NCSU RRS ADA UPDATErrs.cnr.ncsu.edu/pdfs/NCSURRSADAUPDATE.pdf · ADA? Three part test… Health condition… Substantial effect… One or more major life areas… 11/8/13 3 MORE DEFINITION

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John N. McGovern, JD, President Recreation Accessibility Consultants LLC [email protected] 224/293-6451

TODAY…

Talk a bit about the past…

Talk about the newish title II…

Talk about enforcement trends…

Talk about the 2010 Standards for Accessible Design…

Talk about smart practices…

YOUR QUESTIONS ARE…

This isn’t just about opinions… Objective 1: Refresh your understanding Objective 2: Clear up new requirements Objective 3: Value smart practices Objective 4: Answer your questions

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REGULATIONS & STANDARDS

State or local government? Go to 28 CFR Part 35 Business or nonprofit open to the public? Go to 28 CFR Part 36 Minimum requirements for design and construction? See 2010 Standards for Accessible Design

THE PAST…GENERAL ISSUES

Effective for everyone in the room January 26, 1992… Federal civil rights law, catches up with the states… Applies to local government policies, programs, services, built or designed spaces, mass transit, and employment… Broadly defines disability…

WHO IS PROTECTED BY THE ADA?

Three part test… Health condition… Substantial effect… One or more major life areas…

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MORE DEFINITION ISSUES…

Had in the past a disability…

Perceived as…

Protections regarding coercion…

US Supreme Court…

HOW MANY PEOPLE WITH DISABILITIES IN

NORTH CAROLINA?

TOTAL NC population in 2011 is 9,543,100

Total population with disability is 1,265,400

65 and older estimated at 470,800 (38.1%)

Birth to 64 estimated at 794,600 9.6%)

MORE DEFINITION ISSUES…

Public policy conflicts?

Obesity?

Correction?

Think broadly regarding the definition!

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THE PAST…INCLUSION

Requires parks and recreation to be delivered in the most integrated setting (see 35.130)

Requires modifications by agency staff to support people with disabilities (see 35.150)

Requires notice on registration forms that invites people with disabilities (see 35.106)

Requires simple tasks like finger-prick test for kids with diabetes (see 35.130, 35.150)

MORE INCLUSION…

Is not enough to merely allow the person with a disability to register…see Burriola

Is not enough to allow participation, must conduct assessment…see Anderson

Cannot refer to another community for services and supports (see 35.130(b))

Think ahead regarding sign language interpreters (see 35.160(b))

THE PAST…SITES & FACILITIES Requires new design or construction to adhere to 2010 Standards (see 35.151(a))

Requires alterations to existing sites to make element altered accessible and create path of travel (see 35.151(b))

Imposes 35.150 “program access test” for existing local government sites…

First standards in 1991 did not include any requirements for recreation spaces…

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SAMPLE PROGRAM ACCESS TEST PLAYGROUND MAP

Playgrounds with changes recommended: Playgrounds with no change: Playgrounds currently accessible: Parks without Playgrounds:

PROGRAM ACCESS TEST FACTORS

Ease of retrofit

Agency resources

Dispersion All elements at one site, then move to next site…or an element at this site, another element at another site…

KEYS TO REMEMBER 35.150(A)(3) “…not necessarily every site…”

35.150(B)(2) concept of “safe harbor”

35.50(a)(2) historic sites, the SHPO, and the “…threaten or destroy” test

2010 Standards 106.5 Technically Infeasible: “…existing conditions…require…removal or altering load bearing member or…other physical or site constraints…”

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POINT #1: ENFORCEMENT HURTS!

US DOJ Project Civic Access knows parks and recreation

US Department of Interior has a backlog of parks and recreation complaints

Federal District Courts are learning parks and recreation

Local agency internal dispute process a great tool!

POINT #1 (CONTINUED)

In court or with DOI the losing local agency pays attorney’s fees and costs for their defense…and for the complainant… Trend is still in favor of person with a disability… Marriott decision…

Project Civic Access decisions…

POINT #2: INCLUSION GROWTH

ALL, not some programs, are open to registration by a person with a disability… PROCESS must include registration invite, assessment by a qualified employee, ad planning supports… SUPPORTS include: extra staff, changes to rules or policies, adaptive equipment, auxiliary aids or services, and more… RESOURCES must keep pace with inclusion demand…

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POINT #2 (CONTINUED)

For example… Agency with gross population of 220,000, in 1996 spent $30,000 on inclusion support for just over 30 inclusion placements… Same agency in 2007 spent $645,000 on inclusion support for just over 1,100 placements, including 3 FT staff… Has your agency already started asking for inclusion resources?

