MID-ATLANTIC ADA CENTER

“Self-Evaluations and Transition Plans: Some Considerations”

FEBRUARY 16, 20172:00 P.M. EST

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This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

Please note:* Slides 1-13 provide instructions in accessing the webinar and are not included in the archived recording or transcript.

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>> MARIAN VESSELS: A little bit about your host today. TransCen, Inc. is a non-profit in Rockville, Maryland, that provides information for improving the lives of people with disabilities through meaningful work and community inclusion. And the Mid-Atlantic ADA Center, a project of TransCen, Inc., we are funded by the National Institute on Disability, Independent Living and Rehabilitation Research, part of the U.S. Department of Health and Human Services.

It is my pleasure to introduce you to our speaker today, Sally Conway. She was formerly the director of the ADA technical assistance program at the Department of Justice which carries out a variety of activities to promote voluntary compliance with the ADA which includes the operation of Department of (Inaudible) popular national ADA information lines and ADA website as well as development of technical assistance materials.

Having worked in the field for disability and civil rights for more than 30 years she has conducted training sessions, workshops and presentations on the ADA, with recommendations from the public and private sectors and people with disabilities throughout the country. And she received the department's ADA remediation program, which provides businesses, state and local governments and people with disabilities an efficient and effective and voluntary alternative to resolving complaints under the ADA.

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Prior to coming to the department in 1994 Ms. Conway worked as a program director for Granite State independent living in New Hampshire and she worked as an investigator for New Hampshire commission on human rights, as a director of medical work in the hospitals, and as a teacher in the public schools. It is with great pleasure that I introduce my friend and colleague Sally Conway.

>> SALLY CONWAY: Thank you, Marian. You are far, far too kind. And my bio was far, far too wordy. Good afternoon, good evening, good morning, wherever you are listening from. And it is just a pleasure to be here. And before I begin I just want to say a few words about personally my long, long wonderful relationship with the ADA network and the Department of Justice as well. We have just over, you know, 23, 24 years really been able to work together and in sync in ensuring that people around the country understand what the ADA requires, what it does not require, and helping people sort of figure out how the ADA applies to the very unique circumstances.

There are essentially no two circumstances that are exactly alike. And we have -- we have worked, you know, hand in hand with the ADA Center and ADA network. And it has been a wonderful mutually beneficial relationship. And for that I thank them and I thank everyone who is still involved with the ADA Centers. They are a really great resource and because in every region they have state affiliates in every single state they just are a valuable resource for us in so many ways, but in particular hearing about things that we may not have heard about, issues that may be cropping up, things that may be specific to certain geographic regions. And, you know, they are, you know, one of our eyes and ears outside of the beltway. So again I just want to thank them for their incredible work, their incredible professionalism throughout all these years. And I have every confidence that it will continue.

Slide 14

So if we could go to slide 14, before we begin I want to just give you a really brief overview of what we are going to talk about today. It will be very, very brief. And when I say brief, I mean brief, discussions that are related to the ADA standards for accessible design and those are the standards that identify and help folks figure out both the scoping, meaning the number of things that have to be accessible and the technical specifications which is in very simple language, it is -- what are the measurements and how far does it have to be away from the wall. How high can it be? It is all the technical specifications for which constitutes an accessible element. We will talk a very little bit about that. If you want to hear a ton about it you won't hear it this afternoon.

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We are going to talk a fair amount about program access. I think it is still one of the most misunderstood concepts in the ADA. And it is for you ADA coordinators and others who are involved in, you know, doing self-evals and transition plans and making that transition plan into a reality. It looks at everything through a prism of a program of access. We are going to talk about that.

And then lastly we are going to talk specifically about self-evals and transition

plans, who had to do them. I am sprinkling throughout this presentation sort of a visit to the past, a reminder of when things were supposed to have been done. And then subsequent to that when the -- the new revised 2010 regulations went in to effect and what options people had and what is going on now. There is no one size fits all form for folks who do a self-eval or a transition plan. There is lots of places you can look for and you can certainly look on our website at ada.gov. And look at our project civic access or PCA Web page that has settlement agreements with municipalities in every state of all sizes, small, small towns, counties and larger cities. And if you look at those agreements and you look at what the agreement says is going to be fixed, that's going to give you an awfully good idea of things that you need to make sure you look at in your self-eval and address in your transition plan.

So we are going to be really talking about what you have to do and also about how you get it done.

Slide 15

So with that we will move forward to slide 15. And so when I said brief discussion I promise you it is going to be brief for the standards for accessible design. I'm going to go over compliance dates just as a reminder. We are going to talk about a safe harbor and also talk about supplemental requirements and the safe harbor compliance date. And supplemental requirements are very specific to the revised Title II and Title III regulations which included the standards for accessible design that took place in the year 2010.

Slide 16

Slide 16, there is something that is called the safe harbor. And what this means is and again this is post 2010 revision of the ranks and standards. When the department gave the revisions, you are required to periodically revisit reg1s. And the other thing is that we learned a lot over the past 20 years when these

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came out in 2010. And we also looked at things that well, maybe we could have said it better and be a bit more clear. But the other thing is that there are a lot of things that are in existence now that weren't back then, that are very fundamental to the way how the two entities conduct business.

So we are going to talk about the safe harbor. If as of March 15th, 2012, that was the date that the new 2010 standards for accessible design went in to effect, okay? What happened is we changed some of those things and there is two different kinds of changes. One is there may be things that were added that were never in there before. So there is no way to comply with them before. But then there are things that were in there that we just sort of tweaked a little bit. And the best example at least in my mind is prior to the revised standards things like light switches or HVAC controls, things that were mounted on the wall there were two different requirements. One is if you have a forward approach.

