Surviving an ADA Accessibility Audit: Best Practices for Policy Development and Compliance€¦ · Web view · 2014-01-28Policy Development and Compliance. June 27 ... These laws

SURVIVING AN ADA ACCESSIBILITY AUDIT: BEST PRACTICES FOR POLICY DEVELOPMENT AND COMPLIANCE

June 27 – 30, 2010

John H. Catlin, FAIAGigi McCabe-Miele, AIA

LCM Architects LLCChicago, IL

Irene Bowen, J.D.ADA One LLC

Silver Spring, MD

Ellen M. Babbitt, J.D.Babbitt, Land & Warner LLP

Chicago, IL

I. INTRODUCTION

During the past 10 years, the Department of Justice has greatly increased its focus upon ADA building and campus accessibility issues involving institutions of higher education. Likewise, the Office for Civil Rights has remained active in addressing not only program but also physical accessibility issues involving public institutions -- and parallel allegations of failure to comply with Section 504 of the Rehabilitation Act.1

Many colleges and universities, however, exhibit persistent issues regarding barrier removal, alterations to existing facilities, and construction of new facilities that fully comply with applicable provisions of ADAAG and new ADAAG2 (as well as UFAS, FHA and local building and fire codes).

1 Attachment A to this Outline sets forth citations and links to the statutes, regulations, and other authorities cited (as well as to other useful resources about physical accessibility on campus).

2 References to "ADAAG" are to the Americans with Disabilities Act Accessibility guidelines published in 1991 by the U.S. Access Board and adopted by the DOJ as the accessibility design requirements for new construction and alterations of existing facilities. See 28 C.F.R. Part 36, Appendix A ("ADA Accessibility Guidelines for Buildings and Facilities"). These guidelines (hereinafter "ADAAG") have been in effect since 1991, with some amendments but no comprehensive revisions to resolve conflicts between ADAAG and other standards or to address issues on which ADAAG is presently silent. On July 23, 2004, however, the Access Board published revised Accessibility Guidelines (hereinafter "new ADAAG"), which seek to (a) eliminate or minimize conflicts between different accessibility standards, (b) address elements that were not addressed in the original ADAAG, and (c) otherwise update the applicable accessibility standards. On September 30, 2004, DOJ issued an advance notice of its intent to revise its ADA standards consistent with the new ADAAG recommendations; but, although numerous comments have been taken and the matter has been under advisement within the DOJ for years, the new ADAAG standards still have not been adopted by DOJ. Until the DOJ formally adopts the new ADAAG standards, the original ADAAG standards, as amended, will remain applicable. See Attachment A for citations to ADAAG and new ADAAG; see Attachment B for highlights of new ADAAG as applied to higher education.

The National Association of College and University Attorneys

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Some of this may arise from confusion about the physical accessibility requirements of the ADA and Section 504. Many of our clients view all aspects of compliance as being triggered only by an “accommodation request.” They fail to recognize that, under Titles II and III of the ADA, as well as Section 504, institutions are subject to more extensive obligations than the obligation, under the Title I “employment” provisions, to provide reasonable accommodations to qualified employees upon request. Titles II and III, as well as Section 504, apply to students, visitors, and the public. These laws place educational institutions under a continuing obligation to improve campus accessibility and relocate programs, and this is independent of a request for accommodation. In addition, programs must be made accessible even if existing facilities cannot or need not be modified. For instance, where a classroom is not presently accessible, classes will generally need to be moved to an accessible location; students cannot be excluded from a program simply because the building at issue is inaccessible.

In this session, architects specializing in ADA compliance, as well as attorneys who have been involved in DOJ/OCR proceedings, discuss common issues and challenges for institutions that seek to improve accessibility and avoid a DOJ, OCR, or private enforcement action. This Outline and attachments supplement our conference presentation.

Section II below discusses the applicable legal and technical standards, the typical accessibility issues that ADA accessibility experts identify on college and university campuses, and the legal necessity – and value – of undertaking a comprehensive self-study before a DOJ, OCR, or private complaint compels the institution to make extensive modifications. Section III discusses recent developments in litigation, DOJ compliance audits, and OCR investigations focused upon campus accessibility.

Finally, this Outline includes two attachments with further information regarding campus accessibility. Attachment A compiles resources relating to physical accessibility in higher education, including citations to statutes, regulations, technical assistance manuals, and significant cases. Attachment B compares the DOJ’s current (1991 ADAAG) and proposed (2004 new ADAAG) ADA regulations, highlighting their impact upon higher education. These Attachments include links to websites that may prove helpful to institutions addressing the challenge of ADA compliance and seeking to “survive an ADA audit.”

