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HomeMy WebLinkAboutRequest 18.1The Maltese Falcon: An ADA Detective’s Guide to Compliance Presented by Disability Access Consultants (DAC) 800-743-7067 Successful ADA Detectives Successful “ADA detectives” do their homework. Five (5) Overall Requirements for Success 1.General knowledge of accessibility requirements for public entities 2.Application of accessibility standards and regulations 3.Planning and collaboration 4.On-going documentation 5.Regularly scheduled updates Key Skills – ADA Detective (Coordinator) Communicate the identity and role of the ADA Coordinator to staff and the “value” of ADA compliance for the public entityCommunicate Enhance interdepartmental coordinationCoordinate Encourage collaboration and solution-oriented relationshipsCollaborate Communicate and collect input from the public and organizations that provide services for persons with disabilities Collect input Strategies for Accessibility Prepare and Plan for the “Expected” and Expect the “Unexpected” Overall knowledge of your organization Review your organizational chart Primary responsibilities of departments and divisions How departments communicate and collaborate Regularly scheduled meetings and committees Post, notice and communicate the identity of the ADA Coordinator and contact information Specific Compliance Topics ❑ADA Coordinator ❑ADA Notice of Rights Afforded to Persons with Disabilities ❑Complaint and Grievance Policies ❑Statements of Accommodations ❑ADA Self-evaluation and Transition Plan ❑Review and update policies Confirm and Review Policies ✓Service animals ✓Website accessibility ✓Accessible fonts and publications ✓Emergency procedures ✓Communicating with persons with disabilities ✓Other power-driven mobility devices (OPDMD) ✓Special events ✓Facility and public right-of-way compliance ✓Audits – Caltrans and HUD Review and Update Policies Perform an updated review of policies and procedures to ensure that none are discriminatory regarding providing programs and services to persons with disabilities Review your ADA Self-evaluation and Transition Plan If you don’t have an updated ADA Self-evaluation and Transition Plan, secure one as soon as possible ADA Coordinator Job Description The ADA Coordinator is primarily responsible for the coordination of programs, services, activities, and facilities of the public entity to ensure that they are accessible and usable by all individuals. Required by the Americans with Disabilities Act (ADA) and Section 504 of the 1973 Rehabilitation Act and other state and federal accessibility requirements. ADA Coordinator Section 35.150 of the ADA requires a designated responsible person to oversee and implement the plan Identify or confirm the name and contact information of the ADA Coordinator. Frequently referred to as the “ADA Coordinator” or the ADA Compliance Officer. Identity of the ADA Coordinator posted using multiple methods Understand the key roles and responsibilities of the ADA Coordinator The designated responsible person typically has other job responsibilities in addition to the ADA The ADA Coordinator may also be the Section 504 Coordinator ADA Coordinator ADA Coordinator identified and information noticed and posted for members of the public and staff Understand the accessibility requirements and the role of the ADA Coordinator for public entities to comply with accessibility laws, standards and regulations. Provide job functions of the ADA Coordinator and disseminate information to departments, divisions and public entity staff Where to go for more information or information regarding specific situations ADA Notice of Rights Afforded to Persons with Disabilities Develop and post an ADA notice of rights afforded to persons with disabilities Disseminate information using a variety of methods: Website Hard copy postings in conspicuous locations Selected high-use publications Complaint and Grievance Procedures Complaint or grievance procedures and forms available to the public and staff for complaints regarding accessibility to facilities, programs, services, events, policies or procedures Use multiple methods to provide information Respond in a timely manner, as indicated in the policy and procedures Track the resolution of complaints Include a “statement of accommodations” on public notices to provide for an opportunity for equal access for persons with disabilities. The accommodation for a qualified individual with a disability, for example, may include accommodations such as an interpreter, assistive listening device, or an alternate format. Statement of Accommodations Statement of Accommodations Accommodations Statement - Sample If you are a person with a disability and need an accommodation to participate in City of Sample programs, services, activities and meetings, contact (add name, address, phone number and email address ) at least 48 hours in advance to request an auxiliary aid or accommodation. Definition of Disability Definition of “disability” is broad: “Substantially Limits” one or more “major life activities” Record of such an impairment; Or Regarded as having the impairment Definition of Disability Expanded under the ADA Amendments Act of 2008 Broader definition (a few examples) Aids, alcoholism, asthma, blindness, cancer, depression, diabetes, epilepsy, hearing or speech impairments, heart disease, migraine headaches, multiple sclerosis, muscular dystrophy, paralysis, complications from pregnancy, thyroid gland