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How the 20 Year Anniversary of the ADA Affects State Colleges & Universities Jeanne M. Kincaid Drummond Woodsum

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Disclaimer The information provided in this seminar should not be construed as legal advice. Participants should consult legal counsel for specific legal advice pertaining to a particular question. Copyright Drummond Woodsum 2011 2

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The Preliminaries This presentation addresses the ADA regulations revised effective March 15, 2011 The Americans with Disabilities Amendments Act (ADAAA), which also amended Section 504 of the Rehabilitation Act, went into effect on January 1, 2009 The U.S. Department of Education has not amended its regulations Copyright Drummond Woodsum 2011 3

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ADA Regulations The EEOC (governing employment) issued final regulations that will take effect May 24, 2011 The Department of Justice issued amended Title II and Title III regulations that took effect March 15, 2011 Title II (28 C.F.R Part 35) of the ADA governs state and local government including state and community college systems The U.S. Department of Education Office for Civil Rights (OCR) has jurisdiction under both Section 504 and Title II of the ADA Copyright Drummond Woodsum 2011 4

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CAVEAT Every state has adopted some form of anti- discrimination law and in many cases, some counties/cities This presentation only addresses federal law Your state/community could provide greater protections/obligations Copyright Drummond Woodsum 2011 5

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Context The ADAAA and the Rehabilitation Act are very broadly defined as to who may qualify as disabled Copyright Drummond Woodsum 2011 6

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Title II Regulatory Changes Building construction is the biggest change: New construction Renovation/new additions Copyright Drummond Woodsum 2011 7

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Service Animals The former regulation was ill-defined: No species of animal was off-limits Confusion abounded regarding what amounted to a service: Did companion and therapy animals qualify as service animals Copyright Drummond Woodsum 2011 8

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Amended Regulation By and large, only dogs will qualify With an occasional miniature horse Copyright Drummond Woodsum 2011 9

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Amended Regulation Therapy or companion animals do not qualify as service animals Under the ADA/Rehabilitation Act, students with a psychological impairment would not be entitled to bring a pet to campus Copyright Drummond Woodsum 2011 10

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Service Animal Defined Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Copyright Drummond Woodsum 2011 11

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Service Animal Defined Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individuals disability. Copyright Drummond Woodsum 2011 12

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Service Animal Defined Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, Copyright Drummond Woodsum 2011 13

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Service Animal Defined providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, Copyright Drummond Woodsum 2011 14

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Service Animal Defined and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. 28 C.F.R. 35.104 Copyright Drummond Woodsum 2011 15

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Not Always Required Removal permitted: The animal is out of control and the animal's handler does not take effective action to control it; or The animal is not housebroken College/university is not responsible for animals care or supervision 28 C.F.R. 35.136 Copyright Drummond Woodsum 2011 16

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Limited Inquiries Permitted Is service animal required for disability-related reasons? But may not ask about the nature or extent of ones disability What work or task has service animal been trained to perform? 28 C.F.R. 35.136 Copyright Drummond Woodsum 2011 17

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Caution May not require proof of training May not make inquiry when readily apparent that animal is service animal. 28 C.F.R. 35.136 Copyright Drummond Woodsum 2011 18

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Miniature Horse Possibility If it amounts to a reasonable modification Factors: Type, weight, size Control by handler Housebroken Does presence compromise legitimate necessary safety requirements 28 C.F.R. 35.136(i) Copyright Drummond Woodsum 2011 19

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Compare New Hampshire Law RSA Chapter 167-D governs hearing ear dogs, guide dogs, service dogs and search and rescue dogs Service dogs, under state law, are limited to individuals with mobility impairments or persons with seizure disorders, diagnosed by physician Protection also afforded animal trainers State law requires specific identification and licensure Copyright Drummond Woodsum 2011 20

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Amended Auxiliary Aids & Services Copyright Drummond Woodsum 2011 21

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Qualified Interpreters On-site or through video remote interpreting (VRI) Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images 28 C.F.R. 35.104 Copyright Drummond Woodsum 2011 22

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Video Remote Interpreting Caution very clear standards imposed addressing training and clarity of video images and audio presentation 28 C.F.R. 35.160(d) Copyright Drummond Woodsum 2011 23

