Tuesday, Nov 15, 2016
Back by popular demand! Join us for an open discussion with a representative from the US Department of Justice. We invite you to bring your tough questions regarding a specific aspect of the Title II or Title III provisions of the ADA or any of the enforcement activities they have undertaken over the past several months. They will provide a brief update on DOJ's ADA related activities prior to the Q&A session.
SpeakersWelcome, everyone, to the November ADA Audio Conference Series. The ADA Audio Conference Series is a project of the ADA National Network. The ADA National Network is funded by the U.S. Department of Health and Human Services Administration on community living, National Institute on Disability, Independent Living, and Rehabilitation Research. There are ten regional ADA Centers that comprise the national network. You can reach your regional Center by calling 800-949-4232.
We are very pleased that you have joined us here today. We have assembled a great group of speakers from the U.S. Department of Justice. We always appreciate when the Justice Department folks provide us with their time and expertise and open themselves up to a session such as this, an open Q&A.
Our three speakers today are going to provide updates on the activities of the Justice Department, and following their updates, we will open it up to all of you, the participants, with your questions.
For those of you on the phone, when we get to that point, we'll bring Gracia back to give you instructions. For those of you participating in the webinar platform, as you know, you can submit questions as the session is ongoing.
So, our three speakers that have joined us today from the Justice Department are Sally Conway, Katie Wolfe, and Mary Adams. Thank you to the three of you, thank you for joining us, and I would like to turn it over to Sally Conway.
Thank you, Peter. Good afternoon, everyone, or good morning, depending where you are listening from. It's such a pleasure for us to be talking with you all, and I just want to say, too, it has always been such a pleasure with our longstanding partnership between the Department of Justice, particularly the Disability Rights Section, and the entire ADA network, going back more than 20 years, and this is a really great opportunity for us to be able to, you know, connect with folks that we may not normally connect with and get questions, and we are always interested in hearing from you as to ways that we may improve our regs, how you think things are going. So we are just thrilled to be here.
I am going to talk at you just a tiny little bit, and I am going to give you a summary of some of our stats and one of our particular initiatives.
You guys probably don't know, but I oversee the technical assistance unit, and just to give you an idea of our numbers the last federal fiscal year, so it's October 1, 2015, through September 30, 2016, the ADA information line answered almost 52,500 calls. So those are individual calls we took, and I bet we've talked to some of you folks in the audience, and I hope you got the information you are looking for. We also have gotten over 21 million hits on ADA.gov, and for those of you who don't know about ADA.gov, the address is www.ADA.gov, and this is the Department's ADA website, and you can -- you have access to all of the laws and regulations, all of our technical assistance materials, enforcement, and sort of updates on what we have been doing and new matters that we filed.
If you are not already signed up to get hot off the presses, if you and 45,000 of your closest friends, but to get information about any new stuff that we do, I encourage you to go to ADA.gov, and it's on the top right-hand side of the home page, where you can sign up for government delivery emails, and you know, we don't spam you, we don't do any of that. So please do sign up for that.
One of the other programs that I have been very fortunate in overseeing is our ADA mediation program, and that is a confidential process by which folks who file Title II or Title III ADA complaints with us, we may offer you the opportunity to go to mediation, and these are done typically right where you live. There are professional mediators, and it's a much faster process. It also allows the parties to work out what resolution makes the most sense but is still compliant with the law. And I really encourage folks who are in more rural areas where you don't have 12 grocery stores you can go shopping to, you know, where you just have one or two of each thing, sitting down over a table in mediation really can help preserve the relationship between you, the individual with a disability; and whatever the entity was that you filed a complaint against. You work together to fashion a resolution, and the number, 79% last year of all complaints that were mediated resulted in successful resolutions. The other thing that it's really important to know is that a mediation is not closed just because the parties sign a mediation agreement. We do not close it until all of the terms of the agreement have been implemented and verified by both parties. It's a free service. It's confidential. You aren't waiving any rights. But you do need to file with the Department. If you are interested, you can just ask right on your complaint that you would like to be considered for mediation.
So last year, we referred 353 complaints, and the ones that we completed, 291, and 79% of those were successful. So it's a really neat program that I hope you will take advantage of.
The other thing that I just wanted to touch on is the Department has been working diligently on our voting initiative. And we have created three technical assistance documents. The most recent was our ADA checklist for polling places, and this is a 25-page document, and it provides sort of an overview. It talks about temporary fixes to provide access on election day or on early voting days, and it takes folks through a checklist that talks about physical barriers, what to look for, and how you can fix them. And if you can't fix them, then you probably need to look at another site. And these are companion pieces to two documents we did. Let's see. One was in late 2014. Both of them were in late 2014. One of them is called the ADA and other federal rights that protect voters with disabilities. And this is sort of an overview of a variety of federal statutes. And the other document is called Solutions for Five Common ADA Access Problems at Polling Places. And this is a short document, it's not designed to be a really intense, in-depth kind of document. And what we are doing is really looking at these five areas, which are the common barriers to people being able to get in and vote. It's parking, sidewalks and walkways, buildings entrances, interior hallways, meaning getting the route you have to take once you get in the door to your voting booth, and the voting area itself. These are all available on our website at ADA.gov, and the other thing I just want to tell you is we also have an ADA voting initiative where we partner with U.S. attorneys' offices around the country. And so far they have surveyed probably more than 1500 individual polling places, and it's an ongoing initiative. And more information about that you can find at ADA.gov.
So that's it for me. And I am going to turn it over to Katie Wolfe.
Hi, everybody. I am going to just give you a few stats on our enforcement work from 2016 and just mention a couple of places, and we will get on to questions.
Fiscal year 2016, the Disability Rights Section filed 13 lawsuits. There were some lawsuits that were going on prior to that, so we've got more than that in the hopper, but 13 new lawsuits filed. We also filed dozens of settlement agreements. We filed statements of interest in courts across the country. And also letters of resolution.