That means visualize one using a wheelchair who is facing the wall trying to reach for the light switch and could be mounted no higher than 48 inches. And now envision someone who is parallel to the wall. So it is coming up right up next to the wall and reaching up for that light switch. You have a much higher reach when you are parallel to the wall because you don't have to lean forward and go over your foot pegs. And that mounting height was no higher than 54 inches. When we did the 2010 revisions what we said was for any light switches or HVAC, whether it is a forward approach or a parallel or side approach those all had to be no higher than 48 inches. So we just used one measurement.

So say you did everything you were supposed to and all of your light switches, depending on forward or parallel approach, they were all completely in compliance with the standards, with the original ADA standards for accessible design. So it just would have been nonsense for us to say okay, what you have to do is go back and all of those light switches that you had above 48 inches, you know, for the -- for the parallel approach we are going to make you lower them all to 48 inches. That would have been ridiculous. The safe harbor is there to reward the folks who did their due diligence and complied and made changes when they were supposed to.

So if you have any element that was already in compliance with the original 1991 Standards for Accessible Design, you wouldn't be required to go back in and make all of those tweaks once the new 2010 standards took effect. So unless you did an alteration or it was new construction, but anything that was already there and already in compliance, you didn't have to do anything more to "bring it up to" the 2010 standards requirements. However if you might have

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forgotten a few of those light switches or, you know, where it had a lot of stuff that was out of compliance, if those elements, those parts did not comply with the '91 standards, then you had no safe harbor. You had to fix them.

So just think of it this way, there is no rule that says you have to go through

your whole building and bring everything up to the 2010 standards. That's a fallacy. What you are allowed to do is everything that was already in compliance with your original ADA standards you don't have to do anything to them. You can leave them until you do an alteration or something. But if you had overlooked things or had forgotten things or just hadn't done anything, you then needed to bring those -- you needed to make those changes. So safe harbor if you were -- had done everything right and you were already in compliance, no safe harbor, if you hadn't made those changes and were out of compliance.

Slide 17

Slide 17, please. Now there were additional requirements that were added to the standards for accessible design in the 2010 update, revision. And these were things that had never -- there were no standards before. They were never even addressed in the standards for accessible design before. So these are all brand-new things. And there were no requirements before. So you couldn't have really been in compliance with the earlier standard.

So these are all these new things that were added but you have to look at. And for ADA coordinators this is really important. Because a lot of these things in Title II applications around the country, you have a lot of this stuff. These are part of your programs, activities and services. So the areas that have no safe harbor because they are brand new are things that the amusement rides, recreational boating facilities, exercise machines and equipment.

What I want to be very clear about is that this does not relate to the physical accessibility of the equipment itself. What this relates to accessible root to the equipment, to and through the equipment, enough clear floor space for transfers and those kinds of things. But it does not provide standards for equipment itself. And there are fishing piers and platforms, golf and miniature golf, play areas, playgrounds, saunas and steam rooms, swimming pools and wading pools and spas and shooting positions with firing positions because of shooting ranges and then miscellaneous and this is providing access to teen and player seating’s, accessible routes to bowling lanes and court sport facilities. When we talk about court scores we are not talking about the justice system. We are talking about sports that are played on courts, basketball, volleyball, soccer, and those kinds of

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things.

One thing that you will see if you look at these supplemental requirements is when the ADA was first passed and enacted and things gradually went in to effect the concern back then was really getting through the door, getting a basic level of access to a Title II entities programs, activities and services. And for those of you who have been around for a while if you think back to 1990 the world was a far less hospitable place. Transportation was not accessible. Schools were not accessible by and large. So it was a very basic kind of level of access because things hadn't been covered really before.

So now you see sort of much more because people with disabilities are out in the community more than they ever, ever have been. And people want access to not just the doctor, their county administration building, a hospital and a grocery store, you know, particularly because more people are employed, people with disabilities are employed and the access that people are looking for is much sort of higher level things, you know, like going out bowling with friends, going fishing, all of these other things because the ADA, so much progress has been made. And the world is a much more accessible place. This sort of reflects that. And this is the next level of access. And so pay close attention to these Title II folks because there is no safe harbor.

Slide 18

Slide 18, so if you have a noncomplying facility, you have to make changes and you have to make them now if you haven't already.

Slide 19

So slide 19, I just want to let you know what this compliance obligation was five, six years ago, before March 12th, but this is after September of 2010, when the regs -- the revised regulations came out, entities had a range of options for fixing things for coming in to compliance. And so at that time you have the choice of fixing those things that are out of compliance using the 1991 standards or you could go ahead and jump right to the 2010 standards even before they went in to effect or UFAS, Uniform Federal Accessibility Standard that many Title II entities used. And if you did that and it was prior to March 15, 2012 you were fine. So we gave you that option, ways to fix the problem. If you didn't do it, you know, on or after March 15th, the Ides of March 2012 those options went away.

Only required at that point to bring those noncomplying elements in to

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compliance with the 2010 standards. So this is just a little history that I wanted to sort of remind people of. Because, you know, they were options and it was pretty well publicized to my recollection.

Slide 20

Let's go to the next slide, slide 20. So what standards in terms of your existing facilities when you are bringing things in to compliance for existing facilities, what are the two concepts of standards to apply? We are talking about state, local, county government, the standards that apply is program accessibility or program access. And we are going to talk about that. For Title III entities and those are basically private businesses, non-profit, service organizations that offer goods and services to the public, they have no such thing as program access. That doesn't relate to Title III at all. This readily achievable barrier removal does and that is there for existing facilities and that means for each location, each business there is a requirement to remove barriers that were easy to accomplish without a great deal of difficulty or expense. And that applies only to Title III entities.

