Auxiliary Aids and Services

By Kristina Launey

disabled buttonLast week, a California State Court became the first in the nation to rule that a retailer violated the Americans with Disabilities Act due to a website that is not accessible to individuals with vision-related disabilities.  As we have previously reported, courts have ruled on whether the ADA applies to websites, but have always stopped short – because the cases had usually settled at early stages – of reaching the dispositive factual issue of whether a website actually violated the ADA.

This ruling came on a motion for summary judgment filed by plaintiff Edward Davis’s attorneys, Scott Ferrell of The Newport Trial Group, Victoria Knowles, and Roger Borg.  Judge Bryan Foster of the San Bernardino Superior Court ruled that the defendant luggage retailer violated the ADA and corollary California law – the Unruh Act – because plaintiff “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant [via its website] because of his disability.”  The judge also found sufficient evidence that Title III of the ADA applied to the website because there was a sufficient nexus to defendant’s physical retail store and the website.

The judge ordered the retailer to pay $4,000 in statutory damages under the Unruh Act, finding it undisputed that plaintiff’s access to the website was prevented at the time it was designed.  The judge ordered injunctive relief in the form of defendant taking steps necessary to make the subject website “readily accessible to and useable by individuals with visual impairments or to terminate the website”; but provided no detail on whether a certain standard would need to be met to have complied with this injunctive relief order. The plaintiff will also be entitled to attorneys’ fees as the prevailing party, which could be substantial given the discovery and briefing involved in the motion for summary judgment.

This order ironically came during the same week virtually all scientists, practitioners (including me), educators, government officials, companies, advocates, and interested individuals with disabilities were attending digital accessibility’s major annual conference – California State University, Northridge’s 31st Annual International Technology and Persons with Disabilities Conference- just a few hundred miles away from the court.

(Photo) BushBy Kevin Fritz

This Sunday, July 26, marks the 25th anniversary of the Americans with Disabilities Act.  In the spirit of anniversary of this important law, here are 25 simple ways to make your business more accessible to customers with disabilities, and provide a great experience for them and their friends and/or family members:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (e.g., the rooftop bar is only accessible via stairs).
  1. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  1. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  1. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  1. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  1. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  1. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  1. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear.  Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  1. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  1. Welcome service animals (specifically dogs and miniature horses under the ADA) into your establishment. Read tips on what you can ask to determine if it is a service animal and other tips on service animals here.
  1. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  1. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  1. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.”  In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  1. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  1. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  1. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  1. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  1. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking.  Have a pad of paper handy for this purpose.
  1. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  1. Make sure that your accessible register or checkout lane is always open when the store is open.
  1. Always ask first if a person with a disability needs assistance, never assume.
  1. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  1. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it.  For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  1. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  1. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it.  You may be preventing a lawsuit in the process.

These small steps can make a huge difference in the experience that customers with disabilities and their friends and family have at your business, and are sure to result in greater customer satisfaction. 

Edited by Minh Vu and Kristina Launey

By Eden Anderson

Last month, the U.S. Department of Justice (DOJ) and U.S. Department of Education (DOE) issued a joint guidance Under Title II of ADA (the “Guidance”) explaining the obligation of public schools to provide “auxiliary aids and services” to ensure effective communication with students with hearing, vision, or speech disabilities. Although this Guidance applies to state and local government entities under Title II of the ADA, private schools have very similar obligations under Title III of the ADA. Thus, the Guidance is useful for all educators and administrators of both public and private schools.  Below are some highlights from the Guidance.    