As you may know, here in the Civil Rights Division, while Disability Rights Section is at the core, all we do is disability, the other sections, housing section, litigation section, also enforce the ADA in conjunction with their other statutes. And so it truly is a priority and an interest across the division, you know, and so a lot of people doing robust enforcement work in that way.
I thought I would mention three lawsuits we filed and resolved last year in the physical access and transportation realm, the first being United States versus greyhound. This is a Title III lawsuit that was filed in February 2016 and also resolved with a consent decree in 2016, and it is the consent decree provides for comprehensive systemic relief to ensure people with disabilities have access to Greyhound's services across the country. It also provides for an uncapped Victim Compensation Fund. And so the claims period just closed, but so our team, along with the claims administrator, is working through all of the claims that were filed, and that will be happening through 2017.
Two other cases of interest in physical access were U.S. vs. Humboldt County, which is a Title II lawsuit, Humboldt County in California. This case came from one of our project civic access agreements. We had entered into an agreement with Humboldt County a number of years ago. They have failed to comply with that settlement agreement. We worked with the County to try to resolve those failures, and if they are not able to do so, the result being a lawsuit filed in September of this year and simultaneously resolved with a consent decree that will get more firm court-enforceable benchmarks for Humboldt County to bring all of its programs, services, and activities into compliance with Title II. It also includes victims compensation fund of approximately $275,000. So those individuals who, because of Humboldt County's failure to comply with the settlement agreement have been, you know, injured, will be compensated.
Then the last one we wanted to just highlight was a fairly small Title III physical access case called United States vs. 30 Hop, and 30 Hop is a newly constructed restaurant in Coralville Iowa, or Iowa City. Go Hawkeyes. This was a three-story restaurant that includes a rooftop gar den, and on that rooftop garden and bar, they have, you know, musical activities, they have weekly events, and there was no elevator access to that rooftop bar and restaurant area. So as a result of the United States lawsuit, Humboldt County will be putting in -- I am sorry -- 30 Hop will be putting in an elevator to that floor, and also they will be, I think, paying a civil penalty and compensatory damages to the complainant who brought the case to the United States' attention.
And all of these are on our website, these as well as the other lawsuits and all of our settlement agreements, and so if you all have any questions about those, we are happy to update you or tell you where they are at in the Q&A section.
So Peter, I think we are ready for questions.
All right. For a reminder, for those of you in the webinar room, you can submit your questions in the Chat area. Even though you don't see your question once it's been submitted, it is viewable by the presenters and moderators.
For those of you on the telephone, I am going to ask Gracia to rejoin us and give you instructions on how you can ask questions.
Thank you. Ladies and gentlemen, if you have a question at this time, please press * then 1 on your touchtone telephone. If your question has been answered or you wish to remove yourself from the queue, please press the # key. One moment for questions.
All right. While we wait for the telephone questions to come in, I am going to start out with a question of my own just because of the nature of the questions that we get in here related to your investigations and your complaint processes. Obviously receive thousands and thousands of complaints, it's not possible based on the resources that you have to investigate them. But if you could just kind of take us through and explain when you do receive a complaint and one that you are going to act upon, you know, how does that take place? Do you have staff that come out from DC? Do you have folks out in the field? And then in conjunction with that, could you talk about the use of the U.S. attorneys' offices throughout the state? The reason I mention that is looking at the ADA.gov and what's new, one of the new agreements posted up there is with the City of Detroit, and I see that that was brought about a complaint that was investigated by I think it was the Eastern District of Michigan, the U.S. Attorney General's office. So whomever wants to take that one.
Sure, this is Katie.
We do receive thousands of complaints, and each one of those is reviewed and processed by our intake unit. And then shared with the management team here in VRS. Decisions are made as to which need to be referred to other federal agencies or designated agencies under Title II and also 504 entities. And then we also have, as you noted, a very robust U.S. attorney program here, and that program I believe we have maybe almost 90 U.S. attorneys offices across the country who are doing and are committed to doing affirmative civil rights enforcement and affirmative ADA work. So we have a coordinator here in the Office, one of our managers, who overrsees that and works very closely. So in our normal assignment process when we are looking at the complaints, one of the first things we do is determine whether that complaint is located in an area that has an active U.S. attorneys office, and they will often say we want first dibs on it. They are very excited about the ADA work that they have been doing over the last eight years or so and want to continue to do that.
Then other than that, we have our management team sort of overrsees different parts of the country, and we review the complaints and assign them out to our attorneys here, the ones that we decide to open. And our attorneys work across the country. So if they have a complaint from California and it's assigned to an attorney here, they will do the investigation there. Sometimes in conjunction with the U.S. attorneys Office, if there is an office there that does ADA affirmative work, so that's a great collaboration that our attorneys are also out across the country, you know, all the time. We don't see them in the office that much.
(Laughter)
So that's about how it works.
All right. Very good. Just as a quick follow-up before we go, what is a reasonable time frame in which someone that submits a complaint, either through the ADA.gov online complaint form or they mail through traditional mail to you, what's a time that someone could expect to hear back from the Department?
Peter, this is Sally. We are, at this point, we have pretty much erased a huge backlog of complaints. And we are pretty darn close to being in real time. People should hear from us -- I mean, this is generally speaking -- you know, once they file a complaint, if they file it by mail, remember, it takes a long time to get to us because it has to go through a variety of other places within DOJ to reach us to begin with. But people should hear of the disposition in the vast majority of the cases really relatively quickly. You know, I would say probably four to six weeks. And one thing that's really important for folks that file complaints online, please make sure that you keep a copy of -- as soon as you file, you submit your complaint, you are going to get a bounce-back from us that will give you a number, and just hang on to that. And if you haven't heard anything in several weeks, you can always call the ADA information line, and if you had that number, it's really important for tracking, and we can refer it off to someone in the intake unit, and they can give you a call back and let you know the exact status of your complaint.
Some take longer, though. There are a number of complaints that we may be looking at and take a longer time to review, but by and large, people should hear something from us, you know, six weeks or so.
Very good. Before we continue, do we have any questions from our phone participants at this time?