II. APPLICABLE STANDARDS; TYPICAL ACCESSIBILITY ISSUES ON CAMPUS

A. The Applicable Legal and Technical Standards

The two federal statutes prohibiting discrimination on the basis of disability (and, in the process, addressing campus accessibility issues) are Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794(b)(2)(A)), and the Americans with Disabilities Act, as enacted in 1990 and recently amended (42 U.S.C. §12131 et seq.). Section 504 applies to colleges and universities that receive federal funding; Titles II and III of the ADA apply to public and private entities, respectively.


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Title II of the ADA prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by state and local governments, except public transportation services (42 U.S.C. §12131 et seq. and 28 C.F.R. Part 35). Title III of the ADA prohibits discrimination on the basis of disability in "places of public accommodation" (businesses and non-profit agencies that serve the public) and "commercial facilities" (other businesses). (42 U.S.C. §12181 et seq. and 28 C.F.R. Part 36). This includes nearly all colleges and universities.

Both Titles II and III require that new facilities, as well as altered spaces in facilities where programs and services are located, must be made fully accessible consistent with applicable design standards. Only Title III, however, requires removal of barriers over time. Title II instead focuses on self-evaluation of programs and services. It also emphasizes modifications or relocation of programs and services to make them accessible; under Title II, the facility need not be altered unless all else fails and as reasonable for the public entity. Likewise, Section 504 requires preparation of a “transition plan” for achieving campus accessibility. With respect to existing facilities (those constructed before 1977), Section 504 allows recipients to relocate programs or services as a first choice in achieving accessibility, and it does not require structural changes to existing facilities where accessibility can achieved through relocation of programs and services. On the other hand, alterations and new construction, as with Title II, trigger additional accessibility requirements under Section 504 (as addressed by OCR in the Letters of Finding discussed in Section III-C below). See 34 C.F.R. § 104.22.

Under all of the applicable federal statutes and regulations, new construction must conform to appropriate architectural standards for accessible construction. Which standards apply depends upon the statutory provisions applicable to the institution and to the particular elements at issue (which may not be covered under a particular set of architectural guidelines). For instance, in addition to permitting compliance with ADAAG, Title II allows, as an alternative, compliance with the Uniform Federal Accessibility Standards (UFAS). For residential developments (i.e., student housing), FHA standards apply along with UFAS standards. Local codes (state and municipal) may employ other standards; ANSI (the American National Standards Institute) is the most common standard used, but some states have their own standards. (See Attachment A for links to various standards).

In all instances, the most stringent standard must be applied to any element, and typically ADAAG and UFAS standards are the most stringent. ANSI is very similar to current ADAAG standards but will be even closer to the new ADAAG provisions. Few local and almost no state authorities evaluate facilities for compliance with accessibility standards after construction.

Enforcement of the ADA and Section 504 is delegated by statute to private litigants, DOJ, or other agencies (such as the Department of Education), depending upon the circumstances in which a complaint arises and the identity of the complainant. For example, a student concerned that campus facilities are not physically accessible might


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make claims under Title II, if the student’s institution is a public university; under Title II and Section 504, if the public university also receives federal funding; under Title III, if the student’s institution is a private university; or under Title III and Section 504, if the private university also receives federal funding.

Moreover, complainants have alternative avenues to pursue grievances. In the best-case scenario, a student or visitor will bring an accessibility concern directly to the attention of the institution, and the issue can then be successfully addressed internally without further proceedings. Where internal processes are absent or seen as inadequate, however, ADA or Section 504 claims may arise in a variety of ways. A student complainant, for instance, might choose to bring such a claim to the OCR; go straight to federal court; or, in some circumstances, bring a concern to the attention of DOJ in the hopes of inspiring an investigation or the DOJ's intervention in pending litigation. Enforcement can also arise through compliance audits initiated by DOJ or OCR, either following complaints or upon the agency’s own initiative. And DOJ is empowered to file suit on behalf of the United States or to intervene in private suits. The lawsuits and OCR letters discussed in Section III below highlight the multiplicity of allegations that may be made by DOJ, OCR, students or visitors to campus, depending upon the nature of the institution.

B. Examples of Recurrent Accessibility Issues on Campus

The staff of LCM Architects has spent a great deal of time on college and university campuses and at other institutions, evaluating accessibility compliance. Regardless of whether the institutions’ facilities and walkways are old, renovated, or new, LCM has identified some level of non-compliance with applicable ADAAG requirements or other legal standards on every campus visited.