Readily achievable barrier removal does not apply to state, county and local governments. I just wanted to be very clear about that. You know, I have done lots of training for Title II entities. And I have heard so many times look at -- we are good -- we did our readily achievable barrier removal but that's not their requirement. So I just -- if you have readily achievable barrier removal that -- that doesn't apply to Title II. That's a Title III issue. And just ignore it if you hear it.

Slide 21

Slide 22

Next slide, about, 22, program access. It is really -- it is fundamentally, you know, inherent in your job as ADA coordinators to understand program access. Because again it is that lens through which you will look at yourself eval, you will figure out what needs to be -- what structural changes need to happen through your transition plan. But you will have to understand program access.

Slide 23

So let's go right to 23, slide 23. Program access, I want to really stress this is not a new concept whatsoever. This comes directly from Section 504 of the Rehabilitation Act which applies -- it applies to federally conducted, federally assisted programs. And it was a concept then. So any municipality that accepted

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federal money to -- to, you know, in grants or direct funding there is an obligation to ensure that programs did not discriminate against folks with disabilities. That was from Section 504. Title II of the ADA is modeled closely, closely, closely after Section 504 of the ADA. And this in Title II, the program accessibility or program access requirement appears there.

So it is nothing brand new. This has been around since, you know, the first regulations under the Rehab Act came out in 1978. So it is not a new concept.

Slide 24

Slide 24, please. There are -- there are three very basic principles when you are talking about program access but also for Title II entities to always have in the mix when you are making decisions and trying to figure out how to carry out your duties, and I know you have a lot of duties to carry out. And they are equal opportunity, integration, and inclusion in planning. And the reason these are the basic principles is we have yet to remember that the ADA is a Civil Rights law. It isn't building code. It isn't a special benefit program. It is plainly and simply a Civil Rights law that says that people with disabilities must have the opportunity to participate, equal opportunity to participate in everything state and local governments have to offer and to make choices and not to just be excluded, limited or denied because of stereotypes or other non-legitimate reasons.

So the ADA is a Civil Rights law. So there is nothing fundamental in the Civil Rights law that equal opportunity and integration particularly. If you look back at all of the Civil Rights laws that came before the ADA that started in the late '40s and '50s and are continuing to move forward, the fundamental underpinning is integration. And in the guidance to Title II there is wonderful language that talks about -- that integration is fundamental to the purposes and roles of ADA. So for so long, you know, people with disabilities were given an opportunity maybe to participate but then usually in very different programs. You know, kids, people that are my age that had a disability when they were kids never -- probably never went to a public school. You know, they were taught outside of the public school or in special schools. So the integration mandate is the crux of Civil Rights. People with disabilities should have an equal opportunity and they should have an equal opportunity to participate alongside their friends, their neighbors, anybody else who is qualified to participate.

And the last principle is this idea of inclusion in planning. And there are

requirements, very specific requirements when you are talking about self-evaluations and transition plans is that you are required as a Title II entity to

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provide an opportunity for people with disabilities and, you know, others with interest including advocacy groups, things like that. You are required to provide an opportunity to provide input and to review, you know, self-evaluation and comment on it and transition plans and also just a smart idea. Because folks in your communities who have disabilities they are going to be in the absolute best position to help you figure out your priorities. When you hear self-eval and then you figure we have to make a bunch of structural changes and how do we prioritize those and be able to do things given financial constraints from one year to the next. So folks with disabilities can really help you prioritize. You may look at something and say these are the top three things.

This is where we are going to spend our money on in making structural changes. When folks with disabilities may say you know what, we don't really care about those. That's not where we need to go. We need to get in to your priority No. 26. So we suggest you move that up to the top. And having inclusion and planning also gets folks with disabilities invested in the process. And it gets folks with disabilities to understand that they have a responsibility but that they are also listened to and their opinion is important. And those relationships start even though it is mandated, that you reach out to folks with disabilities. But if those relationships start, the likelihood that if there is an issue down the road they are going to go to the ADA coordinator first. So it is a requirement but it pays big dividends down the road.

Slide 25 So could we go to slide 25 please? So program accessibility and I'm going to

give you a little bit of regulatory language. But you are going to have to just stick with it. So program accessibility really here's what it says. It says that no qualified individual with a disability shall and in Italics because the public's facilities are inaccessible or useable to someone with a disability be excluded from participation, denied benefits or otherwise subjected to any other kind of discrimination. So again when we are talking about program access we are really talking about the built environment. We are talking about facilities. Things like effective communication and policy modifications and those kinds of things, those are their own separate requirements. When we are talking program access we are talking about pretty much the physical environment.

Slide 26

Can we go to slide 26, please? So your responsibility as Title II entities is you need to make sure that you

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operate every service or activity, program is in there as well, so that and this is the language that causes confusion, so that when you view that program service or activity in its entirety it is accessible to useable by people with disabilities. And you are shaking your head and you are going what the heck does that even mean?

Slide 27

Let's go to slide 27. So examples, ways that you can achieve program access, there are a number of different ways. And again remember we are talking about an existing facility. So you could -- you could relocate something to an accessible facility. Say you work for a fairly small town and you always -- and I come from a very small town, but you have always held your annual town meeting in town hall in the courtroom which is on the inaccessible second floor.

But since 1827 that is where that town meeting has taken place. So if someone like me who is using a wheelchair or others who can't negotiate stairs want to attend they can't. So what are your alternatives? Could you move that to maybe the high school gym which is accessible? It has an accessible entrance to get in. And everyone can participate there. That's one option that you have. Can you provide benefits either at another accessible site or say at somebody's home? That answer is yes. But you have to be really, really careful that the service that you are providing at somebody's home or at an alternative accessible site is the same as the service that you are providing originally. And let me translate my lack of being able to articulate in to an example. Say you have -- I don't know.