  • Effective communication must be provided to any member of the public who seeks out the school’s services, programs, or activities (e.g., for parent-teacher conferences, open houses, performances).  In addition, the effective communication obligation is not limited to the classroom, but extends to all of a student’s school related communications, including school sponsored extracurricular activities. 
  • A case-by-case analysis must be made in determining an appropriate auxiliary aid or service.  Schools must consider “the communication used by the student, the nature, length, and complexity of the communication, and the context in which the communication is taking place.” 
  • Any interpreter must be “qualified,” meaning able to interpret both receptively and expressively.  Schools cannot rely on staff who are not “qualified” interpreters, nor on students to provide their own interpreter (unless the student makes such a request or in specified emergency situations). 
  • Schools must give “primary consideration” to the student’s requested auxiliary aid or service, and are “strongly advised” to make clear in discussions with the student/parent that the school will bear the complete cost.  “Primary consideration” means that the school must honor the student’s request, unless the school can “prove that an alternative auxiliary aid provides communication as effective as that provided to students without disabilities.”  This is one instance where the rules for public vs. private schools are different.  Under the ADA Title III regulations that apply to private schools, the school is only required to consult with the individual requesting the service about his or her preferred method of communication but “the ultimate decision as to what measures to take rests with the public accommodation.”
  • To the extent a school believes that the provision of a particular auxiliary aid or service would “fundamentally alter the nature of the service, program, or activity” or result in “undue financial and administrative burden,” it is the school’s burden to establish such defenses.  The school must explain its reasoning in writing to the student and must still provide an alternative auxiliary aid or service that ensures effective communication to the maximum extent possible.  The Guidance expressly cautions that “[c]ompliance  . . . would, in most cases, not result in undue financial and administrative burdens.” 
  • Auxiliary aids and services must be provided in “accessible formats, in a timely manner (“as soon as possible”), and in such a way to protect the privacy and independence of the student.”  Schools are “strongly advise[d]” to keep students/parents informed of the status of any request or delay in compliance. 

Edited by Minh N. Vu and Kristina Launey

By Craig B. Simonsen and Kristina M. Launey

This blog, as the “ADA Title III” name indicates, is primarily about a business’s obligation to individuals with disabilities who may access its goods, services, benefits, and accommodations, rather than employees with disabilities.  However, we also frequently receive questions from entities that are subject to Title III about their obligations to provide accessible technology to  their employees, so we thought this news would be of interest to our readers. 

The U.S. Department of Labor’s Office of Disability Employment Policy recently announced the launch of a Web portal, spearheaded by ODEP’s Partnership on Employment & Accessible Technology (PEAT). PEAT is an initiative to promote the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. The portal is intended to provide everything “from educational articles to interactive tools.” The content “aims to help employers and the technology industry adopt accessible technology as part of everyday business practice so that all workers can benefit.”

Available on the portal Resources & Tools is the “Accessible Technology Action Steps: A Guide for Employers.” The Guide aims to provide a “roadmap to ensure that the technology in your workplace is accessible to all employees and job applicants.”

This issue is not just on the government’s radar.  At least one plaintiff’s firm in California is forcing businesses to deal with the issue of website accessibility in the employment context, recently filing a lawsuit against multiple retailer defendants alleging that the plaintiff was discriminated against in violation of the California Fair Employment and Housing Act (FEHA) (state equivalent of Title I of the ADA) and California’s Unruh Act (state equivalent of Title III of the ADA) because the businesses’ online applications were inaccessible and the companies refused to allow him any other method (i.e., paper) to apply.

These developments serve to remind businesses to review policies, procedures, training materials, and assistive technologies they use to interface with customers or employees to ensure those with disabilities are afforded equal access to the goods and services the business provides and to the benefits of employment, with or without reasonable accommodation.

Edited by Minh N. Vu.

By John W. Egan 

As we have previously reported, the Department of Justice issued proposed regulations this summer that would require movie theaters to show movies with closed captioning and audio description.  DOJ has requested public comment on a number of issues related to these proposed regulations. 

The period for providing public comments on this Notice of Proposed Rulemaking began on August 1, 2014, and was to close on September 30, 2014.  However, on September 2, 2014, the Attorney General granted a 60 day extension so that all comments are now due no later than December 1, 2014.

By John W. Egan

On July 25, 2014, the Department of Justice (DOJ) issued proposed regulations that would require movie theaters with digital screens to show movies with closed captioning and audio description.  We covered this development here.