disorders, tuberculosis, etc. etc. Terminology Emphasize the person, not the disability Use the term disability instead of the term handicapped Avoid using outdated or negative terms When writing or speaking about people with disabilities, it is important to put the person first. Group designations such as "the blind," "the retarded" or "the disabled" are inappropriate because they do not reflect the individuality, equality or dignity of people with disabilities. Affirmative Phrases Negative Phrases person with an intellectual, cognitive, developmental disability retarded; mentally defective person who is blind person who is visually impaired the blind person with a disability the disabled; handicapped person who is deaf the deaf; deaf and dumb person who is hard of hearing suffers a hearing loss person who has multiple sclerosis afflicted by MS person with cerebral palsy CP victim person who uses a wheelchair confined or restricted to a wheelchair; wheelchair bound person who has muscular dystrophy stricken by MD person with a physical disability crippled; lame; deformed unable to speak, uses synthetic speech dumb; mute person with psychiatric disability crazy; nuts Accessibility Laws, Regulations and Standards Accessibility Laws and Standards Acquire a general understanding of accessibility laws and standards that apply in California Federal standards, such as the ADA, may not be the same in California The ADA requires “at least” the ADA standard to apply at a minimum If a state has a standard that requires a more accessible standard, then the state standard applies (for example, a 36-inch width of sidewalks is required federally, and California requires a minimum of 48 inches) Laws, Regulations and Standards ➢Americans with Disabilities Act, Title II Regulations: Nondiscrimination on the Basis of Disability in State and Local Government Services ➢Americans with Disabilities Act, Title III Regulations: Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities ➢ADA 2010 Standards ➢ADA Amendments Act of 2009 Disability Rights Laws-Federal •Americans with Disabilities Act (Public Law 101-336) •Civil Rights of Institutional Persons Act •Individuals with Disabilities Education Act •Section 504 of the Rehabilitation Act •Architectural Barriers Act •Telecommunications Act •Fair Employment and Housing Act (FEHA) •National Voter Registration Act Section 504 Section 504 of the Rehabilitation Act of 1973 Similar requirements to the ADA Required for recipients of federal funding ADA Self-evaluation and Transition Plan meets the requirements of Section 504 Frequently known as 504 ADA Compared to 504 ADA A civil rights law that prohibits discrimination solely on the basis of disability in employment, programs, services and activities. 504 A civil rights law to prohibit discrimination on the basis of disability in programs and activities, public and private, that receive federal financial assistance. Disability Rights Laws - State California Building Code (CBC) California Access Law California Civil Codes California Civil Code Sections 54-55.2 California Government Code Sections 11135-11138 Unruh Civil Rights Act Federal or State Standards? Apply the standard that provides the greatest level of accessibility Standard applied can not be less than the federal standard California Building Code (CBC) has many accessibility standards that exceed or are greater than the federal standard, and thus CBC would apply ADA-Americans with Disabilities Act Civil Rights Law – Not only a building code Five Titles of the ADA: I Employment II State and Local Government III Public Accommodations IV Telecommunications V Miscellaneous Comparison of Standards Title II – 28 CFR part 35 Public entities City and County Governments Owned by the public Open to the public Title III – 28 CFR part 36 Public accommodations Privately owned Open to the public Legal Requirement Title II of the ADA – State and Local Governments Applies to public entities Required for federal and state funding Required by Federal Highway, Caltrans and HUD ADA required if 50 or more employees Section 504 required if 15 or more employees Accept federal fundings-required for all public entities EQUAL ACCESS ADA is access to Programs, Services and Activities No qualified individual with a disability shall be excluded from participation in, or denied access to programs, services and activities Title II of the ADA What is required? Access to programs, services and activities of the public entity, when viewed in their entirety Self-evaluation: Review of facilities, policies, procedures, programs, services and activities to determine if any are discriminatory Transition Plan: Identifies any physical barriers that may deny access to a person with a disability •Includes buildings, parks, recreational areas and public rights-of-way (sidewalks, curb ramps, intersections, street furniture, bus shelters) Opportunities for Input from the Public Input from individuals with disabilities, organizations that represent individuals with disabilities, stakeholders and other interested individuals Input from staff is helpful to assist with the development of the plan Public Input Required Public Input Process Many methods for public input: •Surveys –online and paper •Postings •Notice in Newspaper •Postings in Public Locations •Transition Plan Available for Input ADA Transition Plan: Public Input Opportunities for public input are required to provide feedback for the development of the plan per Title II of the ADA