Say your child, you know, child and family services has done a home visit and they find that there may be an anger management issue within the home. And as a condition for one or both parents staying in the house with the kids they need to attend anger management group classes. Stay with me. There is a point here. So the requirement to attend a group anger management class. So say there is a group anger management class that is located in a totally inaccessible facility. And if I am that parent, I use a wheelchair, clearly I can't get in and participate as I have been told to do.

So you could say well, Sally, here -- how about we do this. We will send the social worker who is conducting these group classes to your home and we will do them one-on-one with you. And is that equivalency? I think the answer to that is no. Because it is no longer group -- a group activity. And part of the reason why people are required to go to groups is that it is not just what the leader or the

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clinical psychologist or social worker says. It is the interacting between everyone that's attending and that's where people learn a great deal. And so there is a reason why these folks are required to go to a group class. So if you say well, it is inaccessible, but we will come one-on-one, that is not acceptable. That is not access to the same program, service or activity. But there are times when it is perfectly fine. If somebody needs to sign something or fill out a form and they can't get in, somebody can deliver the form to them. They can fill it out and then it can be brought back. They can also do it perhaps electronically. There may be other ways to do that, but it doesn't interfere with it. It doesn't impact what that program, activity or service is at the time. I hope that makes sense.

And, of course, the last thing is I mean if you can't relocate, saying if you can't provide the service or benefit differently, you are going to have to make structural changes. You are going to have to fix the physical inaccessibility problem. Over the past 20 years as I said earlier it is -- Title II entities have worked hard I think, really hard to increase the level of physical access throughout their facilities that they are offering folks. So structural changes hopefully is way less something you are going to have to do now or for those entities who may have just put stuff off, you might be facing a lot of structural changes. So those are the ways you can achieve program access.

No. 1 is, you know, you can move the location of something from an

inaccessible first floor to an accessible first floor. You can provide the service differently or in another location as long as it is equivalent. As long as you are providing the same service or you make structural changes.

Slide 28 Let's go to slide 28. Integration, again Civil Rights. There is nothing more Civil

Rights than hearing the word integration. And the ADA requires words really make a difference. When you see words like are encouraged to or should, that means it is not an absolute ADA. Whatever it is, isn't requiring that. But when you see words like must and shall, those are absolutes. You have got to comply with that. There isn't -- there isn't wiggle room. It is not an advisory. It is not -- it would be nice if you did this. When you see must and shall, what that means is you have got to do it. So for the integration mandate, the language is very, very clear and it is very strong. And you must be -- when you are making your decisions about how to best do program access, you must give priority to methods that provide all of your services, programs and activities in the most integrated setting appropriate.

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And really what we are talking about is, you know, integrating setting is probably way, way big majority of the time. I don't think you have to go through that analysis when you are doing your self-evals and transition plans. Because the ADA is a Civil Rights law, and because its general is to provide equal opportunity in integrating settings I would argue that if you had a couple of steps going in to your, you know, city hall or your town hall, look, I know steps. I come from New Hampshire. They don't call it the granite state for nothing. There is always a million granite steps going in to every building.

Say you have a couple. You are looking at your program access requirement and clearly somebody who is using a wheelchair or other people, wheelchair scooters, other kinds of mobility devices aren't going to be able to climb those steps. So you could say well, how about we just deliver the service differently. You know, I think you probably could but I would argue that in determining, you know, what methods to provide program access and given integration mandate if you can ramp those couple of steps, and, of course, we can never say a one-step rule.

But if you can, and it is not going to be prohibitively expensive, I think you need to look at providing access to the integrated setting rather than doing it some other way that may separate someone. Convenience never will win in terms of meeting your obligation to integrate folks with disabilities, alongside their neighbors and their friends for me to be able to hire folks with disabilities. So that integration mandate is a must. So you have to be thinking of that when you are making decisions about program access.

Slide 29

Let's go on to slide 29. All right. So you are keeping in mind, right, those three basic principles, equal opportunity, integration, and inclusion and planning. So here's how you take a look at your programs, activities and services in terms of making a decision on are you complying with the program access requirements. So what does when viewed in its entirety mean? What it simply means is that if you have a library program you look at the entire library program, right? If you have a swimming program, you look at the swimming program in its entirety. And any other kinds of programs your -- if you are a larger entity, if you are a county, it has multiple locations of service delivery points. You need to look at those. When you view that in its entirety is it accessible to folks with disabilities.

So here's what I think works really well. And my first caveat is when you are starting this assessment process, take disability out of it totally. I know that

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sounds like (inaudible) to what we are talking about today, but in order to do assessment you need to be able to do a really good objective assessment. And when disability is thrown in sometimes can cloud things. So bear with me. If you look at the points on the slide, so here's what you can do first. You need to have data. You need to have objective data before you can figure out how to provide program access.

If you don't know where things are, what's in what shape, you need to look at this. So No. 1, look at each program or each component of the program and how do people generally participate. Can anyone just participate? Is it a face-to-face program activity or service? Are there, you know, eligibility requirements? Are there -- do people always drive to it? Those kinds of things. How do people just across the board start to participate in that program?

The next thing you look at if you only have one location where an activity or a program or a service takes place, then you are done. Because you need to -- you are looking at that one location and that is the program in its entirety. If it only takes place at one location that's when viewed in its entirety. But if you have multiple locations of where that service delivery points, you need to look at those. And if you are a state you need to look at county by county, where can people participate in these programs, activities or services. If it is -- I'm trying to think of some good ideas and I'm just a little dumb today.