We do not have any questions. Again, ladies and gentlemen, if you have a question, please press * then 1 on your touchtone telephone.
All right. Very good. We've had lots of questions coming in through the webinar room. I am going to put these two together for you, Katie, and don't worry, Mary, we are getting lots of accessibility questions. We won't forget you.
I am so excited.
Someone was wondering about other additional litigation that the Justice Department is involved in, and then also a question about based on litigation, are sidewalks considered a program of a state or local government entity?
Sure. So I am just glancing down the list. Let me do the second part first. Yes, our position is sidewalks are a program service or activity of state and local governments as relevant. And I believe that in a couple of places at the appellate level, we have said as much. So if you were to go to the USDOJ.gov website, not the ADA.gov website, and you sort of work your way through to the Civil Rights Division and to the appellate section, they have all of their briefs that they have filed in the circuit courts online with a little description. So generally, if you searched sidewalks, I think you would get to that case. And those can be really helpful resources for everyone.
Just looking at our list of lawsuits filed last year, I mean, I see a nice range of small and large cases. We had some reasonable modification cases. We had a very nice little laws against Pike's Peak (Inaudible)sports Association in Colorado, and this was a young boy who wanted -- who wrestled, and he was of short stature, and he wanted to play down a year, he needed to as a reasonable modification. And initially they declined that request. Because of our involvement in our lawsuit, they put in place policies and procedures to consider requests for reasonable modification in their program, and he did get to wrestle.
We have a couple of other voting matters. The U.S. (Inaudible) county Virginia. We have a matter involving Temper Moving Systems in Alabama, a lawsuit, which I believe was an individual who was moving and when the movers learned that she had I believe it was hepatitis, they said we are not continuing this. They shut down and they pulled out. And they wouldn't move her.
So we filed that, and in each of these matters, the focus is on injunctive relief, changes in policies and procedures, and then where appropriate to get money damages. As you all probably know, in the Title III cases involving private entities, private litigants can't get money damages. So I think that many of us feel that that's a very important role for the United States government to play for the Attorney General to bring those Title III matters. When we do bring them, to get damages as appropriate for individuals and to seek civil penalties because otherwise, you know, we think that that is impactful and that makes businesses pay attention, and it is a remedy that private litigants cannot get.
We've also entered into a number of employment lawsuits for people with disabilities as well.
If anyone has any particular subject area of interest. Sally was signaling wildly at me.
And Sally was incorrect.
Another priority area for the Division right now where we did not file a lawsuit in 2016, we did follow a statement of interest, and that involves law enforcement. The ADA and the intersection with law enforcement and public entities' obligations to reasonably modify their policies and procedures when interacting with people with disabilities. And that statement of interest is called Robinson versus Farley, and that involves a young man who was mistaken as a person who had hijacked -- or car jacked -- a car jacking. He was just sitting on the curb waiting. He had cerebral policy, had some cognitive disabilities, and a series of events of mistaken identity, and he was quite severely beaten by -- it is said in the allegations of complaints -- by the police officer. Even as his family tried to intercede and explain that he could not understand truly what the officers were conveying to him. So we filed a statement of interest in that case to clarify that the Title II applies to all law enforcement activities. There have been some courts and some public entities who have tried to argue that the ADA does not apply to the arrest, to the on-the-street interaction, that somehow it only kicks in later. And the Department has repeatedly stated -- including, I believe, in the supreme court in the Shehan brief -- that Title II applies to all law enforcement activities, including arrests. And we also clarified that because it applies, public entities have in-role modification obligations. And in this instance, those could include working with family members who are on the scene to discuss the best way to communicate or to, you know, effectuate compliance with police orders by the individual with a disability. Or also when they are releasing a person with a disability, in this case the complaint alleged that the young man was released but the family didn't know. They were trying to track him down and found him wandering around outside some six hours after he had been released. So we suggested that calling a family member where you have an individual with some cognitive disabilities may be a reasonable modification that you'd have to make.
Great. Mary, I am going to give you a heads-up, then come back to Katie with the next question, but the question following that is going to be for you involving overlap at a water closet, 604.3.2.
Before we get to that, Katie and Sally, the Justice Department came out with a new technical assistance document back on October 31. So the questioner wants to know, in the Justice Department's view, what is considered the most integrated setting when you are talking about a state or local government's employment service system?
Hmm.
(Laughter)
I am laughing because Sally said Hmm.
So we -- we have a whole team of attorneys here who work on these Olmstead matters, both here in the Disability Rights Section and in the special litigation section. What we do not have is in this room a person who is dedicated to Olmstead issues. So I would need to take a closer look at that guidance, and the same way that you are looking at it, and cannot answer that. Generally we are going to go for as integrated a setting as we possibly can. I know in the Oregon lawsuit, you can look at the comprehensive relief that is provided for in that consent decree on our website, and also the press and the statements that are probably on the website following the resolution of that very large case. And it involves supported employment in the community. So you know, that's about all I can say on that, but I will tell you what, next year when we do this call, I am going to know that.
And the Department has two settlement agreements around employment and using the Olmstead decision, but you can read that new technical assistance document, you can link to that off of homepage, ADA.gov, and it's under the "what's new" section on the website.
All right, Mary, we are going to ask you your question. I think that the standards pretty much answer this question, but this person wants to know, seeing that the required clear floor space at the water fixture 604.3.2 lists elements that can overlap that area, such as grab bars, dispensers, sanitary napkin disposal units, coat hooks, shelves, accessible routes. And this questioner is asking could a hand drier overlap that required clear floor space at the water closet?
Yeah, I think it's not specifically listed, so I think the answer to that is probably no. The question -- you know, hand driers come in lots of different shapes and sizes too, so that might have an impact on whether that could happen or not.
I mean, you know, these items were specifically listed because that clear floor space is by definition absolutely clear, nothing protrudes into it. And so to, you know, to list grab bars and dispensers, things that would be there and that they are okay to be in that clear floor space, we really want to limit that list. So I don't know about -- it would depend on the hand drier and location, but I would say probably no.