Some of the non-compliant elements render spaces, entrances, or walkways entirely unusable by people with disabilities. Other non-compliant elements are barely noticeable and most people (including disabled people) are able to use the non-compliant spaces. When a compliance audit occurs or a complaint is made, however, institutions may be shocked to learn that these “usable” spaces do not comply with applicable standards.

Many of the compliance problems that architects identify on campus will not be noticed by people responsible for evaluating and ensuring compliance until there is a complaint or a sudden need to make a particular space accessible for a particular purpose. Then, modifications may need to be made immediately, displacing other projects planned for a facility or space. These kinds of modifications will invariably prove costly and disruptive.

Many administrators on campus – even those trained or responsible for accessibility – may be unaware of the array of modifications needed to make facilities fully accessible to individuals with varieties of disabilities. For instance, the fact that wheelchair users need ramps, smooth routes, lifts, and elevators is well


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noted and addressed on most campuses. But even campus accessibility coordinators may not recognize the need to place common elements within the building at a height that makes them usable from a wheelchair. Thus, transaction counters, mailboxes, light switches, towel dispensers in toilet rooms or in kitchens, coat hooks, coffee services, and many other elements can be no higher or lower than an arm’s reach from a wheelchair. All of these factors must be addressed, as well as the more “visible” requirements of ramps and lifts, to render the particular building and space fully accessible to a person using a wheelchair.

Not only do campus administrators tend to overlook the level of needs, but they may also overlook the variety of needs that must be addressed through accessibility planning -- even with respect to a single architectural element such as a ramp. Ramps are widely assumed by the non-disabled public to be used only by those with wheelchairs. But, in fact, ramps are also widely employed by individuals who use canes and walkers or need help walking. Because of this additional population of users, ramps not only must have the proper slope and turn radiuses (for those who use wheelchairs) but also must be fitted with properly-installed handrails and handrail extenders (for those who may need support or something to grasp while they stop and reorient themselves on the ramp).

Other recurrent campus accessibility issues may even be overlooked by informed architects and decision-makers who happen to be focusing upon issues other than accessibility. For instance, individuals with vision problems are often hit and injured by objects that protrude from walls or posts. Indeed, even for a visually impaired individual using a cane in an attempt to detect a route, some protruding objects may be above the sweep of the cane and thus undetectable. Examples of protruding objects include the simplest elements: wall sconces, paper towel dispensers in toilet rooms and kitchens, the underside of a stairway, or low-hanging directional signs. These raise issues for anyone with limited vision or cognitive difficulties and are addressed in technical guidelines such as ADAAG. But, often, they are off an institution's "radar screen" until a complaint is made or an injury occurs.

C. Legal and Practical Reasons to Undertake Self-Assessment Affirmatively

Self-assessment is required by certain provisions of federal law and highly advisable to comply with the “barrier removal” and alteration provisions of Title III.

- Title II requires self-evaluation; Section 504 requires a transition plan for achieving and improving accessibility on campus.

- Title III entities, while not strictly required to engage in self-assessment, may find it extremely useful. As illustrated above, the complexity of compliance makes it difficult for campus administrators, acting without expert assistance, to comply with the full array of legal and technical requirements regarding barrier removal, alterations, and new construction.


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Self-assessment helps an institution integrate barrier removal, modifications, and relocation plans into the institution’s strategic planning, budgeting processes, and academic calendars. - A self-assessment provides information that can be used to prepare a 5-10 year

plan for maintenance and renovations. A careful survey of the entire campus and all facilities used by students and the public will identify elements that are non-compliant and allow the institution to establish priorities in barrier removal and improvement of accessibility. It becomes possible to adopt a plan that addresses the most important modifications first (and allows others to be managed in later years or as part of upcoming renovation projects and campus upgrades).

- By allowing accessibility modifications to be incorporated into strategic plans, self-assessment often saves money. If work can be scheduled and planned as part of the institution’s normal renovation work, many non-compliant elements can be corrected in the course of that work and in harmony with the budgeting process and academic calendar. Moreover, modifications made as part of a deliberate plan almost always cost less, and disrupt the institution less, than modifications compelled in response to a complaint. Many of the compliance audits or litigation in which LCM has been involved began with identification of a few non-compliant elements (either by an agency during an audit or by a private complainant). What then follows, however, is a necessary investigation of the entire campus. In such circumstances, other non-compliant elements will inevitably be found and nearly all of them will need to be corrected -- on a fairly aggressive schedule and at a higher cost than would have occurred under a coordinated plan for barrier removal.