What you may have county programs where you may have county adult education programs. And they occur in different locations throughout your county. So you have to look at all of those. Where are they located? That's No. 1 and again very objectively. Town by town in the county. Or neighborhood by neighborhood. So look at where they are. No. 1 is how do people participate and No. 2 where the heck do people go to participate. And then the next is be very clear and look at what specific programs or services are offered at each of those places. And who was the intended audience or customer base.

So if you are a library program and I am using library for some reason because it comes easily to me, this is no indication of problems with libraries around the country. So if you have a library program and say you are, you know, you are in a mid-size city and you have a central library and you might have two branches and look at -- you have already identified the physical location of those.

And then figure out what services or programs are offered at each of those locations. So, for example, where do you have children's story hour? Do you only have children's story hour at the main branch? Do you have children's story hour

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only at the main branch and one of the branches? And think about, for example, what we -- we are seeing a lot of guys and I am not telling you something you don't know, with the influx of folks for whom English is clearly not a first language, libraries are doing an awful lot to provide language services. So say, for example, in your city or your county you have a neighborhood, a large neighborhood, for example, where say first generation Korean speaking folks tend to live.

And you as a Title II entity have made a determination that look at, let's use our library specifically for these folks. Let's make sure that we carry Korean newspapers and books and things like that in the Korean language. But we are also going to offer, you know, ESL classes. So this -- this community, this neighborhood can learn to speak English. We are going to offer story hour to kids in Korean and in English. But all of the main focus, your audience, your intended customer base are folks who speak Korean as their primary language. That's something that's very important to keep in mind. Who, you know, there is a method to why Title II entities provide services at certain locations.

Slide 30 Slide 30, please. Okay. So now you have identified all of these things and you

know where each geographic physical location is, which of those locations are accessible and to what extent. Some of them may be wonderfully accessible. Some may be partially accessible. You know what, if you get in to the main rooms, but the bathrooms are not accessible. Public bathrooms are not accessible or you just plain old can't get in. so make note of that, yes this one is accessible and this one is sort of accessible and then is forget about it.

And also look at how well are these locations dispersed and how convenient they are. If you have a public transportation system, you know, multiple locations of service points are cited places for specific reasons and a lot of times the specific reason is to allow people who rely on public transportation to get there. And it is on a bus route. It is on a subway route. So look at the convenience factor is big. So if you have those three libraries. You have the main library downtown and it is perfectly accessible. And you have one library that's sort of accessible. And you have one library that's not accessible at all. The one that's sort of accessible it is in the farthest reaches of your community or county and there is no public transportation. That's an important consideration.

If citing something on a public transportation route was important and a determining factor of why you house something, why you cited something there, you really need to look at that. And what are existing barriers to participation. You

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look at things like what are the hours of operation. Sometimes there -- one location is open like all 24/7. But the other ones are open, you know, on Tuesdays from 2 to 2:45. So in terms of convenience and citing you also look at how people get there and can they -- do they have the same range of services that are located in other places.

Slide 31

And finally slide 31, please. So program access for every obligation in the ADA there is a corresponding limitation or defense. So making compliance with the public -- I mean with the program access requirement you have to do it. Unless you can show that it is a fundamental alteration of the nature of the service program or active or it brings with it financial or administrative services. Even If you can show either of those things and it is legit and there are going to be times that it is an undue burden and it might fundamentally alter. Fundamentally alterations is at a high bar and hard to come up with examples of them. So don't just arbitrarily play oh, we can't do it because the fundamental alteration gives thought to it. Pardon me. So even if it is a fundamental alteration or financial or administrative burden we are still not off the hook. We still need to look to see if there are any other actions you can take that will provide access or at least some level of access where it wouldn't be a fundamental alteration or an undue burden. You look at these things and then you decide oh, we can't do that because of fundamental alteration which is a really hard, hard defense. Or an undue financial administrative burden but you -- you still have to look to see if there is something that you can do within the constraints of it not being a fundamental alteration or undue burden.

I am trying to say that you are not off the hook and you still need to see if you can provide access. The last thing I want to talk about very briefly is don't carry people with disabilities as a way of achieving program access. Don't say don't worry, we'll just bump you in. Don't do that. And there is real language and it is one. My favorite terms, that you can only carry somebody in what's called manifestly exceptional cases or circumstances. So, you know, if you could put a ramp in but you choose not to and say we'll just bump you in, don't do that. That is not manifestly exceptional. That is convenience and you never want your folks in and your staff to try to be bumping someone in. I use a manual wheelchair. Some folks use scooters, electric scooters. Some use power wheel chairs and you can't just bump people in.

In terms of philosophically it is demeaning and degrading and just in reality it is ripe with concern for somebody getting hurt, either your staff person or the

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person who is getting lifted. So the answer to that one is don't do it. You know, if you had an emergency and you had to get somebody out, yes, you can do that. But, you know, as a rule of thumb just never fall back on we can just bump you in.

Slide 32

Okay. I hope you guys are still alive. Let's go to slide 32. Okay. After we talked about program access. Try to keep that in mind along with the three guiding principles. So let's talk specifically about self-evals and transition plans.

Slide 33

Let's go to slide 33. This is a refresher of, you know, days -- when the ADA was passed and first went in to effect here is a timeframe but the expectation was that state and local governments would do their self-evals and transition plans. So the self-eval of all policies and practices had to be done by January 26th of 1993. That's a century ago. And this applies to every single Title II entity irrespective of the number of employees that work for that entity. Then you have to do a transition plan. If you did your self-eval and you realize the only way to provide access was to make structural changes that was subject to, you know, being historically documented in a transition plan. So if you had to make those physical modifications, and this applies only to state and local government entities, 50 or more employees, it just makes sense if you are smaller than that to go ahead and do this.

