Justice Department Reviewing ADA Compliance

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Risk of DOJ involvement over ADA noncompliance increasing

In a previous post, we discussed the increasing litigation being filed under the American with Disabilities Act (ADA). We introduced the fact that the Department of Justice (DOJ) has been targeting municipalities to review their compliance with the ADA.

Below are a few examples of those cases and why it is more important than ever for public entities to select the right consultant to help them develop the proper ADA Transition Plan.

DOJ Disability Rights

Today, city and county leaders, unaware that the ADA addresses more than just access to restrooms and doorway clearances, could be exposing their municipality to a Department of Justice review. According to Kristi Avalos, an accessibility expert and the president and CEO of Accessology, spending millions of dollars without achieving compliance adds to the risk of DOJ involvement. She points out that technology, emergency procedures, signage and hiring processes are among a myriad of areas the ADA also addresses.

ONLINE ACCESS AND TECHNOLOGY

A settlement agreement the DOJ reached with Galveston County, Texas required the county make physical modifications to county facilities to ensure that its parking, routes into buildings, entrances and public restrooms are accessible to persons with disabilities.

In addition, Galveston County agreed to provide effective communication for individuals who have hearing or visual disabilities; ensure that its emergency management procedures and policies include provisions for the evacuation of persons with disabilities; and, ensure that its emergency shelters are accessible to persons with disabilities.

Notably, this agreement also required that the county ensure that their official website and other web-based services conform to industry guidelines (the Web Content Accessibility Guidelines (WCAG) 2.0 ) for making web content accessible.

Universities are frequently the target of online access lawsuits filed under the ADA. In 2014, the University of Cincinnati and Youngstown State University , the University of Montana,Maricopa Community College District and Penn State University in 2013 entered into agreements with the US Department of Education Office of Civil Rights to bring their technology in compliance with the ADA.

In similar cases involving the use of technology in the classroom, the DOJ moved to intervene in a private lawsuit in May, alleging disability discrimination by Miami University in Oxford, Ohio.

In the Aleeha Dudley v. Miami University case, the United States alleged that Miami University violated Title II of the Americans with Disabilities Act (ADA) by requiring current and former students with disabilities to use inaccessible websites and learning management system software, and by providing the students with inaccessible course materials. The DOJ contended that Miami University used technologies that are inaccessible to current and former students who have vision, hearing or learning disabilities; that Miami University failed to ensure individuals with disabilities can interact with its websites and learning management systems and access course assignments, textbooks and graphical materials on an equal basis with students without disabilities.

Online access was also the subject of a 2013 settlement the DOJ reached with Louisiana Tech University and the Board of Supervisors for the University of Louisiana System to remedy alleged violations of the Americans with Disabilities Act (ADA). The settlement resolved allegations that the University violated the ADA by using a version of an online learning product that was inaccessible to a blind student.

According to the DOJ, the student’s lack of access to the course materials persisted nearly one month into the University quarter, at which point the student was so far behind in his coursework that he felt compelled to withdraw from the course. The settlement also resolved allegations that in a subsequent course, the same student was not provided accessible course materials for in-class discussion or exam preparation in a timely manner. Under the agreement, the university agreed to adopt a number of disability-related policies, including the requirement to deploy learning technology, web pages and course content that is accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard in the university setting. The university also agreed to make existing web pages and materials created since 2010 accessible and to train its instructors and administrators on the requirements of the ADA. In addition, a total of $23,543 in damages was secured by the University and board for the student.

Earlier this year, the National Association of the Deaf sued Harvard University and the Massachusetts Institute of Technology, which co-founded the open online course provider edX, for not captioning all the video lectures they provide. It reached a settlement with the U.S. Department of Justice in March.

In 2011, the Chronicle for Higher Education reported that with help from the National Federation of the Blind, two blind students at Florida State University sued the institution and it’s Board of Trustees for discrimination, arguing that a mathematics course at the university relied on e-learning systems that were not accessible to the disabled. They argued that the university was required under the Americans with Disabilities Act to make such classroom materials accessible or provide viable alternatives.

