Disclaimer Opinions Expressed Herein or Otherwise are those of the - PDF document

9/9/2016 Steven E. Gordon Assistant United States Attorney Civil Rights Enforcement Coordinator USAO Eastern District of Virginia 1 Disclaimer Opinions Expressed Herein or Otherwise are those of the Speaker and do not Necessarily Reflect the Views of the United States Department of Justice. 2 Overview Background on the ADA. 1. Entities covered by Title II and Title III of the ADA. 2. 3. Requirements common to Title II and Title III entities. 4. Unique requirements for Title II entities. 5. Discussion related to specific types of entities that are required to furnish auxiliary aids and services. 6. Ignorance is not a valid defense. 3 1

9/9/2016 Most Important ADA Resource: ADA.gov 4 Excellent Technical Assistance Publication on ADA.gov: “Effective Communication” 5 Congressional Findings Supporting Passage of ADA When the ADA was passed in 1990, Congress found, among other things: “[D]iscrimination against individuals with disabilities persists in such critical areas as . . . education . . . health services . . . and access to public services.” 42 U.S.C. § 12101 6 2

9/9/2016 Federal Government Statistics  The Census Bureau reports that approximately 56.7 million people living in the US had some kind of disability in 2010.  The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that one in eight people in the United States (13 percent, or 30 million) aged 12 or older has hearing loss in both ears, based on standard hearing examinations.  NIDCD reports that approximately 7.5 million people in the United States have trouble using their voices.  According to the Census Bureau, approximately 7.3 million individuals in the United States report significant vision loss. 7 Definition of Disability  A physical or mental impairment that substantially limits one or more major life activities ( e.g ., hearing, speaking, and seeing).  A record of such an impairment.  Being regarded as having such an impairment. 42 U.S.C. § 12102; 28 C.F.R. § 36.105 (see the new regulatory definition of disability adopted after ADA Amendments Act of 2008). 8 What Is Covered By ADA? The ADA prohibits discrimination and ensures equal opportunities for persons with disabilities in:  Employment (Title I)  State and local government services (Title II)  Public accommodations (Title III) 9 3

9/9/2016 Title II Covers Public Entities All state and local governmental entities are covered by Title II, including the following entities operated by state and local governments: 1) Educational institutions. 2) Courts. County Board and City Council meetings. 3) 4) Law enforcement agencies. 5) State and local social service agencies. 6) Health care providers operated by state and local governments. 7) Jails and correctional facilities. Websites affiliated with state and local agencies. 8) 10 Title III Covers Public Accommodations Title III covers a wide range of entities, such as: (1) Privately operated healthcare providers (e.g., hospitals and skilled nursing facilities). (2) Offices of an accountant or lawyer. (3) Private educational institutions. (4) Theaters. (5) Social service centers, including day care centers and adoption agencies. (6) Museums. 42 U.S.C. § 12181(7); 28 C.F.R. § 36.104. 11 Websites Operated by Public Accommodations Places of public accommodation must ensure that they don’t discriminate in their goods, services, accommodations, etc., including via their website. NAD v. Netflix (DOJ Statement of Interest) 12 4

9/9/2016 Effective Communication Regulations The effective communication requirements can be found in the following regulations: Title II: 28 C.F.R. §§ 35.104 (definitions) & 35.160-64 (Communications). Title III: 28 C.F.R. §§ 36.104 (definitions) & 36.303 (Auxiliary aids and services). 13 General Effective Communication Requirements  Covered entities are required to communicate effectively with people who have communication disabilities ( i.e., vision, hearing or speech). The goal is to ensure that individuals with disabilities receive equally effective communication to those who do not have a disability.  Covered entities are required to furnish auxiliary aids and services in order to ensure effective communication with individuals who have communication disabilities. 14 General Effective Communication Requirements  The key to communicating effectively is to consider the nature, length, complexity, and context of the communication and the person’s normal method(s) of communication.  Covered entities may not charge the individual with a disability any surcharge for furnishing auxiliary aids and services.  The rules apply to communicating with the person who is receiving the covered entity’s goods or services as well as with the person’s parent, spouse, or companion in appropriate circumstances. 15 5

9/9/2016 The ADA Regulations Broadly Define “Companion.” “‘[C]ompanion’ means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a [covered entity], who, along with such individual, is an appropriate person with whom the [covered entity] should communicate.” 28 C.F.R. § 36.303(c)(1)(ii); see also 28 C.F.R. § 35.160(a)(2) (similar definition under Title II). 16 Consultation Requirement An individualized assessment is important. One size does not fit all. To determine the type of auxiliary aid or service that will ensure effective communication, the covered entity should consult with the individual with a disability to determine their method of communication. Further, covered entities should consider the nature, duration and complexity of the communication. 28 C.F.R. § 36.303(c)(2)(ii); see also 28 C.F.R. § 35.160(a)(2). 17 Factors to Consider To Determine the Type of Auxiliary Aid for Effective Communication (1) What is the method of communication used by the individual? (e.g., ASL, signed English, oral interpreter) (2) How lengthy is the communication? (3) How complex is the communication? (4) What is the nature of the communication? 18 6

9/9/2016 Communication Request Form in DOJ ADA Settlements Are A Useful Tool To Obtain Individualized Information 19 Communication Request Form in ADA Settlements Are A Useful Form To Obtain Individualized Information 20 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who are deaf or hard of hearing , including: Real-time captioning (a.k.a., CART); CapTel Phones; Cued-speech interpreters; Assistive listening systems and devices; Telephone relay service; Hearing-aid compatible telephones; Videophones; and Sign language interpreters (ASL, signed English, etc.); 28 C.F.R. § 35.103; 28 C.F.R. § 36.303 (b). 21 7

9/9/2016 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who have speech disabilities , including: A qualified speech-to-speech transliterator (a person trained to recognize unclear speech and repeat it clearly), especially if the person will be speaking at length, such as giving testimony in court. A communication board. Allowing more time for communication. 22 The Auxiliary Aid Must Work For the Individual There are many types of auxiliary aids and services for individuals who have vision loss , including: Qualified reader; Information in large print, Braille, or electronically for use with a computer screen-reading program; and An audio recording of printed information. 23 Hearing Loss Later in Life Sign language interpreters are effective only for people who use sign language. Other methods of communication, such as the use of a transcriber may be necessary for those who lose hearing later in life and do not use sign language. 24 8

9/9/2016 Communication Access Realtime Translation (CART) 25 CART “Computer Assisted Real - Time Transcription (“CART”) Many people who are deaf or hard of hearing are not trained in either sign language or speech reading. CART is a service in which an operator types what is said into a computer that displays the typed words on a screen.” DOJ ADA Business Brief: Communicating with People who are Deaf or Hard of Hearing in Hospital Settings 26 Many Kinds of Assistive Listening Devices  PockeTalker  Hearing aid compatible telephones  TTY  New technology, including Captel phones 27 9

9/9/2016 PockeTalker (Used for hard of hearing patients who do not wear hearing aids or do not want to bring their hearing aids to the hospital, or hearing aid wearers with t-coils in their hearing aids if they use a neckloop.) 28 Captioning & Telecommunications  Information provided by video should be captioned  Televisions for patients in hospitals  TDD, if telephone is offered to others 29 Hearing aid compatible telephones and amplified telephones 30 10

9/9/2016 Captel Phone 31 Sign Language Is An Auxiliary Service A doctor uses sign language interpreter to communicate with a patient who is deaf. 32 Qualified Interpreter If an interpreter is required, a covered entity must furnish a “qualified interpreter.” 28 C.F.R. §§ 36.104 & 35.104. 33 11