Good day, ladies and gentlemen, welcome to the Great Lakes Americans with Disabilities Act (ADA) center, part one getting started conference call. Currently at this time participants are in a listen only mode. Later we will conduct a question and answer session and the instructions will follow at that time. Should anyone require assistance at any time during the call, please press star and zero on your touch tone telephone. Also, as a reminder, this conference call is being recorded. I would like to turn the call over to your host, Robin Jones. You may begin.
Thank you, everyone and again I will give my welcome to everybody on behalf of the ADA National Network to the ADA audio conference series. This is the first of a three part series focusing on the issue of self-evaluation and transition plans, across all entities that have responsibilities and obligations under the Americans with Disabilities Act so we will be touching on both Title II and Title III issues as it pertains to these particular topics. Before we start today, let''s go through a few of the logistics and make sure everyone is on board with the technology. If you''re listening today, you will be listening through the telephone or through your computer, for those depending on the option you registered for. If you''re using your computer make sure your speakers are turned on or your headphones are plugged in and you can control the audio broadcast via the audio and video panel adjusting the sound by sliding your sound bar left or right. 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It will be available within a couple of days of the session at ada-audio.org, the edited written transcript will be posted on the same site within approximately seven business days following the end of the session. You can also customize your view today if you would like to see the slides bigger, smaller, whatever. It only changes your view, not anyone else''s. You can resize the white board by choosing from the drop down menu located above and to the left of the whiteboard or above the PowerPoint slides themselves. The default is fit page. You can also resize any of the other boxes, the chat area, the participant area, any of the other panels by detaching them or use your mouse to shrink or stretch them. Each panel can be detached by clicking the icon that I refer to as lines on a piece of paper in the upper right-hand corner of each panel. If you experience any technical difficulties during today''s session in the webinar platform, please send a private chat message to our host, Great Lakes ADA, in the participant list or you can contact us at firstname.lastname@example.org or please call our conference line at 877-232-1990 (V/TTY). So at this point I''m going to go through and introduce our presenters and we''ll get the session started. Again, as it was introduced, the title is What is Your Plan, that''s the overall three part series and this is part one Getting Started and we''re again looking at self-evaluations, transition plans and barrier removal plans. Our presenters today are Irene Bowen who is an attorney and is president of ADA One, she''s a nationally recognized ADA consultant, trainer and speaker. Before starting her firm in 2009 she was Deputy Chief of the Disability Rights Section at the Department of Justice, where she oversaw enforcement of the ADA and was actively involved in the development of the original ADA Accessibility Guidelines as well as Department of Justice (DOJ)s Title II and Title III regulations and revisions. Her clients include local government, colleges and universities, public accommodations and federal agencies. She also teams with LCM Architects and others assisting entities to develop cost effective approaches to compliance. And she recently authored an ADA guide for nonprofits called Renewing the Commitment, released by the Chicago Community Trust in 2011. She formerly served as Deputy General Counsel of the Access Board and co-founded the National Center for Law and Deafness. She holds a J.D. degree from George Washington University law school. Our second presenter and participant in the series is James Terry. He''s a licensed architect in seven states with extensive access training and consulting experience in corporate, municipal, healthcare, schools, universities, libraries, retail and recreational facilities. Under his leadership, Evan Terry Associates assists organizations in understanding their access requirements, cataloging barriers and managing the implementation of ADA and local access compliance plans. He has written or been quoted in dozens of articles and national publications about the ADA and has been actively involved in writing fifteen books on ADA facilities, compliance and universal design at Evan Terry Associates. He''s also a member of the board of directors of National Association of ADA Coordinators. So at this time I''m going to turn over my microphone to Irene Bowen who will kick off our session, go ahead, Irene.
Thanks, Robin and hello to everyone. We have people from all over the country here today, which is pretty exciting that we''ve gotten such a great level of participation. I hope all of you have recovered from the polar vortex. We''re getting the next wave here and to those of you in California, I wish I were there. [Laughter] But we will hope for the best. Jim and I will be presenting. I''m going to do most of the first one. And Jim and I will share the second and then he will do most of the third, which is about more focused on facilities. Jim and I come from different backgrounds. We have different histories and between us, I think we have several perspectives and many, many opinions. We both have done -- take on be various approaches to self-evaluations and transition plans. We hope we can pass some of that on to you. I worked on enforcement and regulation and Project Civic Access technical assistance, certification of codes at the Department of Justice and before that I was at the Access Board and now as Robin said, I''ve worked with different types of entities, basically in two capacities. One is to help them comply with the ADA to avoid litigation or to respond to it if they do get involved and the other is doing quite a bit of speaking and training. Jim and I together serve on the board of the National Association of ADA Coordinators, where we twice a year present a two day track called access and services, and we also do some other presenting there, and we''ve trained and presented together in a number of places. So our goal is to help promote compliance overall. We want to do it in an effective way that''s not too difficult for those who are doing it and in a way that''s understandable and that is tailored to their needs and that''s basically why we''re here today as well. Jim, would you like to say a little bit about yourself?
I think Robin''s introduction was fine. Let''s go ahead and get into the meat of the presentation.
