Much of the information we put out here is to emphasize that many of the ADA violations are addressed easily. Some are not.

This article is taken from [Facilities.net.

I’m Dan Hounsell, editor of Maintenance Solutions magazine. Today’s topic is, facility renovations and ADA.

Maintenance and engineering managers undertaking renovations in institutional and commercial facilities need to be aware of the impact on the project of requirements under the Americans with Disabilities Act, or ADA.

The requirements for readily achievable barrier removal under ADA began Jan. 26, 1992, and have continued since then. Organizations must remove barriers, with a few exceptions, regardless of any work being done.

Anytime a facility undergoes renovations where access barriers exist, the organization must spend 20 percent of the construction costs on removing these barriers from the path of travel. For ADA purposes, the path of travel includes water fountains and restrooms. Any renovation to a primary function area triggers this requirement. The phrase primary function area applies to an area where the activities are germane to the business, such as a bank�s teller stations.

As with the model building code — The International Building Code and the American National Standards Institute — ADA does not require barrier removal on the path of travel that exceeds 20 percent of the cost of the renovation. The major difference in this regard between ADA requirements and building codes is that the ADA requires barrier removal in existing buildings, regardless of renovations. Building codes do not come into play until renovations, alterations or new construction occurs.

Managers can find more specific information in the 1991 ADA Standards for Accessible Design, Sec.36.403 Alterations: Path of travel. ADA guidelines typically supersede a state or local building code, unless the code provides for greater or equal protection of individuals with disabilities.

I would also like to add that it’s not commonly understood that new construction can trigger the ADA. One fear of owners is that when attempting to ‘do the right thing’ one can sometimes be dragged by construction law into doing more than the minimum, especially in how the ADA influences the building code. (Many code officials we’ve spoke with don’t realize that the ADA trigger is there).

Now you’ll also get many savvy attorneys and architects that will claim that ‘legally non-conforming’ situations do not require any kind of addressing. They rightly understand that not touching existing items won’t trigger ADA compliance — but this leads to even deeper problems.

At first, their advice sounds great, as owners don’t want to hear that they need to do anything. But what these professionals don’t understand that if those ‘legally non-conforming’ structures pose fixable ADA violations, leaving those situations to persist will continually trigger even more ADA work. As time goes on, those non-compliant situations will accrue an increase in what needs to be remedied.

In other words, if you have a non-compliant ramp in your facility newly placed in 2003, and you don’t fix it right away, in 2010, not only will you be required to fix that ramp — you will also have 7 years of budget in which you could have fixed the ramp and didn’t. In court, a suing attorney will claim that what was financially remediable in 2 years is ‘easy’ over a 7 year period. That situation will look bad, as though you never intended to fix that ramp and that you are willfully discriminating.

We have heard this so often, as many owners have come to us having fallen into this situation, when they have the panic of court bearing down on them. Don’t let yourself fall into this situation! Get our exposure report so as to make informed decisions on what you are liable for so you can address it right away.

Questions? email us at help@ytaccess.com or call us at 866 982 3212.

CASp, the Certified Access Specialist Program offers a variety of benefits to businesses that get a CASp certification.  The advantages can be further gleamed from the California Chamber of Commerce website [link: Advantages of CASp for businesses].  The main advantages of CASp certification are many (including a 90 day stay and a limit of $4k per effected violation per visit).  Yet because CASp is California law and the ADA is Federal law, many business owners we’ve talked with are concerned about the effectiveness of SB1608. Business owners concerned about Federal Court sGuits often ask:

“Is CASp worth getting?”

A recent court case provides a real life example of this issue.  A business which had CASp certification was sued in Federal Court.  Now, Federal judges do not have to honor the California law, for instance, they do not have to  grant the 90 day stay.  This judge chose not to.

So, is CASp worth it?

Keep in mind that the differences between Federal and State court for ADA lawsuits are many.  We can’t go over these things exhaustively but we will outline the general principles at this current time.  Keep in mind that your case is unique and if you are under a lawsuit you must consult an attorney, don’t rely on this post for advice — this article is covering a topic.  We are not giving legal advice.

If you are sued in Federal Court, you have the possibility of fixing the issue in question in order to make the lawsuit go away.  Also, if you offer to settle and the plaintiff attorney refuses the settlement and you fix the issue, you may not have to pay for their attorneys fees (the judge may waive those damages).

In California Court, you fixing the issue in question doesn’t make the issue go away.  Violations valid at the time of the encounter remain violations for which damages under the Unruh Act automatically entitle the plaintiff party $4k.  Furthermore, the Unruh Act also specifies that attorneys fees will be paid.

So while CASp can’t provide coverage into areas of Federal law, it does provide some stronger incentives for plaintiffs to sue a CASp business under Federal Court.  If the plaintiff takes you to California court, CASp goes into effect, and you can go straight to arbitration.  However, they take you to Federal Court, you may still get arbitration… if you don’t, your fighting chances are better — you can STILL fix the issue in question and win the suit that way… an option we are told, is not available in California Court.

So overall, in answering the question above, the answer is:

YES!

Without CASp, a savvy plaintiff will take you to California Court, in which you will pay the same $4k plus attorney’s fees (potentially tens of thousands of dollars). With CASp you either pay $4k at most, or you can go to Federal court and have a chance at making the issue go away. Get CASp now to cover yourself!