DOJ has requested public comment on a number of issues related to these proposed regulations, including whether closed captioning and audio description requirements should also apply to theaters showing movies in analog (film) format within four years after the final rule is published, or instead be addressed in future a rulemaking.

The period for providing public comments on this Notice of Proposed Rulemaking starts today and will run until September 30, 2014.

Edited by Kristina Launey

By John W. Egan

On Friday of last week—the day before the ADA’s twenty-fourth anniversary—the Department of Justice (DOJ) announced a proposed rule that would require movie theaters with digital screens (and possibly those with only analog screens) to show movies with closed captioning and audio descriptions (if available), and to purchase equipment that would allow the transmission of such information to moviegoers with hearing or sight disabilities.  The regulations would also require theaters to inform the public about the availability of such captioning and audio descriptions in its advertisements and other communications about the movies they show.

The regulations implementing Title III of the Americans with Disabilities Act (ADA) already require that public accommodations, including movie theaters, provide auxiliary aids and services to ensure effective communication with persons with visual and auditory impairments.  The proposed rule would require that movie theaters provide specific equipment and accommodations to patrons who are blind or have low vision, as well as patrons with auditory impairments.  DOJ estimates that complying with these proposed requirements would cost the industry between $138.1 and $275.7 million and that a substantial number of small businesses will experience “a significant economic impact.”

The major provisions are discussed below.

Continue Reading Summer Blockbuster: Justice Department Issues Proposed Rule That Would Require Movie Theaters Nationwide to Provide Captioning and Audio Description Listening Devices

By Eden Anderson

Title III of the ADA requires that public accommodations provide, at their expense, “auxiliary aids and services” to ensure effective communication with persons with hearing, vision, or speech disabilities.  But what does that really mean for a business?  What is effective communication?  The Department of Justice last month released its most recent guidance on this topic (the “Guidance”).  DOJ’s previous guidance on the subject was issued in 2011 in a primer targeted for small businesses.  Since the DOJ and state enforcement agencies have taken a keen interest in this subject, businesses should take a minute to review these two guides and make sure that they, and their employees, are meeting their obligations.

The “effective communication” obligation exists because people who have hearing, vision, or speech disabilities communicate differently from people without these disabilities.  For example, a person who is blind is not going to be able to read a menu or legal documents.  A person who is deaf is not going to be able to hear what a doctor says about his diagnosis.  Thus, in most instances, these individuals will need appropriate “auxiliary aids and services” to ensure effective communication.

The Guidance explains that the key to effective communication is to consider the “nature, length, complexity, and context of the communication” and the person’s “normal method of communication.”  In some contexts, effective communication may entail simply reading something to a blind individual (e.g., a menu so he or she can order in a restaurant ), or exchanging notes with a deaf individual (e.g., about a product for sale in a retail setting).

In other contexts where communication is extensive (e.g., educational or medical settings), ensuring effective communication can be complex and costly, and may require the provision of an interpreter or the acquisition and use of unfamiliar technology.  As the Guidance explains, various technologies can be used to ensure effective communication, such as computer-assisted real-time transcription, video remote interpreting, and screen reader software.  The public accommodation should consult with the individual—especially in these more complex situations —to determine an aid or service that will provide effective communication.  If more than one aid or service would allow equally effective communication, the public accommodation is not required to provide the individual’s requested aid or service.

The Guidance notes that the public accommodation must provide the aid or service unless it can show that it would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”  The standard for establishing this defense is quite high; the Guidance states it will be shown only in “rare” circumstances.

As important reminders, the Guidance also notes the following: Continue Reading New Justice Guidance Reminds Businesses They Are Responsible for Ensuring Their Communications With People with Disabilities Are Effective

By Chris Palamountain

The U.S. Department of Justice (DOJ) announced in early April 2013 that it has reached five settlements in the past four months with health care providers (a hospital, 2 rehabilitation centers, an ear nose and throat practice, and a sports medicine center) concerning access to services for persons who are deaf.  The settlements provide insight (but not a definitive conclusion) into the auxiliary aids or services that the DOJ considers necessary to comply with Title III of the Americans with Disabilities Act (ADA).