Great. There is sort of a warning sign here that is telling you that this is not legal advice. I am a licensed attorney, but I''m not acting as a lawyer today. Most significantly, neither Jim nor I is your lawyer, and it''s important to have a friend in legal that you can discuss specific questions with. So today the session is about getting started. Next time we''ll talk about self-evaluations, the nitty-gritty of how to approach them, and in the third session, we will focus on bringing it all together and doing plans, transition plans, barrier removal plans, and action plans. So this session we''re going to spend most of the time on two things. First, what''s required and why, and should you do it. And secondly, what you''ll be evaluating, and then we''ll close with talking about some of the decisions that you''ll be making and the stages, sort of an overview of the stages that we''ll get into in the other two sessions. So what''s required and why? You see some little cheerleaders holding up the sign that says plan at the bottom of the screen here. I''m a cheerleader for planning. I think it helps you come into compliance, whether or not you''re required to do a specific type of plan. And when we say come into compliance, we''re talking about the overarching requirements of the ADA with respect to both Title II and Title III. Which are, both titles ban discrimination on the basis of disability. They require equal opportunity. They require effective communication, and they require physical access to facilities at different levels depending on whether something is new, altered or an existing facility and that arena, that physical arena is known as program accessibility in the Title II world and also under Section 504, which will apply to those of you who receive federal financial assistance. So generally I will suggest that you have a plan and stick to it. So let''s talk first about what''s required by the regulation. The ADA regulations say that you are to do a self-evaluation. You, meaning a Title II entity. A Title II entity needs to evaluate their services, policies and practices and the effects they have to determine whether they meet overall the Title II requirements, and there are specific things that are mentioned in the regulations that are listed here. Specifically you say what you looked at, what problems you found, what modifications you''ve made, how you provided an opportunity for people who are interested in participating to submit comments, and then if you have more than 50 employees, you need to keep a record of the self-evaluation. Also you need to make necessary modifications and there''s no word for this in the regulations, but we''re just going to call it an action plan, just so that we all understand what we''re talking about. All this comes from the 1991 regulation, the original regulations of the Department of Justice. Then the Department of Justice also says, and this is also in the original regulation, not just the 2010 reg, says that if you''ve already complied with the requirements under 504 for doing a self-evaluation, then you don''t need to comply -- you don''t need to do another plan addressing the policies and practices that you have addressed. There''s similar language under the Section 504 regulations. So when I mention Section 504, please keep in mind that it will apply to all Title II entities, all state and local governments, because they receive federal financial assistance. Section 504 has been in effect since 1973 when it was passed. And there are similar requirements under Section 504. Title III entities, those that are private entities, generally those that are open to the public, will also be subject to the Section 504 regulation if they receive federal financial assistance. So for example, a private university, almost all private universities receive federal assistance and they would also be subject to the Section 504 regulation, which is going to be basically very similar to the Title II requirements. The regulation also requires that if you need to make physical changes for program accessibility and we''ll talk about that what means in a minute, a public entity has to develop a transition plan that sets forth the specific steps that they''ll be taking to do that. This only applies if the entity has 50 or more employees. Again the requirements are similar. You have to provide an opportunity to participate, make a copy available for public inspection, and then make changes, and those changes are -- here there''s a name for them. They''re called a transition plan. The regulation also is very specific about what needs to be in the plan. Not only do you need to specifically say what obstacles you found that limit accessibility, you need to set out in detail how you''ll remove those barriers, under what schedule and who is responsible for doing that. And then finally the regulation says that if the public entity has authority over streets, roads, et cetera, you have to include a schedule for curb ramps, and other sloped areas where a pedestrian walks across curbs, so that basically means -- that basically means sidewalks and other types of pedestrian crossings. We will not be focusing on that here, but I will note that this area is where a lot of litigation has been happening, and part of the reason for the litigation is that there aren''t very clear standards yet as to what''s expected in the public rights of way, although there are some guidelines that are not yet final. There are priorities listed in the Title II regulation for streets, sidewalks, curb ramps, et cetera, but it''s not yet terribly clear how you should be addressing this. Some of you may be saying but do the courts say I have to have a transition plan?, because I was careful to say that it''s the regulation that requires one. I did not say that the statute does. In fact the statute doesn''t. And the courts are split on whether there is a private right of action to enforce the requirement that a public entity have a transition plan. So if you''re in the first circuit, which is Maine, Massachusetts, Rhode Island, New Hampshire, Puerto Rico, the courts have said yes there is a private right of action, and three other circuits, the court says -- I''m sorry, the courts have said no in the first circuit, which I just mentioned. The sixth which is Ohio, Kentucky, Tennessee, Michigan and then the ninth circuit, they said no there''s no private right and that includes most of the West. The one court that says yes, there is a private right, is the tenth which is Kansas, Wyoming, Oklahoma, Colorado, and New Mexico. Nonetheless, having a transition plan is a way for you to come into compliance, and compliance is required by the ADA obviously. Under Title III, public accommodations, which are private businesses, generally those that are open to the public, aren''t required to do self-evaluations and transition plans, but the regulation does require that you remove barriers in existing facilities where it''s readily achievable and again remember that some Title III entities will also be subject to 504, so that will require a self-evaluation and transition plan. So what does that mean when we say remove barriers to the extent readily achievable? The Department of Justice originally had said that that readily achievable means cheap and easy, with more words that are here on the slide, easily accomplishable, able to be carried out without difficulty or expense. I think that over time, the requirement, the expectations have risen so I''m not sure that that cheap and easy standard still applies, but the language is still there as to what readily achievable means, easily accomplishable, et cetera, in the regulations. Justice has said and this is important to keep in mind, that this obligation is an ongoing one, and that you may need -- you will need to reevaluate and take additional actions as circumstances change if for example your budget allows you to do more one year than it did in prior years then you would need to carry out that readily achievable barrier removal. This is done on a building by building analysis which is one way that obligations under Title III differ from the program accessibility obligations under Title II. Again the regulation -- as the statute does not require a barrier removal plan, and differently from Title II, neither does the regulations. But Justice in its preamble both in 1991 and in the revised regs in 2010, has said that a private entity, a public accommodation, should have some procedures for an ongoing assessment and should also in the meantime consult with organization organizations of people were disabilities. DOJ has encouraged development of what they''ve called an implementation plan. It might also be called a barrier removal plan. But there is no particular process set out in the way that there is one set out in the Title II regulations. Before we go any farther, I just wanted to mention a bit about the kinds of people who are participating today and what we hope to do for you as you''re considering whether to do self-evaluation or a plan. We have architects, advocates, technical assistance people, ADA TA representatives of course from the Centers, consultants, federal people, people from offices for civil rights, risk management, voc rehab, and most of those today, most of you today are from Title II entities, which includes a lot of universities, people in the fields of transportation, parks and rec, corrections, courts, fairs, tax boards, streets and sidewalks, and then in the Title III [during live session, presenter misspoke Title II] arena, we have several universities, some retail stores, some people from medical and the art field. So we hope we have something for each of you but I will say that not everything is going to apply to everyone. I''ll try to be clear what applies to Title II entities, public entities, and what applies to Title III entities, but generally a lot of this will give you some guidance across the board. So the first question is should you do it? Should you do an evaluation or an assessment or a barrier removal plan or a transition plan? Well, first think about what the benefits are, whether or not you''re in a circuit that says, yes, you have to do one or, no, you don''t, or where they haven''t said. Keep in mind the regulation does require it, but apart from that, there are benefits to an entity who does a self-evaluation. You identify your weaknesses and you make specific improvements. You are in control. If you initiate this process, then you control it. You the public entity or the public accommodation, you control the process, the approach to it, and the timing. Rather than having someone else control those for you. And if as we would always suggest you do some training as part of this evaluation, training for staff, that helps to make the ADA part of the culture of the organization and to raise awareness overall. Jim, you had a couple of points you wanted to make here as well.
One of the things we''ve seen in working with public entities, is that the benefits of doing a self-evaluation and a transition plan, both in engaging their populations with disabilities, in particular seniors, is it strengthens the political bond. A lot of times seniors are the most politically active in a public entity and so that helps there, a strong political support for doing that. I think all of the surveys that have been done of the general population as well as even the business leaders have shown that the population supports the goals of the ADA by well over 90 percent, and so there''s real good political support as well as public support for that, and then for public accommodations, what we found is that the public -- public accommodations that we''ve talked to who have gone through and done the barrier removal work that is required by the standards have reported that the investments they made in that have actually returned more business than sales and income than if they invested the same thing in advertising. That was a bit of a surprise to us when we first started hearing about that about 20 years ago from public accommodations but it turns out that such a large percentage of the population has disabilities, that when they are accommodated they spread the word among themselves and they also bring groups with them, so there''s some real positives from sales income and political support for doing this, as well as the obvious compliance benefits.