Yeah, I think that second to the last or last sentence, I think, states that no other elements or fixture may overlap that clear floor space.
Yeah, it's definitely no, then. That could apply to any kind of hand dispenser, paper towel dispenser, anything like that.
Right, right. The 2010 standards made that change in the single-user toilet rooms that nothing can overlap that clear floor space, including a lavatory or a sink.
All right. Let's go -- this questioner wants to know about does the Justice Department have any intention -- you can't tell us everything that you are planning on doing because then it wouldn't be a surprise. But any action in the area of businesses, vendors that label their products as "ADA certified" you know, whether -- regardless of whatever the product may be?
I think our answer is going to be pretty much what it always has been in that, you know, a manufacturer can make whatever claim they want subject to whatever state laws or, you know, consumer protection and those kinds of things. But you know, it all comes down to the installation of something and how it's installed, how it actually is used in the environment. You know, somebody may have, like you see them in hospitals all the time, but the hand sanitizer thing. And you know, it may be that it's three and a half inches in depth, but when they put it up, it sticks out five inches. So you know, it really is kind of irrelevant because something like that has to be installed. And you know, companies can make whatever claims they want, and the ADA doesn't touch that.
Now, if something is a claim that is, you know, clearly -- if say the hand thing, the hand sanitizer, you know, is 7 inches deep, you know, people can certainly talk to their consumer protection division or board that typically is in their state Attorney General's office as being a false advertising or false claim, but for purposes of DOJ, you know, that is not something over which we have any jurisdiction. And again, it all comes down to, I mean, you could have something that is perfect, but when it gets installed, it's wrong. Or it encroaches on other parts of the environment that have to be clear for maneuvering space and all of those kinds of things.
So I mean, I think the answer is we really don't have anything to say because we can't do anything about it. But you know, certainly, people can, under state law, you know, get in touch with their consumer protection division or board or there is typically somewhere in the state where people can file a complaint about fraudulent or misleading advertising.
All right. Very good. Katie, if you can just clarify someone who has a follow-up question involving the -- I think they are referring to the 30 Hop settlement agreement, and they were asking if that was a readily achievable case?
Sure. No, it wasn't. That was a newly constructed facility.
Okay. And Keith, you can touch on this. The questioner wants to know about any litigation involving postsecondary institutions, disability services. I know that the Justice Department a few weeks back had a -- announced a large settlement agreement with Miami University.
We did. That involved accessible technology. That was a private lawsuit filed by a student who is blind. And who could not access the online pathology, also for course materials not being remediated properly. We intervened to really allege systemic deficiencies in that area and then seek systemic remedies, and that, we partnered with the U.S. attorney's office on that, and the result is really a very comprehensive agreement, consent decree, court enforceable, that encourages people to take a look at.
We also have issued a letter of finding to the University of Berkeley in California about their online technologies, including their massive open online courses, or their MOOCs, and the thousands of hours of video that they have streaming or provide on their YouTube platform. And in that case, again, we are looking at whether those videos are accessible to people who are deaf and to people who are blind and to people who have manual disabilities so that they need additional time when navigating the program.
So we issued a letter of findings just in the last few months, and that case is proceeding.
The Division has -- and I believe it's on our website -- it was a different section, the education section -- has resolved a complaint through a settlement agreement involving a postsecondary student with a mental health disability who, I believe, was excluded after -- based on concerns about suicide. So that is another area that we are looking at very closely, and I would encourage those interested to look at that agreement as well.
Very good. And I guess we will pose this one to Sally, talking about other power-driven mobility devices. It was a specific question, but I think to take it out and make it a little more general, if you could just address the assessment, and this -- you know, with regards to a state natural resources agency, and we are talking about trails and hunting, vocations, firing ranges, you know, what are the types of considerations that a Title II entity should go through in determining whether or not a particular device is appropriate and when a particular device may be where they wouldn't have to allow someone to use it?
Sure. I am going to at least initially speak very generally. The assessment factors are very clearly spelled out in the reg, and I think one of the hardest things for some reason for folks to understand is that you are looking at in your determination of whether you can accommodate the presence of a particular type of device, you look at the class of devices. So Segways, ATVs, golf cars, those kinds of things. And you take a look at, you know, the main ones really are what is the area like? Are there -- and this will sound very much like a building, which it is really pretty much intended to do, but are there stationary objects that make moving around something difficult, depending on the size.
The important thing is when you are thinking about doing this assessment, is understanding what the device is and making sure you get that data.
You know, I was told at a Title II ADA training that somebody thought that, for example, the Segway went up to 30 miles per hour, and it does not. So it's really important first of all to get that data of what is the device and what are the typical size, you know, what is the typical footprint, what kind of engine, you know, whether it's battery, whether it's gas, and you know, what is its intended use? So I think you look at that, you look at things like what the layout and congestion. Where are people or foot traffic allowed to go, and where are they to be expected? It's harder in an outdoor environment because you are not really sure. You may have acres and acres and oh where someone can hunt. But I think what you are looking at is where do people who do not use another power-driven mobility device expect it to be, and what kinds of restrictions do you have on them? And if there are areas where you don't think it's safe for anyone to be in or to be moving around in, then if -- you know, you would treat someone who may be using another power-driven mobility device in the same manner.
The important thing is that the decision of where people can go on what kinds of devices is made objectively and using current information.
I think when we talk about hunting, I think it's one thing when we talk about wetlands and protected areas. It's a whole different subject. You may very easily be able to allow a Segway, which typically has a footprint of a regular wheelchair, versus a gas-powered ATV. You know, if you have protected areas, then you may be able to say, look, if you use a Segway and you stay on this path, we can allow that. But if you use a gas-powered vehicle, we can't. So I mean, I think you look at what is the device, how is it operated in terms of what is the fuel, battery, or other engine, and how does that square with what the environment is? I don't know that that's enough, Peter. I don't know if that helps or hurts.
No, I think that's good. I think it would be difficult, if not impossible, to give an answer to a very specific question. There are too many different factors to be taken into consideration.