Any questions or concerns?  Call us at 866 982 3212 or email us at help@ytaccess.com.

Much of the access tips available here: Accessible Accommodation Tips underscore the current fear that business owners have about their buildings not being ADA compliant.

ADA compliance goes far beyond walking through a building with a yardstick or a slope meter.

But even our lawmakers do not understand what’s at stake here.  If you’ve read this blog you should understand by now that the best way to avoid an ADA lawsuit is to become compliant.

What does this mean though, for a good or service to be compliant?  First the lawmakers:

The Bill in Maryland State Senate

Covered by the Maryland Reporter is an ongoing debate in the Maryland State Senate to provide an option for people who feel they have been discriminated against to be able to go to the Maryland Commission to seek injunctive relief rather than suing the place of business.

The state bill would be the first of its kind, if passed, but it would not remove the option for people to sue businesses under the ADA.  What’s the point?

Well, what’s interesting about this bill is that it assumes that the problems of the many ADA lawsuits stem from the lack of alternative channels for the disabled to complain about the business (if the business itself is unwilling to listen) without suing.   Of course, if the individuals suing are asking for money instead of injunctive relief, this bill won’t deter them.

But as an option it sounds good, except as the bulk of the article suggests by past individuals who fought against civil rights, more legislation isn’t really the key.  The root of the many ADA lawsuits don’t stem from a lack of alternate complaint — it’s the lack of compliance with the laws.

I have quoted a relevant portion below:

Several senators talked about lawsuits they knew about where disabled people and crafty attorneys tried to shut down or squeeze money out of establishments. Sen. David Brinkley, R – Frederick County, talked about county restaurants that had shut down because of onerous costs inflicted through lawsuits.

Sen. Allan Kittleman, R-Howard County, said that the lawsuits brought by people with disabilities are a serious issue, referencing a news article a few years old that detailed some of them filed in Maryland. He added that the concerns about discrimination – like the kind Kelley described – are real, even in this day and age. However, he said, anything that’s more onerous for businesses to deal with could be problematic.

“We all want access, but the concern some of us have is the greed for riches,” Kittleman said.

Several senators said that a study couldn’t do much to stop the kinds of lawsuits that were described by their colleagues. Laws are already on the books to try to stop frivolous lawsuits, they argued. Bill sponsor Sen. Lisa Gladden, D-Baltimore City, said the legislation just allows people who feel they were discriminated against to file complaints about it in the local courts closer to home.

“This bill is not new. It’s like moving the car from the driveway to the garage. You don’t change the car, and you don’t move houses,” Gladden said.

Peters’ amendment was rejected with a vote of 18-26.

Sen. Thomas “Mac” Middleton, D-Charles County, recalled that provisions to specifically give protections from false claims were included in a Medicaid bill a couple years ago. He proposed inserting an amendment to do the same thing to protect small businesses from lawsuits filed by disabled people and their lawyers. The bill will be considered further on Friday.

You can read more about it here: http://marylandreporter.com/2011/04/01/blog-discrimination-stories-frivolous-lawsuits-dominate-senate-debate/

This debate brings up a larger issue. There are politicians who side with businesses on this issue, seeking to narrow the scope of the ADA. (To read more about what the current expanded scope of the ADA is, turn here: The Equal Employment Opportunity Commission defines what a Disability is.)

The issue is that there just isn’t much ADA compliance in the public, period.

So what is the Point about ADA Compliance?

If you’ve been reading this blog for a while, even a little bit you’ve gleaned some understanding about what ADA compliance is about. Of course, if you are interested in ADA Tips and information on how to be compliant, I would invite you to go one of these links:

Accessible Accommodation Tips
Future ADA Seminars
Guest Articles

Otherwise you’re reading this column about awareness. And there’s much to be aware of and comply with.

The POINT of ADA COMPLIANCE is to provide equal access.  What’s on this blog is just the tip of the proverbial ice berg.

I do intend to keep posting more detailed information.  But to get started, we need some background.

For instance, suing places for their lack of physical ADA compliance is just a tip of the issue.

I’m not going to list all of the possible issues right now, but as a business becomes physically compliant, they still need to audit their own services in other to understand how they are not compliant in other ways.

For example, Senate Bill 3304 was passed last year in 2010.  You can take a look at the details here: Senate Bill 3304.  This bill highlights the need for communication to be provided for people with disabilities.  In other words, if you communicate anything to the public you’re probably assuming that they fit a certain mold, of being a certain age, speaking or reading a certain level of English comprehension… and are not either hearing or sight impaired.

Well, that’s changed.  Senate Bill 3304 is otherwise called 21st Century Communications and Video Accessibility Act, “COAT” has a long list of areas that need to be both closed captioned or available on hearing-impaired or seeing-impaired devices.  I have quoted the entire list of the different sections for you below.

Title I – Communications Access

Section 101:  Definitions.

• Provides definitions for “advanced communications” (including interconnected and non-interconnected voice over Internet protocol (VoIP), electronic messaging, and interoperable video conferencing services); “consumer-generated media”; and “disability.”

Section 102:  Hearing aid compatibility.

• Requires telephones used with the Internet to be hearing aid compatible.

Section 103:  Relay services.