POINT #3: NEW TITLE II POLICIES

Service animals are redefined and can go anywhere pedestrians can go…

Must be housebroken…

Must be under control…

Staff can ask two questions…

Cannot require vest, inquire about owner disability, ask where training occurred…

TOMMY’S RETRIEVER FETCHES AND BRINGS ITEMS…WHAT IS THE WORK IT IS TRAINED TO DO, AND DOES IT RELATE TO HIS DISABILITY?

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POINT #3 (CONTINUED)

Power driven mobility devices not necessarily designed for people with disabilities must be allowed in parks and facilities when so used… Should establish a policy regarding same and carefully note rationale for any exclusions… Staff can ask two questions…

Reasonable and neutral safety rules are encouraged…

SEGWAY, HONDA, AND OTHERS MAKE THESE ELECTRONIC PERSONAL ASSISTIVE MOBILITY DEVICES (EPAMDS)… YOUR POLICY MUST ALSO ADDRESS PERSONAL GOLF CARS, RIDING MOWERS, AND OTHER DEVICES NOT ORIGINALLY INTENDED AS ACCESS TOOLS

POINT #4: NEW RULES

The new 2010 Standards for Accessible Design does address:

•  Playgrounds •  Sports courts and fields

•  Golf and miniature golf •  Boating and fishing areas

•  Swimming facilities •  Fitness facilities

•  Shooting ranges, and

•  Bowling alleys

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PLAYGROUND THAT COMPLIES AND IN FACT EXCEEDS MINIMUM REQUIREMENTS

PLAYGROUND THAT USES

MORE RAMPS THAN

TRANSFERS

PLAYGROUND THAT USES MORE RAMPS THAN TRANSFER SYSTEMS

NOW THAT’S AN ACCESSIBLE LOCKER!

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SPORTS FIELDS & COURTS REQUIRE AN ACCESSIBLE ROUTE TO SPECTATOR AND PLAYER AREAS

POINT #4 (CONTINUED)

For sites that existed before March 15, 2012 evaluate those against the 2010 Standards and apply the program access test to determine which will be made compliant and which will be left as is and inaccessible… For all new design and construction that occurs after March 15, 2012 it must STRICTLY adhere to the 2010 Standards… Bidders offering products, designs, or construction that does not comply should be rejected… Make it known to design professionals and contractors that ADA compliance is a priority for the Department…

POINT #5: MISTAKES HAPPEN

We see some pretty common errors at sites, and we’ll review some here.

A building is the interface between design, construction, and maintenance.

What’s important is how your agency reacts when a mistake is noted. Do you correct the access deficit, or dig in your heels?

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THE MOST FREQUENT FITNESS AND AQUATICS FACILITY MISTAKES

#1  

#2  

#3  

SLOPED ENTRY INCLUDES ZERO DEPTH, BUT WHAT THREE THINGS ARE MISSING HERE?

#1  #2  

#3  

ROOMY…but is there a 36” wide accessible route? Is there 30” by 48” clear floor space? Standards requires a front and side approach!

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DOES YOUR SPORTS FIELD LOOK LIKE THIS?

No  AR  to  player  seating  

NO AR TO SHELTER

REDUCED ACCESS AISLE

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NO ACCESS TO CAMPSITE, FEATURES NOT ACCESSIBLE

BUILDING ENTRY LACKS ROUTE, NO MANUEVERING CLEARANCE AT DOOR

INACCESSIBLE BATHROOM

#1  

#3  

#2  

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CURB RAMP IN ACCESS AISLE…FAILS EVERY TIME

NO  

HUH????

NON ACCESSIBLE SURFACE

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SIGN EXISTS, BUT SURFACE NOT ACCESSIBLE, NO ROUTE

ACCESSIBLE ROUTES TO SPORTS COURTS MUST MEET ALL REQUIREMENTS

Width?  

Cross  slope?  

Running  slope?  

Hi-­‐Lo  Fountain?  

Signage?   Maneuvering  clearance?    

Gate  Hardware?  

POINT #6: HOT SPOTS…

Personal services for persons with disabilities…can you say Diazepam? Choice…inclusive and adaptive and special recreation services… Service animals…in the water? Got TR? Advisory board…does it include people with disabilities?