Excellent. And I listed there that it shows a good faith effort, the statute says as to Title III entities, public accommodations, that a court can take into account good faith efforts that the entity has made, in assessing civil penalties, which can only be obtained under Title III, not Title II. But there are courts who have looked at that effort when they''re assessing damages and other types of remedies under Title II if the Department of Justice has brought an action, and also the courts will assess that when they''re looking at compliance to Section 504. Of course a good-faith effort helps you in your relationships with the community that you serve, and above all, a self-evaluation or assessment can lead to compliance, and I think that''s what we''re all after. Now, of course, there''s a downside to not taking any action, and I don''t think that the fear of litigation should be the main thing that drives public and private entities, but it is a reality. There is more litigation than there used to be. I think that it''s less likely that cases will negotiate out early on. There are new standards as you know as of 2010. The new standards and the architectural guidelines that are coming out make things more complex than they used to be and the remedial costs are going up, so there are a number of ways that both public and private entities should be trying to shield themselves from litigation to the extent that they can. For many of those reasons and one of them is to have a plan in place and to be following it. Of course if you don''t have a plan and someone brings up -- brings a complaint or litigation that can lead to what we call bad press, bad public relations, you are more likely to be the subject of DOJ''s Project Civic Access, that reviews compliance by public entities with a wide variety of the requirements of Title II, and then it''s more likely that advocates will succeed if they bring a complaint or litigation, and keep in mind that a court or settlement agreement can cause you to do more than you otherwise might have had to do. That''s just the reality of current life. So having something in place is going to shield you to some extent from some of these negative outcomes. You also, if someone else controls the process, then they''re controlling your staffing, your funding to a large extent, if someone else causes you to come into an agreement of how you''re going to carry this out, you lose quite a bit of independence, and you also may not get as good a product if someone else is taking charge because you may end up evaluating many more areas than you''re used to. It may take you much more time and by the end of the time of gathering all the information, that information that you gather may be outdated and not terribly useful. Of course the advantage, if you''re an ADA coordinator for a state or local government and someone brings an action against your entity that may make funding easier to obtain because of that outside pressure. Overall though, it''s better to act positively before that happens. So is it time for a do over? You may be thinking we did a plan in ''94 or 2004. Do we need to do another one? First of all, think about what''s changed in the meantime. You probably have more programs and activities and services than you had at the time of doing the first evaluation. You probably have a wider variety of them as well as a higher number of them. Your facilities, you probably have some that are new, some that are altered, some that are gone. So a transition plan that is out of date is not a helpful one. There weren''t websites in 1990. If you did an evaluation -- a self-eval in 92, you probably did not look at websites, whereas now, this is a major way of communicating by public entities, as well as private ones. People are allowed to register, apply for benefits, pay fines, taxes, et cetera, for Title II entities and Title III entities do quite a bit of business online as well. So this should be evaluated. People have changed. There are more people with disabilities. There are disabilities are of a greater variety, greater severity at times so that needs to be taken into account. That means that there are higher expectations to some degree. Your staff has probably changed, and some of the institutional knowledge may have retired or left the entity. So there may not be anyone there who even knows what your plan is or what it means. You probably experienced some budget cuts and as a result contracted out some services. People have higher expectations. The requirements have changed and of course there are new regulations from 2010 with which you need to be in compliance. So one question to ask yourself is do you have plans that are current, are you following them and are you implementing them? and if you answer no to any of those questions, you definitely should be doing a new self-evaluation and transition plan. A barrier removal plan if you''re a private entity. So when we say do an assessment, do an evaluation, the first thing to think about is what is it youre evaluating, what is it we''re talking about here? First of all, you''re looking at all of your programs, activities, and services for the overarching requirement of the provision of equal opportunity, and this is going to be true whether you''re a Title II or Title III entity. You''re looking at your policies and you''re looking at program access. More on that in a minute. What is prohibited? What do we say when discrimination is prohibited? Basically the ADA and 504 mandate an equal opportunity to participate in programs and activities for all people with disabilities. That''s the Title II language and then the Title III also requires that you provide an equal opportunity for people to participate in your services. Both 504 and Title II regulations specifically prohibit denying equal opportunity because of inaccessible facilities. These are really sort of - the second one is a subset of the first, but it''s part of what we need to understand especially as to a transition plan and that issue is what is program accessibility with respect to facilities. I''m going to get into that in detail in a moment. But here are examples of some of the programs and activities that you''ll be looking at if you''re a town, city, county, any type of public entity. You''re looking at basically everything you do. We think that -- we know that you have meetings and hearings, you probably have housing programs, recreation, social services and benefits which can be among the hardest to evaluate. Emergency preparedness, police and fire, courts and corrections, mass transit, all of these would be part of the self-evaluation and transition plan. If you''re a college or university in particular you would be looking at the same kind of things but then you would have additional types of programs and activities, like admissions, financial assistance, athletics is a bigger issue. Of course online learning is getting to be a hotter topic as we go. Emergency preparedness is a different type of issue for colleges and universities. You too have responsibilities for access to street and sidewalks if you control those on your campus. And of course websites should be part of this. So the kinds of topics that you''ll be looking at as you evaluate those areas are that you''ll be looking for any policies that might discriminate, whether you have programs and services for people with disabilities that are separate for -- separate from the, quote, mainstream programs. Those are allowed in certain instances. Whether you''re providing effective communication, whether you have a sound infrastructure, and this refers to things like having an ADA coordinator, a complaint process, grievance process, et cetera. You will be looking at what outside entities do on your behalf. These could be vendors, contractors, grantees. Whether your furniture and equipment is accessible as a whole, and how you go about purchasing services as well as equipment. How people apply for services, whether the tests that you give are accessible. And whether you have participation requirements or make inquiries at that stage that may lead to discrimination against people with disabilities and this is both for their initial participation in one of your activities and their continuing participation. Robin asked that we specifically address what is program access and I''m happy to do this because I think there''s a lot of confusion about this. Program access is a term of art. It doesn''t apply to everything related to all of your programs. It applies to discrimination or the lack of it, let''s hope, as a result from lack of access to your facilities. So program access relates to facilities. The rest of it, your policies, your practices, et cetera, communications, there''s really no word for that that is a term of art that''s catchy, like program access. But basically the rest of it is, are you providing access to your program, services, and activities as to your policies and your practices. Practices being how you carry out your policies, or what you do if you don''t have a policy. So in my mind, I divide the areas for self-evaluation into program access and then policies and practices. Let''s talk more about what is program access. The requirement under Title II, both in the statute and the regs, is that you operate each program so that when viewed in its entirety, it is accessible. The underlying words here are we think of them as terms of art, but I don''t think we really know what they mean. I think that there is room for interpretation and labeling and as to each of those terms, and that in fact can be one of the challenges of doing a self-evaluation. But the program access requirement is that you not exclude anybody or discriminate against them on the basis of disability because of inaccessible facilities. It doesn''t necessarily require that you make physical changes. You may be able to provide program access through other means. So the issues become what is an existing facility, what''s a program, when is a feature or element accessible and what are the characteristics of an accessible program. These are some things that you need to have some handle on before you start doing a self-evaluation and a transition plan. Now, we used to think that an existing facility was one that wasn''t new. DOJ defined an existing facility in the 2010 regulations. There''s a new definition. And it says that an existing facility is one that exists. Now, you may say, well, duh. It''s not that obvious and actually there''s a very good reason and there''s some significance to this new definition. An existing facility is one that exists on a given date. So as of today, January 21, 2014, you have buildings that have existed for years and you may have some buildings that were completed yesterday. So you might think, well, those are new buildings. But in fact those that were completed yesterday are existing facilities as well. So when you''re doing an evaluation for program access which relates to existing facilities, it''s important to remember that you look at old buildings, medium old buildings and brand-new buildings when you''re doing your evaluation. There is a reason for that definition.
