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THE AMERICANS WITH DISABILITIES

ACT: A PRIMER Florida International University LEI3707

Spring Semester, 2022

John N. McGovern, JD

The WT Group, LLC Accessibility Practice

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CONTENT

• What is the ADA?

• How is it enforced?

• Application to parks and recreation

• 2020 Settlement

• 2021 Settlement

• Hot topics

• Strategies that work

• Conclusions and Resources

WHAT IS THE ADA?

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WHAT IS THE ADA?

• Comprehensive 1992 civil rights law

• Bipartisan legislation, catches up to the states

• Who is a person with a disability?

• What is ADA title II?

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HOW IS IT ENFORCED?

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ADA ENFORCEMENT

• 35.107 Internal solutions process (preferred and most frequent)

• DOI administrative complaint (slowest)

• DOJ administrative complaint (most difficult)

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ADA ENFORCEMENT

• Federal District Court (most costly and unpredictable)

• Project Civic Access (costly, no control)

• Enforcement activity by many States (difficult to predict)

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CIVIL RIGHTS EMPHASIS

• It happens whenever there is a change in governance…usually around 30% change

• Simple math…more civil rights staff means more ADA complaints can be processed

• DOI, DOE, DOJ remain active

• Annual effort to water down the ADA will fail

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APPLICATION TO PARKS AND RECREATION

AGENCIES

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SIMPLE STUFF!

• Access audits of existing sites

• Access audits of policies

• Website accessibility

• Transition Plan for phased schedule of retrofits to sites

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SIMPLE STUFF!

• Name an ADA Coordinator

• Have a solutions process

• Engage the disability communities

• Use the eight-step inclusion process

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EIGHT STEPS FOR INCLUSION

• Invite participation

• Tweak registration

• Conduct assessment

• Make a plan

• Train staff

• Ongoing communication

• Plan implementation

• Evaluation

TRENDS

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2021+ HOT BUTTONS

• MMJ, CBD oil as a reasonable modification

• One-on-one staffing

• Anti-seizure medication in nasal and oral sprays as a reasonable modification

• Playgrounds are complex environments but must be both safe and accessible

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2020 SETTLEMENT

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WHAT HAPPENED? WHERE?

• 2010 Standards and new construction

• Title II and treatment of existing facilities

• Iowa City schools, PTO, and playgrounds

• Community and legal expectation…new sites will be accessible

WHAT HAPPENED? WHERE?

• What happens when an agency does not “hear” community access concerns?

• DOJ evaluated 12 playgrounds, including two that were new…all 12 failed

• Surface types, maintenance, routes to playground, component numbers, etc.

• Requirement of the Settlement – 3-Year Term

LESSONS LEARNED • No Maintenance = no access

• Accountability – Must oversee installation

• Surface Type is Important – many decisions and factors to consider

• Safety and access cannot be mutually exclusive – must be integrated

2021 SETTLEMENT

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WHAT HAPPENED? WHERE?

• 2010 Standards and new construction

• Title II and treatment of existing facilities

• City of Killeen, Texas

• Project Civic Access settlement

SETTLEMENT SAYS…

• Clause 5: US DOJ audited centers, conference center, arts center, senior center, pools, and more

• Clause 5: also audited parks, tennis courts, golf course, picnic pavilions, rodeo arena, and more

• Clause 25: retrofit DOJ sites within 33 months

• Clause 35: audit all sites not seen by DOJ, retrofit those too

OTHER TERMS • The basics: notice (12), ADA Coordinator (14), Internal Solutions Process (18)

• Website (27), sidewalks (23), communications (19), maintenance (38)

• Employee training (39), audit all other sites within 1 year (35)

• Implement integrated retrofit plan for DOJ, other sites

• Have ILA verify compliance of retrofits, report to DOJ

STRATEGIES THAT WORK

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PROACTIVE… • Who wants a call from area code 202?

• ADA access audit requirement is 30 years old on January 26, 2022…why has any agency waited?

• ADA relief is injunctive, but the legal fees can be significant

• The basics protect you: access audit, transition plan, ADA Coordinator, notice, internal process, website

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CONCLUSIONS AND RESOURCES

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OUR DIRECTION • Parks and recreation is a quality of life issue for US DOJ

• ADA enforcement of access and inclusion will be more swift, more pronounced than recently

• Rulemaking will resume (golf cars, fitness)

• Engage communities of disabilities

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RESOURCES

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• US DOJ at 202-514-0301 or www.ada.gov

• US Access Board at 202-272-0080 or www.access-board.gov

• ADA Network at 800-949-4232 or go to the website at www.adata.org

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• John N. McGovern, JD, Principal-in- Charge for the WTG Accessibility Practice

• 224-293-6451 (d) or 847-363-9384 (c) or at [email protected]

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