BEYOND
RAMPS
AND
“SPECIAL”
PROGRAMS
Inclusion
and the ADA
Good afternoon! My name is Karla Gray and I am currently the Senior Manager for
Therapeutic Recreation and I focus solely on ADA Compliance for Mecklenburg County Park
and Recreation and Mecklenburg County. In the last year to year and a half we as an
organization have started to recognize where our challenges are as they relate to ADA
compliance and we are taking an active step to address those challenges. One of those
steps within our Department was to restructure my position so I can focus full time on ADA
Compliance.
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LEARNING OBJECTIVES
You will learn what a Title II entity is AND what that
means for accessibility
You will learn what effective communication is
according to the ADA
You will learn the difference between a
MODIFICATION and an ACCOMODATION request
And MORE!
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What is the ADA?
A CIVIL RIGHTS LAW
So what is the ADA? Anyone want to guess? A law…. A set of guidelines on how to make
buildings accessible…. A mandate on how we do our business?.... A……
Well, in truth, the Americans with Disabilities Act of 1990 and the Americans with
Disabilities Act Amendments Act (The ADAAA) of 2008 is a Civil Rights Law. You may have
heard that before or maybe you haven’t. But regardless, it is a Civil Rights Law. And a Civil
Rights Law deals with the protections and liberties enjoyed by the American people.
These rights are designed to ensure that people are treated equally. This is one of
the reasons why the ADA is administered by the Department of Justice.
The ADA was signed into law on July 26, 1990 by President George H.W. Bush
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ADA Titles
Title I
Title V
Title IV
Title II
Title III
How many folks in here feel fairly comfortable with your knowledge of the ADA? (I’m not
going to call on you… promise!)
So for those of you who are comfortable, you’ve probably seen these terms before. Titles –
basically a Title in the ADA is like a Novel in a Book Series. They are all tied together and
some are tied more closely BUT, they are also stand alone documents.
There are five titles to the ADA and we’re going to talk about those very quickly just to
make sure we are all in the same place.
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Title I – Employment
• Helps people with disabilities access the same employment opportunities and
benefits available to people without disabilities.
• Applies to employers with 15 or more employees.
• Requires employers to provide reasonable accommodations to qualified
applicants or employees. A “reasonable accommodation” is a change that
accommodates employees with disabilities so they can do the job without
causing the employer “undue hardship” (too much difficulty or expense).
• Defines disability, establishes guidelines for the reasonable accommodation
process, and addresses medical examinations and inquiries.
• Regulated and enforced by the U.S. Equal Employment Opportunity Commission.
Title II – Public Services or State and Local Government
THIS IS US!
• Prohibits discrimination on the basis of disability by “public entities” such as
state and local government agencies. .
• Requires public entities to make their programs, services and activities accessible
to individuals with disabilities.
• Outlines requirements for:
• self‐evaluation and planning;
• making reasonable modifications to policies, practices, and procedures
where necessary to avoid discrimination;
• identifying architectural barriers;
• and communicating effectively with people with hearing, vision and
speech disabilities.
• Regulated and enforced by the U.S. Department of Justice
• Park and Recreation by Department of the Interior
• Extension Services by
Title III – Public Accommodations and Services Operated by Private Entities
• Prohibits places of public accommodation from discriminating against individuals
with disabilities. Public accommodations include privately owned, leased or
operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf
courses, private schools, day care centers, health clubs, sports stadiums, movie
theaters, and so on.
• Sets the minimum standards for accessibility for alterations and new
construction of commercial facilities and privately owned public
accommodations. It also requires public accommodations to remove barriers in
existing buildings where it is easy to do so without much difficulty or expense.
• Directs businesses to make "reasonable modifications" to their usual ways of
doing things when serving people with disabilities.
• Requires that businesses take steps necessary to communicate effectively with
customers with vision, hearing, and speech disabilities.
• Regulated and enforced by the U.S. Department of Justice.
Title IV – Telecommunications
• Requires telephone and Internet companies to provide a nationwide system of
interstate and intrastate telecommunications relay services that allows
individuals with hearing or speech disabilities to communicate over the
telephone.
• Requires closed captioning of federally funded public service announcements.
• Regulated by the Federal Communication Commission.
Title V – Miscellaneous Provisions
• Contains a variety of provisions relating to the ADA as a whole, including its
relationship to other laws, state immunity, its impact on insurance providers and
benefits, prohibition against retaliation and coercion, illegal use of drugs, and
attorney’s fees.
• Provides a list of certain conditions that are not considered disabilities.
What Is Required By
the ADA?
Now that everyone has a basic idea of what the ADA is and what the titles of the ADA are,
we’re ready for the next step!
First and foremost, we are a Title II entity. As a Title II entity, it is important to realize that
we no don’t have the same legal defenses as a Title III has when we are talking about what
we can and cannot do to ensure equity and equality in services.
The Department of Justice’s revised regulations for Titles II and III of the Americans
with Disabilities Act of 1990 (ADA) were published in the Federal Register on
September 15, 2010. These regulations adopted revised, enforceable accessibility
standards called the 2010 ADA Standards for Accessible Design, "2010 Standards."