A public hearing is not required, but is one method for public input that may be appropriate in certain situations Many methods for public input •Surveys – online and paper •Postings •Notice in Newspaper •Postings in Public Locations •Transition Plan Available for Input Plan for removal of structural barriers that deny access to programs, services and activities Includes facilities, recreational areas and public rights-of-way •Finding of noncompliant item •Recommendation for removal of the barrier •Schedule for barrier removal (estimated date) •Designated responsible person or persons to oversee the implementation of the plan Transition Plan Requirements Why Do You Need a Transition Plan? A Requirement Under Title II of the ADA Need to know what is noncompliant to develop a “compliance plan” with implementation strategies How do you know what to fix if you don’t know what is noncompliant? Develop a plan and work your plan Documentation of compliance efforts Promotes good planning and cost-effective barrier removal Documents good faith efforts to remove barriers Provides opportunities for access for all persons by removing barriers for persons with disabilities Four Transition Plan Requirements-Review Potential Barrier Identified Detailed description of why the item or element is noncompliant As-is condition (actual measurement) recorded to assist with decision- making by the City (how far is the deviation from compliance with the code) Description of the Proposed Method for Barrier Removal How to remove the barrier or alternative or use a programmatic option Projected “Schedule for Barrier Removal” Estimated timelines (can change as it is a working plan) Can remove easy, low-cost barriers immediately Designated Responsible Person to Oversee the Implementation of the Plan – known generally as the ADA Coordinator Sample Methods to Prioritize Accessibility Priority Levels may include: Funding, scheduled and planned public works projects, remodeling and renovations, complaints regarding accessibility, accommodations for persons with disabilities, staff input, public input, risk management issues, changes in budgets, litigation and prevalence of use by persons with disabilities. Some priority levels may overlap due to program accessibility needs or combination with another project. For example, a threshold that is too high may be related to the removal or remodeling of a doorway. What if I Currently Have a Transition Plan? Good news – even if it is not current, shows good faith effort Keep your prior plan as evidence of compliance efforts Recommended that plans be updated if work has not been completed as codes may have changed Keep your plans current and updated Web-based accessibility management software is recommended Sidewalks and Public Rights of Way Must be incorporated into the overall transition plan Solicit, receive and incorporate input from persons with disabilities A grinding or cutting program is not a transition plan but is a remedial measure to remove some of the accessibility barriers as a part of the overall transition plan. Required to add projected dates (estimated) for barrier removal into the transition plan. Sidewalks Width Cross Slope Running slope Changes in elevation greater than 1/4 inch and changes in elevation that are not beveled up to ½ inch Any obstructions in the sidewalk that obstruct or narrow the path of travel such as protruding objects and items that narrow the required width Street furniture Intersections Street furniture Crosswalks Pedestrian ramps-curb ramps; width, slope, side flares, grooved borders, truncated domes, alignment with the crosswalk Accessible pedestrian signals Traffic stop bars Comprehensive Assessment Barriers Identified in PROW Barriers in the Public Right-of-Way (PROW) must be identified in the transition plan. Technical infeasibility Technical infeasibility: An alteration of a building or a facility, that has little likelihood of being accomplished because: ❑The existing structural conditions require the removal or alteration of a load- bearing member that is an essential part of the structural frame, ❑Or because other existing physical or site constraints prohibit modification or addition of elements, spaces or features that are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility. Document on a case-by-case basis Alterations A change or modification in construction, change in occupancy or use, or structural repair to an existing building or facility. Examples of alterations include, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or changes to mechanical and electrical systems are not alterations Safe Harbor If an accessible item or element was constructed under a prior accessibility standard AND met the accessibility standards at the time, it does not need to be updated or changed to meet the current standard. If the area is altered, new accessibility standards may apply. Key: must be compliant with the code at the time of construction. Landlord-Tenant Responsibility Who is responsible for ADA Compliance? Owned by Title II Public Entity and leased to Title III (privately owned but open to the public) Owned by Title III (private ownership) but leased by the public entity. Joint Use Agreements Review lease agreements Maintenance of Accessible Features 35.133 Is the accessible feature – ISA (International Symbol of Accessibility) being maintained? Maintenance of Accessible Features Don’t forget maintenance items: Door pressures Barriers in the path of travel