The next question: when is a feature element accessible? What do we mean when we say it has to be -- that you can''t discriminate because your facilities aren''t accessible? The reference point has always been the alteration standards according to DOJ''s regulations, so under the 2010 standards, the Title II reference point, under the 2010 regulations, the Title II reference point becomes the 2010 standards. Those went into effect for new construction and alterations generally on March 15, 2012. In addition, by that date, your programs should have met those standards as to program accessibility. And that means that if they didn''t, it''s really significant. It''s really important for you to have -- to do a transition plan now without any further delay. There are some big implications for the elements for which there were not standards before 2010. Those elements aren''t safe harbored and I''ll explain that in a minute. Examples of those are mostly in the recreation area and they include swimming pools, exercise machines, equipment, residential facilities, dwelling units, more terms of art, play areas for children and then team or player seating in sports facilities. So I said that the measure has changed. This is what -- this is sort of a prelude to what a safe harbor is. Until I mentioned that the existence of barriers may be measured by looking at the accessibility standards so we used to look to the 1991 accessibility standards, or if you were a Title II entity, you could look at the Uniform Federal Accessibility Standards or Uniform Federal Accessibility Standards (UFAS). The remedy, what you have to do to make something accessible is also measured in reference to the alteration standards, so then the question becomes we had 1991 standards, and now we have 2010 standards, so that measure of what''s accessible has changed. And how do you deal with that? Well, DOJ came up with a way of handling that and this is a new concept. It''s called a safe harbor. It relates to -- mostly to program accessibility. It also relates to alterations but it comes into play most importantly when you''re talking about program accessibility. So let''s say you''re trying to figure out whether you''ve achieved program accessibility, which means finding out if you''re existing buildings are accessible. What you do is you look now to the 2010 standards. So lets say that you built everything in accordance with the 1991 standards. Safe harbor says you don''t need to change those just for the sake of program accessibility, even though accessibility has to some extent been redefined. Let me give you the very simple example that many of you are familiar with. If all of your light switches are at 54 inches and they can be reached from a side reach, those comply with the 1991 standards. But now the maximum under the 2010 standards is a 48 inch reach range. So if you have them at 54, even though the maximum is now 48, they can stay where they are. You don''t need to change them. You''re not out of compliance just because the standards changed. Those elements are, quote, safe harbored. But if those light switches were at 56 and you haven''t made any changes to them, you didn''t make any changes before 2012, you now will need to, if they''re at 56, you''re going to need to lower them so that they are in compliance, and that means lowering them to 48 inches. So these are the things that you''re going to be looking at when you''re assessing whether something is accessible and what you should be doing about it if they''re not. So if you have a lot of existing facilities, even if you have just some existing facilities and by that I mean finished, ready to go now, it''s important to look at the elements that aren''t safe harbored and those that are. If you didn''t come into compliance with the program access requirements by March, two years ago, it''s really critical that you have a plan and that you implement it, because you are a little bit late. So what are the characteristics of program access or program accessibility? This is according to what DOJ has said, and they set the regulations, so that''s who we look to for guidance. Program access provides equal opportunity to access programs and activities, provides a range of choices for people with disabilities that''s similar to the choices, the range that others have. It doesn''t have to be identical, but it needs to be similar. It offers services in the most integrated setting. It doesn''t segregate individuals or diminish their dignity, their privacy, their confidentiality. So all of those are features that DOJ has set out as characteristics of program accessibility. There is some flexibility in how you achieve it as I said, you don''t necessarily have to change facilities if there are other methods that allow you to provide your services and activity in an accessible way but you do need to give priority to those that provide services in the most integrated setting. So what can you do if you''re not going to make -- if you don''t go to the resort of making facilities accessible? You can relocate services to an accessible location. One of the best examples of this is you may offer several sessions of a particular class at a university, several sections, and maybe not all of them are in a location that''s accessible. If it works with scheduling, et cetera, it gives people an equal opportunity to take that class, then you can move one or two or whatever the appropriate number of classes is to a location where there is a classroom that is accessible. You can deliver services in an alternate way, and again one of the examples that we use a lot is a librarian could help someone who uses a wheelchair or has limited reach range or is of short stature. They can help them by retrieving a book from a top shelf. We''re talking about real books, and not e-books. Of course the modification would be different there. You can deliver benefits or services at an alternate site or to an individual''s home, as long as you keep in mind the concept of equal opportunity, mainstreaming, et cetera. Redesign or purchase equipment. Modify buildings and facilities. As I mentioned, that has been traditionally considered a last resort, but I think as time passes with higher expectations and greater advocacy, I think it''s logical and advisable to consider that if possible, if you can modify the buildings and facilities, you don''t have the administrative issues that come with relocating services, especially if you need to do that, with little notice or at the last minute, because of circumstances. DOJ addressed in their 2010 guidance or preamble to the regulations, how you provide access to multi-site programs. An example that they gave were city parks. And you see people having fun, they''re playing outside rather than being inside listening to a webinar, but the Department of Justice said that you have discretion in how to determine how many facilities in a multi-site program, for example, how many parks in a county park system, have to be made accessible. Keeping in mind that you''re looking at overall program accessibility or accessibility in its entirety. And heres what DOJ said: they set out some factors for evaluating programs for accessibility in its entirety. And they specifically said we''re rejecting this idea that we should adopt the concept of saying you have to make a reasonable number accessible. But here are the things they said to look at: The size of the entity, the program features at each site, distance between sites, how long it takes to get from one place to another, how many sites you have, whether you can get to them by public transportation, and whether you''re providing services in an integrated setting. So if you''re trying to figure out, for example, how to make your park system accessible from a program access standpoint, if you have ten locations, and it takes a long time to get from one to the other or you may have sites in the northeast quadrant that are very far from those in the southwest quadrant and there''s not public transportation to those, you''re probably going to need to make more of the locations accessible so that you are giving people with disabilities the opportunity to get to one of the parks or other types of sites as quickly as others. You''re going to look at the types of programs offered at each site. So for example you''re going to want some of the tennis courts to be accessible, some of the senior water programs to be accessible. Again, striving for providing these in a way that provides equal opportunity for people with disabilities compared to the overall accessibility for people who don''t have disabilities. Keep this in mind -- keep in mind too that this is going to apply to a lot of types of multi-site programs. It will, for example, apply to your shelters for people who are homeless or have been -- have experienced domestic violence. It will apply to emergency shelters, child care, et cetera. So you''re going to need to have sites that are dispersed and that provide the same level, the same range of choices, of access, for people with disabilities and this will include those that are provided by contractors. You as a Title II entity, if you are one, will have the responsibility overall to ensure program accessibility. Equipment enters into the equation when you''re looking at program accessibility. They are facilities but