Slide 1:
ADA Audio Conference Series
January 21, 2014
This session is scheduled to begin at 2:00pm Eastern Time
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Slide 2:
Listening to the Session
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Slide 3:
Listening to the Webinar, continued
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Slide 5:
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Slide 8:
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Slide 9:
WHAT’S YOUR PLAN?
Part One: Getting Started
Self-evaluations, transition plans, barrier removal plans 
Irene Bowen
Jim Terry
January 21, 2014

Slide 10:
Us Officially
Irene Bowen, President, ADA One, LLC; Former Deputy Chief, Disability Rights Section, US DOJ;   Former Deputy General Counsel, Access Board and James Terry, AIA, LEED-AP, NCARB, CASp	
Chief Executive Officer, Evan Terry Associates, P.C. 

Slide 11:
Caution!
The content provided in this presentation is for informational purposes only.  Neither the content nor delivery of the content is or shall be deemed to be legal advice or a legal opinion.  The audience cannot rely on the content delivered as applicable to any circumstance or fact pattern. The information provided is not a substitute for professional legal advice.

Slide 12:
Overview of sessions
Part One: Getting Started
Part Two: A Hands-on Approach to Self-Evaluations
Part Three: Bringing It All Together: Transition Plans, Barrier Removal Plans, and Action Plans

Slide 13:
This session
What’s required and why?
Should you do it?
What you’re evaluating
Equal opportunity
Program accessibility
First, some decisions
Stages
Other approaches

Slide 14:
WHAT’S REQUIRED AND WHY?

Slide 15:
Self-evaluation (1)
ADA regulation: Evaluate services, policies, and practices, and the effects of them, that do not or may not meet title II requirements 
Describe areas examined, problems identified, modifications made
Provide opportunity for interested persons to participate (submit comments)
If entity larger than 50 employees, keep record of self-evaluation on file and available for public inspection for three years
Make any necessary modifications [action plan]
1991 DOJ regulation: 28 CFR 35.105

Slide 16:
Self-evaluation (2)
DOJ on do-overs
“If a public entity has already complied with the self-evaluation requirement of a regulation implementing section 504… then the requirements [about self-evaluation] apply only to those policies and practices that were not included in the previous self-evaluation.”
1991 DOJ regulation
Similar requirements under section 504 regulation

Slide 17:
Transition plan (1)
Regulation: 
“If structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop … a transition plan setting forth the steps necessary to complete such changes.”
Opportunity to participate
Copy available for public inspection (no time given).
Make changes within three years [of January 26, 1992] but as expeditiously as possible.
28 CFR 35.150(d)

Slide 18:
Transition plan (2)
Regulation:
Identify physical obstacles that limit accessibility of programs or activities
Describe in detail methods to be used to make accessible
Specify schedule
Identify responsible official
If authority over streets, roads, walkways, include schedule for curb ramps or other sloped areas where pedestrian walks cross curbs. 28 CFR 35.150(d)(3)

Slide 19:
Title III (1)
Title III applies to “public accommodations” – private businesses in certain categories 
Generally, those open to the public
Examples: private universities, theaters, hotels, restaurants
Requirement: Remove barriers in existing facilities where “readily achievable”
Note: Some private entities are subject to section 504 (recipients of federal financial assistance), with requirements similar to title II’s

Slide 20:
Title III (2)
Remove barriers in existing facilities to extent readily achievable.
Building-by-building analysis
“Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense”
On-going obligation

Slide 21:
Barrier removal plan
Regulation doesn’t require one
DOJ in preamble/guidance urges “procedures for an ongoing assessment” and consultation with organizations representing people with disabilities
DOJ encourages development of an implementation plan

Slide 22:
Should you do it?

Slide 23:
Benefits of a self evaluation
Position the entity for compliance
Identify weaknesses
Make concrete improvements.
The regulation tells you to
You control the process, approach, timing
Related training can make ADA part of the culture, raise awareness
Shows good-faith effort
Compliance!

Slide 24:
Downside to not acting
Possibility of harsher mandates from litigation
Possibility of “bad press”
Project Civic Access “subject”
Settlement agreements or lawsuits
More likelihood of advocates’ success
Court or agreement can make you do more than otherwise
Someone else controls the process, your resources, your schedule
Implementation may be delayed pending overall evaluation
By end of evaluation, information may not be timely.

Slide 25:
Time for a do-over?
Why do another plan if we already did one?
Hmmm… Has anything changed?
Programs
Facilities
Web site
People 
Services contracted out
Requirements and expectations
Higher expectations
Do you have plans that are current and that you’re following?
Are you implementing them?

