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The ADA Amendments Act and Post-Secondary Education

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Title: The ADA Amendments Act and Post-Secondary Education


1
The ADA Amendments Act and Post-Secondary
Education
  • Presented by L. Scott Lissner
  • Friday, April 15, 2011

2
POWERPOINT PRESENTATIONSCAN BE DANGEROUS
  • NASA's Columbia Accident Investigation Board
    identified simplistic thinking from an
    over-reliance on PowerPoint presentations as a
    contributing factor in the Columbia shuttle
    disaster.
  • (New York Times Magazine 12/14/2003)

3

Provide equally effective access to programs,
benefits and services for qualified individuals
with disabilities in the most integrated manner
possible

Section 504 of the Rehabilitation Act 34 CFR 104
Title II of the Americans With Disabilities
Act 28 CFR 35
4
WHAT IS COVERED?
  • Programs, Benefits Services
  • Communications
  • Facilities (June 1977/January 1991/March 2012)
  • PUT ANOTHER WAY
  • Employment
  • Faculty, Staff, Work Study, Teaching Assistants,
    Adjuncts...
  • Education
  • Matriculated, Non-matriculated, Distance,
    Practica,
  • Public events
  • Athletics, Lectures, Concerts, Job Fairs,
    Conferences,

5
Keeping up with Whats New
  • ADA As Amended
  • New Regulations
  • Title II
  • Title III
  • New Design Standards
  • Emerging EIT Standards
  • Kindle
  • Joint Letter
  • Penn State
  • NPRM for Web Access
  • AIM Commission
  • 21st Century Communications and Video
    Accessibility Act

6
(No Transcript)
7
ADA AMENDMENTS ACT
  • September 2008 signed by Pres. Bush
  • January 2009 became law
  • October 2009 EEOC draft regulations
  • March, 2011, final regulations from the EEOC

8
DEFINTITION OF DISABILITY
  • A physical or mental impairment
  • that substantially limits a major life activity
  • A record of such an impairment
  • Being regarded as having such an impairment

9
  • Rules on Applying the Definition Have Changed
  • An impairment need not prevent, or significantly
    or severely restrict, performance of a major life
    activity to be substantially limiting.
  • Disability shall be construed in favor of broad
    coverage
  • An individuals ability to perform a major life
    activity is compared to most people in the
    general population, often using a common-sense
    analysis without scientific or medical evidence.
  • Major life activities clarified and expanded

10
What is Substantial?
  • The definition of disability should be construed
    broadly favoring expansive coverage
  • Not Toyotas prevents or severely restricts
  • Not limited to activities of central importance
    to daily life (activities of daily living) used
    in Toyota
  • Excludes ameliorative impact of mitigating
    measures in determining coverage
  • Episodic conditions or those in remission are
    based on impact during active or acute phase

11
Limited in What Way? Condition
Manner Duration
  • Relevant inquiry is how a major life activity is
    substantially limited, not on what an individual
    can do in spite of an impairment
  • May consider
  • effort or length of time required to perform
    major life activity

12
  • total amount of time major life activity may be
    performed
  • the way an impairment affects the operation of a
    major bodily function
  • The comparison of an individual's limitation to
    the ability of most people in the general
    population often may be made using a commonsense
    standard, without resorting to scientific or
    medical evidence.

13
MAJOR LIFE ACTIVITIES
  • Includes but not limited to, caring for oneself,
    performing manual tasks, seeing, hearing, eating,
    sleeping, walking, standing, lifting, bending,
    speaking, breathing, learning, reading,
    concentrating, thinking, communicating, and
    working.

