluate web sites and other electronic communication.

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ADA One articles: Ahead of the ADA Access Curve

• Part 4 DOJ’s new regulations: It’s about time! http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-4/

• Part 5 The Ides of March are upon us: Are you complying with DOJ’s new regulations about service animals? http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-5/

• Part 6 DOJ’s new ADA requirements: Six common myths and mistakes http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-6/

• Part 7 DOJ’s new ADA requirements: Six more common myths and mistakes http://ada-one.com/articles-tips/ahead-of-the-ada-access-curve-part-7/

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Resources

DOJ web site: www.ada.govDOJ information line: 800 - 514 - 0301 (voice)

800 - 514 - 0383 (TTY) ADA TA Centers: 800-949-4232 (Voice/TTY)Access Board: www.access-board.gov

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CONTACT

Irene Bowen, J.D.President, ADA One, LLC9 Montvale CourtSilver Spring, MD 20904

Web site: http://ADA-One.com

301 879 4542 (O)301 236 0754 (F)

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Jim Bostrom202 - 307 - 2584jim.bostrom@usdoj.gov

CONTACT

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