there aren''t standards for all equipment. The standards that we have so far are for fixed equipment. Those are covered by the standards and they''re subject to the provisions for new construction and alteration. So for example, this kiosk on the left, if it is fixed, which I believe it is, it''s covered by the standards, and it''s also -- you''re going to look to the standards when you''re figuring out whether they''re accessible for program accessibility purposes, and just for some comic relief, here is a live bait machine which I believe is fastened to the wall and/or the floor. That makes it fixed. If it''s fastened and not just plugged in, or if it''s plumbed, there''s a source of water, that''s a fixed facility and you need to look at the standards when you''re figuring out whether it''s accessible. So if you''re getting worms or spawn or whatever a Mr. Twist is in this context, you want to provide equal opportunity for everyone to be able to access that service. Then freestanding machines, furniture, et cetera, is also going to be subject to the program access requirement, but you won''t find specific standards for them. So here you have one of my favorite pieces of equipment. It''s actually a walking, freestanding and walking, vending machine that sells Coke in Asia, and children that are looking at it with their mouths wide open. It''s a little bit harder to know what you do to provide accessibility to this. But freestanding non-fixed machines, furniture, et cetera, are going to be subject to the program accessibility requirements. You also have to look at barrier removal if you''re a Title III entity. Again you''re trying to provide free and equal enjoyment and an opportunity to benefit from the program. In this picture, you have a librarian. It illustrates a number of things. The table is fixed. The computer terminals on top are not fixed. The shelves in the back probably are fixed. The shelves along the walls. And the chairs are probably not fixed. So for those that are fixed you''re going to look to the standards. For those that aren''t, you''re going to look at the standards just to give you some guidance, although they''re not going to be binding. There is a DOJ rule making going on with respect to furniture and equipment. Nothing has happened since about three and a half years ago when DOJ issued a notice saying that they''re planning to do rulemaking in this area. And then if you are an individual that has some responsibility for healthcare, you''re going to want to keep up with the Access Board''s rulemaking activity. They are addressing medical diagnostic equipment, like exam tables and chairs, imaging, et cetera, and they came out with an advisory committee report just this month, following up on their proposed guidelines that were issued at an earlier time. So follow that, because once -- you may be subject to those once they''re issued by the Access Board and then DOJ will also be looking at those as they do their binding regulations. Now, I talked about all these things that you''re expected to do and you may be thinking, wait, I have to do all that? There are limits in the statute as to how far you have to go with program accessibility. You don''t have to take any action that would result in a, this is another term of art, fundamental alteration in the nature of a service, program or activity, and that basically means if making a change would so change the program that it''s character is changed or its nature is changed and it basically becomes a different type of program or service, you don''t have to do that. You also don''t have to do anything that would cause an undue financial and administrative burden. Again we don''t know how -- what''s a due burden and an undue burden. How undue is undue? But you have to do -- you have to take actions up to reaching that point. You can''t just throw up your hands and say I''m not going to do anything because I can''t achieve full program accessibility. You have to take actions that would not result in a fundamental alteration or undue burdens, and keep in mind, I think a lot of people overlook this, the decisions not to take an action that would be required by program accessibility has to be made by the head of the entity, and they have to make the decision in writing. They have to consider all the resources that are available when they make that decision, and there are some specific provisions about historic properties and the safe harbor that you should look at when you''re making those kinds of decisions. Keep in mind also that sometimes -- we talked about using the standards, alteration standards as the measure for accessibility. There may be times when you may have to do more than that to achieve program accessibility or equal opportunity. One of the examples that the Department of Justice has actually mentioned in presentations is that there is no specific standard for the limit on pressure required to open an exterior door, a door at the entrance to a facility. But if a person can''t get into your facility, then they don''t have access to it. You''re denying them program access. So there may be times when you have to provide automatic doors at the entrance, even though the standards don''t require that. If the demand for accessible parking cannot be met by the parking lot that you have that''s in perfect compliance with the alteration standards, you may have to provide more accessible parking. And here you''re going to weigh how much parking is available to people with disabilities in a ratio as compared to what''s available to those who don''t have disabilities. And there aren''t any standards yet for fixtures or equipment used by people with extreme obesity, but there may be times when you''ll have to provide accessible equipment for individuals who fall into that category, even though there aren''t specific alteration standards for them. Please keep in mind that you''re going to be looking at what contractors do. So if you are an entity, a public entity, that contracts out some or all of the services that are provided at shelters for people who are homeless, you still have the responsibility for ensuring that program accessibility occurs, so not every shelter will need to be accessible necessarily, but you need to make sure as a Title II entity that a significant number of them are accessible so that people have a choice of getting to a location that''s accessible, and that in some instances you may even need to provide accessible transportation so that they can get to that shelter. Keep in mind that you cannot contract away your Title II responsibilities, if you are a state or local government. And this kind of provision is going to provide to delegate agencies, nonprofits, architects, construction contractors, those who process applications for you if they do that through a contract, et cetera. A similar requirement that is sometimes overlooked is that under Title II, is that if you provide significant assistance to an organization or a person, for them to carry out programs and services, you are responsible for ensuring that the programs they carry out with that assistance are accessible. That will include things like sororities and fraternities at a university level or if you''re a school system and you''re allowing for example a child care center to use your facilities after school and you''re promoting the use of those services through your regular channels, you''re promoting their use to parents, then that''s the equivalent of providing significant assistance. So you have a responsibility there as well. So just as sort of a prelude to what we''re going to be doing in the next session, let''s assume that you''re going to go ahead and do a self-evaluation, barrier removal plan, and/or a transition plan. This is a review; in a self-evaluation you evaluate your services and practices. If you need to make changes because facilities need to be modified, then you do a transition plan, and here again are the requirements for the transition plan. And then if you''re a Title III entity you''re looking at whether you''re achieving equal opportunity. There''s no requirement that you do a plan for that, but in order to comply, you probably need to assess how you do that. And then you''ll be looking at a barrier removal plan as to your facilities. So if you''re thinking about whether you''re going to go -- as you go ahead, what decisions to make, there are a number of factors that go into this, and it''s really important to think about this before you even start thinking about how you''re going to go about doing your assessment or your plan and whether you''re going to do it internally or whether you''re going to get help, et cetera. Think about when you did your last self-eval or transition plan or barrier removal plan. If you did it two decades ago, you''re probably going to need to put quite a bit of time and resources into this round. Think about what''s changed. Of course we know that the requirements have changed. There are some additional requirements since 2010 so if you haven''t done one since those went into effect again it''s more likely you''re going to need to do that. You can think about, and this is sort of heresy to some extent, but I think there are some public and private entities that may be better off delaying doing an assessment if it''s been a very long time, because they know