On March 15, 2012, compliance with the 2010 Standards was required for new
construction and alterations under Titles II and III. March 15, 2012, is also the
compliance date for using the 2010 Standards for program accessibility and barrier
removal.
The 1991 ADA Standards for Accessible Design, printed as Appendix A of the title III
regulation in the Code of Federal Regulations, July 1, 1994 could be used for new
construction and alterations under Titles II and III until March 14, 2012.
The Department has assembled an official online version of the 2010 Standards to
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bring together the information in one easy‐to‐access location. It provides the scoping
and technical requirements for new construction and alterations resulting from the
adoption of revised 2010 Standards in the final rules for Title II (28 CFR part 35) and
Title III (28 CFR part 36).
The Department has also compiled Guidance on the 2010 Standards from the revised
regulations for Titles II and III. This explanatory information from the regulations
addresses the scoping and technical provisions of the 2010 Standards.
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What Is Required By
the ADA?
And when was it required?
Here is the question that kind of trips people up – When was it required?
In general, all new buildings built since 1992 must be accessible to individuals with
disabilities.
What – What? Yep – we have had 27 years to make sure that all of our facilities are
accessible! Are you shocked?
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Physical Access
Parking lots
Entrances/exits
Fire alarms/emergency exits
Conference rooms
Computer Labs
Elevators
Restrooms
Picnic Shelters
Sports Fields
Sidewalks
Swimming Pools
Ok, so now that we have that basic, lets move on to the next step. Let’s start with physical
access. This is the part that most people are more comfortable with as it relates to the
ADA. Couple of things to remember – EVERYTHING that was built
The Department of Justice’s revised regulations for Title II of the Americans with
Disabilities Act of 1990 (ADA) were published in the Federal Register on September
15, 2010.
These regulations adopted revised, enforceable accessibility standards called
the 2010 ADA Standards for Accessible Design, "2010 Standards."
On March 15, 2012, compliance with the 2010 Standards was required for new
construction and alterations under Title II.
March 15, 2012, is also the compliance date for using the 2010 Standards for
program accessibility and barrier removal.
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Program Access
Swimming
Nature center program
Playing in a sports league
Walking on a trail
Attending a council meeting
Register for Camp
Receive a program brochure
Separate is not equal
Program access is where we somehow get bogged down. What is program access?
As a point of reference, March 15, 2012, is also the compliance date for using the
2010 Standards for program accessibility and barrier removal.
Program access, or programmatic access, addresses access to goods, services,
activities, really any offering of federal, state and local government or
business. Program access is somewhat of an abstract concept while physical access
is a little more concrete. In this monograph we will discuss program access, key
considerations for effective communication, auxiliary aids, services, alternate
formats, and apply program access to recreation.
Both Section 504 of the Rehabilitation Act and Title II of the Americans with
Disabilities Act have program access requirements for federal, state and local
government. Since Title II is modeled after Section 504, the Title II regulation is a
little more explicatory. Drawing from the U.S. Department of Justice regulations for
Title II, “A public entity shall operate each service, program, or activity so that the
service, program, or activity, when viewed in its entirety, is readily accessible to and
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usable by individuals with disabilities.” This is known as the program access
standard.
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Program Access
Swimming
Nature center program
Playing in a sports league
Walking on a trail
Attending a council meeting
Register for Camp
Receive a program brochure
Separate is not equal
Title III does not have as specific a program access standard for public
accommodations. Instead, it specifies that goods and services provided by public
accommodations must be readily accessible and usable to people with disabilities.
Typically, recreation providers think of programs as structured and with staff. In this
context of program access, a generalization is made to the offerings of a public
entity or private business. Programs can include a public meeting, visiting a park or
museum, walking on a nature trail, swimming at a public pool or beach, checking a
book out from the library, obtaining a driver’s license, receiving a guidebook or
brochure, registering for camp in person or online, and so forth. Thus, the
programs do not need to be structured and they do not necessarily require staff in
order for the public to participate.
Remember it is more about the action and less about the facility – it is about
PARTICIPATION in the community.
I am often asked to explain the difference between the standards applied to
determine compliance with Title III of the ADA of a public accommodation, versus
those applied to Title II of the ADA with regard to a public entity. In other words,
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why do public entities (such as cities or other governmental entities, like state
universities, for example) have a different mandate under Title II, than public
accommodations (such as a local restaurant or retail store) under Title III?
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Program Access
Swimming
Nature center program
Playing in a sports league
Walking on a trail
Attending a council meeting
Register for Camp
Receive a program brochure
Separate is not equal
I am often asked to explain the difference between the standards applied to
determine compliance with Title III of the ADA of a public accommodation, versus
those applied to Title II of the ADA with regard to a public entity. In other words,
why do public entities (such as cities or other governmental entities, like state
universities, for example) have a different mandate under Title II, than public
accommodations (such as a local restaurant or retail store) under Title III?
One way to explain the difference is that Title II (much like Section 504 of the
Rehabilitiation Act) is concerned with "programs, activities and services" and is not
primarily concerned with "facilities," as is Title III. The standard for public entities
subject to Title II is "program access." It requires that a
public entity's services, programs, or activities, when viewed in their entirety, must
be readily accessible to and usable by individuals with disabilities.