14
Major Life Activities also include the
operation of major bodily functions including but
not limited to
  • Immune
  • Respiratory
  • Circulatory
  • Endocrine
  • Digestive
  • Reproductive
  • Neurological
  • Brain
  • Normal Cell Growth
  • Bowel
  • Bladder

15
  • Major Life Activities (EEOC Regulatons)
  • Include but are not limited to caring for
    oneself, performing manual tasks, seeing,
    hearing, eating, sleeping, walking, standing,
    lifting, bending, speaking, breathing, learning,
    reading, concentrating, thinking, communicating,
    sitting, reaching, interacting with others, and
    working

16
(No Transcript)
17
New Title II III Regulations Cave Idus Martias
  • Service Animals
  • Documention
  • Effective Communications
  • Remote Services
  • Readers
  • Mobility Devices
  • Segways, Golf Carts More
  • Housing
  • New Category for Residence Halls Ticketing
  • Stage Podium Access
  • Standards for Design

18
  • The Higher Education Opportunity Act
  • Commission on Alternative Media
  • Funding for ID demonstration projects
  • Data Collection in IPEDS ?
  • Demonstration Grants ?
  • EEOC is final ADA AA Definition of Disability
  • Regulatory Definition of Disability
  • Office of Federal Contracts Compliance Programs
  • Strengthening Affirmative Action

19
DOCUMENTATION Title III Section 36.309 (b)(1)
20
WHAT DOES JUSTICE SAY ABOUT DOCUMENTATION?
  • Based on DOJs enforcement experience, research,
    comments
  • Addresses concerns about sometimes inappropriate
    and burdensome requests for documentation about
    existence of disability and need for
    accommodations
  • Note title III preamble says same principles
    apply to title II entities

21
  • Examples of documentation that should generally
    be accepted
  • Recommendations of qualified professionals
    familiar with the individual
  • Results of professional evaluation
  • History of diagnosis
  • Observations by educators
  • Past use of accommodations.
  • Generally, a testing entity should accept,
    without further inquiry, documentation
  • provided by a qualified professional who has made
    an individualized assessment of the applicant
  • that supports the need for the modification

22
BASIC PROVISIONS REMAIN
  • Specific ADA provision applies to
  • private entities that offer exams or
  • courses related to applications,
  • licensing, certification, or credentialing.
  • Exams or courses must be given
  • in a place and manner accessible
  • to persons with disabilities, or alternative
  • accessible arrangements provided.
  • Purpose to prevent exclusion from educational,
    professional, or trade opportunities because of
    inaccessible exams or courses.

23
Give considerable weight to documentation of
past modifications, accommodations, or auxiliary
aids or services received in similar testing
situations including those provided in response
to an Individualized Education Program or Section
504 Plan.
ICD-9 569.42
24
Request for documentation should be narrowly
tailored to ascertain the individual's need for
the requested modification or auxiliary aid.
Generally, a testing entity should accept
without further inquiry documentation provided by
a qualified professional who has made an
individualized assessment of the applicant.
Appropriate documentation may include a letter
from a qualified professional or evidence of a
prior diagnosis, accommodation, or
classification, such as eligibility for a special
education program.
25
  • Focus on need for accommodation
  • Give weight to accommodation history
  • Give deference to treating professionals
  • Give deference to clinical and professional
    narrative
  • Title II Entities are unlikely to be held to a
    lesser standard

26
THE VALUE OF SELF-REPORT
  • It is only through understanding an
    individual's experience in the context that we
    can translate diagnostic evaluations into useable
    information on the barriers and facilitators to
    access and full participation.

27
LISTEN TO THE EEOCS FINAL REGULATONS
IMPLIMENTING THE ADAAA
  • Tasked by Congress to Take the Lead
  • Stayed Close to the Statute
  • Congruent with DOJ Rulemaking
  • Employment Law has Driven Practice

28
  • The EEOC Use a Common-Sense Assessment
  • An impairment need not substantially limit more
    than one major life activity
  • Impairments need not prevent, significantly
    restrict or severely restrict performance of a
    major life activity to be substantially limiting
  • An individuals ability to perform a major life
    activity in a similar manner under comparable
    conditions as most people in the general
    population
  • Should not require extensive analysis
  • Typically using a common-sense approach without
    scientific or medical evidence

29
Regarded As
  • Broad Construction
  • Focus on the substantive issues of failure to
    accommodate or exclusion not class membership
  • Two elements
  • Employer took employment action
  • Because of an individuals actual or perceived
    impairment
  • Excludes transitory (lt6 months) or minor
  • Not entitled to accommodations

30

Justice William J. Brennan Arline v. Nassau
County, 1987
  • Congress acknowledged that society's
    accumulated myths and fears about disability and
    disease are as handicapping as are the physical
    limitations that flow from actual impairment.

