understanding the basics of ada: post ada amendments act, and disability awareness graham l. sisson,...
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Understanding the Basics of ADA: Post ADA Amendments Act, and Disability Awareness
• Graham L. Sisson, Jr.• Executive Director• General Counsel• Governor’s Office on
Disability• Deputy General
Counsel• Dept. of Rehabilitation
Services• State ADA Coordinator
• Adjunct Professor
Contact Information
•800-205-9986 ADA Hotline•205-290-4540 Bham Office•334-293-7189 Mont’gy
Office• [email protected]
Overview
• All information provided is non-binding• Ultra-Reader’s Digest Version• Governor’s Office on Disability• Disability as part of Diversity in college admissions and awareness• To effectively serve students with disabilities should have a basic legal
understanding as well as disability etiquette.• Overview of Applicable Disability Rights laws/Updates• Threshold issues• Typical Physical Barriers• Service Animals• Reasonable Accommodation• Specific Issues• Policies• Disability Etiquette
My Personal Experience
• Injured in 1982 motor vehicle collision with drunk driver
• Paralyzed from waist down and suffered a closed head injury
• Attended college and law school using a wheelchair
• Suffered some employment discrimination• Have experienced public perception of PWD
– 5 dollar episode– Restaurant example– Decreased expectations– Want to live American dream
Governor’s Office on Disability
• Two major purposes• A. Serve as statewide clearinghouse for
disability information• B. Serve as liaison to Governor on
disability issues• Also identify unmet needs of PWD
across the state of Alabama• www.good.alabama.gov• Become a part of GOOD list.• Call us- we can help!
Central Concepts
• Treat PWD as individuals.• Best answer usually- “it depends”.• Best to ask first “How can I help you”, not
“What is your disability?”(At least not at first)
• Relax, do your job and remember good customer service or employee relations.
• Learning about disability culture is as important as a basic understanding of legalities.
Context
• While it is important to understand the laws, such understanding is insufficient unless one is aware of disability as a separate culture and an equal part of diversity.
• Having a working knowledge of disability terminology and etiquette will ensure smoother communication with PWDs and lead to optimal reasonable accommodation.
Threshold Issues
• Is the student’s condition severe enough to qualify as a disability under the applicable laws?
• Is the student with a disability (PWD) qualified to participate in the program or service?
• Is there sufficient documentation of disability?• Is the PWD entitled to reasonable
accommodation? (is there documentation tying the need for the accommodation to the disability?)
• Does the requested accommodation pose an undue hardship or cause a fundamental alteration?
Disability Specific Laws
• Americans With Disabilities Act (ADA)• ADA Amendments Act of 2008• Rehabilitation Act of 1973 , Section 504• Individuals With Disabilities Education Act
(IDEA)• Family Educational Rights and Privacy Act of
1974 (FERPA)• Fair Housing Act, as amended in 1988 (FHA)
ADA OVERVIEW
• MAINSTREAMING• EQUAL OPPORTUNITY• ACCESS• CIVIL RIGHTS
Five Titles of the ADA
• Title I: Employment
• Title II : Public Entities
• Title III: Public Accommodations (private businesses)
• Title IV: Telecommunications
• Title V: Miscellaneous
Definition of Disability
• Physical or mental impairment that substantially limits a major life activity or
• Record of impairment or• Being regarded as having an impairment• The ADAAA restored the definition of
disability to Congress’ original intent- after the ADAAA it is much easier to prove ADA disability.
Qualified Individual with a Disability
• Meets essential eligibility criteria for participation in the program, activity or Service (Title II)
Rehabilitation Act Impact
• The Rehab Act definition of disability is changed to conform to that within the ADAAA.
U.S. Supreme Court Decisions Impact
• Sutton trilogy– Three decisions that mandate consideration
of corrective or mitigating measures when determining substantial limitation
– Sutton: eyeglasses– Murphy: high blood pressure medication– Kirkingburg: behavior modification for
monocular vision• Toyota v. Williams
– To be an ADA disability must substantially limit activities of central importance in life
ADA Amendments Act (ADAAA) of 2008
Became law on September 25, 2008. 90 to 95% of ADAAA concerns the definition of
disability Reverses Sutton and Toyota decisions Also clarifies that covered entities under the
ADA do not have to accommodate those regarded as having a disability.