Slide 26:
WHAT YOU’RE EVALUATING

Slide 27:
What will you be evaluating?
Programs, activities, services: equal opportunity
Policies
“Program access”

Slide 28:
Discrimination prohibited
The ADA and section 504 mandate an equal opportunity to participate in programs, activities, and services for people with disabilities
Section 504 and Title II regulations specifically prohibit denial of equal opportunity to participate in programs, services, and activities because of inaccessible facilities

Slide 29:
Examples of programs and activities: town, city, county
Hearings, meetings, events (fairs, concerts, graduations)
Housing
Museum programs
Recreation
Events 
Tours
Social services and benefits
Voting
Web sites, IT

Emergency preparedness, evacuation, sheltering
Library services
Police and fire
Courts
Corrections
Procedures
Mass transit
Access to streets and sidewalks
Zoning issues

Slide 30:
Examples of programs and activities: college, university
Admissions
Financial assistance
Athletics
Academic departments
On-line learning
Housing
Recreation
Student activities
Alumni affairs
Emergency preparedness, evacuation, sheltering
Library services
Meetings, hearings, conferences
Access to streets and sidewalks
Web sites

Slide 31:
Core topics 
Policies that may discriminate
Separate programs/services
Communication
Infrastructure
Outside entities (vendors, contractors, grantees)
Furniture, equipment, purchasing
Applications
Tests
Participation requirements (initial and continuing)

Slide 32:
What is “program access?”
A term of art
Relates to discrimination resulting from lack of access to facilities

Slide 33:
Program Access: The Concept
Operate each program/service/activity so that, when viewed in its entirety, it is accessible.  
28 CFR 35.150(a) 
No exclusion/discrimination because of inaccessible facilities
Does not necessarily require physical changes

Slide 34:
Issues
Title II (and section 504): programs in existing facilities must be accessible in their entirety (cannot deny benefits, services, etc. due to inaccessible facilities).
What’s an “existing” facility?
What’s a program?
When is a feature/element accessible?
What are characteristics of an accessible program?

Slide 35:
“Existing facility”
DOJ definition, 2010: An “existing facility” is one that exists
-- that is, on a given date
One building can be both new and existing.
Significance for program access: ALL buildings/facilities are evaluated

Slide 36:
When is a feature/element “accessible?”
Reference point: alterations standards
Title II reference point: 2010 Standards
By March 15, 2012, programs should have met these standards as to program accessibility
Major implications for those elements not safe harbored; examples:
Pools
Exercise machines and equipment
Residential facilities dwelling units
Play areas
Team or player seating

Slide 37:
Now that the Standards have changed…
Existence of barrier is measured by looking to the Standards
Remedy to barrier is measured the same way
SO what happens when the “measure” changes?

Slide 38:
New safe harbor for program accessibility
Existing elements that comply with pre-2010 requirements (UFAS or 1991 Standards)
are “safe” from further changes just for the sake of program accessibility.
2010 Standards, section 35.150(b)(2)(i).

Slide 39:
Are you where you should be?
Consider those elements/spaces that are “safe-harbored” and those that aren’t
If you didn’t come into compliance with program access requirements by March 15, 2012 –
Have a plan
Implement it

Slide 40:
Characteristics of program access
Provides equal opportunity
Range of choices similar to others’
Integration
Privacy/confidentiality
Dignity

Slide 41:
Program accessibility methods
Flexibility allowed in achieving program accessibility:  any method that results in making services, programs or activities accessible
BUT public entity must give priority to those methods that provide for integration of persons with disabilities 

Slide 42:
Examples of methods
Relocate a service to an accessible location
Deliver services in alternate way (e.g., with assistance)
Provide benefits or services at an individual's home, or at an alternative accessible site. 
Redesign or purchase equipment
Modify buildings and facilities 
Modify policies and procedures
Alter existing facilities
Construct new facilities

Slide 43:
Multi-site programs (1)
Examples: City parks, county courts
Entities have discretion in determining how many facilities of a multi-site program must be made accessible to achieve overall program accessibility.

Slide 44: 
Multi-site programs (2)
DOJ 2010 regulation preamble describes factors for evaluation of multi-site program for “accessibility in its entirety” 
Size of entity
Program features at each site
Distance between sites
Travel times
Number of sites
Public transportation
Integrated setting
Does not adopt concept of “reasonable number”

Slide 45:
Equipment (1)
Generally, only “fixed” items are covered by the standards and subject to new construction/alterations.
I.e., fixed vending machines, ATMs

Slide 46:
Equipment (2)
BUT free-standing non-fixed vending machines, furniture, etc. are subject to provisions other than the Standards:
Program access
Barrier removal
Full and equal enjoyment
Opportunity to participate, benefit

