ADA Roundup 2011

Quest's annual review of the Americans with Disabilities Act finds new rules being implemented and new suits being filed, as the fight for full inclusion goes on

Article Highlights:
  • In March, the U.S. Department of Justice announced the first major revisions of accessibility guidelines for public accommodations since the Americans with Disabilities Act (ADA) was passed 21 years ago.
  • The new guidelines apply to more than 80,000 state and local government agencies and more than 7 million public places, including stores, restaurants, libraries, museums, movie theaters, doctor’s offices and polling places. Entities covered by the ADA have until March 15, 2012, to comply with the new standards.
  • The amended regulations also expand or clarify the law regarding certain nondiscrimination policies, such as what constitutes a service animal and the use of wheelchairs or other power-driven mobility devices. Most of these policy changes went into effect immediately.
  • Check out Accessibility Means Being Able to Get Out of Your Own Driveway to learn about one woman's quest for accessibility in her neighborhood.
by Miriam Davidson on July 1, 2011 - 11:35am

QUEST Vol. 18, No. 3

Beginning in 2012, new or renovated public swimming pools must have sloped entries or lifts. New or altered golf courses must have some accessible holes.

Boat docks must have accessible slips, playgrounds and gyms must have accessible equipment, and amusement park rides must have accessible seats.

These are just a few of the new Americans with Disabilities Act (ADA) regulations for public facilities announced in March 2011 by the U.S. Department of Justice.

The regulations are part of the first major revision of accessibility guidelines since the ADA was passed 21 years ago.

To learn more about the new ADA regulations, see the fact sheets put out by the New England ADA Center. See A Closer Look for a sampling of information found in the fact sheets.

The new rules apply to more than 80,000 state and local government agencies and to more than 7 million public places, including stores, restaurants, shopping malls, libraries, museums, sporting arenas, movie theaters, doctors’ offices, hotels, parking structures, prisons, polling places and emergency preparedness sites.

Organizations covered by the ADA have until March 15, 2012, to comply with the new standards.

The amended regulations also contain many new or expanded nondiscrimination policies intended to clarify the law regarding use of service animals, use of wheelchairs and other power-driven mobility devices, tickets for wheelchair-accessible seating at entertainment venues, reserving and guaranteeing accessible hotel rooms, and other issues.

The compliance date for these policy changes was March 15, 2011, although the hotel industry has until March 15, 2012.

ADA enforcement

The Department of Justice (DOJ) relies on the public to bring violations to its attention. In most cases, people are encouraged to seek mediation.

However, if the situation rises to the level of general public importance, or if there is a pattern of discrimination, the DOJ may attempt to negotiate a settlement or may file a lawsuit on behalf of the United States, or people can file their own suits in federal court.

“Individuals with neuromuscular diseases or other disabilities should by no means be afraid to be advocates who fight for their civil rights,” says Mario Damiani, an attorney with federal disability policy experience who has Becker muscular dystrophy and who is a former member of MDA’s National Task Force on Public Awareness.

Says Damiani, “when faced with a barrier, individuals with disabilities also have an important opportunity to educate the operators of places of public accommodation and work with them to effect change — which would ideally involve removing the barrier or agreeing upon a reasonable accommodation.”

MDA recently hosted an online information program (webinar) called “Knowing Your Rights and Understanding How the ADA Impacts You.” It featured Robyn Powell, a lawyer and disability rights program manager for the Equal Rights Center in Washington, D.C., and addressed participants’ questions about travel, schools, doctors’ offices and more. It is archived on the MDA website.

ADA lawsuits

New York City is surprisingly behind the curve when it comes to disability access. Fewer than 100 of New York’s 468 subway stations, and only 250 of its 13,000 taxicabs, are wheelchair accessible. Most of the city’s 168,000 sidewalk corners lack curb cuts.

Activists say the problem is not just that it takes time to bring a city as old and big as New York up to current standards. It’s that, even when upgrades and renovations are made, disabled access is ignored or forgotten.

For example, the city’s choice for the “Taxicab of Tomorrow” is not accessible, and its $20 million renovation of the Dyckman Street 1 Station fails to include disabled access.

In October 2010, two disability-rights groups sued the Metropolitan Transit Authority (MTA) over the Dyckman Street station renovation, noting ADA requirements that 20 percent of money spent to upgrade existing facilities must be spent on improving accessibility.

“Access to the subway system is absolutely essential to life in New York City,” stated Sid Wolinsky, the plaintiffs’ lawyer.

Pit bull service dogs?

Owning a dog that is at least 50 percent pit bull has been illegal in Denver, Colo., since 1989.