It became effective on January 1, 2009. Shifts emphasis from whether or not there is a
disability to whether there has been discrimination.
Major life activities
• The ADA Amendments Act has the following non-exclusive list:
• Caring for oneself• Performing manual tasks
Learning Breathing• Reading Seeing• Hearing Speaking• Eating
Concentrating• Sleeping Thinking• Walking
Communicating• Standing Working• Lifting Bending
Major Bodily Functions
• ADAAA Also defines major life activities to include major bodily functions like– Immune system– Normal cell growth– Digestive– Bowel– Bladder– Neurological– Brain– Respiratory– Circulatory– Endocrine– Reproductive
Exclusions
• “Regarded As” Disability does not include impairments that are transitory or minor.
• Transitory means an impairment with an actual or expected duration of 6 months or less.
• Can consider corrective measures of eyeglasses or contact lenses
• Episodic conditions or those in remission are covered if there is a substantial limitation when active.
Covered Disabilities
• In the legislative history for the ADAAA, there is an in- exhaustive listing which includes– Diabetes– Intellectual disabilities– Dyslexia– Learning disabilities
Reverse Discrimination
• The ADAAA clarifies that there is no reverse discrimination based on disability.
Reverse Discrimination
• There shall be no allowance of claims that an individual without a disability has been subjected to discrimination because of his or her lack of disability.
• For instance, a student without a disability cannot sue because students with disabilities were given extra time on a test, and he or she was not.
Major Life Activity
• Only one major life activity needs to be limited to get coverage under the ADAAA.
• In particular, an individual is not denied coverage under the ADAAA because of an ability to do many things so long as that person is substantially limited in just one major life activity.
• For example, a student may be able to take care of many household activities, but still be substantially limited in the major life activity of thinking.
Impact of ADAAA
• Higher Ed. Institutions should be ready to handle more requests for accommodation.
• According to AHEAD, some surveys predict 6 to 9 % of the college population has a disability.
Fundamental Alteration
• The ADAAA has a specific statement that it does not change the obligation to reasonably modify policies, practices or procedures unless there is a fundamental alteration of the nature of the goods, services, privileges, advantages, etc. that are provided.
• This includes academic requirements in post-secondary institutions such as substitution of courses to meet degree requirements, length of time permitted to complete degree requirements, or adaptation of manner in which particular courses are conducted.
New Regs.
• For individuals who do not use a mitigating measure (including, for example, medication or reasonable accommodation that could alleviate the effects of an impairment), the availability of such measures has no bearing on whether the impairment substantially limits a major life activity.
• In order to have regarded an individual as having a disability, a covered entity need not have considered whether a major life activity was substantially limited, and an individual claiming to have been regarded as disabled need not demonstrate that he or she is substantially limited in a major life activity
Post ADAAA Cases
•Ivey v. First Quality Retail Service (9/21/12) - Disposable diaper manufacturer was sued by pro se litigant for disability discrimination under the ADA. Employee had carpal tunnel syndrome. Employee was terminated after light duty work was ended. Employer successfully claimed that employee was not qualified. Focus shifted from whether or not she had disability to qualified. Employee tried to claim hostile work environment after other employees and team leader referred to her as “Robo Cop”. This case involved ADAAA, but since disability not disputed- ADAAA not implicated since no changes to qualified under ADAAA. Court emphasized that an accommodation is reasonable only if it will enable the employee to perform the essential functions of the job. Also, the employee has the burden of identifying reasonable accommodations.
•Ross v. Jefferson County Depart. Of Public Health (9/17/12)- whether state agency is immune under 11th Amendment from a disability discrimination claim under the ADA (immunity under Title I for monetary damages – following Garrett decision) 11th Circuit found immunity, finding Jeff. County DPH a arm of the state and thus a state agency. The employee was a dental assistant with fibromyalgia. The court did not allow injunctive relief since the employee did not sue an individual officer or official - injunctive relief can only issue against an individual officer.