That overview, I think the assessment is the important thing.
You know, from the calls that we get, I think what happens many times is that instead of doing that assessment, that objective assessment, immediately folks are going to -- you can't have this device in this environment rather than looking at the whole big picture and creating specific scenarios where a device may not be appropriate or may not be allowed.
Right. And the other thing is if an entity determines yes, we can allow X, Y, or Z, you know, they can also have policies as to, you know, what is safe operation of something. I know I hear a lot it's typically indoor things, like there's going to be a lot of pedestrians around. Then what you can do is say look, you agree to operate this OPDMD no faster than any given foot traffic at any given time. I mean, you can put policies in place that -- and in fact, it encourages entities to put policies in place.
Right. I think in the section-by-section analysis of the regs, when those were published, the Justice Department cited a policy by the General Services Administration with those very factors, that you can create, you know, the parameters in which the device can be operated safely within a particular environment.
Right. Exactly, Peter.
All right. Mary, let me make sure you haven't fallen asleep there. We haven't forgotten about you. And going to a -- well, we'll ask this question. Are benches required in a locker room if the locker room is intended for storage only? People won't be in there dressing, I don't know why it would be considered a locker room if you are just storing things, but if you want to go ahead. Because they are very specific areas where, you know, accessible benches are required. The fitting areas, locker rooms, you know, spaces where there's an expectation that someone is going to be doing that, you know, changing clothes and needing the bench to complete that task
Yeah, I think that's true. You know, if it's just an area to go, we open the locker, you put your purse in or whatever, your personals and you lock it and you leave, then there wouldn't be an anticipation of being changing in there. You wouldn't be changing in there, there wouldn't be a bench required. But you know, if there's any chance that somebody is going to be changing in there in any way, then yes, it would be required to be a locker room.
All right. Very good.
Can, Katie or Sally, can you address, you know, in general terms -- I know that you can't talk about pending regulations, but accessible technology, you know, huge issue for people with disabilities the way that we participate, interact with our community, our local government entities, our state government entities, places of entertainment, or employment, you know, technology cuts across all of those. And of course, education. And Katie, you talked about the litigation involving Miami University. But if you could touch on that, you know, in general terms of the Justice Department's standpoint as it relates to technology used by state and local governments and private businesses.
So I mean, first and foremost, I would say that we have been very actively enforcing both Title II and Title III of the ADA against private businesses and state and local governments with respect to their use of technology. It is a priority of the Division, and if you look at our website, I think that you would see, I mean, just a very, very active socket. So again, when we are regulating in that space and we are really only working to develop standards, the obligation already exists to provide services to ensure equal access. And so regardless of where the rulemaking is, that is our enforcement position, and we have been pursuing it quite rigorously.
As far as rulemaking, you know, really, we can only, you know, mention what is public. And if you go on reginfo.gov or you look at ADA.gov, we have a webpage on ADA.gov that gives you summaries of our rulemaking activities. And it will talk about, the SNNPRM, as we call the Supplemental Notice advanced Notice of Proposed Rulemaking, in the website arena. And I believe that Title III Web accessibility remains on our long-term agenda. So unfortunately, that's really all we can say about that, and you can look at our website, but again, I would just emphasize on the enforcement end, we are going full speed ahead.
I should have mentioned that we also filed statements of interest in lawsuits against MIT and Harvard with respect to their accessible technology and their publicly available online courses and videos. And that was, I believe, a motion to dismiss. We filed a very substantive, substantial statement of interest, and just recently, the district court adopted the report and recommendation of the magistrate judge that was very thoughtful, very thorough discussion of why it is that the ADA, as it stands, even without the rulemaking in effect, requires MIT and Harvard to make their online courses accessible.
Very good. Obviously it makes it a little more difficult for the disability community when this aren't enforceable standards. Obviously, I don't --
But I want to say, I would say what you will see on all of our agreements in this area -- and I think it is helpful to say look, there's no particular standards that are required, but if you use WCAG 2.0AA, your website is going to be accessible, and you won't have to worry. You know, look at all the Department of Justice's agreements. In each one, the remedy to fix the accessibility ends up being WCAG 2.0 AA. As those build up in the aggregate, they become a helpful tool for advocates.
Yeah, no, absolutely. And for the ADA National Network in providing technical assistance, it's okay, there's no enforceable standards in Title II or Title III, those are things we point to, especially when we talk about project-specific access, not just going in and looking at curb ramps and measuring doors and door opening pressure. It includes reviews of websites and other technology.
And the other big, I think, settlement agreement that the Justice Department reached a few years ago was under Title III with H & R block, required compliance with level 2.0 AA. It also include apps that H & R bloc uses that people can use on their tablets or smartphone.
So when covered entities are making claims that they don't know which way to go, I think there is a pretty clear direction. Even though you can't say there are enforceable standards, I think if you look at the Justice Department's record, it's pretty clear what the direction is and what the minimum accessibility requirements are going to be.
All right. You know, this wouldn't be a call with the Justice Department, whether it's our annual July ADA update or a DOJ session, I think, Sally, you know what's coming.
(Laughter)
It walks on four legs. So this is a Title III entity that the questioner states they welcome service animals into their business. They noticed over recent times that they are getting service animals in with some questionable behavior, you know, barking. I think that that's addressed and you can answer that part of it. But I think that more interesting part for me is to the question is, is there any -- anything that you know within the Justice Department that would ever allow a Title III entity or a Title II entity for that matter to require some type of documentation? And the questioner points out the availability online of people registering their service animals, paying money to these websites or purchasing vests and so forth. So I think you have all the different aspects of service animal issues in this question.
And you are right, Peter, it wouldn't be an audio conference or webinar without it.