- Self-assessment can also help institutions develop effective plans for relocating programs and services away from inaccessible areas of campus. Relocation changes require planning, particularly where spaces are used by the public (and, thus, where use and need may not be predictable). Effective relocation plans also require accurate and updated information about how campus facilities are presently being used and are expected to be used in the near future. Many institutional decision-makers may be unaware of the actual uses to which different facilities and buildings are being put. Self-assessment can prove an invaluable mechanism for gathering updated information and using it to develop an effective relocation plan.

Self-assessment helps institutions anticipate and eliminate typical communication problems and “information gaps” that often impede improvement of campus accessibility.

- Capital planning or facilities personnel may not recognize or fully understand the continuing barrier removal obligation or the requirement that alterations and additions incorporate accessible elements. Even now, many architectural design teams may believe that compliance with local code provisions ensures compliance with ADA requirements, which is not necessarily the case. Self-assessment helps place the specific accessibility requirements for a particular project front-and-


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center, from the very inception of the project. It helps integrate the proper standards into the planning, design, and construction phases of a project.

- Institutional decision-makers also may not communicate effectively within the university about the need to integrate accessibility considerations into construction planning -- particularly in alteration situations. Prior self-assessment helps the institution avoid the unpleasant (but common) scenario in which an institution engages in what are seen as piecemeal “maintenance” projects -- only to learn later that these projects actually triggered the requirements of the ADA and require additional, costly retrofitting. Moreover, both the ADA and Section 504 regulations (as well as ADAAG and UFAS standards) speak very specifically to the need to incorporate accessible elements into altered spaces, and some aspects of these requirements will not be well-understood absent a prior self-assessment. For instance, 20% of an alteration budget must be used for accessible routes; without prior self-assessment, many institutions would likely miss this requirement completely during the planning and budgeting process.

- Other typical “information gaps” may be addressed, or their risks reduced, in the process of securing a self-assessment. One, relatively unique to higher education, is the tendency to handle academic “accommodations” and physical accessibility issues through separate campus departments, and not to provide for effective communication between these different offices. Particularly when admissions offices are also involved in addressing accessibility issues for incoming students, the potential for communication gaps between three different -- and often autonomous -- campus functions is significant, and the repercussions can be very unfortunate.

- For instance, an admitted student who uses a wheelchair may communicate with Residence Life about needing an accessible dorm room but arrive on campus to learn that she has been assigned to classes in an inaccessible building or at a location with no accessible transportation. That student might reasonably believe that the university had already received notice of her need for accessible classes (and, it must be emphasized, that student was not actually required to request accessible classroom facilities as an "accommodation"). These can degenerate into truly unfortunate situations (see Kuchmas case, summarized in Section III-A below), and they are not as rare as might be hoped. Self-assessments can help institutions plan not only to eliminate non-compliant structural elements but also to eliminate the communication gaps that, at their worst, can add up to a barrier to access.

Institutions are sometimes concerned that a self-assessment will serve as an “admission” in any later compliance audit or, at least, as a “roadmap” for the next complainant.

- However, many institutions are already under an obligation to engage in some level of self-assessment and to improve campus accessibility. Good faith attempts


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to comply with these requirements and use those results to improve campus accessibility going forward will generally be viewed positively by agencies and fact finders. As a practical matter, pro-active attempts to address obvious accessibility issues will help institutions forestall injunctive actions and awards of attorneys' fees (which are, as illustrated in Section III-A below, the primary legal risks associated with defending against accessibility allegations).

- The institution should be prepared, however, to address promptly any clear or serious departures from accessibility requirements that are identified in a self-assessment. Failure to address serious lapses will count against the institution in any later compliance audit or lawsuit (whether the non-compliant elements are identified in a prior self-assessment or at the time of the audit or legal challenge).

III. LITIGATION AND ENFORCEMENT UPDATE3

A. Litigation

Michigan Paralyzed Veterans of America v. University of Michigan, No. 07-11702 (E.D. Mich. 2007):

A group called “Michigan Paralyzed Veterans” (“MPVA”) sued challenging the accessibility of the University of Michigan’s football stadium for individuals with mobility impairments. The Department of Education, through OCR, also investigated a complaint about the same matter and, in October of 2007, issued a formal findings letter concluding that the University had violated Section 504 and the ADA (as further discussed in Section III-C below). After unsuccessful attempts to resolve the matter within the OCR, the matter was referred to DOJ, which intervened in the MPVA litigation on behalf of the plaintiff organization.