• Permits use of relay services to enable communication with anyone, not just between people with and without disabilities.  So, for example, a TTY user can use relay services to call a person who communicates in American Sign Language using a videophone.
• Requires Internet-based voice communication service providers to contribute to the Interstate Relay Service Fund.

Section 104:  Access to advanced communications services and equipment.

• Requires accessible advanced communications equipment and services, if achievable; and, if not achievable, then to make equipment and services compatible with devices commonly used by individuals with disabilities to achieve access, if achievable.
• Requires access to Internet services built-in to mobile telephone devices, like smart phones, if achievable.
• Defines “achievable” as reasonable effort or expense, as determined by the FCC.
• Improves enforcement; requires regular reports by the FCC to Congress; and requires an enforcement study by the Comptroller General.
• Adds recordkeeping obligations for equipment manufacturers and service providers.
• Requires a clearinghouse of information on accessible products and services, and public education and outreach.

Section 105:  Relay Services for Deaf-Blind Individuals.

• Allocates up to $10 million per year from the Interstate Relay Service Fund for equipment used by individuals who are deaf-blind.

Section 106:  Emergency Access Advisory Committee

• Establishes an Emergency Access Advisory Committee to recommend and for the FCC to adopt rules to achieve reliable and interoperable communications with future Internet-enabled emergency call centers.

Title II – Video Programming

Section 201:  Video Programming and Emergency Access Advisory Committee.

• Establishes a Video Programming and Emergency Access Advisory Committee to make recommendations about closed captioning, video description, accessible emergency information, user interfaces, and video programming guides and menus.

Section 202:  Video description and closed captioning.

Video Description

• After 1 year, restores FCC rules requiring 4 hours per week of video description on 9 television channels (top 4 broadcast networks and top 5 cable channels) in the top 25 most populated markets.
• After 2 years, requires FCC to report to Congress on video description.
• After 4 years, permits the FCC to increase video description to 7 hours per week on 9 television channels.
• After 6 years, requires the FCC to apply the video description requirements to the top 60 most populated markets (not just the top 25 most populated markets).
• After 9 years, requires the FCC to report to Congress on the need for additional markets to carry video description.
• After 10 years, permits the FCC to expand video description to 10 new markets annually to achieve 100 percent nationwide coverage.

Emergency Information

• Requires video programming owners, providers, and distributors to make emergency information accessible to individuals who are blind or have low vision.

Closed Captioning

• Requires captioned television programs to be captioned when delivered over the Internet.
• Requires the FCC to grant or deny requests for exemption from the closed captioning rules within 12 months.

Section 203:  Closed captioning decoder and video description capability.

• Requires devices designed to receive or play back video programming, using a picture screen of any size, to be capable of displaying closed captioning, delivering available video description, and making emergency information accessible to individuals who are blind or have low vision, except, devices with picture screens less than 13” must meet these requirements if achievable with reasonable effort or expense.
• Requires devices designed to record video programming (such as DVRs) to enable the rendering or pass through of closed captions, video description, and emergency information, so viewers can turn the closed captions and video description on/off when played back on a screen of any size.

Section 204:  User interfaces on digital apparatus.

• Requires devices designed to receive or play back video programming:

1. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision, if achievable;
2. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision through audio output;
3. to provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 205:  Access to video programming guides and menus provided on navigation devices.

• Requires cable/satellite set-top box on-screen text menus and guides to be audibly accessible to individuals who are blind or have low vision, if achievable.
• To provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 206:  Definitions.

• Provides definitions for Advisory Committee, Chairman, Commission, emergency information, Internet protocol, navigation device, video description, and video programming.

In looking ahead, you can see that the future requirements are going to catch many many many businesses off guard.  It might be a few years before those businesses themselves get sued.  And then the need and demand for these communication devices, (be it mobile hearing aids, readers, screens, and so on) will go up.  Although right now many businesses probably don’t care, thinking such a cost extraneous.

You can see this original page here: COAT page on S. 3304.  Their page is a great resource on what some of these devices will be.

Some of the issues about disabled communication have already caught on.  I link two of them below.

More ADA Compliance issues (non-physical access)

Issue #1:  Vegas Airport SUED for their Kiosks

So you’d think large companies with their “Chief Compliance Officers” and their vast resources would be able to catch on and anticipate their customers’ needs and avoid lawsuits by now.

This isn’t the case.

In this article, you can read about how a Baltimore based Blind Group Sued the Las Vegas Airport over their Ticket Kiosks.  (from The Daily Record)

The point is that this airport offered ticket kiosks to their customers as a service so that their customers could get their tickets self-check in and be on their way quicker.  By not upgrading the software on the kiosks so as to include some kind of voice-communication, they were denying this service to the blind.

In the article, upgrading the kiosks could be somewhere between 2k- 30k each.

As an airport, their income is well into the millions, so this represents only a fraction of their budget.  You can be sure you’ll need to do that now, otherwise it could (and will) happen again.

Issue #2 FedEx Field SUED for not providing Closed Captioning for Music

Most business owners hearing this would probably think this is a ridiculous issue.  But if you read the article, you’ll see that this football field had been previously sued for not including closed captioning on their screens back in 2003.  Their protest was that closed captioning  ”would take up too much room on the screen” — which of course betrays their insensitivity and bias against those who do need it, lest they know not what’s going on.

So, seven years later and having installed the necessary equipment, you’d think the field would have learned their lesson.