You know, it's -- service animals has been one of our top types of questions ever since 1993 and 1994. So in terms of if somebody comes in to whether it's Title II or Title III entity and says that they have a service animal and they are allowed to come in with the owner who has a disability, there is that requirement that, number one, that animal is always under the control of its handler, and number two, is either on a harness, leash, or other tether, or if someone, because of their disability, is unable to use those tethers, is under the voice control or signal control or other means at all times. The issue of barking I think is an important issue. Because if an animal barks once, I think that does not -- that isn't a disruption. If an animal continues to bark -- and you know, the location really matters, where they are. If it's in a park and an animal is barking, kids are screaming and yelling, I think it would be hard to say that that barking was interfering with the enjoyment of the park by others.
If it's at a play or at a movie or something like that, that's a whole different issue. But one bark does not mean that that animal is out of control. If that animal is consistently barking, then that covered entity has every right to go to that person, to the handler, and say look, I am asking you to, you know, have your dog -- make your dog stop barking. And if that person can't or will not change that behavior, then at that point, that business or governmental entity may ask that person to remove the dog, but to allow that person with a disability back in without the dog.
But I do think that when you are looking at this out-of-control and disruptive behavior, I think it has to be put into perspective. And if it's something where there aren't -- you know, it's not an environment where there are a lot of other -- you know, people are allowed to bring pets or anything like that, you know, that one bark should not result in an expulsion of that animal. But also in the control of that animal is critically important. That animal needs to be right in the vicinity of that individual with a disability. It should not be showing its teeth. It should not be jumping up and down. So I think rationality is what is the behavior of that animal? And a lot of times, a kid could have gone by and pulled the tail of the dog, and that dog is going to bark. So I think the issue of control of that animal lies with its handler, and if that person is asked to control that behavior and either will not or can't, then that animal may be asked to leave. But always remember, you know, never say and don't you ever come back here again. That animal, if, in fact, it is out of control, may be asked to leave, but the individual with a disability always has the right to come back in without the animal. I think that's one thing that's important.
The online sites, in terms of registration and certification, there is no requirement for certifying an animal as a service animal. I am talking about under the ADA -- in registering an animal. The number of websites that are available where, you know, you will get -- you can send in a picture of your animal, and they will send you some kind of a certification, they will send you a vest, they will send you other paraphernalia, is -- for purposes of the ADA, that does not mean it's a service animal. So I mean, it's a hard thing. We try to address it. Again, it's one of those things over which DOJ has no jurisdiction. But we did try to address it by at least mentioning it -- and I think we even boxed the text -- in the supplemental service animal question and answers that we developed, and so if somebody does go to this website, any of these websites, it doesn't necessarily mean that that's a service animal, and that in and of itself doesn't mean, you know -- it has no -- DOJ doesn't recognize those.
Sally, can you talk about voluntary registries in general, say on a university campus or something like that?
I think a lot of places are using voluntary registries for a number of things. But on campuses, I think it's -- it's not at all uncommon. You can -- covered entities can have a voluntary registry for anything, just so that once I talk to my school and I am on this registry, then I am not going to get hassled each time I try to go into each different building or each class or when I want to go to, you know, the Hawkayes' basketball game, and those are legal.
One of the things that I think people need to be very careful is why you can do those. It can't be of a coercive nature. That look, you don't want to have to show us -- or you know, talk to everybody. So we really think it just makes sense for you to put your name and your animal's name on this registry. I mean, it's very similar to other kinds of registries. For example, like in emergency management, where communities can use a voluntary registry for people to sign up, so that at least they are in a database somewhere, should the unthinkables happen, they are somewhere in a database, although they may not be home, but they may be in that database. But it has to be completely voluntary. There should be no consequences for not doing it, for not agreeing to participate. A lot of arenas around the country are using voluntary registries for folks who require wheelchair accessible seating. But again, it has to be voluntary and cannot be coerced.
Yeah, in our region, the State of Michigan, over a year ago, came up with a registry that folks can register their service animals and be given some type of identification. You know, caution there for business and other local government entities is that they don't make that a requirement for someone to enter their facility.
And the document that you mentioned, Sally, I think, is one of the Justice Department's best ones because I think it addresses all the areas that the Americans with Disabilities Act frequently asked questions about service animals, and again, ADA.gov is where you can get that. It has a whole section about documentation, voluntary registry, swimming pools, shopping carts, and it addresses a lot of the hot topics that folks have around the issue of service animals.
And the voluntary registry, I think that both Justice and the Department of Education Office of Civil Rights have made clear that educational entities can't require a student who uses a service animal to register with Disability Services in order to be able to be accompanied by the service animal. The school, they are going to have to question, they are limited to those two questions.
Yeah, we have one lawsuit currently ongoing against the school district in New York who is refusing to allow a little girl to bring her service animal unless her mom pays for and provides a full-time separate adult handler for the child. This is a little girl who has severe disabilities. But she's nonverbal. She can do -- she's eight or nine now. She can do some hand commands to her dog, and she's doing a great job progressing on getting to a place where she could handle the dog on her own. But she definitely needs assistance because she is eight years old. So for the last several years, the school has just flat-out refused to allow her to have the dog unless the mom provides a handler, and we also allege that we've gone so far as to -- they won't allow their staff to have any interaction whatsoever with the dog. So that's ongoing, and we will see how that turns out. But again, I think it shows, I think, in this K-12 education area is where you may see a lot of these service animal issues maybe really get worked out in the court system, some nuances are going to play out. I think in a lot of cases they just end up getting settled so you don't have to really address or figure out some of the hard issues, but our sense is that in this context, K-12, the school districts, some of them really feel they have some skin in the game, and they are willing to, you know, really see how far they can resist our interpretation of the ADA. So we'll see how that turns out.
Right, and I think that going back maybe a year or so, the settlement agreement with the Justice Department, I believe school district out of New Jersey, involving service animals as well. So again, find all that great information at ADA.gov.
Sally, coming back briefly to a follow-up question from the other power-driven mobility devices. So I don't know if this is what you said. The questioner is following up with that they should not carte blanche come up with a policy saying that you can or can't go here with a particular device?
