For Almost Two (2) Decades, the Federal American with Disabilities Act of 1990 (ADA)

Applied Technology, Inc. Division of Access Services

Public Accessibility Update

October 18, 2009

The Federal American with Disabilities Act of 1990 (ADA) has been accepted and generally used as the “National Standard”for the development of American public accessibility policy.Even entities not subjected to be required to comply with the ADA provisions, such as the Federal Judiciary; have chosen the ADA to be a “useful model for the Federal courts to follow” in the development of its own accessibility directives.[1]

In 2008, amendments were made to the ADA. The ADA now clarifies the original intent of Congress. It more explicitly defines persons intended to be afforded protection by the law.[2]

These new ADA provisions have caused a need for a reassessment of the currency and relevance of such existing ADA policies andimplementing systems in place.

On January 26, 1992, when public accessibility barriers were to have been identified and removed by public entities or a Plan was to have been implemented for their removal, vision and other non-apparent disabilities were not delineatedin the ADA.[3] Extensive use and reliance upon the Internet as a medium for providing public information, conducting public programs and activities and administering public services was also not occurring.

New delineated accessibility standards proscribed by the American with Disabilities Act Amendments of 2008 (ADAAA)and prior accessibility self assessments that may have never occurred justify a current “Call to Action” that cannot be ignored.There is no question about if certain actions now needto be taken by providers of services to the public as to assuring the accessibility of their information, programs, activities and services. The question that only remains for allpublic entities[4] to answeris how and when such actions willoccur.

What is now expected of providers of services to the public is for them to answer the questions they now need to ask themselves regarding how to modify their programs, information, services and facilities (the Internet included) to effectively accommodate the needs of the types and classes of persons with disabilities recently delineated in the ADAAA.

With the Internet being used as a vehicle by which services are provided to the public, no longer can be it presumed that aphysical “facility” is the primary place where public accommodations are provided.2When using the Internet as a delivery mechanism for conducting public activities or programs, providing public information or services, accommodations for a mobility impaired person needing to enter into and navigate within a public building virtually disappear and give rise to a new set of accommodation priorities. Communication limitation accommodations priorities now top the list.

In addition to the accessibility of “information presentation” what government and other public funded entities now need to establish is their “AccessibilityImplementation Plan” that

" …shalladminister programs and activities in the most integrated setting appropriate to the needs of qualified individuals with (disabilities)…,(and)…shall operate eachservice, program or activity so that the service, program or activity, when viewed in its entiretyis readily accessible and usable by individuals with disabilities. (emphasis added) ..." [5]in a manner that is as “effectively equal” as is afforded to others.[6]

In addressing this concern, a strategic approach is needed, since

“Courts have held that a public entity violates its obligations under the ADA when it only responds on an ad hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services.” [7]

What are the systems in placeor plan(s) for your organization that are intended to achieve such a standard of operation?

What the ADAAA specifically identified as classes of persons with disabilities are those that have been primarily “non-apparent.” Being “out-of-sight”, such disabilities have been out of the minds of public entities for the consideration for modifications for accessibility.

For example, where documented information is a significant component of a public activity being conducted, public service provided or program administered, inaccessible forms of information would have the highest impact upon persons with visual limitations.3, [8]

Prior to the ADAAA, the existence of physical accessible barriers predominated as the cause for accessibility law suits.

What actions had your organization taken to preclude, reduce andprepare itself for the exposure of liabilities arising from what may be inaccessible aspects of its Internet presence and virtual business conduct?4

Attachments: 1. May 8, 1997 letter to Congressman Vic Fazio t from the U.S. Courts

2. Federal Update,Litigation, by Bob Egelko, San Francisco Conical

3. July 2009 HIGHLIGHTS Visually Impaired Persons

4. Sensory and Communication Accessibility Self-Assessment Questionnaire

[1]May 8, 2997 letter from Leonidas Ralph Mecham. Director, Administrative Office if the U.S. Court to Congressman Vic Fazio

[2]The ADA Amendments Act of 2008 (Public Law 110-325, ADAAA) …effective January 1, 2009... It was intended to provide greater protection to the disabled in the United States, and was passed in response to decisions by the Supreme Court clarifying the original ADA which were believed to be averse to the civil liberties of the disabled… The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that the statutory terms should be interpreted… ” In addition, the Act lists major life activities, rather than leaving that phrase open to interpretation as the ADA of 1990 did.[6] The non-exhaustive list of major life activities in § 4(4)(a) includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.[ Public Encyclopedia]

[3]“Self-evaluation. (a) “A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications..” (b) A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments. (1) A list of the interested persons consulted; (2) A description of areas examined and any problems identified; and (3) A description of any modifications made [28 CFR 35.105]

[4] “Public entity. -- The term "public entity" means — (1) any State or local government;.. (2) any department, agency, special purpose district, or other instrumentality of a State or States or local government….” [ADA Section 201]

[5] "A public entity shall operate each service, program or activity so that the service, program or activity, when viewed in its entirety is readily accessible to and usable by individuals with disabilities. (emphasis added) ..." [28 CFR 35.150]

[6]"A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;... (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.” [28 CFR 35.130(b)(1)]

[7] Accessible Electronic & Information Technology: Legal Obligations of Higher Education and Section 508 - Cynthia D. Waddell, J.D, International Center for Disability Resources on the Internet, Executive Director and Law, Policy and Technology Consultant, Lecturer-in-Law, Santa Clara University School of Law, ATHEN E-Journal Issue #2 (2007)

[8]See Figure 1. 2003 Forrester Research Report commissioned by Microsoft