In its complaint, DOJ alleged that the University discriminated against individuals who use wheelchairs because the Michigan stadium allegedly failed to comply with Title II of the ADA and Section 504.

- Specifically, because the University had added to and altered its football stadium over the past 16 years, DOJ alleged that federal law imposed additional accessibility requirements with regard to stadium seating that had not been met. Extensive repairs to the stadium concrete, as well as changes and additions to the stadium’s seating, allegedly required the University to comply with the UFAS “alterations/additions” standards and required that wheelchair/companion seating be increased and that dispersal of the seating be improved. Furthermore, according to DOJ, the University’s

3 Sections III-A & B of this Outline update an outline originally prepared by NACUA member Andrea M. Gunn for the NACUA March CLE in 2009. That Outline (entitled “What You Don’t Know Will Cost You: Facilities Access Under the Americans with Disabilities Act and Section 504”) is available to NACUA members at the Legal Resources Service area of the NACUA website. We appreciate Andrea's excellent work on that Outline.


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plans to add wheelchair seats to the luxury boxes and suites as part of its upcoming multi-million dollar renovation would not remedy this problem; the planned additions allegedly were already required to make that portion of the stadium accessible and did not resolve present seating violations in other sections of the stadium.

- DOJ also alleged that the stadium failed to meeting the accessibility requirements for existing facilities in that (i) the football stadium lacked sufficient accessible wheelchair seats, (ii) accessible wheelchair seats were not dispersed around the stadium, (iii) the University had failed to provide accessible ramps and routes into and around the stadium, and (iv) the stadium lacked accessible toilets, concession stands, souvenir shops, parking, and signage.

. The parties resolved the lawsuit, and the court approved a consent decree in March of 2008. Pursuant to the decree, the University – which was in the midst of a $226 million expansion of the stadium – agreed to add over 300 wheelchair and companion seats during the next two years. (Prior to this planned addition, the stadium had 81 pairs of wheelchair and companion seats, all located in the end zones; the majority of the new seating was to be located on the sidelines).

The University also agreed to a significant modification of its ticketing policies for wheelchair and companion seats for a two-year period following the time that each accessible seating area became available. This was intended to help ensure that individuals who use wheelchairs would be afforded a meaningful opportunity to purchase these preferred seats. The University also committed to adding accessible parking, improving inaccessible toilet rooms, and providing accessible routes to and throughout the stadium.

Jackson, et al. v. California State University, San Bernardino, et al., No. 05-1110-VAP (C.D. Cal. 2005):

In late 2003 and early 2004, a number of CSUSB students filed written complaints with the University’s Students with Disabilities office (SSD). These complaints focused on a variety of academic accommodation and auxiliary aid issues, but they also included facilities access issues relating to restrooms, computer labs, parking, and accessible furniture. CSUSB formed a Task Group to address the students’ concerns. In September of 2004, the Task Group issued a 55-page report. Although the Report generally concluded that the campus was in compliance with applicable regulations and policies, the Task Group identified ways in which the SSD program could improve its service delivery, and the University began implementing these recommendations.

Before the Task Group’s final report was published, however, CSUSB student Krista Dixon filed a complaint with OCR, making the same allegations as those being evaluated by the Task Group. OCR conducted an extensive investigation over the next two years. Prior to the completion of OCR’s investigation, CSUSB began negotiating with OCR to resolve the complaint. A Resolution Agreement was signed in mid-July of 2006 by CSUSB and OCR. The Agreement called for modifications to


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restrooms in thirteen campus buildings, as well as modifications to selected campus computer labs and faculty offices and designation of additional accessible parking spaces. OCR also issued a 31-page letter in July of 2006, finding violations of Title II and Section 504 in selected campus facilities.

During the pending OCR investigation, a group of students, including Krista Dixon, also sued CSUSB, filing a federal-court class action suit in December of 2005. They raised claims under Title II and Section 504, as well as under California’s state disability laws. The parties eventually hired experts who completed comprehensive surveys of the campus and issued reports identifying a number of architectural barriers on campus.

Following mediation, the parties settled in July of 2007, incorporating into the settlement agreement resolutions of many of the issues aired in the OCR letter, the Task Group report, and the lawsuit. A central part of the settlement was a compromise transition plan developed by CSUSB. The plan called for approximately $11.7 million in state and non-state access upgrades and barrier removal projects. The settlement agreement provided that the transition plan would be fully implemented by 2016. The agreement also obligated CSUSB to survey certain buildings constructed since 2000 to ensure compliance with state and federal access laws and to ensure compliance going forward for new construction and alteration work.