31
MODEL FOR DECISION INPUTS
32
  • 21st Century Communications
  • Video Accessibility Act
  • Accessibility of advanced communications
    equipment and services
  • Requires devices capable of displaying closed
    captioning, to deliver available video
    description, and to make emergency information
    accessible.
  • Captioning of internet delivered television

33
Web Access
  • Leading up to the proposed rule making
  • Kendel complaints
  • Comparable time, effort and expense.
  • DOE and DOJ joint Dear Colleague Letter June
    2010
  • Interpret broadly
  • Public statements from DOJ
  • From Can be an effective communication tool in
    the ADA Tool Kit to
  • There is no doubt that the internet sites of
    State and local government entities are covered
    by Title II of the ADA. Similarly, there is no
    doubt that the websites of recipients of Federal
    financial assistance are covered by Section 504
    of the Rehabilitation Act.

34
Web Access
  • Proposed rule making questions
  • Standard to adopt
  • WCAG 2.0s "Level AA Success Criteria
  • Section 508
  • Performance standards
  • Barriers, Facilitators and technical assistance
    needed
  • Are there distinct or specialized features used
    on websites that render compliance with
    accessibility requirements difficult or
    impossible?
  • If so, viable alternatives?

35
  • Advance Notices of Proposed Rulemaking published
    July 26 (http//www.ada.gov/anprm2010.htm)
  • Accessibility of web information and services
  • Movie captioning and video description
  • Next generation 9-1-1
  • Equipment and furniture

36
Qualified reader and qualified interpreter
  • Qualified reader defined
  • One who reads effectively, accurately,
    impartially
  • One who can use necessary vocabulary
  • Qualified interpreter modified
  • Includes sign language, oral, and cued speech
    interpreters
  • Oral and cued speech interpreter defined

37
VIDEO REMOTE
38
Video remote interpreting
  • DOJ sets performance 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
  • Sections 35.160(d), 36.303(f)

39
S E R V I C E ?
S U P O R T ?
40
Service Animal
  • Definition a dog that
  • does work or performs tasks
  • for the benefit of an individual
  • with a disability (including
  • psychiatric, cognitive, mental)

41
Examples of tasks
  • Assist during seizure
  • Retrieve medicine or other items
  • Help individual with
  • dissociative identity disorder
  • to remain grounded
  • Prevent/interrupt impulsive
  • or destructive behavior
  • Assist with balance, stability
  • Provide non-violent protection
  • or rescue work

42
Emotional support/comfort?
  • If this is the only function,
  • not considered a
  • service animal

43
Can ask only two questions
  • Is this service animal required because of a
    disability?
  • What work or tasks is the animal trained to
    perform?
  • Cant ask about disability

44
Other issues
  • An entity can exclude a service animal if
  • it is not controlled or
  • it is not housebroken
  • Covered entity is not responsible for care or
    supervision of a service animal
  • No service animal license or documentation
    required

45
Miniature horses
  • Allowed if
  • Reasonable
  • Individually trained
  • Assessment factors
  • Type, size, weight
  • Handlers control
  • Whether housebroken
  • Safety requirements of
  • facility

46
Caution other laws also apply
  • Fair Housing Act Department of Housing and Urban
    Development
  • Department of Transportation (airlines, airports,
    bus travel)
  • Air Carrier Access Act
  • Section 504 regulations
  • State and local requirements

47
Other Power-Driven Mobility Device
  • Any mobility device powered by batteries,
    fuel, or other engineswhether or not designed
    primarily for use by individuals with mobility
    disabilitiesthat is used by individuals with
    mobility disabilities for the purpose of
    locomotion.

48
Use of OPDMDs
  • Covered entity must make reasonable
    modifications to permit individuals with mobility
    disabilities to use OPDMDs unless the entity can
    demonstrate that the class of OPDMD cannot be
    operated in accordance with legitimate safety
    requirements adopted by the entity.