In contrast, barriers must be removed from places of public accommodation under
Title III where such removal is "readily achievable," without regard to whether the
public accommodation's services can be made accessible through other methods. I
discussed what "readily achievable" means in my previous blog entry. Suffice it to
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say, that alternatives to barrier removal are only triggered under Title III when there
is no readily achievable method of removing a barrier from a public accommodation.
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Program Access
Swimming
Nature center program
Playing in a sports league
Walking on a trail
Attending a council meeting
Register for Camp
Receive a program brochure
Separate is not equal
According to the Title II Technical Assistance Manual, "Public entities may achieve
program accessibility by a number of methods. In many situations, providing access
to facilities through structural methods, such as alteration of existing facilities and
acquisition or construction of additional facilities, may be the most efficient method
of providing program accessibility. The public entity may, however, pursue
alternatives to structural changes in order to achieve program accessibility.
Nonstructural methods include acquisition or redesign of equipment, assignment of
aides to beneficiaries, and provision of services at alternate accessible sites."
In short, I think it is safe to say that barrier removal from a public entity's facility is
only required when there is no other way to provide program access. An example
of how program access can be provided by a public entity without removing barriers
from its facilities would be a university's Office of Disability Services. A university
will often have such an office in which a student with a disability registers. That
office will then ensure that the classes sought by the student are provided in an
accessible location, that the professor provides office hours in an accessible
location, etc.
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Program Access
Swimming
Nature center program
Playing in a sports league
Walking on a trail
Attending a council meeting
Register for Camp
Receive a program brochure
Separate is not equal
As a general rule of thumb, for a facility to be accessible enough to provide program
access it should have accessible parking, an accessible entrance, and an accessible
primary function area (i.e., classroom, meeting room, court room, license office,
etc.). Of course, if bathrooms are provided that serve the primary function
area, they should be accessible as well.
Finally, a public entity does not have to take any action that it can demonstrate
would result in a fundamental alteration in the nature of its program or activity or
in undue financial or administrative burdens.
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Website and
Social Media
Access
We’re not going to go into this is too much detail BUT… a requirement of ADA is program
access and Website and Social Media are programs for Title II entities.
Are you meeting those requirements AND are you making a welcoming statement? We
have gotten better about making our websites and social media more representative of the
community but is it really?
W3C Web Content Accessibility Guidelines
In an August 2016 case involving the University of California Berkeley, the DOJ ruled
that the public university was in violation of ADA Title II (similar to Title III but it
instead applies to government organizations) because their YouTube channel’s
videos didn’t include captions for hearing impaired visitors. The DOJ found this to
violate the ADA as deaf users did not have equal access to the online content.
So where did the DOJ point UC Berkeley for guidance?
The World Wide Web Consortium’s (W3C) Web Content Accessibility
Guidelines(WCAG 2.0 AA).
The Department of Justice ruled that UC Berkeley should use the WCAG as their
guidelines for accessibility, leading many to believe that the upcoming 2018 ruling
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may use the same set of standards as the benchmark.
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Website and
Social Media
Access
What Is WCAG?
The WCAG is a set of accessibility standards created by the World Wide Web
Consortium in partnership with various other groups to help guide web content
producers in making their work more accessible to all, including users with
disabilities.
WCAG 2.0 is the technical standard featuring 12 guidelines under four categories:
Perceivable.
Operable.
Understandable.
Robust.
Each of the 12 guidelines contains testable “success criteria” which can be used to
measure the usability of your website.
The official WCAG documentation contains an exhaustive list of the guidelines that
can be found here, but I’ve broken out the main points below as a quick reference
to highlight each section and its main topics.
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Effective
Communication
When we talk about Effective Communication in relation to ADA do you know what we
mean? It is more than the “soft skills” we all work so hard on
When it comes to ADA – Effective Communication means: People who have vision,
hearing, or speech disabilities (“communication disabilities”) use different ways to
communicate. For example, people who are blind may give and receive
information audibly rather than in writing and people who are deaf may give and
receive information through writing or sign language rather than through speech.
qualified interpreters
notetakers
screen readers
computer‐aided real‐time transcription (CART)
written materials
telephone handset amplifiers
assistive listening systems
hearing aid‐compatible telephones
computer terminals
speech synthesizers
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Effective
Communication
communication boards
text telephones (TTYs)
open or closed captioning
closed caption decoders
video interpreting services
videotext displays
description of visually presented materials
exchange of written notes
TTY or video relay service
email
text messaging
instant messaging
qualified readers
assistance filling out forms
taped texts
audio recordings
Brailled materials
large print materials
materials in electronic format (compact disc with materials in plain text or word processor
format)
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Medication
Lawsuits and Settlements
Camp Bravo
Insulin
What Do You Mean By Medical Inclusion
How To Create Medical Inclusion
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Questions?
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Resources
Access Board
ADA National Network
Region 4: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South
Carolina and Tennessee
https://www.ada.gov/taman2.html#II‐3.0000
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