And physical modifications that you identified in your transition plan that for some reason oddly, you know, the transition plan was due July 26, 1992, a year -- six months before the self-eval is done but I digress. So if you identified those things, structural changes, physical modifications had to be complete by January 26, 1995, but in any event as expeditiously as possible. We are now, you know, when you listen to this, 2017. It is just a little nudge. Just a little reminder.

Slide 34

Slide 34, okay. Let's talk about the important roles that you have as an ADA coordinator in ensuring that a self-eval, a transition plan gets done and implemented.

Slide 35

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Slide 35. So here you are and what the heck – we’re talking about -- remember, we talked about the supplemental requirements and the safe harbor. What we’re talking about is post 2010 revised regulations and standards. So I mean here are the things, oh, my God, we did them 23 years ago. Say you really did and you are not stretching the truth. Times change. And if you look back, you know, 23 years ago I would be willing to bet you a big cup of coffee that stuff has changed. You know, you probably divested yourself of those facilities, you probably have new facilities. You are not offering all the same programs, activities and services that you used to, especially with technology. That has replaced a lot of stuff.

You are also providing new programs and activities and services that you didn't even think about back in 1993. So the next one is well, I think we did them 23 years ago but I can't find it anywhere. See the above point. Again, you know, it doesn't matter. Stuff has changed. And then well, maybe we didn't do them 23 years after all and here is my admonition. There is no time like the present. And, you know, it is a warning. There is no time like the present.

Slide 36

Let's go to slide 36. So say you really did your due diligence and you have done a self-eval and transition plan and then new regulations came out. There is no new specific requirement in the 2010 Title II regulations that says you are required to do a new self-evaluation or a new transition plan.

There is no requirement. That language was not changed. My question to you all is okay, I mean that's fine. But how can you plan to meet your compliance obligations specifically with, you know, new regulatory provisions with the changes and supplemental requirements and the standards, how can you possibly move towards compliance if you don't know where you are today. And you need to have a picture of where you are to figure out how you are going to move forward and comply. And the other thing is completing these assessments and developing a plan and following through.

We all know that there are a lot of beautiful self-evals and transition plans that were done but nothing ever got implemented. But if you complete your assessment, you develop a plan and you actually follow through, if somebody files a complaint against you, this may well serve as evidence that you really have tried to comply. You have made a good faith effort to comply. But the worst thing that will happen is if you do nothing and somebody files a complaint, that is not the right foot to get started in an investigation or if somebody goes directly to

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court. If you have nothing to show for, you know, 23 years, that's not good. So again there is no time like the present.

Slide 37

Let's go to slide 37. So what is a self-evaluation? This is an assessment. It is an objective look at all of your programs, activities and services which doesn't just include the physical environment but it also includes your policies and practices.

So you need to assess that and identify programs, activities, services, policies, those kinds of things that are -- that you think will pass muster. They are in compliance with the ADA. And things that may be not in compliance. Some may be by just a whisper. Some by a deep cavernous mile and identify those things. And you look at those and then you figure out what -- what changes do we need to make. Okay? So you do that assessment. And you -- you make notes about look at, nobody can get in here who is unable to use stairs.

You need that objective assessment just like when you were going through and doing a program access assessment, this is the same thing. And frankly you can incorporate those -- that assessment process from program access that we talked about just a little while ago right smack dab in to this.

Slide 38

Slide 38, so take a look, are there physical barriers. What needs to be done to eliminate those barriers? If you can't eliminate, how do we figure out we can provide access even if there is physical access barriers. A lot of the times you may have to make structural changes but not every time. Look at your policy. Unnecessarily exclude people who have disabilities? This doesn't mean you can't have eligibility requirements for income based programs. Certainly if I'm over the limit I'm over the limit, but you need to look at that. Also look at your communication policy. Do you have a policy in place to provide effective communication for folks with disabilities?

Slide 39

Slide 39, do take a look at all your employment policies and procedures. Again make sure that eligibility criteria or other policies don't discriminate against your current employees or people who are applicants for employment. Look at your grievance procedure. This is only required for jurisdictions that have 50 or

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more employees. I encourage you to have this anyway because it puts something in place. It makes it clear. It establishes clear expectations. So but it is legally only required for entities that have more than 50 employees.

Then for training, take a look at do you have a training program in place.

That's where such big mistakes happen. Front line folks, you guys may have fantastic policies, but if that person on duty at that front desk that day didn't know that, you know, you provided effective sign language interpreters, that you actually had an ADA coordinator, and that's going to -- that can come back and hurt you. Even though turnover is high. Bringing new people in. People with a tremendous amount of historical knowledge and institutional knowledge are retiring. So take a look at your training and just see what you have in place.

Slide 40 Let's go to No. 40. The next thing is seek input. Remember, this is that

inclusion and planning, that basic principle. And you have to provide an opportunity for people who are interested in whatever you are doing in your self-eval to provide input and submitting comments and getting them involved as soon as you can.

Slide 41

Slide 41, keep records. We all get asked this question and I know the ADA Centers get asked all the time. For the self-evaluation there was a requirement that governmental entities that employed 50 or more people had to keep for three years, you know, first of all, the self-eval itself and then a list of interested people that were consulted, a description of areas that examine and problems identified and descriptions and modifications made. That's old news. But I think making sure that you keep it for a certain period of time, in your local -- in your jurisdiction may, in fact, have its own requirements for maintenance of records for public inspection.