that they don''t have very many policies in place. They know what their weak areas are, et cetera. In that case you might think about developing some policies, training staff, coming back in six months, and then doing your self-evaluation. Because if you''re going to do a self-evaluation and every time you ask a question, do you have a policy for this, do you do that, et cetera, and all you get is no as an answer, it doesn''t give you a lot of information. It doesn''t give you a lot to go on, and it''s sort of a waste of time in my opinion. So that''s another possibility. So it''s important to have some idea of where you are now. Then think about what needs attention most or first. Again if you know your weak areas, look at those first. If you know you haven''t done anything with respect to what''s required as of 2010, you might want to look at that as well. And then do you have support from the top? That is one of the most critical factors in doing a successful self-evaluation and transition plan. So if you''re a university, do you have support from the president, from the provost? If you''re a city, do you have support from the mayor, the very top? And has that person indicated that support to staff and to the community? Do you have support from legal? Do you have budget support, financial support? Do you have some funds set aside? Are facilities people on board, and others, sort of across the board? The other things to think about: You are unique. Each of you has a different culture, a different constituency, a different way of doing things. So you need to think about how do you work. Do you -- do people collaborate pretty well. Are you in silos? Is it top down or bottom up? How does change happen and how quickly does it happen? How does disability compliance fit with the compliance structure? Any public and private entity, most I hope, lets hope all, have a compliance program and this might include, for example, for a hospital, HIPAA, privacy compliance, OSHA, occupational safety and health, STEM laws, employment opportunity, et cetera. It''s really critical to figure out how you are going to fit ADA compliance into that compliance structure. It should not be separated. It should all be a part of that. How are you going to do that? Then what''s your constituency? Who do you need input from? Obviously from people with disabilities and organizations that advocate for them and you need to think about when you will get that, at what stages in the process, who you''ll be consulting and how. It''s great to get that up front and at other points in the process. You''re going to need input from program managers and frontline employees as well. Frontline employees are the ones that deal with the public. They''re the ones that answer the phone or greet people as they come in, and of course you want input from the public, including people with disabilities as well as those who don''t have disabilities. So there are some decisions that you need to make right up front. Start thinking about up front. What''s your program, which we discussed a little bit. How deep you''re going to go in an analysis. If you''ve had a child, you know that there''s an APGAR score within the first minute of birth and then five minutes later and they look at five things and they rate a child from one to ten, and it is a general idea of their overall health. You can get an APGAR score for your programs pretty quickly if you identify specific things that you think are critical. Or you can do sort of a basic physical to assess where you are, or you can do a full lets call it an executive health assessment where you did into great detail and make a whole bunch of plans. So think about which of those is going to work for you. How much data can you handle? If you want to ask 200 questions of 200 programs, you will end up with a lot of data. Think about whether you can handle it and how quickly do you want this all to happen. All these questions relate to each other. For tools, do you want to do an overview of your policies and programs? Do you want to look at what each department does? Do you want to do a programs survey, a facilities survey? How are you going to do this and how are you going to track the changes and again these are things we''ll talk about when we get into the nitty-gritty in the other sessions. We also talk about how to analyze the information you get, how to do a report, how to plan to fix your issues, and how to go ahead and make the changes. So some of the challenges will be and I know Jim will talk about this especially when we get to transition plans, and we''ll touch on it next time as well, how do you tie together the service and facility issues? Do you sort of follow the facility and look at what''s done in each facility or do you follow each service and see which facilities those programs and services are carried out in? Again I talked about assessing outside parties, what they do on your behalf. And how do they relate -- how does your procurement process make sure that you''re procuring accessible goods and services? How do you choose vendors who will comply, et cetera? So one of the things that you''re going to need to think about is whether you do it yourself or get an outside consultant. Again we''ll talk about that more in the next session. But limited resources may dictate that you do this in house; that will be very time-consuming. You can have a consultant do a number of things. They can develop surveys, they can do training and assist you in answering the surveys, et cetera. In my view, informed insiders are the best evaluators. Those are people who know the program very well and have been trained as to the ADA. They can then understand what the questions are that are being asked and understand how ADA issues apply to their own programs and facilities. So there will be four stages that we cover in the next two sessions, planning, gathering information, analyzing and reporting and then implementing the plan. As to reporting and planning, we will talk about whether you''re going to do a report that covers -- is it sort of an overview, of a town or city if you''re small or a private entity, it''s an overview of how you''re doing in general, or whether you''ll do it by department, more detail, or whether you''re going to look at each program, service and activity and point out the strong and weak points and come up with an action plan for each one of those. I mentioned there are some alternatives if you''re not going to do a full-fledged program. One thing is to focus on what''s new. Remember that the 2010 regulations now have provisions - more specific provisions about service animals and miniature horses, ticketing for events, Segways, other mobility devices, VRI video remote interpreting, telecommunication and relay services, et cetera. So you may want to focus on that and see if you''re coming into compliance. You could train on difficult areas. You may do open-ended interviews. You may be -- and then that will help you identify what areas you need to look at, or you might just want to review your policies and then figure out where to go from there. I talk about addressing your vulnerabilities and DOJ priorities. Here is a list of those you might look at, and this is my own list drawn from Project Civic Access, what DOJ has looked at. It also comes from sort of evaluating what they have looked at for settlement agreements. They''re looking into more web accessibility, information technologies, as you know. There have been quite a few settlement agreements with healthcare providers, et cetera. Here is my contact information. And Jim will provide his in the next session. You can also find him at Evan Terry Associates on line. And Robin I think we''re ready for questions.
Ladies and gentlemen on the phone, if you have questions at this time, please press star and one. If your question has been answered and you wish to remove yourself from the queue, please press the pound key.
Great, thank you. While we''re waiting for people to queue themselves up in the telephone queue we will take some questions that have come through our online process as well. Thank you for submitting and you may submit questions at any time during this discussion. So we have a question sent in regards to a transition plan, on bus stops specifically, who would be responsible for installation of bus boarding and alignment pads? Would this be the MPO, local jurisdiction, or the transit authority or all three working collaboratively?
Jim, if you have anything to say, please just jump in. I know that you''ve done more of the rights of way and transportation matters than I have, but it''s my understanding that it''s going to vary according to jurisdiction. There should be some document or some kind of agreement that says who''s responsible for them, and then these would be the ones responsible for compliance with the ADA. Sometimes it''s all three. Sometimes each has responsibility for different aspects, and I know that, you know, somebody may say that the transit authority is responsible for the pad, the landing pads, but they have to be in alignment with the curb cuts, the streets, et cetera, so that''s going to be a joint responsibility between the two. And Jim, would you have anything to add to that?
We have even seen cases where private landowners... [Inaudible]
Jim, we''re having trouble hearing you.