Slide 47:
Equipment (3)
See 
DOJ advance notice of proposed rulemaking on equipment and furniture, July 26, 2010.
http://www.ada.gov/anprm2010/equipment_anprm_2010.htm 
Access Board notice of proposed rulemaking and advisory committee report on medical diagnostic equipment. 
http://access-board.gov 

Slide 48:
There are limits
Fundamental alteration in the nature of a service, program, or activity
Undue financial and administrative burdens
BUT:
Decision must be made by head of the public entity after considering all resources available and must be in writing 
And public entity must take other actions that will not result in fundamental alteration or undue burdens, but still provide access
See also historic properties, 28 CFR 35.150(a)(2), 35.150(b)(3) and safe harbor

Slide 49:
An “additional” obligation: 
equal opportunity
Equal opportunity requirements may require that you go “beyond” the standards
Automatic doors
More accessible parking
Bariatric fixtures/equipment

Slide 50:
Contractors and other partners
A title II entity is responsible for actions of contractors and other partners when they carry out the title II entity’s activities
The title II entity cannot “contract away” its title II duties

Slide 51:
“Significant assistance”
If an entity provides significant assistance to organization or person for their programs/services, ensure compliance

Slide 52:
FIRST, SOME DECISIONS

Slide 53:
Self-evaluation
Review: Public entities are to evaluate current services, policies, and practices, and the effects of them, that do not or may not meet title II requirements and make any necessary modifications

Slide 54:
Transition plans
Review: Required if physical changes to facilities will be undertaken to achieve program accessibility
Description of physical obstacles affecting accessibility that must be removed
Methods for making facilities accessible (in detail)
Time frames (if more than one year, annual markers)
Name of person responsible for implementation

Slide 55:
Where are you now?
When did you do your last self-evaluation or transition plan?
What has changed (other than some of the requirements!)?
Should you develop policies, train, and then assess?
What needs attention most or first?
Do you have support from the top? Legal? Facilities? Others?

Slide 56:
You are unique: 
What will work for you?
Consider your “culture”
How does your entity work?
How does change happen?
How does disability compliance fit within the compliance structure?
Consider your constituency
Input from people with disabilities: when, who, how
Input from program managers
Input from the public

Slide 57:
Decisions (1) 
Level of detail
What’s a program
How deep do you go in analysis
How much data can you handle
How quickly do you want this done
Tools
Overview of programs, policies, etc.
What does each department do?  
Program survey
Facilities survey
Way to track changes

Slide 58:
Decisions (2)
Analysis
Reporting
Planning for remediation
Making the changes

Slide 59:
Challenges
Tying together service and facility issues
Outside parties
Procurement
Vendors
Facilities owned by others
Others’ use of your facilities
Programs carried out mostly by contractors, delegate agencies – Title II obligation stays with entity
Shelters for those who are homeless, experience domestic violence
Child care
Family services

Slide 60:	
Do it yourself or outside consultant? 
Process can be 
Entity-driven
Consultant-driven
A mixture
ADA Coordinator plays a key role in any of these. 
Consider how much time and money entity can devote
“Informed insiders” are the best evaluators

Slide 61:
FOUR STAGES

Slide 62:
Step by step
Plan
Gather information
Analyze and report
Implement

Slide 63:
Reporting and planning
Report by – Town/city if small or Department or Each program, service, or activity

Slide 64:
ALTERNATIVES

Slide 65:
Instead of or in addition to a self-evaluation…
Focus on what’s new
Focus on where improvement is needed
Develop policies, check for compliance after a while
Train on difficult areas
Open-ended interviews
Reviews of policies

Slide 66:
Address vulnerabilities and DOJ priorities
Known problems or complaint areas
Emergency preparedness
Web accessibility
Information technology
Recreation
Health care
Housing
Voting
Shelters
911
Facilities not safe-harbored
Mobility devices
City-wide program access obligation for programs carried out by third parties

Slide 67:
CONTACT
Irene Bowen, J.D.
President, ADA One, LLC
9 Montvale Court
Silver Spring, MD 20904
Web site: http://ADA-One.com
301.879.4542 (O)
301.236.0754 (F)

Slide 68:
Questions?
Telephone:  Follow the instructions given by the Operator
Webinar Platform:  You may type and submit questions in the Chat Area Text Box or press Control-M and enter text in the Chat Area

Slide 69:
Thank you for participating in today’s ADA-Audio Conference Session
The next scheduled session is: 
“What’s Your Plan?  A three-part series on self-evaluations, barrier removal plans, and transition plans”
Part II:  A Hands-on Approach to Self-Evaluations
February 18, 2014
www.ada-audio.org or 877-232-1990 (V/TTY)