Accessibility issues in online courses are causing litigation to a host of Universities across the nation. In fact a 2010 survey of 183 colleges and universities, whose results were published in the Chronicle for Higher Education, found that one-third of respondents said responsibility for complying with the ADA rests with individual professors who teach online. Almost a quarter reported that responsibility falls to academic programs or departments. Only 16 percent said their college had a central office that reviews every course for compliance at that time.

DISABILITY A RISING ISSUE IN HIGHER EDUCATION

According to the Census 2000, almost 50 million people (about 19 percent of all Americans over age five) reported having a disability.

This stat comes from a study published in 2004 by The Institute for Higher Education Policy, which reported that among children and youth under age 21, the percentage receiving federally mandated education services for students with disabilities had steadily risen to 13 percent or 6 million students by 2000.

The percentage of students with disabilities who have completed high school increased from 61 percent in 1986 to 78 percent in 2001. These students increasingly graduate with standard diplomas and are academically qualified to attend higher education. About 9 percent of all undergraduates in higher education report having a disability, a percentage that has tripled in the last two decades. This amounts to about 1.3 million students, reported The Institute.

COLLEGE STADIUMS

Legal challenges have also been mounted against college sports stadiums if they are not in compliance with ADA standards. The cases range from access barriers in public restrooms to a failure offer captioning of announcements and commentary made over the public access systems.

Qualcomm_Jan_14_07

Sports facilities are also becoming a greater target of ADA lawsuits, ranging from access barriers in public restrooms to a failure to offer captioning of announcements and commentary made over the public access systems.

The Voice of San Diego has reported that the city of San Diego settled the lawsuit with disability rights activists to make Qualcomm Stadium fully accessible. The report noted that the city’s payouts were estimated to cost more than $5 million. In 2014, Southern University also settled a lawsuit over failure to accommodate disabled students, at various sports venues. According to The Advocate, the undisclosed settlement and required upgrades are expected to cost in the millions of dollars.

COUNTY BUILDINGS

Access issues centered on county buildings are a big target of the DOJ.

A 2013 DOJ compliance review of 11 county facilities in Stewart, Georgia required the county to correct accessibility barriers identified at the sheriff’s department, health department, senior center, municipal center and RV park, as well as several polling places.

The agreement also required the county conduct accessibility surveys at existing polling places and voter registration sites, as well as survey any potential new polling places. The county then agreed to make provisions for individuals with disabilities in its emergency management plans and procedures and increase the accessibility of its website. Other provisions addressed effective communication, grievance procedures, sidewalks, and domestic violence programs.

In a July 2015 settlement agreement reached by the DOJ, three counties in Illinois, California and Washington agreed to remove barriers to accessibility in buildings, such as government office buildings providing services to its citizens, courthouses, police or sheriff offices, jails, libraries, recreation centers, community centers, polling places, parks and fairgrounds.

The agreements also required the counties:

  • make physical modifications to facilities so that parking, routes into the buildings, entrances, public telephones, restrooms, service counters and drinking fountains are accessible to people with disabilities, as well as make sure that assembly areas have the required wheelchair and companion seating;
  • post, publish and distribute a notice to inform members of the public of the provisions of Title II and their applicability to the municipalities’ programs, services and activities;
  • train staff in using their state relay service for telephone communications;
  • develop a method for providing emergency management policies and procedures for persons with disabilities, including preparation, notification, response and clean-up;
  • develop a method for providing information for interested persons with disabilities concerning the existence and location of the municipalities’ accessible services, activities and programs;
  • establish, implement and post online a policy that their web pages be accessible, create a process for implementation and ensure that all new and modified web pages are accessible; and
  • implement a plan for the accessibility of sidewalks and curb cuts within their borders.

SIDEWALKS

Sidewalks and parking lots are often overlooked as municipalities review their compliance under the ADA.

In September, a settlement was reached with Cedar Rapids, Iowa to install, repair or replace thousands of sidewalks and curb ramps throughout the city to bring them into compliance with current ADA standards. The case stemmed from a citizen who used a walker and encountered problems with the entrance door to a parking pay system in a municipal lot. She also encountered several accessibility issues with sidewalks and entrances to city facilities. Cedar Rapids agreed to ensure that its city parking lots and toilet rooms are accessible to persons with disabilities and to enhance accessibility throughout the city’s park system.