Slide 42 42, please. Slide 42. The transition plan, okay. Remember, the transition plan

is to be done once you have done your self-eval and you find in order to achieve program access you need to make structural changes. That is what the law requires. And again the transition plan unlike its self-eval is a requirement for entities with 50 or more employees. Like the self-eval, maintenance of records, grievance procedure, it makes sense if you can to have this done even if you

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have fewer than 40, 50 employees. So in the -- and this is the regulatory language in the event that structural

changes to facilities will be undertaken to achieve program accessibility, you have to develop a transition plan. And that has to set forth very specific steps to memorialize what is going to be done. For ADA coordinators this should be good news to you.

Slide 43

Let's go to 43. Again just like the self-eval you have to seek input. And you need to let the public know. Now the copy of your transition plan was to be made available for public inspection. It makes sense to do this whether the Federal Government says you have to or not. So what's in the transition plan?

Slide 44

Let's go to 44. Okay. The bolded words that I have used really are very cliff notes. You have to identify the physical obstacles. That's No. 1. No. 2, describe, describe what the barrier is and detail the methods that can be used to remove that barrier.

Okay. Identify, describe, specify. Here is where we set up your schedule for achieving compliance. And, you know, I think the reality is that you aren't going to do this overnight. Things are going to have to be done, you know, over a time frame. And that's okay. The important thing is that you actually move on it. So you set up some markers, set up a work plan, when things will happen. And the light is never perfect. The weather is never perfect. What we like to say at DOJ was and I'm going to enunciate very clearly is shift happens. That's shift despite the best laid plans there are going to be wrenches that happen out of nowhere and that's okay. But what you have to do is address them. And if something puts you off schedule a little bit, make a note of that and show how you are going to proceed from there. And this is where, the last one, the indicate, this is what you should give ADA coordinators a good night sleep.

Here is where you indicate that official that is responsible for implementation of the plan. And there are different parts of the plan. You may have stuff that, you know, is going to get done, you know, through -- if you are a large city, you are doing public schools, your public schools facility people. If you need to put in curb ramps, curb cuts, that's probably going to be your streets and highways, Department of Transportation. So feel free to, you know, indicate the subject matter experts, the heads of those departments as the responsible person for

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completing that task. You can't do it all.

And other people have responsibilities and you are moving forward with that, that time plan and you are doing that good faith effort. You know, the more people that are signatories the more buy in you might get whether they want to or not. Whether they are the responsible person to sign off on, put their name in.

Slide 46 Let's go to 46. So how do you begin with this -- what might seem like a

daunting task? I think the first thing is that you identify who you need. Who you need at the table. Facilities, department heads, representatives, management, middle management, get up as high the chain as you can to be part of this exercise. Then identify people who you can count on, who you know are going to support you. Who also you know are going to pick up your phone calls and respond to your e-mails. That's really important. And we talked about that at length in the ADA coordinator role but those relationships are critical. And identify folks in the community who have disabilities. So you gather people that you need their input.

Slide 47

Let's go to 47. Then you make some initial decisions. And there is no one way to do self-eval or to do your transition plan. You need to do what's best for you and what works and what builds upon what is done before. So there are a variety of ways to do this. Do you just go out and say we are going to make a commitment and we are going to go out and do a physical assessment of every facility we own or every location where any of our programs, activities or services takes place. That is perfectly fine to do. You can just look at each facility and identify whether they are accessible, the level of access or no access. And get that data. That's perfectly fine to do.

Do you want to look at it, you know, through each individual program? So, you know, your library program, look at that. And then you figure out where is it housed and how do we provide access or do you use a combination of both? And there are going to be some things by their very nature and it may be something that we have one of that obviously what you need to do is you need to make structural changes to that. So you may need to move directly to the physical assessment. Public rest rooms. There is no other alternative way to provide that service. So you are going to need to look at through program access how many of those do we need to make accessible and where.

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Then I think we just need to use what works best the culture of your employer, of your agency, of your jurisdiction. And you can go back and forth. You can use a hybrid, whatever works. The bottom line is that you identify. You do that self-eval. You identify in your transition plan things that you are going to need to make structural changes. That's the end game. You need to look at what the end game is. And whichever way it is easiest for you to do it or in line with other kinds of assessments that your jurisdiction has done by all means use it. There isn't one cookie cutter way to do this.

Slide 48

Let's go to 48, please. All right. So these are very similar to the questions in the ADA coordinator but they are very important here as well. So the first thing is you can't do this assessment unless you understand your agency's programs, activities and services. What are they, what are they intended to do and why in the world do we do it in the way that we do it. What is the underlying purpose for those programs? Some may be very, very specific. Some may be much more global. It may be, you know, to increase senior citizens' involvement as volunteers. It could be much more global. It could be much more granular. And what any eligibility requirements and are they needed. You need to make sure you don't have artificial eligibility requirements that unnecessarily screen out or limit participation of folks with disabilities.

And again, you know, look at institutional commitments. Does one exist? Will

people make your life easier or will they put roadblocks in your way of accomplishing the creation and implementation of a transition plan.

Slide 49

49. So these are the final questions. You know, look at the -- if there was a self-eval transition plan done earlier look at it. See if you can find it. Wear a Hazmat suit because you are going to be blowing up a lot of junk, probably where it was stored. If people did this in the early '90s, these weren't highly computerized times. How current is the eval and transition plan. It was done 23 years ago. It doesn't reflect what you are doing. And what's changed and what no longer exists and what's new.

I encourage you to look at your service delivery, how you interface with your community members in that vast accessible technology and that's how we conduct business. Make sure you look at those things.

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Slide 50

Let's go to 50. So what do we need to address now that we didn't before? As I mentioned, you know, the influx of folks from other countries who don't speak English as their first language. That, you know, everywhere is seen and everywhere is trying to try to figure out how can we best serve and how can we best help. Know who has responsibility for that. If you did that transition plan and you indicated the responsible official for doing the curb ramps was your local Department of Transportation head, that's the person that needs to do that.