Each of the complaining parties are deaf and use American Sign Language (“ASL”) as their primary means of communication.  They filed complaints after health care providers denied their requests for ASL interpreters in the course of treatment at the providers’ expense.  For example, a hospital seeking admission of a man who was deaf contacted both rehabilitation centers.  After those centers failed to confirm that they would provide ASL interpreters, the man’s son filed complaints with the DOJ.  Similarly, the hospital patient claimed that she was unable to communicate adequately with hospital personnel during her treatment, so she had to use her minor daughter to interpret for her.  The complaints against the specialists involved patients who made requests for ASL interpreters prior to scheduled appointments, but the providers stated that it was not a provider’s responsibility to retain an interpreter, relying instead on written notes and gestures to communicate with the patient.

The settlement agreements require each provider to:

  • provide “appropriate auxiliary aids and services, including qualified interpreters, where necessary to ensure effective communication” unless an undue burden or a fundamental alteration would result;
  • make an affirmative and documented determination of what auxiliary aids or services are appropriate in consultation with any person with a disability using specific factors and a specific timeline (the particular factors and timing varies depending on the settlement);
  • perform a communications assessment, using a form attached to the settlement, as soon as practical and document the results in the patient’s chart;
  • post and maintain signs in the waiting area stating that the facility will provide qualified interpreters free of charge for patients, family members, and companions;
  • maintain a list of qualified interpreters or interpreter agencies or arrange for the services of qualified interpreters, and submit that list to the DOJ;
  • log each request for an auxiliary aid or service, including the time, date, requesting individual, the specific service requested, and the type of auxiliary aid or service provided;
  • hire an outside advocacy group to provide mandatory, DOJ-approved training on an annual basis to all employees, staff, and affiliated individuals on Title III, including training in the degrees of hearing impairment and the use of auxiliary aids and services;
  • submit written compliance reports; and,
  • submit to DOJ oversight of compliance with the settlement agreement for 3-year terms.

The settlement agreements also require that each provider pay the complaining parties damages ranging from $0 – $15,000, and the DOJ civil penalties ranging from $0 – $1,000.

Although most of the settlements explicitly acknowledge that accommodations are not required when they impose an undue burden or fundamentally alter the nature of the services provided, for the most part the settlements dodge the key question of what level of expense rises to the level of an undue burden.  Not surprisingly, the settlements demonstrate that whether or not a burden is undue may depend upon the size and nature of the public accommodation.

For example, the most detailed and onerous settlement duties are included in the hospital settlement, where the DOJ imposes a specific timeframe between the patient’s request for interpreter services and the hospital’s request for a third-party interpreter (15 minutes) and another timeframe for the actual provision of interpreter services (between 2-4 hours, depending on the circumstances), and includes examples of 16 specific medical and non-medical circumstances under which qualified interpreters must be provided.  This settlement also affirmatively prohibits the hospital from ever requiring or coercing a family member or companion from facilitating communications (which is consistent with the ADA regulations).  At the same time, the settlement expressly states that nothing in it “will require that an electronic device or equipment constituting an appropriate auxiliary aid be used when or where its use may interfere with medical or monitoring equipment or may otherwise constitute a threat” to the safety or care of the patient or others.  However, by refusing the define the limits of which accommodations are reasonable or constitute a threat to safety, the DOJ leaves providers with the unenviable task of making such determinations at each stage of the service delivery process.

The charges underlying these settlements are Center for Orthopaedic and Sports Medicine, Inc., (Sports Medicine Settlement); Dr. Paul S. Biedenbach & Northern Ohio Medical Specialists Healthcare, (NOMS Settlement); Gainesville Health and Rehab Center, DJ No. 202-79-245 (Gainesville Center Settlement); Manassas Health Care LLC, DJ No. 202-79-243 (Manassas Health Care Settlement); and, Monadnock Community Hospital, DJ No. 202-47-66(Monadnock Hospital Settlement).