Oh, if I said that, I apologize. That certainly would not have been my intent. But in determining whether, where, and when certain class of mobility devices, OPDMD, is allowed, there may be parts of an entity that you can say yes, we can absolutely accommodate Segways, we can accommodate a golf car, but there are some areas where there is just no way to do that. And as long as it is based on those assessment factors, you know, things like wetlands and things like that, you know, you may be able to use an OPDMD, but up to a certain point, where there is a very legitimate reason why having, say, a gas-powered OPDMD in that area would significantly threaten, you know, the wildlife, the flora, the fauna, that kind of stuff. But I think there are absolutely going to be times when in any number of circumstances when after doing that due diligence and figuring out can we allow, for example, a Segway here, and if you look at it, looking at all those characteristics, understanding that you can have policies in place that are going to -- I mean, the big thing with Segways and a lot of these others that people worry about is speed. And I get it completely. So if you looked at that, and there may be places where physically it is impossible to accommodate one or many types of other power-driven devices. You can set that as a policy.
Did that answer it?
Peter?
Sorry about that. I was muted.
(Laughter)
We thought we got disconnected. I thought someone really hated that answer.
I said probably the smartest thing I ever said in my entire life, and no one heard it.
(Laughter)
I was just following up that folks need to be clear that when they come up with these policies, you are talking specifically about other power-driven mobility devices. Wheelchairs, where they be electric or manual, that individuals that use those types of devices must be allowed to go wherever the general public is allowed to go.
Right. That's just an affirmative requirement. And also people who use other types of "traditional mobility aids" you know, crutches, leg braces, canes, walkers as well.
All right. Very good.
I am going to check one more time with the Gracia. Do we have anyone on the telephone?
We actually do. We have one person, Debbi Jackson, your line is now open.
My question is about a Title III entity, a hospital, and a person without a disability was there for surgery, and his girlfriend came in and requested an interpreter. Is the girlfriend entitled to an interpreter? She is not going to be the caregiver, and when he's released from the hospital, he is not going to go home with her as the caregiver. So the question from the hospital is are they obligated to provide an interpreter for the girlfriend?
Okay. So we have the regulation under Title III, I think it's 36.303, I am not sure the subprovision, that talks about companions of people with disabilities. And essentially, a companion is, in this context, I believe, is any individual with whom the hospital would typically speak. So it doesn't matter, you don't have to have a power of attorney, you don't have to be the caregiver, but for example, if, you know, Sally was in there and I was her friend and I -- she wanted me to be involved in a conversation with the doctor so that I could sort of be a separate set of ears for her and to have that conversation, then yes, then I am entitled to effective communication in that instance. So it's going to be sort of a case-specific analysis, but certainly, I would say that the Department has taken a very broad view of who is a companion, and as more and more healthcare providers and hospitals go to sort of this family-focused care and everyone's kind of involved in your healthcare to the extent that you want them to be, then our position is that those companions are entitled to effective communication as well.
We certainly see hospitals frequently push back and say, well, they are not the caregiver or they are not, you know, the next of kin. And those just, from our position, those are nonstarters in terms of the analysis. The analysis is, is this a person with whom the hospital would generally speak, and generally, as the patient has the right to decide who is going to be involved in sort of their healthcare conversations, the patient, you know, can decide under HIPAA to whom their healthcare information will be disclosed, and so as long as they are pulling that companion in, generally they should be entitled.
Excellent. And in the regs, it's 303C, Effective Communication, and then number 1 that addresses the issue of companions.
While we are on the topic of effective communication, if you could talk about we are seeing in our region some healthcare entities that are relying solely on VRI, video remote interpreting, as their sole means of communicating with patients that are deaf or hard of hearing. And you know, whether the individual requests an in-person interpreter, that the only option they are given is VRI. If you could address that type of scenario.
Sure. You know, those are -- I think those are very interesting issues, and they can be hard. And you know, they are issues that we are looking at. At the end of the day, the person with a disability is entitled to effective communication. In the Title III context, while the regulatory guidance encourages the entity to discuss with the person with a disability what their preferences are, what's going to be best for them, at the end of the day, the entity gets to decide what auxiliary aid or service they are going to provide, so long as it's effective.
The question that is always going to be, is VRI effective in that context? And that's going to be a factual, you know, a fact-specific scenario. And I would encourage, you know, advocates and, you know, in this area to think about what are the facts that are going to make it not effective. I think our regulatory guidance sort of talks about some of those facts, but I think there's more work to be done in that area. I mean, suddenly if a person is in a prone position, or if they have some vision problems and they can't wear their glasses from where they are lying, if they can't see that screen effectively or if the screen is blurry or all kinds of reasons, or if they are in significant pain that's going to impede their ability to see the screen, then those may be instances where one would argue that VRI is not effective.
I think what we are going to -- I think there have been -- there has been private litigation in this area. I think there will be more. And it will be really helpful to sort of shore up some parameters of these contexts where any reasonable person might agree that VRI is not effective in those circumstances. I think that's maybe where we are going to get at some point.
And I think the hard thing, too, is you know, it's not just a preference; that I would rather have, you know, a living, breathing person, interpreter, in this room with me as a preference is really not relevant. It is relevant if -- only if -- that whatever the method of the entity chooses does not provide effective communication. And sure, it's a big change, and you know, we know that, and the language is to provide either on-site or through VRI a sign language interpreter.
I think it's important point, Sally, there, is that the regulations contain very specific technical requirements for the use of VRI. You know, a constant -- you need, you know, excellent Internet connection. You know, screen large enough. And I think that some folks that rely on that solely don't have those type of things or there are delays and those types of issues that interfere with it.
Well, Peter, too, there's a couple of things in the standards that are really important, and one is that it's a dedicated high-speed line for connection. So I mean, you can't just be running around and then, you know, pulling my computer thing out of the wall. You can see how technically savvy I am. You know, and plugging it in. You know, and the other is remember all of those performance standards have to be met if an entity chooses to provide VRI. And one of them is training and making sure staff, whoever it is, wherever it is, can set that up and operate it, and if there's a problem, can immediately fix it or know what to do in that alternative. I mean, I think those are the two -- it's a dedicated high-speed line, not just Joe Schmo's computer connection, and that people have to be trained in how to use it real-time, you know, resolving problems as well. I think those are two very important parts of the performance standards.