Typical Physical Barriers
New ADAAG
• Compliance with the 2010 Standards for Accessible Design is permitted after that date, but not required until 18 months after the date of publication (September 15, 2010).
• Covered entities are given the choice of following the new standards or original standards (ADAAG 1991) during the first 18 months after September 15, 2010 for new construction or substantial renovation.
• After 18 months, use of the 2010 standards will become mandatory (March 15, 2012).
• Safe Harbor: Elements in covered facilities built or altered in compliance with 1991 standards are not required to be brought into compliance with the 2010 standards until such elements were subject to a planned alteration.
2010 ADA Standards for Accessible Design
• Changes to the 1991 Standards– The 2010 ADA Standards for
Accessible Design contain more than incremental changes.
Reach Ranges
• Reach Range Requirements (Section 308) – The reach range requirements have been
changed to provide that the side reach range must now be no higher than 48 inches (instead of 54 inches) and no lower than 15 inches (instead of 9 inches).
– The side reach requirements apply to operable parts on accessible elements, to elements located on accessible routes, and to elements in accessible rooms and spaces.
Toilets/Water Closets
• Water Closet Clearances in Single User Toilet Rooms (Sections 603, 604)– In single-user toilet rooms, the water closet
now must provide clearance for both a forward and a parallel approach
– and, in most situations, the lavatory cannot overlap the water closet clearance.
– The in-swinging doors of single use toilet or bathing rooms may swing into the clearance around any fixture if clear floor space is provided within the toilet room beyond the door´s arc.
Other Changes
• Assembly area requirements (Sections 221, 802)
• Location of Accessible Routes to Stages (Section 206)
• Transient Lodging Guest Rooms (Sections 224, 806)
• Common Use Circulation Paths in Employee Work Areas (Sections 203.9, 206.2.8)
• Still others …
Swimming Pools
• Requires Accessible means of entry like pool lifts
• Was originally effective March 15, 2012• Later postponed until September 15, 2012- but
now extended to January 31, 2013.• Pools with linear wall space greater than 300
feet must have 2 accessible means of entry one of which must be a pool lift; less than 300 linear feet must have at least 1
New Title II and III Regulations
• In general, these final rules will take effect 6 months (March 15, 2011) after the date on which they are published in the Federal Register. (September 15, 2010).
• Same safe harbor as ADAAG
New Title II and III Regs.
• Definition of service animal basically includes only dogs with limited exceptions.
• Dogs used only for emotional support are not service animals.
• The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA.
• The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of "service animal."
• Wheelchairs and other power-driven mobility devices must be allowed in all areas open to pedestrian use.
• Includes VRI (Video Remote Interpreting) as a kind of auxiliary aid to provide effective communication.
HUD Therapy Animal Rule
• HUD issued a final rule amending its regulations concerning the requirements for pet ownership in HUD-assisted public housing and multi-family housing projects for senior citizens and persons with disabilities.
• Pet rules do not apply to assistance animals, therapy animals, companion animals, or emotional support animals.
• HUD states that use of assistive animals in the housing context is controlled by reasonable accommodation law.
• The PWD must demonstrate a connection between his or her disability and the function the service animal provides such as providing emotional support for those PWD who have a disability-related need for support.
• University of Nebraska at Kearney case
Fair Housing Act
• Therapy Animals are not covered service animals under the ADA
• However, they are covered by the FHA.
• HUD has taken position that they should be allowed in campus apartments.
Residential Housing
• Residential housing programs provided by title II entities are covered by the ADA.
• For the first time, however, the final rule establishes design requirements for residential dwelling units built by or on behalf of public entities with the intent that the finished units will be sold to individual owners.
• These design requirements are set forth in the 2010 Standards.
Title III New Regs. Highlights
• Ticketing, Service Animals, mobility devices, and VRI: same new rules as Title II.
New Title III Regs.
• Reservations Made by Places of Lodging. The rule establishes requirements for reservations made by places of lodging, including – procedures that will allow individuals with disabilities to make
reservations for accessible guest rooms during the same hours and in the same manner as other guests,
– and requirements that will require places of lodging • to identify and describe accessible features of a guest room, • to hold back the accessible guest rooms for people with disabilities until all
other guest rooms of that type have been rented, • and to ensure that a reserved accessible guest room is removed from all
reservations systems so that it is not inadvertently released to someone other than the person who reserved the accessible room.