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Qualified Interpreters Include sign language interpreters, oral transliterators, and cued speech transliterators. 28 C.F.R. 35.104 Copyright Drummond Woodsum 2011 24

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Qualified Readers Redefined as a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. 28 C.F.R. 35.104 Copyright Drummond Woodsum 2011 25

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Segways? Other power-driven mobility device means any mobility device powered by batteries, fuel, or other engineswhether or not designed primarily for use by individuals with mobility disabilities Copyright Drummond Woodsum 2011 26

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Segways? that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. 28 C.F.R. 35.104 Copyright Drummond Woodsum 2011 27

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Not Absolute Must allow when constitutes reasonable modification Would device interfere with legitimate adopted safety requirements? Copyright Drummond Woodsum 2011 28

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Factors Type, size, weight, dimensions Facilitys pedestrian traffic volume Facilitys design and operational characteristics, including storage Can legitimate safety requirements be met? Would such use present a substantial risk of serious harm to the immediate environment or natural or cultural resources? 28 C.F.R. 35.137 Copyright Drummond Woodsum 2011 29

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Limited Inquiry Without making inquiry about nature or extent of disability, may request credible assurance that device is a disability-related necessity State issued disability placard is sufficient If not placard, must accept as credible a verbal representation, not contradicted by observable fact 28 C.F.R. 35.137 Copyright Drummond Woodsum 2011 30

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Remember Parents,the public and employees with disabilities are protected by the ADA/Rehabilitation Act Copyright Drummond Woodsum 2011 31

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Safety Concerns A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities. 28 C.F.R. 35.130(h) Copyright Drummond Woodsum 2011 32

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Communications Effective communications required for companions with disabilities Family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate 28 C.F.R. 35.160(a) Copyright Drummond Woodsum 2011 33

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Communications Auxiliary aids and services now apply to: Applicants, participants, companions, and members of the public to provide equal access 28 C.F.R. 35.160(a) Copyright Drummond Woodsum 2011 34

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Communications In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability. 28 C.F.R. 35.160(b) Copyright Drummond Woodsum 2011 35

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Communication Prohibitions A public entity shall not require an individual with a disability to bring another individual to interpret for him or her. Copyright Drummond Woodsum 2011 36

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Communication Prohibitions No reliance on adult companion to interpret or facilitate communication except In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. Copyright Drummond Woodsum 2011 37

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Communication Prohibitions No use of a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available 28 C.F.R. 35.160(c) Copyright Drummond Woodsum 2011 38

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Telecommunications TTYS must be available for individuals with hearing or speech impairments 28 C.F.R. 35.161(a) Copyright Drummond Woodsum 2011 39

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Robo Calls If the institution uses an automated-attendant system, including, but not limited to, voice mail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of FCC- approved telecommunications relay system, including Internet-based relay systems. 28 C.F.R. 35.161(b) Copyright Drummond Woodsum 2011 40

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Relay Service An institution must respond to telephone calls from a telecommunications relay service in the same manner that it responds to other telephone calls 28 C.F.R. 35.161(c) Copyright Drummond Woodsum 2011 41

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Events-Ticketing If seating for events is ever an issue please consult 28 C.F.R. 35.138. In essence, in most cases where group tickets are authorized, a college/university must be capable of providing up to three additional contiguous seats in addition to that of the disabled patron, if available at time of purchase Think graduation 28 C.F.R. 35.138 Copyright Drummond Woodsum 2011 42

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Whats Coming? On July 26, 2010, DOJ issued notice of intent to publish proposed regulations governing web access under Titles II and III of the ADA http://www.ada.gov/anprm2010/web%20anprm_2 010.htm http://www.ada.gov/anprm2010/web%20anprm_2 010.htm DOJ also issued notice of its intent to publish proposed regulations governing movie captioning and video description http://www.ada.gov/anprm2010/movie_captions_ anprm_2010.htm http://www.ada.gov/anprm2010/movie_captions_ anprm_2010.htm Drummond Woodsum 43

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Whats Coming? DOJ also issued notice of its intent to publish proposed regulations governing equipment and furniture http://www.ada.gov/anprm2010/equipment_anpr m_2010.htm http://www.ada.gov/anprm2010/equipment_anpr m_2010.htm Drummond Woodsum 44