Don't be overstepping but also make sure that the person who was the subject matter expert is listed as the responsible person gets held accountable. Do we have an ADA coordinator? If you are not the ADA coordinator you need to get one .Please, again look at your grievance procedure. Remember, in the self-eval you are required to look at all your policies and your procedures. So that's a self-eval thing.

We very often get tied up in the bricks and mortar. I like to talk about it and

refer to it as the edifice complex. You are talking about all your programs, activities and services irrespective of where they take place.

Slide 51 And then let's go to 51. So where do you go from here? Again if you all need

to take a deep breath, you can do this. Understand the requirements of the ADA. Ask questions. For heaven's sake ask questions. Nobody knows everything in the world about the ADA. Develop your own support network. You know, get in touch with other ADA coordinators that are in your region or, you know, that are from communities of the same culture, the same geographic location, same size. And I'm sure that the ADA network can, you know, refer you to folks. And these guys have been there. They have gone through it before and they can help you through it, too. Again reach out and develop a relationship, a good relationship with the disability -- with folks with disabilities in your community. And, you know, figure out who your regional designated federal agency person is.

So if -- if you are responsible for your public schools find out who your regional person is for the U.S. Department of Education and start reaching out and developing relationships with them. They have a lot of information that they can give you and they have been doing this for years. And you also, you know, want to make sure that you know their name and you have had a pleasant discussion

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before they send you a letter that says oh, we are opening a Title II investigation against you. Please submit the following information to us.

And, you know, lastly make sure that you call our information line, the Department of Justice information line. And contact your regional ADA Center. You can get really good information in nonlegal language and help you figure out how the ADA applies to this particular issue that you are trying to fix.

Slide 52

Are we at 52? If we are not please go to 52. No matter where you are in your process, respond, respond, respond. Don't avoid, avoid, avoid. If people call you whether it is one of your peers calling for information or if it is people, you know, the front facing side of your work people in your community are calling with complaints, don't avoid them. Don't duck those calls. Respond as timely as you can. If I call and nobody ever returns my calls, I'm going to do one of two things. I'm going to call you every hour on the hour. I would never do that but I understand that has happened. Or I'll just get fed up and just file a complaint with the Federal Government. And again don't ever be afraid to ask questions. But never, never, never be afraid to say you don't know. The worst thing you can do is make up something or paraphrase something that you are not really sure of. Just tell them hey I need to check on this. I'm not completely sure. So, you know, how about I call you back in 24 hours or something, but really it is okay to say you don't know. People really respect that.

Slide 53 53, please. Last slide, for resources, you know, go to our website and it is

ada.gov and you will find all the regulations and the standards, our technical assistance materials, you will find all of our settlement agreements that I spoke on earlier on under project civic access that each one of those can serve as a really good outline for you doing self-eval and transition plan and call the ADA Centers. They have a great deal of knowledge. They know the geographic area and peculiarities of specific geographic areas and how stuff gets done there. Something in the Midwest is going to get done very differently than something on the East Coast. There are just different cases and different ways of doing business. So just call people. The information is out there and take advantage of it.

And there are no stupid questions, but the worst thing you can do is make up an answer. I learned the hard way in my young years. So that is it for me. I'm

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going to turn it back over to Marian. >> MARIAN VESSELS: Well, thank you so much. This was awesome

information, Sally. We have time I think for one, maybe two questions. And one of the questions was creating a process for a local government can seem overwhelming in developing self-evaluation and transition plans. What is the best place to start?

>> SALLY CONWAY: Well, I'm going to give you two answers to that. And the first thing I'm going to say it depends which as you all know I can't go one session without saying it depends. I think the best way is No. 1, you have to figure out what they have done before you and to respect the work, if any, and that gets done before you. That's No. 1. If there is something already in place, maybe you could just use that to build upon. And the second thing is to figure out who is it you need. I have worked in, you know, in small towns, I have worked for a state government and worked with the private sector and I have worked for the Federal Government. And I got to tell you I think it is a lot harder to work in local government for a couple of reasons.

If you work in a local government, there is not a whole lot of anonymity like there is if you are a Federal Government employee. In local government memories tend to be very long. And, you know, I think people know if -- there used to be a facilities guy but somebody else ousted him and then somebody's nephew came in. People in local communities because they know each other, they live next to each other, that lack of anonymity and that long memory can be hard.

In that case I would really think that it makes sense, the first step would be to figure out let's say nothing got done before or even if stuff did get done before. And remember, I said it is really important not to dis that work. You need to respect it. And yes, you can revamp and you can change and you can build upon it. But that would be -- that is a killer for people being willing to participate. But again it comes back to who is it that you need. Think of it as a wish list. Here are the people that I need to have involved. And then you go from there. You know, who can you already talk to. Who do you already have a relationship with?

And sometimes it is like baby, baby, baby steps. And if you can start getting people involved again, I think it is really important to do the outreach to the disability community. It is hard and it seems overwhelming. But if you, you know, it is like that -- the whole elephant thing, because one bite at a time isn't as overwhelming.

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So, you know, say okay, here is where we are going to start. This is the first program that we are going to look at or this is the first facility, the first building that we are going to look at and assess. And I'm a big fan of charts, not overly ambitious charts but figure out what do we have to do in the assessments. We do have to look at employment policies. You do have to look at other programs, activities and services. Make a list of those and it could be big chunks of those. You don't have to list -- if you are a community and you have, you know, social services department, then has a bunch of different things under it. Look at it as a whole first. And then figure out -- and then you can figure out who do you need. Try to break it up in to smaller, more editable pieces. And that's my answer on that.

>> MARIAN VESSELS: That was terrific guidance. Thank you. What a wealth of information

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