49
OPDMD Assessment Factors
  • The type, size, weight, dimensions, and speed of
    device
  • The facilitys volume of pedestrian traffic
  • The facilitys design and operational
    characteristics (e.g., indoors/outdoors, square
    footage, the density and placement of stationary
    devices, and the availability of storage, if
    requested)
  • Whether legitimate safety requirements can be
    established to permit the safe operation of OPDMD
    in the specific facility
  • Whether use creates a substantial risk of serious
    harm to the immediate environment or natural or
    cultural resources, or poses a conflict with
    Federal land management laws and regulations.

50
VERIFICATION
Can request a credible assurance that an OPDMD
is required because of the persons
disability. May not ask about nature and extent
of disability. Develop a policy clearly stating
circumstances when use of OPDMDs is
permitted. Source Title II Sections 35.104,
35.137 Title III Sections 36.104, 36.311
51
Housing at a Place of Education Title II Section
35.151(f) Title III Section 36.406(e) New
category for residence halls. Meet the
requirements for transient lodging and specific
requirements for accessible routes throughout the
unit and accessible turning spaces and work
surfaces in kitchens from the residential
facilities standards
52
Apartments or townhouse facilities that are
provided with a lease on a year-round basis
exclusively to graduate students or faculty and
that do not contain any public use or common use
areas available for educational programming must
comply with the requirements for residential
facilities in sections 233 and 809 of the 2010
Standards.
53
Assembly Areas Vertical Dispersion Line of
Sight Stage Access No additional requirements
for captioning of communications or emergency
information
Source Section 35.151(g) Section 36.308
54
Event ticketing Distribution
outlets Clear seating charts Ticket
transfers Sell outs and accessible
seats Equivalent pricing and access
limitations Verification
55
Facilities New construction, alterations,
existing facilities
56
The Basics new construction and alterations
  • New standards for new construction and
    alterations
  • DOJ adopts 2004 ADAAG, based on model codes and
    ANSI (sections 35.151(c), (d) 36.406)
  • For the first time, certain areas are included in
    the Standards (and 2004 ADAAG), e.g., judicial,
    correction, detention facilities play areas,
    swimming pools

57
The Basics new construction and alterations
  • DOJ adds specific provisions (see sections
    35.151(a),(b),(c)(5),(d)-(k) 35.152
    36.406(b)-(g))
  • Path of travel in title II
  • Places of lodging
  • Assembly areas
  • Medical care facilities
  • Social service centers
  • Housing at a place of higher education
  • Detentions and corrections

58
Time frames
  • Effective date -- March 15, 2011
  • Applies to Title II and Title III regulations
  • Exceptions
  • Hotel reservation policies -
  • 2010 ADA Standards for Accessible Design

59
Time frames
  • Compliance date -- March 15, 2012
  • New construction and alterations MUST comply with
    the Standards
  • In the meantime, choose a standard
  • Title III 1991 or 2010 Standards
  • Title II 1991 Standards, 2010 Standards, or UFAS
    (Uniform Federal Accessibility Standards)

60
Resources
  • DOJ web site www.ada.gov
  • DOJ information line 800 - 514 - 0301 (voice)
    800 - 514 - 0383 (TTY)
  • ADA TA Centers 800-949-4232 (Voice/TTY)
  • Access Board www.access-board.gov
  • Handout Tips for the Transition to 2012

61
say Yes when you can and no when you have to.
rather than No when you can and yes when you
have to.
62
QUESTIONS?
63
  • L. Scott Lissner
  • University ADA Coordinator 504 Compliance
    Officer
  • Associate, John Glenn School of Public Policy
  • Lecturer at the Knowlton School of Architecture,
    Moritz College of Law Disability Studies
  • President Elect
  • Co-Chair, Public Policy
  • OTHER
  • Appointed, Ohio Governor's Council For People
    With Disabilities
  • Chair, ADA-OHIO
  • Appointed, State HAVA Committee
  • Appointed, Columbus Advisory Council on
    Disability
  • Editorial Board, Thompsons 504 Compliance
    Handbook

64
CONTACT
  • L. Scott Lissner,
  • ADA Coordinator, The Ohio State University
  • Office of Diversity And Inclusion
  • 1849 Cannon Drive
  • Columbus, OH 43210-1266
  • Lissner.2_at_OSU.EDU Http//ada.osu.edu
  • (614) 292-6207(v) (614) 688-8605(tty)
  • (614) 688-3665(fax)
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