Right. And I think something folks need to be aware of, while it's not an ADA requirement, and I am going to ask you to comment on primary consideration with regards to Title II entities, but the healthcare reform affordability Act, new rules went into place not too long ago that use similar language to what is found in Title II of the ADA with regards to primary consideration. Now, those are HHS rules, so I know you can't comment on those, but if you can talk about primary consideration as it applies to a university hospital or a county hospital and, you know, auxiliary aids and services and effective communication.
Sure. Unlike Title III, the Title II regulation is quite specific that the Title II entity must give primary consideration to the preferred auxiliary aid or service of the individual with a disability, and I believe that the regulatory guidance underlying that provision states that the entity must provide that person's preferred auxiliary aid or service unless the entity can provide one that is equally effective. And you know, I think sort of it really puts the onus on the entity that you've got to give them what they have requested unless -- I think that's a large burden -- you can demonstrate that what you want to provide as an alternative would be equally effective. And you know, I think that we've been trying in some of our recent agreements where that issue is in play to really sort of make sure that we include that primary consideration obligation in our formulation of what the violations are. To try to put some meat on the bones of that.
All right. And then someone wanted contact information for the Disability Rights Section. The toll-free number, 800-514-0301. And then their website, which we have mentioned often, a great place to find resources, ada.Gov.
And someone just did a clarification about the question we had from our fine folks in Hawaii, Debra Jackson -- or Debbie Jackson. It's correct the questioner said that the patient did not have a disability, but that's not the issue in that particular scenario.
Right.
That's right. And it doesn't -- and I brought some actions where the patient does not have a disability but the companion does. And so that is right. In fact, you are right, that is a good clarification. It's not even a companion issue in a way, it would be just a direct discrimination against the companion, against the girlfriend. So yes, it is direct discrimination. You don't even have to rely on the companion pieces. But to the extent that those are the program, services, and activities, or the goods and services that that hospital is providing as sort of a patient-centered healthcare that involves family members and friends, then yes, it would be direct discrimination against the girlfriend.
All right. Let's go back to service animals for 1,000, Alex.
(Laughter)
Can you talk about service animals and emotional support animals in the context of a homeless shelter?
Hmm, well, I think that we would talk about that the same -- pretty much the same way we would with anything else. And again, what I am talking about, what we are talking about here today is what the ADA requires, not what a state law or a local law may allow, which you know, what we are talking about is a service animal has -- an individual with a disability who is seeking access to the goods and services of the homeless shelter that uses a service animal. The same rules will apply, that that person should be allowed to come in with his or her service animal. In terms of emotional support, companion, comfort, therapy animals, there is no coverage in terms of the ADA because the ADA speaks only to service animals, and we actually have a statement in the regulations that because comfort animals, support animals, that sort of classification of animals, because they have not been individually trained to do work or perform tasks, then they are not considered service animals.
Of course, the Fair Housing Act and Section 504 do cover emotional support animals as reasonable accommodations, so to the extent that those apply to the homeless shelter, which I believe they do, the shelter would have to do the analysis under 504, a reasonable accommodation analysis, for the emotional support animal as well. So I'd say all dogs are coming in. That's what I am saying. Homeless shelter.
(Laughter)
I think the most important takeaway of that discussion is know what laws apply to you as a covered entity. You know, educational institutions that provide dormitories for students, you know, have application of FHA as well as the ADA.
All right. We are near the bottom of the hour here. I am going to ask one last question of you. The question has to do with the public rights-of-way guidelines, which is an Access Board rule, it's not a Justice Department rule, and no, those are not enforceable standards at this point in time. But if you could, Katie, again, or Sally, just in general talk about the public right-of-way as a program of a state or local government, so access to public sidewalks, curb ramps, street crossings, you know, pedestrian signals, as a program of a state and local government entity.
Well, I believe that we would say the same thing of sidewalks is that those are, in fact, programs and are subject to all of the requirements of Title II. I mean, is it --
Peter, I don't trust you because I don't think you are asking me that simple of a question.
(Laughter)
No, I think that's a simple, straightforward question, and I think that's the response that people need to take away. And you know, similar to accessible technology, you can't point to an enforceable standard; regardless, you still have obligations, and you need to follow the best guidelines that are out there, and currently that's the public rights-of-way guidelines from the Access Board. There are ways to make the public right-of-way accessible. There are ways to make technology accessible.
So well, we have reached the bottom of the hour, and I am standing up and giving you a standing ovation now. You survived, you know, nearly 80 minutes of questions and a wonderful job.
As always, we enjoy the ADA National Network truly appreciates the relationship that we have with all of you at the Justice Department, you know, a special thanks to you, Sally, and all the years and service and information, confidences that you have shared with all of us. We truly appreciate it because we know it's not just the 90 minutes that you join us or the 15 minutes beforehand. It's, you know, a preparation, planning on what are they going to ask me this time and getting ready for the session. So thank you. A big, big thanks to Sally, Katie, and to Mary for their participation today.
It's been a pleasure.
Yeah.
We are -- we will be back in December, December 15th will be our next session, titled, that session is Moving from Transportation towards Mobility Management: Disparities, Data, and Action. And you can get information about that session by visiting the www.ada-audio.org website, and you can register for that session currently.
So again, big thanks to our partners from the Justice Department, and a big thanks to all of you, our participants. You are the reason why we do these sessions. You are the reason why these sessions are successful. I encourage all of you to do the follow-up evaluation that helps us plan future sessions and topics and understanding where the interest and where the needs for additional information are out there related to the ADA and other federal disability rights laws.
Thank you, everyone, for joining us today. For those of you on the telephone, you can simply hang up. For those of you in the webinar room, you can close out your Internet browser.
Thanks, everyone, and have a great day.
Happy Thanksgiving.
Ladies and gentlemen, thank you for participating in today's conference. This concludes today's program. You may all disconnect. Everyone have a great day.