Okay. We have even seen cases where the private landowner is required to install those or maintain them later. So it depends on the jurisdiction as to who is responsible for that.
Great. Thank you. There''s a question related to safe harbor. They want some clarification. If they were to explain or understand the safe harbor, such as too high a light switch in a building that was built before 1993. Either you need to have been brought into compliance by March 2012 or it should be in a specific plan to remedy?
So the requirement there is that if the element complied with the ''91 standards, prior to March of 2012, then it''s allowed to remain in compliance through the ''91 standards and is safe harbored until that element is altered. If it did not comply by that date with the ''91 standards, so the example Irene gave was if it was 56 inches above the floor for a side approach, then it has to be brought into compliance to the 2010 standards.
Alright, you wouldn''t be able to go back to the 1991 just because it was built before then?
No. It had to comply with ''91 in order to be safe harbored.
Okay. And then that same person is asking you to clarify, is that a DOJ regulation or what''s the authority that stipulates the safe harbor?
It is in the DOJ regulation. It''s a new concept. In the 2010 regulation that DOJ came up with to deal with the fact that there were a number of buildings out there that were built in accordance with the ''91 standards, and to avoid them having to bring them up to the 2010 standards, they came up with the concept of safe harbor. And it is in the regulations, and I''d like to also just sort of clarify when I said that you have to have brought them into compliance by March 2012 or have a plan, you really needed, according to the regulations, they were to be brought into compliance by March 2012, so I''m suggesting that if you didn''t do that, it''s really important to have a plan for how you are going to do it. I think, you know, I haven''t seen the Department of Justice coming out with any litigation because someone didn''t achieve program accessibility under the changed standards by that date, but I think it''s something to be aware that they -- I anticipate that they will be doing that, and having a plan in place is some degree of protection. So if you haven''t done it, proceed quickly to come up with a plan, and to carry it out.
Great. Good advice. Do we have anybody who has queued anything from the telephones?
Yes, I have a question from a caller. Question please.
Hi, Irene, I appreciate your information. I want to put a disclaimer on this first. It''s not my question or my philosophy, but I promised I''d ask.
In this day and era of tight budgets and we''re talking primarily about Title II entities here, in the transition plans were only required to be retained for a limited period of time. And the regulations don''t require a new one, isn''t that correct?
They do not, well, the regulations say that if you''ve already evaluated all the areas that are covered by the regulation, you don''t need to do a new transition plan.
That''s basically what it says. But it''s hard for you to show that you have evaluated things that haven''t changed, if you don''t have a copy of the plan and you''re not required to have a copy of the plan, you''re right, after a certain time.
Okay. I''m looking for something that I can give these folks that will say, you know, not only is this -- it may not be required by the regulations or by the law, which there may need to be some distinction there, but it certainly is going to keep us ahead of the game and on a whole lot firmer footing if we have something that may identify the need to spend bucks, but it still eliminates the possibility for somebody to come back and say we''re not doing anything.
Absolutely, yeah. It is to some degree a safeguard. If you have something that you''ve actually implemented and you can show that you did an evaluation, did a plan, and implemented it, you''re in a much better position. You''re sort of positioning yourself for compliance and then the important thing is to update whatever you did, to see if you''re still in compliance. What we''re trying to do here is achieve compliance overall and we''re looking at the procedure requirements to guide us in doing that.
One of the thing that I would strongly recommend is that there are a lot of public entities who don''t have the budget authority, at least not at the level of their ADA coordinator to develop a detailed transition plan, and so what I would strongly suggest you do is develop whatever kind of transition plan you can and so if you can''t do a full throat analysis, then at least look at the high profile, high need areas first, look at the ones that are the most supported by people with disabilities in the community, the ones that have been requested, the ones that are going to provide the greatest improvement in program access for people who need it. The things that are low hanging fruit, the things that you can do by training your maintenance staff or your public works people, things that can be done very quickly, and at least get those into some sort of transition plan so that you''ve got a way to plan your progress, even though it may not be a thorough plan, it''s something that gets you some metrics that you can see that progress is being made and that you can add to it by request if they come back. So even if you can''t do the full-blown one, go ahead and get started, have some sort of a database, something that''s written down that you can track what you''re working on and what''s the next priority.
And have a plan to do more if you don''t do everything now.
Right. Okay. And where is the seventh circuit on this?
They haven''t said.
Okay. Thank you.
Thank you. We''ll go back and then we''ll come back to the phone. Somebody who has submitted said that you have discussed a lot of modifications, evaluations on facilities and buildings but this person is specifically asking about issues related to deaf and hard of hearing and how realistic is it for hearing accessibility such as hearing loops in public entities, et cetera, such as auditoriums, conference areas, et cetera, which are often not accessible for hearing disabilities. It seems there needs to be more focus on hearing loss and issues of full accessibility across the board instead of individuals having to depend on their own equipment when they approach a public space.
That''s a good point. That is part of the self-evaluation. Evaluating whether you''re ensuring effective communication for people with vision and hearing disabilities, and we will talk about the kinds of things that you need to look at in our next session when we get into what are you really looking at when you do a self-evaluation. Good point.
Great. Do we have any other questions from the telephone?
Yes. I show we have a question from a caller.
Hi. I am the ADA compliance officer at a university, and we are just now starting to think about the transition plan, and I wanted to know your thoughts on something we''ve been talking about doing it with internal people through facilities and also different people that run programs. However, we thought to add to our manpower to train some students to do some evaluation checklists, is that a good or a bad idea?
It can be a good idea. I''ll let Jim talk to the facilities side of it. But I think if, you know, you want to maximize your resources to the extent that you can. And first of all, I would try to get some students who you know will be around for a while, and have an interest in the area. You''re going to need to sort of be -- you''re going to need to be sure that they understand your program and how you run them, and that they also have good interviewing skills, if you''re going to do through interviews. You need to have some type of instrument to use, some type of questionnaire, and I would suggest you supervise them very closely. They would need some pretty thorough training in the ADA and the process you''re going about because sometimes someone will go in and ask questions like do you discriminate -- do you have any questions on your application that are discriminatory? Well, most people aren''t going to know what that means. So if you get an answer, automatic no, that may not be a well-informed answer. You are going to need to find a way to sort of join the knowledge of the ADA with the knowledge of your programs. And I think if you can do that and if you have consistency and you have them there long enough and you have somebody who really knows what they''re doing, it can be done, and I think facilities might be different. Jim?
Sure. I think the use of people that are already there definitely informs the team about how things run and where the contacts are and helps build support at the local level for the later stages of the process, and trains people that are going to actually be doing the work. So there are some advantages to doing that. The biggest concerns that we''ve seen that you want to watch out for and we''ll cover this in the third session, are to make sure that you''re prepared to deal with the information, the amount of information that you collect, and to collect it in a way that allows you to actually be able to use it consistently, and we''ll go through that in a lot of detail in the third session. So doing it internally can work. You need to be careful before you start the process to be on the right track.