Pursuant to this settlement, plaintiffs’ lawyers received fees and costs in the amount of $505,000, and the nine individual plaintiffs received a total of $315,000 in damages (approximately $35,000 each). The agreement called for periodic compliance reporting and monitoring. The court approved the settlement in November of 2007 and will maintain jurisdiction to enforce the agreement until 2013, unless the University’s primary obligations under the agreement are completed in advance of that deadline.

Huezo v. Los Angeles (Pierce) Community College, No. 04-9772 (C.D. Cal. 2004):

Plaintiff Huezo was a mobility-impaired student attending Pierce Community College in 2004 when he filed suit under Title II and Section 504, alleging a failure by the College to provide accessible furniture, parking, restrooms, and paths of travel.

After the parties were unable to resolve this matter through negotiation, the court granted partial summary judgment in favor of Huezo in February of 2007. The court found, among other things, that the College’s failure to prepare a self-evaluation or transition plan was itself evidence of discrimination. The court also found merit in Huezo’s access barrier claims and ruled that the College’s policy of requiring disabled students to identify and then seek an individual “accommodation” for each barrier constituted disability discrimination.


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Following entry of partial summary judgment, the parties reached an agreement to settle Huezo’s claims for damages and attorneys’ fees (which already amounted to approximately $1 million); they also agreed that the parties would work together to resolve the injunctive relief issues. Apparently, those issues could not be resolved, however, whereupon Huezo moved for a permanent injunction.

An injunction was then granted in December of 2008. In that order, the court ordered the College to (i) provide accessible desks, workstations, and other equipment with appropriate signage within all classrooms being used during a given semester; (ii) engage an ADA accessibility expert to oversee the progress of corrective work, help implement modified ADA policies, and oversee placement of accessible furniture and workstations; (iii) cease charging disabled students for parking permits to use the teachers’ parking lots and keys to the library elevator; (iv) provide regularly scheduled shuttle service for disabled students; (v) update the Special Services Student Handbook to reflect these changes; and (vi) publicize the existence and availability of the Handbook as a resource for disabled students.

Kuchmas, et al. v. Towson University, et al., No. RDB 06-3281 (D. Md. 2006):

In 2006, Mark Kuchmas, who uses a wheelchair due to a degenerative neuromuscular condition, filed suit under the Fair Housing Act, Titles II and III of the ADA, and Section 504 after he discovered he was unable to use the bathroom and shower area or maneuver around the desk in an ostensibly accessible housing unit in the University’s Millennium Hall. Kuchmas later amended his complaint to include four additional plaintiffs – two Towson students who do not use wheelchairs, a lecturer, and a local not-for-profit fair housing organization.

The University and co-defendants agreed to settle the lawsuit and entered into a multi-party consent judgment filed in September of 2008. Pursuant to this judgment, the developer (whose subsidiaries managed the dorm at issue) agreed to pay Kuchmas $50,000 in damages and $250,000 for attorneys’ fees and costs. The developer also promised to provide Kuchmas with four academic years’ worth of free and accessible campus housing, as well as any tuition owed beyond scholarships and non-loan financial aid that Kuchmas was able to secure.

The developer also agreed to a long list of renovations and retrofits to Millennium Hall and a neighboring dorm, West Village (where Kuchmas planned to live when he returned to campus). The modifications included lowering counters in the common areas of both buildings and clearing wall-mounted equipment that would obstruct wheelchair passage. The developer also agreed to consult an accessibility expert before undertaking any projects in the State of Maryland over the next four years.

For its part, the University guaranteed Kuchmas admission to the school and selected other modifications and accommodations (including accessible transportation to class). The four co-plaintiffs also received settlement payments of $1000 (for the fair-housing organization) and $500 (for each individual plaintiff).


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Gufstafson, et al. v. University of California at Berkeley, et al., No. 97-4016 (N.D. Cal. 1997):

Plaintiffs were a class of UC-Berkeley students with various mobility and vision impairments. They alleged violations of Section 504 and Title II, as well as selected provisions of the California Civil and Government Codes. In an effort to settle the case, the parties jointly selected a panel of experts who cooperated in (i) a comprehensive survey of the campus facilities; (ii) a review of policies and practices that allegedly impacted access; and (iii) an interview process to identify possible barriers to access (including interviews of students with disabilities).

The experts then submitted to the University and complainants a joint set of recommendations for barrier removal, policy changes, and access improvements. The parties subsequently negotiated a class action settlement to implement these recommendations.