• The final rule limits the obligations of third-party reservation operators that do not themselves own and operate places of lodging.
• In addition, to allow the hospitality industry appropriate time to change reservation systems, the final rule gives places of lodging 18 months from the date of publication to come into compliance with these requirements.
Timeshares/Condos/New Title III Regs.
• Timeshares, Condominium Hotels, and Other Places of Lodging: The rule provides that timeshare and condominium properties that operate like hotels are subject to title III, providing guidance about the factors that must be present for a facility that is not an inn, motel, or hotel to qualify as a place of lodging.
• The final rule limits obligations for units that are not owned or substantially controlled by the public accommodation that operates the place of lodging. – Such units are not subject to reservation requirements
relating to the "holding back" of accessible units. – They are also not subject to barrier removal and
alterations requirements if the physical features of the guest room interiors are controlled by their individual owners rather than by a third party operator.
Reasonable Accommodation
• The dialogue (process established by policy)
• Must be effective (enable student to participate in course or program)
• Applies only to barrier removal related to disability
• Not personal use item• May go beyond requirements of ADA
Reasonable Accommodation Burden
• Title I I and /or III requires a covered school to provide reasonable accommodations to qualified individuals with disabilities unless to do so would cause an undue hardship.
• In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal opportunities.
• The key is to provide an accommodation that gives an effective equal opportunity in an equally integrated way.
TYPES OF REASONABLE ACCOMMODATION
• Modify written examinations or training• Adopt flexible policies (reasonable modification of policy)• Modify class site• Adjust schedules• Acquire/modify equipment/devices• Provide readers/interpreters• Relocation of class• ?Use of calculator• Alternative formats• Time and a half• E-text• Private room/reduced distraction area for taking tests• Audio taped questions• Breaks• taped textbooks, use of a tape recorder, instructions orally and in
writing, note taker, and priority seating
Legally rejected accommodations
• Breaking down questions into parts and responding in outline form instead of essay format
• Open book exam where purpose of test was to measure recall despite physician’s recommendation
• Taking test at home where recall was found essential• Modifying test questions –not reasonable -- “equal
opportunity” not “equal outcomes”• Course substitution not always required• Tutorial services not required by ADA/Section 504
• Did not request accommodation and failed exam; not RA to have test result removed from record
REASONABLE ACCOMMODATION PROCESS
• Student with disability must request accommodation• Must request one that is reasonable• Does not have to use any magic words• School and student should then engage in interactive process
to determine most effective accommodation (often will involve disability support office)
• School gets to choose accommodation provided, but it must provide one that enables student with a disability to perform to participate in the class and/or school activities.
• School does not have to provide any accommodation that would impose an undue burden. If undue burden must consider alternatives or allow student to fund portion that constitutes undue hardship.
• No notice; no right to accommodation
Reasonable Accommodation Defense
• Fundamental alteration• Defeats essential eligibility requirements• Example: student is in international
relations or studies program and wants college to eliminate foreign language requirement due to LD.
• Would elimination of this requirement pose a fundamental alteration or defeat essential eligibility requirements?
Disability Documentation
• Can require reasonable documentation of disability and need for accommodation as related to disability.
• Should have a committee that reviews requests for accommodation(s) and decides which accommodation(s) to provide.
• Need to have consistency and fairness.• Be careful not to insist on documentation where
disability and need for accommodation are obvious.• Documentation should state the diagnosis and tests and
methods used in the diagnostic process, evaluate how the impairment impacts PWD, and recommend reasonable accommodations.
Disability Documentation
• It should be current, which usually means no older than 3 years.
• Many colleges like to see the IEP or Section 504 plan, but it is usually not sufficient unless there are recent test scores or a psychologist’s report
Requests for Accommodations
• Students will need to make these each semester.
• It is best to request them before the beginning of each semester
Confidentiality of Records
• Family Educational Rights and Privacy Act of 1974 (FERPA), protects the privacy of students' educational records.