Shrubs, tree roots, trash cans, displays Parking Signage Low Cost Compliance Items Maintenance of Accessible Features Pipes Wrapped Under Lavatory Door Stops & Pressure Door Pressure Door Stops Bottom 10 inches clear Signage Incomplete Signage Wording Directional Signage Paths of Travel Trim Bushes & Wheel Stops No Backing-In Policy Leased Sites The City must provide access to programs, services and activities even if the City does not own the site and has leased the site. If the City leases a facility or a portion of a site that they own to organizations or private businesses, the City must ensure that the site meets the accessibility requirements of the ADA and California Building Code. Review language in lease agreements. Special Events Site plan should show all accessible elements. Provide information regarding accessibility on your website. Provide access to accessible restrooms, if provided. Paths of travel & signage designating routes. Assistive listening devices Review agreements for special events (golf tournaments, car shows, chili cook-offs, surf events, etc.) Emergency Management Planning and preparedness Evacuation Shelters-Accessible Medical and social services Lodging and housing programs Contracts with other entities Volunteers Understanding of nondiscriminatory practices Staff development ADA Requirements General Understanding of the ADA Terminology Assisting Persons with Disabilities Effective Communication Ensure that communications with applicants, participants and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids ad services when necessary Provide information in accessible fonts and formats Provide direct access via TTY (text telephone) or computer-to- telephone emergency services To provide signage at all inaccessible entrances to each of its facilities directing users to an accessible entrance or to information about accessible facilities Effective Communication Interpreters Video Remote Interpreters Note Takers Real-Time computer-aided transcription services Written materials Assistive Listening Devices and Systems Videotext displays Readers & Magnification Braille Large Print Signing Guide Web Content Accessibility Guidelines Web Content Accessibility Guidelines (WCAG) The current minimum standard for Title II entities is WCAG 2.0 Level AA but will soon be WCAG 2.1 Level AA. In April of 2024, the Attorney General signed a final rule for accessibility of web content and mobile apps provided by state and local governments Enforcement dates: ◼April 24, 2026 for population of 50K+ ◼April 26, 2027 for population of <50K Web Content Accessibility Guidelines Having a compliant website protects you from website complaints and potential litigation. Your entities website is one of the core programs offered to the public. A quote from one settlement agreement: “Accessible” means that individuals with disabilities are able to independently acquire the same information, engage in the same interactions, and enjoy the same services within the same timeframe as individuals without disabilities, with substantially equivalent ease of use.” Service Animals What is a Service Animal? As of March 15, 2011, only dogs are recognized as service animals under Title II and Title III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability. Must permit service animals to accompany people with disabilities in public areas Service Animals What questions can I ask? 1.Is the animal required because of a disability? Work or tasks performed must be related to the disability 2.What task or service has the animal been trained to do? Exception: Animals behavior poses a risk to others Under the owner’s control –usually tethered, except when performing tasks under the owner’s control Do not ask the person about their disability. Possible Service Animal Tasks •Steady the person (dogs & miniature horses) and provide other physical support and assistance with balance and stability •Assist individuals who are blind or have low vision with navigation and other tasks •Alert individual regarding low blood sugar •Alert individuals who are deaf or hard of hearing to the presence of people, sounds, doorbells or alarms Methods to Minimize Litigation Litigation and Enforcement Why comply? Without the required ADA self-evaluation and transition plan, the public entity would not have met the requirement under Title II of the ADA. The public entity is a recipient of federal and state funds. Lack of the required self-evaluation may jeopardize funding and may impact insurance coverage. Lack of a plan places the public entity in a harder to defend position. More likely to be a target for litigation. $$$$ Lost Due to Litigation ✓Public entities are spending much needed funds for legal fees ✓Staff are having to divert limited time and resources to prepare and collect documents during discovery requests ✓Depositions by Staff ✓Preparation for trial ✓Consent decrees and tolling agreements ✓Required to complete a plan ✓Monitoring by Plaintiff and dollars paid Minimizing Your Risk of Litigation Importance of training for staff to reduce the probability of accessibility complaints and litigation “Enhancing” your Risk of Litigation Staff Development Enforcement Activities FHWA •ADA/504 Transition Plan upload requested in October 2023 from all California public entities Caltrans •Annual Exhibit 9-C: Local Agency Americans with Disabilities Act (ADA) Annual Certification Form - due June 30 annually •Potential onsite meetings for select public entities HUD •Section 504 – self-evaluation required for recipients of CDBG funds Department of Justice (DOJ), Caltrans or HUD arriving to discuss your compliance efforts! 