Under the settlement agreement, which was approved by the court in 2005, UC-Berkeley agreed to remove thousands of barriers throughout its facilities, with a focus upon building entrances and restroom renovations. The settlement also mandated the hiring of an Assistant Provost, Office of Equity Standards and Compliance, with responsibility for providing campus-wide leadership in disability services. To support the new Assistant Provost, the University also hired a full-time Physical Access Coordinator and a full-time Disability Access Resolution Officer, as well as an additional Access Specialist to serve as the primary point of contact for students with mobility or vision impairments. Other provisions of the agreement called for enhanced transportation opportunities for disabled students; the University specifically agreed to replace its fleet of shuttle buses with 16 newer, wheelchair-accessible vehicles.

The agreement also provided that the court would retain jurisdiction until 2019 and that the University would undergo periodic monitoring by an outside panel of experts and by plaintiffs’ attorneys. The parties agreed to damages in the amount of $24,000, with attorneys’ fees and costs of over $660,000. The agreement also provided that the University would absorb monitoring fees and costs of up to $300 per hour (not to exceed 90 hours a year). This potentially added over $375,000 in additional fees and costs over the life of the agreement.

Cherry, et al. v. City College of San Francisco, et al., No. 04-4981-WHA (N.D. Cal. 2004):

Plaintiffs were a class of students with mobility impairments that sued for alleged violations of Title II and Section 504, ranging from allegedly non-compliant paths of travel and building entrances to failure to make classrooms, restrooms, and “common elements” (such as furniture) accessible.


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In 2006, as part of a settlement and stipulated judgment resolving the matter, the College agreed to expend no less than $7.5 million to make specific and substantial structural access improvements to existing facilities. The focus of the improvements included paths of travel, building entrances, restrooms, and a requirement that no less than 30% of all standard classrooms, computer labs, and basic science labs be accessible, including the provision and placement of accessible furniture. The College also agreed that, should it complete the itemized mandatory improvements for less than the $7.5 million minimum amount allocated in the agreement, the College would continue making other accessibility improvements until it had spent the full $7.5 million.

The stipulated judgment incorporated a detailed schedule of maintenance and corrections work. It also mandated that the College maintain a full-time ADA Coordinator on staff, and it required periodic compliance reporting to the court and monitoring by an outside expert.

Pursuant to the stipulated judgment, the College agreed to pay attorneys’ fees and costs in the amount of $1,660,000, and it also agreed to absorb monitoring fees and costs of up to $20,000 per year for a period of four years. The named plaintiffs received a total of $40,000 in damages. The court retained jurisdiction (and, pursuant to a recent order, its retention of jurisdiction will continue through October 1, 2010).

Covington, et al. v. McNeese State University, No. 08-505 (La. App. 2008):

Covington was a mobility impaired student with a history of seizure disorders. In 2001, she filed suit in state court under Title II and state disability laws, alleging that she was injured while exiting a non-ADA compliant restroom located in the University’s student union.

Covington successfully moved for summary judgment. The trial court found, among other things, that the University was not entitled to sovereign immunity under the Eleventh Amendment, that the plaintiff was disabled, and that the University had discriminated against her. In its order, the court ordered the University to make specific changes to the student union building.

The University appealed, but the decision was affirmed. While the appeal was pending, DOJ also launched an investigation into the accessibility of the University’s campus. As of July, 2009, the University had sought from the State more than $8 million in capital outlays, in order to respond to findings by DOJ and a consultant that the campus needed extensive barrier removals and modifications to comply with applicable federal and state laws.

Sabino v. The Ohio State University, No. 2:09 CV 544 (S.D. Ohio, filed June, 30, 2009):


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A deaf fan of Ohio State University filed suit under Title II and Section 504, seeking captioning for announcements made over public address systems before, during, and after OSU events, such as basketball and football games.

Although the case was still pending as of the date this outline was prepared, with the University’s motion to dismiss awaiting decision, the University reportedly is now providing captioning on video boards and selected television monitors throughout the concourse area. See also Feldman v. Pro Football, Inc., No. AW-06-2266 (D. Md. September 30, 2008) (a similar case involving attempts to obtain captioning on video boards at Fed Ex Field).