What’s interesting about this case is that both sides are claiming that they are willing to cooperate but the other side was being difficult.  I quote the end of the article below so you can decide for yourself.

The court also agreed that song lyrics were an important part of the football experience, even though the plaintiffs had waited to raise that argument until filing summary judgment papers.

“By having access to the lyrics, plaintiffs have the opportunity to participate in the communal entertainment experience,” the court said in a 2-1 decision. “Without access to lyrics played, for example, during cheerleader dance routines and the halftime show, plaintiffs would not fully and equally experience the planned and synchronized promotional entertainment that large stadiums like FedEx Field provide.”

Washington Redskins General Counsel Dave Donovan said that his clients and the stadium owners already were complying with the decision. He said that they were providing, through e-mails, typed lyrics to songs performed by the cheerleaders. “Truth be told, this has only been about attorney’s fees. For years the plaintiffs’ firms managed to keep it alive,” Donovan said.

Joseph Espo, who represented the plaintiffs, said that his clients had tried to settle the case many times and that the attorney fees, which were in the “low six figures,” were a result of the defendants’ unwillingess to settle.

“It completely distorts reality to say that we are the ones who drove the fees,” Espo said. “The decision is a great day for deaf sports fans and reaffirms the obligation of the owners and operators of sports venues to make sure their product is accessible to all of their customers.”

Contact Leigh Jones at ljones@alm.com.

You can read more about how FedEx Field dealt with this lawsuit.  (From National Law Journal.)

Both articles underscores the need for places of public accommodation to understand their role in providing a consistency of availability to each and every of their customers to the best of their ability.

If you expect to take people’s money and provide them with an experience, a good or a service, you must best do your best to provide everyone equal access.

The ADA Compliance Takeaway

At this point, you should begin to understand what ‘accessiblity’ means.

This is a far cry from the standard ‘I can fit a wheelchair through my door therefore I am ADA compliant’.

ADA Compliance means that you’ve taken the time and effort to consider and provide equal access to each customer who comes through your door.  ADA Compliance means taking the time and money to hire ADA Experts and implemented the changes they’ve recommended, not just in terms of your physical site, but also how you do business and communicate with your customers.

You can start by checking out the California Relay Service so you can at least talk to customers on the phone whom you may have trouble understanding.  It’s a free service by the state of California available to have a communication assistant coordinate from text to speech, speech to speech, speech to text, and so on.  Please take a look, and train your receptionist on it too!

For additional questions and comments, you can email me at help@ytaccess.com or call 866 982 3212.

The majority of lawsuits arising from ADA violations are aimed at smaller businesses.  Many of those lawsuits hurt businesses as the steep cost of defending those lawsuits for violations (which most likely are, strictly speaking, in fact violations) prompt potentially large settlements.  These settlements are usually at least $4,000.00 + attorneys fees.

Well, now there’s a new bill aimed at helping those small businesses.  This bills hopes to deter serial litigants from threatening small businesses for items which are readily achievable.  Will this bill pass? It’s labled H.R. 881.

March 7, 2011 (San Diego’s East County) — Congressman Duncan Hunter (R-El Cajon) recently introduced legislation aimed at curtailing what he views as frivolous lawsuits against small businesses that are allegedly in violation of the Americans with Disabilities Act (ADA). The bill, entitled the ADA Notification Act, would provide businesses accused of an ADA violation with a 90-day grace period to make necessary modifications.

“It’s bad enough that small businesses are facing enormous challenges due to the current economic downturn,” Rep. Hunter said in a press release. “What they don’t need to contend with are any other unnecessary obstacles that impede growth and competitiveness. But that’s exactly what’s happening in San Diego with predatory ADA lawsuits.”

Our thoughts on this proposed legislation is that yes, businesses should become compliant, they should at least fix the items which are readily achievable (which is a classification of items relatively inexpensive to fix — and also the class of ADA violations which are in fact the most sued over) and yes, businesses should absolutely understand what laws effect their bottom line.

But rather than introducing more government oversight and legislation, the key to compliance should be EDUCATION not legislation.

Will this 90 day grace period prompt a business to fix the items in question properly?

Will a 90 day grace period be long enough for a business to find, qualify and hire a contractor to properly install items like grab bars, signage, restroom amenities and parking striping?

The area of law surrounding the ADA have multiple requirements. It’s possible that hiring any contractor will not only the business MORE LIABLE but also leave the contractor liable as well.

That would be a disastrous waste of resources and funds!

Yes, it’s as I’ve been writing all along. Education and then proper action towards ADA COMPLIANCE is the only way to avoid lawsuits.

If you have any questions about the particulars of YOUR ADA COMPLIANCE best email us at help@ytaccess.com or call 866 982 3212.

You can read more about this by clicking the link below.
Read from East County via Overlawyered.Com and CJAC.

As promised, the Department of Justice has posted an ADA Primer for Small Businesses.

This document explains many of the confusing requirements that the ADA has in addition to building code like requirements.  Basically, the safe harbor for older ADA compliance with 1990 standards is an option for businesses wanting to comply with the ADA up until March 15, 2012.  The safe harbor applies to elements on a case by case basis.

After March 15, 2012 businesses WILL NO LONGER HAVE THE OPTION as to which standard they want to comply to.  So if an older standard is easier to achieve, that option will no longer be available after March 15, 2012.  You will have to comply with the 2010 ADA standards.