Now three people with disabilities who own pit bulls are suing, saying the ban violates their rights under the ADA to have service dogs of their choosing.

The lawsuit highlights the fact that the ADA is intentionally vague about what constitutes a service dog (other than that it has to be a dog — the new rules make it clear that nontraditional service animals aren’t covered).

Authorities in Denver say they may allow pit bulls to stay in the city if their owners produce proof of service-dog training. However, court rulings have held that businesses, local governments and others may not demand proof of a dog’s service training as a condition of allowing the animal to remain with its owner.

Accessible burritos

The restaurant chain Chipotle Mexican Grill has agreed to lower the height of its counters so people in wheelchairs can see the ingredients and watch their burritos being made.

The change was made after a San Diego man sued the restaurant chain, saying he was being treated differently than other customers who were able to choose the contents and oversee preparation of their burritos.

A trial court initially ruled against the man, saying Chipotle’s policy of showing samples to people in wheelchairs was enough, but the Ninth Circuit Court of Appeals overturned the verdict.

Decent seats at last

In November, the movie theater chain AMC Entertainment settled a longstanding lawsuit when it agreed to modify its theaters to place wheelchair seating near the middle of the auditorium rather than in the front.

The Department of Justice filed suit in 1999, after receiving complaints that wheelchair seating in AMC theaters often was poorly located, leaving chair users with a bad view.

ADA mediations

Or maybe an ADA success story to share with others? Email Quest at publications@mda.org. We might feature your story in Quest!

In mediation, both sides of a dispute sit down with a neutral third-party mediator and work toward a mutually acceptable solution. Attorneys are not required.

Mediation is generally cheaper, faster and less adversarial than going to court. More than three-quarters of ADA complaints filed with the DOJ are resolved through mediation.

A few recent examples:

  • After a wheelchair user in Tennessee mediated a grievance that a city public works building was inaccessible, the city agreed to install accessible parking spaces, ramps at the curb and building entrance, and a buzzer for people to call for assistance to open the door.
  • In New York, a wheelchair user at a private university complained that the auditorium was inaccessible. After mediation, the school removed two rows of seats, added seating areas for five wheelchair users and their companions, and — although not required by the ADA — installed automatic openers on the double-doors at the rear of the auditorium.
  • The father of a child with autism protested that a miniature golf course in Illinois would not allow him to accompany his child without paying, even though he was only assisting, not golfing. After mediation, the course changed its policy and agreed not to charge people assisting disabled golfers.

For more information on the ADA, see InfoQuest.

Service animals: Although the new regulations say only dogs can be service animals, miniature horses also must be allowed (with some restrictions) if they have been individually trained to do work or perform tasks for individuals with disabilities.
To determine if a dog (or horse) is a service animal, a public entity or private business may ask only two questions: Is this animal required because of a disability? What work or task has this animal been trained to perform? No questions may be asked about the nature of an individual’s disability, nor may documentation be required proving the animal has been trained as a service animal.
The service animal is not required to wear an identifying vest. Note that these regulations apply only to public entities and private businesses covered by the ADA. The Fair Housing Act covers service animal provisions for residential housing situations and the Air Carrier Access Act covers service animal provisions for airline travel. The definition of a service animal under each of these laws is different than the definition under the ADA.

Wheelchairs and other power-driven mobility devices: The regulations distinguish between wheelchairs — which must be permitted in all areas open to pedestrian use — and “other power-driven mobility devices” (OPDMDs), which are mobility devices not specifically designed for people with disabilities but often used by them (such as mobility scooters or the Segway).
OPMDs must be permitted in pedestrian areas unless their use would fundamentally alter programs, services or activities; or create a direct threat or safety hazard.
Individuals using an OPDMD may not be questioned about the nature of their disability, but may be asked to provide “credible assurance” that the use of the OPDMD is disability related, such as a disability parking placard or a verbal statement “not contradicted by observable fact” that the OPDMD is being used due to disability.

Ticketing: Tickets for accessible seating at sporting events, concerts, the theater, etc. must be available to purchase during the same hours; during the same stages of ticket sales (pre-sales, promotions, lotteries, wait-lists and general sales) and through the same methods of distribution (phone, in person, Internet, third party) as tickets for nonaccessible seating.
The regulations also include requirements concerning information about the location and availability of accessible seating, hold and release of accessible seating to persons without disabilities, prevention of the fraudulent purchase of accessible seating and the ability to purchase multiple tickets when buying accessible seating.

This information was excerpted from the Americans with Disabilities Act Title II and Title III Revised Regulations Fact Sheet Series posted by the New England ADA Center.

 

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