Great. Thank you. Next question we have is can you clarify what accessibility standards apply to Title III entities when they receive federal funding and are subject to Section 504?
Yes. The funding agencies all have Section 504 regulations. So for example, if you are a private university, receiving federal funds, you would look at the regulations of the Department of Education, which has some specific provisions as to higher education. They also have specific provisions about what program accessibility means in housing, for example. You also, if you''re getting -- and most universities aren''t, I don''t think, anymore, but if you''re getting some assistance for housing projects, dormitories, apartments, et cetera, then you need to look at Housing and Urban Development''s regulations if that is where you''re getting assistance from. If you have a museum, for example, that is receiving assistance you need to look at the regulations for the agency that gives that assistance.
All right. Thank you. Any other calls - questions from the telephone?
One other thought while we''re still talking about this. We mentioned the safe harbor as meeting the 1991 ADA Standards. If you''re a public entity and the facility met the UFAS standards by that date, then the UFAS is also a safe harbor under the Title II regulations.
Any more from the telephone?
I show no further questions in the queue at this time.
Okay, I will continue with our online questions. This is a question that comes from one of our participants that says that you mentioned that specific rules apply to access to facilities, i.e., program access as a term of art are a subset of the overall accessibility regulations. Do the exceptions for fundamental alteration and undue financial administrative burden (which I believe are found specifically under the access and facility regulations) apply only to programs accessibility, then in other words as a fundamental alteration undue financial administrative burden defense applicable to Title II public entities as a valid basis for denying access to services? For example where access to facilities, in other words program access, is -- isn''t the issue?
There are -- those exceptions or defenses apply to limited other areas as well. You''re required to make reasonable modifications to policies and practices where necessary, unless that would create a fundamental alteration, but you don''t get an undue burdens exception there. There is an undue burdens exception as well for effective communication. And there''s a fundamental alterations exception. So those are the two other areas where that comes in.
Yeah. And employment is different -- I''m not talking about employment at all. Just keep that in mind.
Well, and that was one of the questions that was asked here. Do most of the regulations apply equally to a public entitys employees as they do to members of the public? So I think there''s some confusion there.
Right. We''re not addressing employment. Generally there is similar requirements for applications, the kinds of questions you can ask, et cetera, but the core requirement for employment is that you make reasonable accommodations to the known disabilities of an individual. And reasonable accommodation is a little bit different from reasonable modifications, and program accessibility is a whole different area. So we''re not addressing employment. And there''s a question as to whether when you do a Title II evaluation, you have to assess employment, because most circuits have said that Title II does not address employment. Department of Justice disagrees with that. But that''s why we''re -- we''re not talking about employment at all. I would look at that completely differently and there are different requirements.
So you basically have a disconnect between what the court circuits are saying compared to what the Department of Justice''s interpretation is?
Yes, as to whether employment is covered by Title II.
Yes. Okay. You said we are not specifically addressing that at this time. We got a two-part question here I want to pose to you. One is can you please discuss significant assistance as it relates to Title II entities, and then there''s a follow-up to that.
Okay. There hasn''t been a lot of clear guidance on this, but one thing that''s clear is that if you''re providing, for example, significant assistance to an entity through funding or use of your facilities, then you''re responsible for what they do with respect to that assistance. There are two places where that has been articulated most clearly. One of them is that the Department of Education has issued a letter of finding and then a court agreed with them as to the use of space by a child care center, and this is the example I gave earlier. A child care center was using a space in an elementary school. The elementary school was promoting the use of that particular child care service through communication with parents, et cetera. And the child care -- the day care service denied admission to the program to a child who had a disability and the Department of Education and the courts said that that action by the school district was a violation of Section 504. So that applies equally to Title II, because that significant assistance provision is there. There is also a letter from the Department of Justice about providing assistance to fraternities or sororities. So for example if those who live in the houses pay rent directly to the university or if there is another close connection between the university and the organization, the university has responsibility to ensure that the policies don''t discriminate and in some cases to provide accessible facilities. Those are the two places where I know this has come up.
All right. So I think that the follow-up on that then is if your Title II entity contracts the service to a Title III entity and the service is provided in the Title III entity''s facility, do you need that Title III''s entity to bring their facility into Title II compliance fully or look at barrier removal to Title III standards?
This is a Title III entity providing a service in the Title II facility?
No. It''s a Title III entity providing a service that they are contracted for by the Title II entity but they''re actually carrying it out in the Title III entity''s facility.
Okay. They would -- the Title II entity would need to make sure that overall their own programs are accessible. So for example, if you have nonprofits and religious organizations and private entities providing shelter services to people who are homeless, if you''re a Title II entity, you have to be sure that overall you''re providing access to the service of sheltering in the cold or whatever. You may not -- you may not have to require that a church, for example, or a little nonprofit that has maybe three beds in the basement of their facility every night provide accessibility to that facility. What you have to ensure is that overall, people who need shelter in that geographic area can get it, somewhere, through one of your providers, whether that provider is you or the private entity, et cetera. And I know this is a hard concept to grapple with, but you just have to remember that if you''re a Title II entity, you have to be sure that you''re complying and you have to be sure that no one who is acting on your behalf is getting you out of compliance. So just as not every facility of a Title II entity has to be accessible, if you''re otherwise providing program accessibility, not every facility of a Title III entity with which you have a relationship has to be accessible. You have to look at the program.
The Title III entity still has their own obligations if they are a place of public accommodation to do the barrier removal under Title III but that is their own obligation that is distinct from the program access one that they are getting by the contract.
Absolutely, and this is one reason why I advise against having a provision in state and local government contracts that says a contractor shall comply with all applicable regulations, meaning ADA, because you need to set out clearly what that means, to what extent a Title III entity has to do something to keep the Title II entity in compliance, for example. It''s sort of overreaching to require a Title III entity to make sure all their facilities are accessible. This is one of the harder areas and this is the one where people overlook the responsibilities. And you really do need to make the responsibilities clear to the contractors up front and monitoring their compliance with the requirements that you set and we will talk about that in the next session as well.
Correct. We''re at the end of our time period. It''s amazing how fast the time goes. We are leaving a few of the questions hanging but hopefully people are going to be participating in the upcoming two sessions and we''ll be able to continue to address some of the questions that people did have and have submitted. They also have your contact information, and Jim you''ll give your contact information next week at that session specifically. So I want to thank our presenters today. They have agreed to sign on with us for the three sessions and take us through this process for the next couple of months to walk through the whole self-evaluation transition process and hopefully clear up some misunderstandings and provide some clarification for people or new information for people. So thank you to them and I want to thank all of you for your participation today. This does conclude today''s session. You will be able to just go ahead and hang up your phone if you''re on the telephone. If you are in the webinar platform, you can just disconnect by either closing out your browser or using the upper left-hand corner file dropdown menu and exit. So again thank you very much and we hope to see you at the next session, which is scheduled for February, and the session is scheduled for February 18, same time, same place and you can register if you have not already, at the www.ada-audio.org. So we look forward to seeing you and thank you and have a great day.