If you’ve been following us on this blog or if you have been to one of our ADA Seminars on ADA Compliance then you understand that the majority of places of public accommodation are in fact not compliant with even the older ADA 1990 standards.

In  many cases, older standards can be more stringent.  For example, the ADA of 2010 allows some tolerances for the centerline position of toilets.  If you are in California, this might make a difference, or it might not as the California Building Code still applies.

Many of the issues in the PDF affect issues of policy, for instance

• Braille Menus or readers must be required
• Service Animals are now defined solely as Dogs (except in one particular case, miniature horses)
• Communication with Customers must be readily available in NON-Verbal Exchanges

These are the main requirements.  As always, readily achievable barrier removal must be performed whenever possible.  A few examples of these include

• Lowered Counters
• Clear floor space underneath controls
• Steps at the Main Entrance
• Installing Amenities and Grab bars in the Restrooms
• Many Parking Accessibility Issues

We will example some of these in details in later articles.  For now, though you should look at the PDF.  Also be aware that the safe harbor does not apply in cases like

• Accessible Showers
• Saunas
• Residential Facilities
• Play Areas
• Swimming Pools

There are many more requirements, but if you are an average business owner than you are probably not effected by these.

For now though, this ends the summation of this guide.  The link again, is here: http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm#policies

As always if you have any comments, questions or concerns feel free to call us at 866 982 3212 x1 or email us at help@ytaccess.com

This following is quoted from the Department of Justice in Full from here:

http://www.justice.gov/opa/pr/2011/March/11-crt-324.html

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Monday, March 14, 2011

Justice Department’s New ADA Rules Go into Effect on March 15, 2011

WASHINGTON – Revised regulations implementing the Americans with Disabilities Act (ADA) will take effect tomorrow, March 15, 2011, the Department of Justice announced.   The revised rules are the department’s first major revision of its guidance on accessibility in 20 years.

 

The regulations apply to the activities of more than 80,000 units of state and local government and more than seven million places of public accommodation, including stores, restaurants, shopping malls, libraries, museums, sporting arenas, movie theaters, doctors’ and dentists’ offices, hotels, jails and prisons, polling places, and emergency preparedness shelters.   The rules were signed by Attorney General Eric Holder on July 23, 2010, and the official text was published in the Federal Register on September 15, 2010.

 

The department is also releasing a new document, “ADA Update: A Primer for Small Business,” to help small businesses understand the new and updated accessibility requirements.   In addition, the department is announcing the release of a new publication explaining when the various provisions of its amended regulations will take effect.   Both documents will be available tomorrow on the department’s ADA website, www.ada.gov .

 

“The new rules usher in a new day for the more than 50 million individuals with disabilities in this country,” said Thomas E. Perez, Assistant Attorney General for Civil Rights.   “The rules will expand accessibility in a number of areas and, for the first time, provide detailed guidance on how to make recreation facilities, including parks and swimming pools, accessible.”

 

The new ADA rules adopt the 2010 ADA Standards for Accessible Design, which have been retooled to be more user-friendly for building code officials, builders, and architects, and have been harmonized with state and local accessibility codes.   The 2010 standards also include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities. Entities covered by the ADA have until March 15, 2012 to comply with the 2010 Standards.   In addition to adopting the new ADA 2010 Standards, the amended regulations contain many new or expanded provisions on general nondiscrimination policies, including the use of service animals, the use of wheelchairs and other power-driven mobility devices, selling tickets for wheelchair-accessible seating at sports and performance venues, reserving and guaranteeing accessible rooms at hotels, providing interpreter services through video conferencing, and the effect of the new regulations on existing facilities.   The compliance date for the all the new nondiscrimination provisions, except for those on hotel reservations, is March 15, 2011.   Compliance with the hotel reservation provisions is not required until March 15, 2012.

 

“ADA Update” and “ADA 2010 Revised Requirements: Effective Date/Compliance Date” are the first of several planned publications aimed at helping businesses, not-for-profit organizations, and state and local governments understand their obligations under the amended Title II and Title III regulations.   Individual print copies of the Effective Date/Compliance Date publication can be ordered from the ADA Information Line (800-514-0301 voice or 800-514-0383 TTY).

 

For more information about the ADA , call the Justice Department’s toll-free ADA Information Line at 800-514-0301 or 800-514-0383 (TTY), or access the department’s ADA website at www.ada.gov .

11-324

Civil Rights Division

http://www.justice.gov/opa/pr/2011/March/11-crt-324.html

How it effects you:

This deadline basically means that the additional requirements for ADA compliance extend into areas that were previously unregulated.

The DOJ intends to publish a small business guide tomorrow, so we will be posting that.  Further information will be available as events unravel.

We keep abreast of this stuff so you don’t have to!

For more information pertinent to Accessibility and the new ADA requirements today, you can look at the resources below:

• California CASp and SB 1608 and Accessibility
• Advanced Rulings for ADA Access for 2011
• Conflicts between State and Federal ADA Law in 2011

As always, call us if you have any questions or concerns about accessibility at 866 982 3212 x1 or email us at help@ytaccess.com

For those of you who don’t know, CASp stands for Certified Access Specialist. The short version of this history is that the California Senate passed a bill, SB 1608, which altered the nature of ADA compliance requirements for businesses.  This was an ambitious bill, pushed forward mainly by the California Chamber of Commerce.  SB 1608 has far reaching effects.  This article discusses some of the benefits of SB 1608 weighed against some of the added liabilities for business owners.