• Information in college records about a student’s disability and accommodations, if any, must be treated as confidential.
• With a student’s permission or on a need-to-know basis, a counselor may consult with faculty and staff.
• The most common type of communication is with a student’s professor or academic advisor.
• Once the college has disclosed information about a disability, the recipient of that information also has a responsibility to protect confidentiality.
Parent Rights
• Can a school disclose information to the parents upon receiving a request from them- particularly if they want to make sure their child with a disability is doing ok?
• Generally, no- unless the student has signed a release for the parents.
Payment for Testing
• Will the college pay for testing for purposes of determining accommodations?
• Generally, no. However, the student should seek other possible funding sources such as insurance or VR.
Policy 101
• A good policy should be clear and concise• Gives guidance on how to address almost any situation
(although it may not be possible to address every scenario)
• Will need to be monitored and revised periodically (at least annually)
• Never put anything in a policy that your organization will not adhere to (otherwise it will be used against your entity)
• Due to time restraints, I will not be able to cover specific language for every word in a policy.
• My office can assist with drafting/revision of ADA related policies
Reasonable Accommodation Policy
• Basic Elements• Overview paragraph• Who is covered? (Disability defined)• Documentation to show disability• Confidentiality of medical or disability information• What triggers need to accommodate• The process for requesting accommodation
– Who to contact– When to contact
• Who decides the accommodation• Types of accommodations (not exhaustive list)• Timeline for providing• Date policy implemented
Disability as Diversity
• Equal part of diversity• Persons with disabilities have a
separate culture• Largest minority in U.S.
Disability Awareness
• Disability Etiquette• Make eye contact• Speak to person with a disability
directly• Never ask someone associated with a
PWD what that person needs or wants• Do not be afraid- PWD are people first
Offering Assistance
• Before helping a PWD, ask him or her
• Do not be upset if someone refuses help
• Ask the person how they prefer to be helped as he or she knows best
• "The beginning of wisdom is to call things by their right names."
Old Chinese Proverb• "The difference between the right
word and the almost right word is the difference between lightning and the lightning bug."
Mark Twain
Why Care About Disability?
• Disability does not demean or lessen a person's self worth or his or her ability to contribute to society.
• Disability is a natural part of the human experience. If you help people with disabilities, you will be helping yourself one day or a family member or a friend. Anyone can acquire a disability in a split second. (TAB)
• Disability is an equal part of diversity as race or sex or national origin except that is crosses all social strata.
People First Language: the Good, the Bad , and the Ugly
• Good: Always refer to the person first:• Example: “person with a disability”, not “disabled”
person• Bad: Do not use “handicapped person”• “Handicap” has origins that many PWD think make it
synonymous with “beggar; also comes from game in 1600s.
• Ugly: Others words to avoid : “ cripple, invalid, wheelchair bound, confined to a wheelchair” etc.
• Just plain dumb: More words to avoid: “differently abled”, “challenged”, “able bodied”, “special”, “gimp” or “gimpy”, “afflicted”, “suffering from”, etc...
Language
• Caveat: do not avoid speaking to someone with a disability out of fear of saying the wrong thing.
• Example: Ok to say to a person with a visual impairment “see you later.”
• Many PWD have a sense of humor.• Do not allow a negative experience with
one PWD to cloud attitude toward other PWD
Myths
• All PWD meet in a convention each year or know each other
• PWD cannot work• Disability is contagious• PWD are superheroes or “inspirational.”• PWD can live off the government• PWD are "victims" • PWD have everything paid for them • PWD are few in number
TRUTH
• Disability is a natural part of the human experience
• There are approximately 54-56.7 million PWD
• In Alabama there are approximately 945,000 PWD; prevalence rate may be as high as 25.9%.
• PWD want to be fully contributing members of society
• PWD want what everyone else does: family, job, transportation, happiness, etc.
TRUTH
• People with disabilities can work.• Do not be afraid to include them in
your workforce.• Education and assistive technology
are 2 great equalizers that enable individuals with disabilities to be successful on the job.
Thank you
• ANY QUESTIONS?
• THE END!