10 Compliance Steps ADA Compliance Step 1: Understand the ADA Civil Rights Law –July 26, 1990 ADA Amendments Act of 2009 Prohibits discrimination based on disability Access to Programs, Services, Activities & Special Events ◼City, County, other Public Entity ◼Sponsored by the Public Entity Persons with Disabilities Physical, cognitive, visual, hearing, sensory Step 2: ADA Coordinator The ADA Coordinator: •Is the designated responsible person to oversee, monitor and implement the ADA Self-Evaluation and Transition •Is who the public and stakeholders may contact regarding questions, concerns and complaints •Serve as the point of contact for complaints related to discrimination regarding persons with disabilities •Resolves complaints and grievances in a timely manner and documents resolution Step 3: Post Required Notices 1.Post the notice of rights and nondiscrimination 2.Post information about the public input process for your ADA Self-evaluation and Transition Plan (CJPIA Samples and the Department of Justice) Step 4: Develop your Plan? 1.Find out if you currently have an ADA Self-evaluation and Transition Plan a)When was it developed? b)Self-evaluation? c)Transition Plan? d)Is it current? Conduct Comprehensive Surveys Step 5: Review plan components Does your Self-evaluation review policies, procedures to determine if any are discriminatory or potentially discriminatory? Does your transition plan identify any potential physical barriers in detail and include the following: a)Noncompliant item or element b)Method or methods to remove the barrier c)Projected schedule for barrier removal d)Designated responsible person to oversee the plan Does your plan include all buildings, facilities, parks and public rights-of-way Step 6: Manage and your plan? Do you have a way to collect as-is field data, process data collected in accordance with applicable standards, and produce reports as needed in a transition plan? Can you print progress reports or document progress? Do you have a method to update your plan? Do you have a method to document corrections when they are made? Although not required, do you have a way to capture photos that are directly linked or adjacent to the findings and recommendations? Manage Survey Information Collaborative Approach ❑Recommended to get input from a small ADA working committee (ADA Implementation Committee) or workgroup with oversight knowledge of: ▪Planned construction, remodeling and renovations ▪Current complaints or concerns ▪Knowledge of accessibility standards and regulations Initial priorities from ADA Implementation Committee and public input included in the ADA Transition Plan Accessibility: Provide information regarding accessible features of the public entity: ▪Website ▪Pamphlets and documents ▪Accessible features for meetings and special events Implementing Your Plan Strategies for compliance ADA Compliance Team that is representative of oversight responsibilities Determine the “length” of your plan ➢High Use Public Areas ➢Complaints and Claims ➢Prevalence of Persons with Disabilities ➢Close to Code Requirement –small deviation from requirement ➢Safety: Tripping hazard, changes in elevation, protruding objects Step 7: ADA Training 1.Have you provided training to staff regarding the requirements and responsibilities of the ADA? 2.Do you have a plan for ongoing training? 3.Did you document the training you have provided? 4.Do you provide training for volunteers? Step 8: Incorporate Activities 1.Have you incorporated ADA compliance activities into day-to-day activities of your organization? 2.Have you reviewed product specifications for ADA compliance? For example, paper towel dispensers, lavatories, etc. 3.Have you reviewed design specifications for compliance? 4.What is the process and procedure to document ongoing compliance (maintenance of accessible features). Step 9: Accessibility Awareness 1.Have you increased your “accessibility awareness” of required accessible items and elements? a)Operation with a closed fist b)Round door handles c)Blocked paths of travel d)Protruding objects e)Tripping hazards 2.Who do you report the above nonaccessible items to? Step 10: Document Compliance 1.Do you monitor, track and document your compliance efforts? 2.Do you keep your plan current? 3.Who is responsible for keeping the plan current? Plan Barrier Removal & Document Progress ADA Transition Plan is ongoing “living-breathing” plan Successful ADA Compliance ADA Compliance can be achieved and sustained using the prescribed activities to understand ADA challenges and to develop strategies for compliance. Overall compliance strategies include: ▪General knowledge of accessibility requirements for public entities ▪Application of accessibility standards and regulations ▪Planning and collaboration ▪On-going documentation ▪Regularly scheduled updates California JPIA: Americans with Disabilities Act (ADA) Assistance Program Professional Services and Consulting ADA Self-Evaluation and Transition Plans ADA Coordinator and Accessibility Support Services Government enforcement support and communication ADA Training Financial Assistance For more information, please contact your California JPIA Risk Manager or Tim Mahoney at DAC. Disability Access Consultants (DAC) 800.743.7067 Tmahoney@dac-corp.com Thank You for inviting us to Share Challenges & Solutions