If you want a more detailed history of SB 1608, you can go to the California Chamber of Commerce ADA Reform page.  We’ve extracted some of the key points from their website, as they are quite broad of this lobbying effort.

I assume that you’re a business owner.  If you aren’t, then you’re probably either an attorney, a contractor or an architect (or an activist).  Either way, you’re interested in how SB 1608 impacts businesses, places of public accommodation as defined under Title 3 of the ADA.

Let’s start with the liabilities.  Understanding the benefits are less meaningful if you don’t know the liabilities.

I assume you’re already familiar with the responsibilities of ADA Compliance at your place of business. Basically, your business must work towards becoming 100% ADA Compliant.  There are a few things to consider in the course of this, like what kind of ADA inspection do you want to get, or when you will fix certain items.  Otherwise, the liabilities listed here are what CASp adds to your responsibility.  It’s important to note that ADA inspections are only the first step towards ADA Compliance.  An inspection, not even a CASp inpsection by itself, does ANYTHING to subtract from your duties to comply with the law.  What a complete ADA inspection does, is demonstrate good faith effort.  Inspections also are useful for contractors and architects who are not generally well versed in ADA compliance.

Liabilities of CASp Inspections

CASp and SB 1608 was passed only to protect businesses interested in ADA Compliance.  There are two main considerations.

1. A CASp inspection requires that a timeline be implemented as to when items are to be made in compliance.  There are no standard guidelines for how to assess this — as such a timeline is largely dependent on the financial resources of the entity in question.  This means that any CASp inspector needs to work with the entity in determining an accurate guide as to when items should be fixed.

If the timeline is too strict, the entity may fall behind fixing these items and in the case of an ADA lawsuit, the entity will look faulty.

If the timeline is too lax, in the case of an ADA lawsuit, the entity could have fixed certain times and remained needlessly liable for that time.

Remember the point of CASp is to become ADA compliant.  If you get a CASp Report and then do nothing, you will become more liable over time.  If you display the CASp certification, considering no one else has one, you’ll probably deter ADA lawsuits for a time.  After a time, having the CASp certification with obvious ADA violations will get you sued.  Then you’ll look extremely worse in court for not complying at all.

2.  CASp can be quite expensive, because of the added liabilities to the CASp Inspector in determining the timeline.  The average cost of CASp is $2400.

3. This is not a liability, but it is worth mentioning:  CASp goes into effect only if the site is sued AFTER getting a CASp inspection.  No protection is offered retroactively.

4. A CASp licensed individual is required to be included in building departments.  The original time line stated that such an individual was to be included as of July in 2010, but this date has been moved into 2014.  CASp is meant to bridge State Building Code and ADA guidelines, as most contractors and architects are not well versed in Federal Civil Code.  While having a CASp individual does not offer a significant benefit, as local ordnances only have jurisdiction over State law, not Federal Civil Law.  A CASp individual in the local building department is a resource to local businesses but as a state employee such an individual is limited to advising about the State regulations.  If you want the benefits of CASp, you’d still have to hire them outside of their normal building department job and pay them the required amount.

Advantages of CASp

The California Chamber of Commerce has listed 10 benefits of SB 1608 for businesses.  We have divided these benefits into two groups, for those who get CASp and everyone else.  This is the first section.

1.  Part of the fear of ADA compliance is the cost.  CASp helps a business focus on what they can pay for.  Remember, the timeline is there to help businesses comply within a reasonable time frame.  If a CASp inspector understands approximately how much a business can afford for ADA compliance per month, the cost of compliance can be spread out over time to achieve 100% ADA Compliance.

2.  CASp certification is offered for all sites, even if they are not yet compliant.  This certification can be posted on a store window to deter litigants looking for an easy target.

3. CASp tries to help businesses avoid expensive lawsuits.  To this end, CASp allows businesses to request a 90 day stay.  This means that opposing attorney can’t rack up expensive attorney fees during discovery, while you decide what to do (accept their settlement or not).

Benefits of SB 1608

The effects of SB 1608 offer several included benefits for business owners whether they get CASp inspected or not.

1. Litigating attorneys who demand money must also include a statement advising the business what their rights are.  So if you haven’t got CASp, you won’t be able to request the 90 day stay.

2.  SB 1608 limits the amount of the damages to $4,000 per visit.  Furthermore these damages must be related to the plaintiff and explained how they injure the plaintiff.  For example, having detectable warnings helps protect those who are legally blind.  Someone in a wheelchair probably won’t be able to sue for a lack of them.  Grab bars would effect such a plaintiff, however, so they will be able to make a complaint about that.

3. A clause is included in SB 1608 to help lessen the attorney’s fees in a settlement.

4. CASp individuals are going to be more common, at least loosely tied to local building deparments (see item #4 under liabilities of CASp).

5. Architects and contractors will be required to learn about the ADA as part of their continuing education so they can be at least aware of what they don’t know.

6. A State Commission is formed to help interface the Disabled Rights and interests of Building Departments.

7. Cal Chambers also lists “new deadlines” for State building code compliance with ADA requirements.  The Division State Architect was already doing this with the Department of Justice.  It’s important though, to have a codified process as the building code is updated every three years.  The ADA is also updated but less frequently.