Assistant City Manager Sandi Fowler told the Gazette that the city had its consultants sit down with the DOJ architects to go over design plans for the city’s new buildings and the renovations of existing ones.

We wanted our architects to know that it’s not if the Department of Justice looks at your buildings, but when,” she said.

PUBLIC TRANSPORTATION

In March, a city’s public transportation system was the subject of a DOJ motion to extend a settlement under the Americans with Disabilities Act (ADA) with the city of Jackson, Mississippi. The original lawsuit challenged inaccessibility in Jackson’s public transportation system, and was filed by 11 residents of Jackson with disabilities and two non-profit organizations that work on behalf of people with disabilities.

SERVICE ANIMALS

In June of 2014, a New Jersey school district was ordered to adopt service animal polices and pay a fine due to violations under Title II of the Americans with Disabilities Act. The agreement resolved allegations that the Delran Township School District violated the ADA by refusing to allow a student with autism and encephalopathy to have his service dog in school or at school-related activities. Under the agreement, the school district was ordered to pay $10,000 to the family to compensate them for the harm they endured as a result of the school district’s actions. In addition, the school district agreed to adopt an ADA-compliant service animal policy and provide training to designated staff on the school district’s obligations under Title II of the ADA, including requirements related to service dogs.

In 2014, a federal lawsuit against the School Board of Broward County was filed by a mother alleging the district discriminated against her 6-year-old disabled son who had cerebral palsy by imposing too many barriers to bringing a service animal on campus. In January a decision by the court ruled that the school had discriminated against the child under violation of Title II of the Americans with Disabilities Act.

AIRPORTS

Cities are also under pressure to upgrade airports including new or renovated terminals to comply with the ADA civil rights guidelines.

ADA FAA

Under ADA’s section 504, the Federal Aviation Administration (FAA) has now implemented the Airport Disability Compliance program, which seeks to prevent discrimination on the basis of disability throughout American airports. Section 504 prohibits public entities who receive financial assistance from the federal government from discriminating on the basis of disability. The FAA program assures that travelers with disabilities have access to the activities, programs, and services that an airport provides to all travelers and raises awareness of accessible air travel for people with disabilities.

Last year, advocates for the disabled and elderly settled a lawsuit against Detroit Metropolitan Airport with an agreement to make it more convenient for the disabled and the elderly to get to the terminal from public buses and vans. The Wayne County Airport Authority settled the lawsuit after it relocated pickup and drop-off location for shuttles at Detroit Metropolitan Airport. Michael Harris, one of the two plaintiffs in the case who is involved with the Michigan Paralyzed Veterans of America, told the Detroit News, it was a “win-win for everyone involved.”

Harris added, “We’re really getting what we wanted to get. We’re getting an airport that people will be able to access in a safe environment. I believe it’s a win for (the airport) because the traveling public, able and disabled, will have an enjoyable flying experience. Both sides were willing to compromise and at the end of the day we have outcome that both sides can live with.”

In 2012, a disability rights advocate filed a class action lawsuit on behalf of an independent living center alleging that the County of Sacramento discriminated against people with disabilities due to violations of the ADA found at Sacramento International Airport in what was then a newly constructed $1 billion terminal.

Violations listed in the lawsuit included:

  • ticket and gate counters too high;
  • a lack of wheelchair accessible seating throughout the terminal; and
  • extremely heavy bathroom doors that required difficulty to open or the assistance from others.

The lawsuit also claimed that other barriers created unsafe and dangerous conditions such as the lack of curb cuts at the unloading passenger zone, which force wheelchair and scooter users to travel in the path of vehicular traffic, and inadequate emergency evacuation procedures for travelers with disabilities.

Over the years it has become more than evident the disabled community as well as the Department of Justice are taking the American with Disabilities Act seriously. Enforcement of the ADA is now at its peak and it is incumbent on private as well as public entities to work towards full compliance. Doing so benefits the disabled community and ensures protections against expensive litigation.

(NOTE: If you would like assistance reviewing your compliance under the ADA, or need consultation on accessibility related issues, contact Accessology at 972-434-0068 or visit the website here http://accessology.com/ )