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POINT #7: MORE RULES IN THE WORKS

Final Guideline for outdoor recreation areas were issued 9/26/13 for sites owned and operated by federal agencies (trails, beaches, picnic areas, campsites, viewing areas, outdoor constructed features)… Shared use paths now a Notice of Proposed Rulemaking (NPRM)… Public Rights-of-Way Accessibility Guidelines (PROWAG) now a final guideline, but not yet a standard… Accessible fitness machines, accessible golf cars in progress at US DOJ…look for NPRM

STRATEGIES FOR COMPLIANCE WITH ADA ADMINISTRATIVE

REQUIREMENTS MUST have an ADA Coordinator (35.107)! MUST have an internal complaint process (35.107)! MUST support inclusive recreation participation (35.130)! MUST have completed an access audit of all existing sites (35.105)! MUST have a transition plan (35.150(d)! MUST have written documentation when the answer is “no” per 35.150(a)(3)!

STRATEGY: ADA COORDINATOR

PICK someone in parks and recreation Do you really want a HR professional interpreting playground surface issues?1 Do you really want the law department deciding if a kid on the autism spectrum needs a staff member with extra training? Do you really want someone in risk management deciding if a summer camp trip that involves paintball is doable for a kid who is blind?

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STRATEGY: INTERNAL COMPLAINTS

NO legal fees and costs for the complainant… Prompt and equitable… Run by the Department, not a court or federal agency… Who better to resolve the complaint than parks and recreation staff! No media feeding frenzy! Did we mention NO fees and costs for complainant?

STRATEGY: SUPPORT INCLUSION

INCLUSION is here whether it has visited you or not… PLAN now, before demand is overwhelming… BUDGET now, before you and your community are playing a game of catch-up In 10 years EVERY one growing up in an inclusive environment will think it is perfectly normal, as a 30 year old, to ask for an up-down tennis doubles league, or a beep-ball league… Do this NOW before demand surpasses you…

STRATEGY: ACCESS AUDIT

Can’t know what to retrofit unless everything has been audited… Existing sites are a melange of design, construction, and maintenance… Do it yourself…or retain someone you trust…but if an access audit isn’t the driving force behind your CIP and other activity, you are making a mistake… Audit everything, at every site, even if it doesn’t have a standard (dog parks, disc golf parks, skate parks, etc.)

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STRATEGY: TRANSITION PLAN

IDENTIFY every deficit State a solution fr every deficit Apply the program access test and note whether this deficit will be retrofit Name the person responsible for barrier removal… Note the date by which removal will occur

STRATEGY: DOCUMENTATION!

Must have a “no” letter or memo in your own risk management files… Need not be sent to anyone… Signed by “head” of the entity or his or her designee… Whenever the answer by staff, to a request for a modification due to disability, is no Just the fact’s ma’am…

THEMES FOR NORTH CAROLINA PARKS AND RECREATION AGENCIES

First, be proactive about access and inclusion. Second , if the agency does not have an inclusion process and a qualified employee or two to manage it, make it happen! Third, reach out to residents with disabilities. They are waiting to hear from you. Do NOT assume there is no interest because they have not yet reached you.

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MORE THEMES…

Fourth, look at your staff team photo. Hispanics? African Americans? Persons of Asian descent? How about people with disabilities on staff? Fifth, reach your sports leagues, nonprofit partners, business partners, sponsors, and faith-based groups. Ask for their help regarding access and inclusion. Tell them you expect access and inclusion when they use your sites and facilities too. Sixth, be clear with staff. Is access and inclusion part of job descriptions? Annual reviews? You added risk management here…add access and inclusion now.

MORE THEMES…

Seventh, follow the court and administrative decisions (see www.ada.gov). Substitute the name of your municipality for the name of the defendant…do you have everything they were asked for? Eighth, don’t stick your head in the sand. The great state of North Carolina is not different than Connecticut, Maryland, Virginia, Iowa, Florida, California, Nevada, and Arizona have felt the full weight of the US DOJ.

RESOURCES

US Department of Justice at 202/514-0301 or www.ada.gov for great title II policy and program technical assistance US Access Board at 202/272-0080 or www.access-board.gov for great design and construction technical assistance Disability and Business Technical Assistance Centers (DBTACs) at 800/949-4232 or www.disability.gov John McGovern at Recreation Accessibility Consultants LLC at 224/293-6451 or www.rac-llc.com or [email protected]

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BANG! CRUNCH! POW!

Hear those sounds? That’s another state, county, city, or town losing an ADA complaint.

“It’s not in our budget this year.”

“We comply in all of our new sites.”

“We don’t get any calls from people with disabilities about our sites.”

“The manufacturer/designer said it complies.”

CONCLUSION None of those will pass muster today. If access to existing sites isn’t in your plans now, make it happen. If inclusion support is not yet something you and your board and coworkers can talk about, make it happen. If you don’t know your disability community, make it happen. Make the benefits of parks and recreation accessible to all of your community.