Consequences of CASp and SB 1608

CalChambers does recognize the need for some coordination between advocacy groups and the interests of the status quo, but as a business organization, they tend to lean towards the interests of big business.  Much of what SB 1608 does is to help entities that have cash take advantage of SB 1608′s lowering of the cost of lawsuits.  Smaller businesses that do not have funds must rely on pressuring larger property management firms to help with the cost of ADA compliance.

It’s also important to note that CASp cannot stop lawsuits, they can only help make the process more difficult for litigants. One of the long term consequences of CASp is that as businesses get CASp certification, those who do not have it, or cannot afford it will face a steeper battle as they become easier targets for litigation.

Add onto this that the Unruh Civil Rights Act defines violations of the ADA as acts of discrimination — this verbage has not changed.  Intention is unimportant to this ruling, as proven in so many court cases.  Businesses that do not comply with the ADA regardless of getting CASp or not still carry the steep fines associated with acts of discrimination — $4,000.

This heavy responsibility is to be sure, mostly on businesses right now.  CalChambers and other business groups are bound to spread this liability to other responsible parties, such as architects, contractors and Real Estate Agents.  So it’s important that all responsible parties with an interest in a place of public accommodation help make their site ADA compliant,

ADA Reform however, is not finished.  Much of SB 1608 mentions benefits to business — offering little or no compensation for the rights of the disabled.  You can be sure there will be an increased effort of disabled advocates to have their say as well.

All this should be considered in getting an CASp inspection.  For a more of a fiscal view of how to balance these responsibilities with ADA compliance take a look here:

How to put a price tag on your liability.

If you’ve decided that getting an ADA compliance report is for you, congratulations.  Our ADA Consulting Services.

If you have questions or concerns call us at 866 982 3212 extension 1!  Or email us at help@ytaccess.com.  Our advice is always free.

Here is a great example of how the government regulations do not take into account the needs of those whom they are trying to protect.

As you may or may not know, Title III of the ADA effects places of public accommodation, basically businesses. For your average small business owner, this is too much information — no one running a small businesses has time to shift through this level of legal-ese. And yet they are effected because these regulations are for protecting the rights of your customers.

Basically the revised Title III states defines service animals as dogs. This ignores the fact that service animals do different things for people with disabilities — not just for the blind. For instance, with epileptics, service animals help their owners in time of seizure. They are trained for specific tasks. Here is a great link about this topic: Service Animals RE: Epilepsy. There has also been plenty of debate as to whether dogs are the best animal to service the blind.

In any case, this revision, for business owners, makes it easier for a business owner to spot whether someone has a ‘service animal’ or not. But it will cause consternation among disabled individuals with service animals who are not dogs — when they are denied entrance and probably bring about a few lawsuits between disabled individuals against businesses who deny them entrance. This is not a good thing. Eventually, this law will be revised again to have a broader scope than defining a service animal as a dog — simply because this definition is not effective. This will probably mean that businesses and organizations who learn about the original revision and change their policy will have to learn about the newer revision and CHANGE THEIR POLICY AGAIN.

It’s very possible that individuals in the government put this definition in place simply to 1) avoid further unfocused discussions as to what a service animal was 2) simply to have a revision in place which can later be re-tooled to be “on target”. In large organizations it’s often better to have an approximate policy in place to close the discussion than to go through the extra process of debate and risk losing having any policy at all. Eventually that kind of policy will be “cleaned up” through a more focused study with the framework of the approximate policy in place. Do any of you know what this kind of process is called? It’s something that I have observed happening but no one seems to be able to have a term for it.

In any case, since the revised Title III is long, for your ease, quoted below is the relevant text.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler´s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal´s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

You can glance further down and see that miniature horses were considered as service animals, there is a section about them. Nonetheless, comparing this text with the definition above, you can see how businesses can be confused by this contradiction or not understand in depth enough what a service animal is — prompting all kinds of hostile feelings, disagreements and lawsuits.

I have quoted the applicable text below, for your reading pleasure:

(c) Service animals.
(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(c)(2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal´s handler does not take effective action to control it; or
(ii) The animal is not housebroken.
(3) If an animal is properly excluded. If a public accommodation properly excludes a service animal under § 36.302(c)(2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.
(4) Animal under handler´s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal´s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler´s control (e.g., voice control, signals, or other effective means).
(5) Care or supervision. A public accommodation is not responsible for the care or supervision of a service animal.
(6) Inquiries. A public accommodation shall not ask about the nature or extent of a person´s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person´s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(7) Access to areas of a public accommodation. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
(8) Surcharges. A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
(9) Miniature horses.
(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(ii) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider –
(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse´s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(iii) Other requirements. Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses.

Before I end this post, there are two general questions businesses always ask us. 1). How do I know whether someone has a service animal has a service animal and 2) Can I charge them more for bringing this animal in?

The answer to both is NO: a business CANNOT ASK what kind of disability an individual has. You can ask what the animal does (emotional comfort does NOT a service animal MAKE!)

And NO, businesses cannot charge the individual with a disability MORE (even if you can charge pets more) because service animals are not pets. If the service animal causes damage, then the owner is responsible for paying for that damage.