By Minh N. Vu

The Department of Justice’s (DOJ) deadline for hotels, health clubs, and other public accommodations to retrofit their existing pools and spas with either a pool lift or sloped entry ramp is January 31, 2013.  Under regulations the DOJ issued in 2010, all pools with less than 300 linear feet of wall must have either a pool lift or a ramp that complies with the 2010 ADA Standards.  All larger pools must have a second accessible means of entry that is a lift, ramp, stairs, transfer wall, or transfer system.  Businesses with spas must also retrofit them by this date with either a lift or a transfer wall, but if there is more than one spa in a location (i.e., a “cluster”), only one or 5% (whichever is greater) of the spas must be made accessible.  These requirements apply unless it is not readily achievable for the business to comply.

Back in January 2012, the DOJ caused an uproar in the business community by issuing — six weeks before the March 15, 2012 compliance deadline — a guidance stating, among other things, that pool lifts must be “fixed” to the deck or apron.  These industries had understood the regulations to allow the use of portable lifts as long as they comply with the technical specifications. DOJ’s new interpretation complicated compliance efforts because fixed lifts typically require drilling into the pool deck, permits, and electrical bonding work.  It also became obvious that the lift manufacturers would not be able to make enough lifts for all the pools and spas that need them.  Under threat of congressional and other action, the DOJ agreed to extend the deadline for compliance to January 31, 2013.

DOJ issued its last guidance on the pool lift issue on May 24, 2012.  While this guidance leaves some questions unanswered, it does state the DOJ position on a number of key issues that are worth reiterating here:

The definitions from DOJ:

►   A “fixed lift” is one that is “attached to the pool deck or apron in some way.”

►   A “non-fixed lift” is one that is not attached in any way to the pool deck or apron.

►   A “portable lift” is one that can be moved.  A portable lift can be a “fixed” lift if it is attached to the pool deck or apron in some way.

DOJ’s interpretation of its regulations:

►   Businesses must install fixed lifts at existing pools and spas unless it not readily achievable to so.  This is DOJ’s position even though the regulations don’t explicitly say that the lifts need to be fixed.  Thus, a business that is sued for not having a fixed lift could challenge DOJ’s interpretation, which legally is not entitled to deference.

►   After a battle with the lodging industry over the fixed lift requirement, DOJ said it would exercise its prosecutorial discretion to not enforce the fixed lift requirement against businesses that had purchased portable (i.e., non-fixed) lifts prior to March 15, 2012 that comply with 2010 Standards.  Private plaintiffs, however, are not bound by DOJ’s stated self-restraint.

►   If installing a fixed lift is not readily achievable, then a non-fixed lift should be installed.

►   If it is not readily achievable to provide any accessible entry into a pool or spa (keep in mind that the lift is not the only option), the pool or spa can remain open without a retrofit.

►   Despite safety concerns expressed by the lodging industry, DOJ has stated its view that it is not acceptable to bring out a lift upon request.  A lift must always be in position and ready for use when the pool and/or spa are open.

►   One lift cannot be shared between two pools or a pool and a spa, even if they are right next to each other.

►   Employees must be trained on how to use and maintain the lift.

►   Lift batteries must be charged and ready for use.

The guidance does not address the many questions that have come up since its issuance, such as: When is it not readily achievable to install a pool lift?  Must a lift be installed if the deck space is not enough to fully comply with space requirements?  Must a business install a lift if the pool deck is only accessible via stairs?  We will have to wait and see what positions DOJ takes in its enforcement activities.  In the meantime, there is a very real possibility that some businesses will close their spas because the additional cost of installing and maintaining a lift does not justify keeping the spa open and they are not willing to risk a lawsuit.