You can look at the Title III’s full regulations here: Title III Revised Regulations. Being educated is the first step to any kind of compliance. Unfortunately, there are TONS of regulations. Thats why we are around, to help you become educated about what you need to know.

Starting the new year (2011) on the right foot is a great way to help set the tone for the new year.

So we at YTA have decided that the best way to do that is to help all you out there notice a few of the conflicts between State and Federal Law. The state in question, of course, is California.

Between the updated 2010 Federal requirements of disabled access under the ADA for all businesses serving the public and the updated 2010 California Building Code (CBC) there are a variety of common conflicts business owners should be aware of.  Some of the common conflicts include:

1. While the CBC never allows a maximum slope of over 8.33% (1:12) the ADA has allowances for steeper slopes if the slope rises less than 3 inches the maximum slope is 12.5% (1:8).  If the rise is 6 inches the maximum slope lowers to 10% (1:10).
2. Ramps runs under the CBC can only rise to a maximum of 30 inches per run but as the length of the ramp run increases, the maximum slope decreases.  E.g., a ramp run that is 465 inches long cannot have a slope greater than 6.67% (1:15).
3. The ADA always requires a clear floor space of 18 inches square directly under each door sign whereas the CBC only requires clear floor space based on the latch side clearances for each door.
4. The CBC requires that employee parking include parking spaces reserved for the disabled.  For the CBC, the total ratio of disabled parking spaces must include employee spaces.  The Advisory for the ADA states that employee parking lots are not required to be included in the required ratio of disabled parking.
5. The ADA allows the door closer to swing into the head clearance down to 78 inches.  The CBC does not allow the door closer to drop less than 80 inches.
6. While both the ADA and the CBC now have requirements for a maximum mirror height of 35 inches for mirrors not over sinks in restrooms, the ADA advisory states that the top edge of stand alone mirrors should be no less than 74 inches above the finished floor.
7. The CBC requires that disabled parking spaces reserved for vans should always have the access aisle on the passenger side (when the van is pulling forward).  The ADA allows the access aisle to be on either side of the space except when the parking space is angled.  Angled van parking spaces are required to have the access aisle on the passenger side.
8. Parking space signs for the CBC must be at least 80 inches above the parking grade when in the path of travel.  ADA parking signs must always be at least 60 inches above the parking grade.
9. For the ADA, grab bars in restrooms can be anywhere from 33 to 36 inches measured to the top above the finish floor.  In the CBC must be exactly 33 inches on center above the finished floor, unless you are using a tank toilet and the rear bar interferes with the tank’s lid.  If that’s the case then the CBC allows the rear bar to be anywhere from 33 to 36 inches on center.

These are just some of the conflicts between the CBC and the ADA.  Negotiating these code requirements requires intimate knowledge about both the INTENT of the law and the explicit details surrounding the requirements.  Hiring an experienced Access Consultant is a must!  Should you have any questions, please email Yours Truly Accessibility Corporation at  help@ytaccess.com or call us 866-982-3212 x 1.

Greetings all

The modification of the Department of Justice’s ADA for 2010 and the introduction of the new California Building Code of 2010 effective as of Jan 1, 2011 has given all of us a pause. But that’s our issue and not yours. Keeping on top of accessibility issues is a full time job, but that’s why we are here.

Of some interest to many of you may be forth coming issues with accessibility. The Department of Justice has been busy with new legislation seeking to more solidly define the scoping requirements for access for the disabled. This has been long in coming. People with special needs have special needs — and it’s hard for many of us, even those of us in the health industry to understand what it’s actually like to have needs different from your average patient. The health industry has been very slow to adapt to 21st century standards when it comes to providing adequate health care for the disabled. Often times, health care facilities may not have a gurney for disabled patients — those that do often don’t have staff who know how to use a gurney or how to treat a patient. This can endanger a patient’s life, making for an uncomfortable situation where a patient may find themselves in the hands of staff who don’t know how to treat them. No one wants to feel like they are a piece of meat, or to lose control over how or where they can be taken.

I write this by way of example. Here is a webpage: Notice of Advanced Hearings on Proposed Rulings.

On this page is covered are laws regarding Web Information and Services (what is to be accessible and how), standards for movie captioning for the deaf and video description for the blind, standards for future 9-1-1 issues and standards for the accessibility of equipment and furniture. This last one is especially important for business owners as items covered include:

Medical Equipment and Furniture

Electronic and Information Technology such as ticket kiosks
and point-of-sale devices

Beds in Accessible Guest Rooms and Sleeping Rooms

Exercise Equipment and Furniture

Accessible Golf Cars

Beds in Nursing Homes and Other Care Facilities

What’s significant about putting this online is that often you business owners out there, complain that you don’t get a say in these laws. They get passed and you don’t know about them or who decided these issues. I think many business owners think that a bunch of disabled people sit around with law makers and try and make trouble for business owners. This isn’t true, these discussions need to be balanced. Many disabled individuals are as much ‘in the dark’ as your common business administrator about these things. That’s why these discussions are public. Everyone involved needs to come to the table.

Here is your chance to be ‘in’ on the discussion. Take advantage of the transparency of government! We get blind-sighted by these things when we have tunnel vision in running our business. A business isn’t really about just offering a good or service, it’s about interfacing with society. How do you handle customers, how do you meet the needs of the public, how does the public come in and become a customer…

It’s so important to not forget: what your business means to others is as important as what others mean to your business.