B. DOJ Compliance Reviews and Settlement Agreements4:

University of Chicago and Colorado College (2006):

In 2006, following compliance reviews, DOJ reached settlement agreements with the University of Chicago and Colorado College that address an array of physical accessibility issues, particularly those that impact students and visitors with mobility, hearing, and vision disabilities. Pursuant to these agreements, which are very similar, the institutions agreed to do the following:

- Submit to the DOJ (after allowing public comment) a proposed Physical Access Plan, outlining plans to comply with the settlement agreement and increase accessibility on campus;

- Make certain changes to facilities, paths of travel, and policies in accordance with the provisions of their respective Plans;

- Implement campus-wide emergency evacuation, sheltering, and shelter-in-place plans for individuals with disabilities, following public comment and DOJ review;

- Ensure that three percent of the units (and adjacent toilet rooms) in student living facilities are accessible and dispersed among the facilities, and that a reasonable number of housing facilities has an accessible entrance, first-floor common area, and toilet room usable by a visitor with a disability;

- Display information on their websites identifying accessible routes through the

campuses, parking areas, entrances to buildings, and spaces within buildings;

- Post signs at facility entrances and toilet rooms identifying those that are accessible; and, at inaccessible entrances or toilet rooms, post signs directing individuals to the nearest accessible entrance or toilet room;

4 The settlement agreements referenced in this section are cited in Attachment A and also posted on the DOJ’s website at "www.ada.gov."


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- Provide assistive listening systems and devices for people who are deaf or hard of hearing in lecture halls, meeting rooms, and other assembly areas;

- Relocate classes and other activities to fully accessible locations when necessary; - Correct violations of the accessibility standards for new construction.

- The University of Chicago also agreed to ensure that its transportation services, including its fixed-route campus-wide bus system and on-call evening and night-time service, comply with the ADA.

Swarthmore College (2007):

In 2007, DOJ reached a settlement agreement with Swarthmore College, pursuant to which the College agreed to make its campus and services more accessible to individuals with disabilities. This agreement resulted from a compliance review during which DOJ identified alleged barriers to access in existing facilities and non-compliant elements such as doors, restrooms, seating, signage, and interior and exterior circulation routes.

The agreement encompassed a wide variety of services and facilities, as well as commitments relating to parking, directional signage, and emergency preparedness. It contained many of the same provisions found in the University of Chicago and Colorado College agreements.

EDMC (2008) and Intellitec Colleges (2009):

Educational Management Corporation (EDMC) is a private, proprietary corporation that operates the Brown Mackie College system of schools with locations in 10 states. In 2008, DOJ reached a comprehensive settlement agreement with EDMC. This was DOJ's first agreement with a proprietary school, and it was also DOJ's first agreement involving buildings leased, rather than owned, by an institution of higher education.

The EDMC agreement followed a compliance review for physical accessibility under

Title III. The alleged violations included inaccessible doors, building entrances, restrooms, and paths of travel.

The EDMC agreement states that both the lessor and lessee have responsibilities under the ADA and sets forth a detailed schedule of maintenance and corrections work to be undertaken by EDMC. It also requires EDMC to give the landlord a list of issues and also to request physical modifications to areas where EDMC does not have exclusive control. EDMC is obligated to inform DOJ if agreement between the two entities is not reached. The agreement also requires EDMC to designate an ADA Compliance Officer, hire an ADA Consultant, and allow DOJ to conduct spot-check inspections and obtain records access and compliance documentation.


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Intellitec Colleges, another proprietary institution that became the subject of a DOJ compliance review, entered into a settlement agreement in 2009. Intellitec offers career training programs for automotive technicians, medical and dental assistants, and administrative professionals (among other programs) at three Colorado campuses. The agreement that DOJ reached with Intellitec was similar in many respects to the agreement reached between DOJ and EDMC.

C. Selected OCR Letters

OCR is responsible for enforcing accessibility requirements at institutions that receive federal financial assistance, pursuant to Section 504 of the Rehabilitation Act of 1973 and implementing regulations (see 29 U.S.C. § 794 and 34 C.F.R. Part 104). OCR also has jurisdiction over student accessibility complaints brought under Title II of the ADA (42 U.S.C. § 12131 et seq.), which prohibits discrimination by public entities.

The most significant OCR letter regarding physical accessibility is the University of Michigan letter of findings dated October 26, 2007 (which formed the basis, in part, for DOJ’s complaint in the MPVA case, discussed in Section III-A above). The following is a discussion of the OCR’s University of Michigan letter, followed by brief summaries of selected other OCR letters regarding physical accessibility.

The University of Michigan (2007):

In 2005, OCR initiated an investigation of alleged Title II and Section 504 violations in and around the University of Michigan’s stadium. Complainants using wheelchairs challenged the number, location, and dispersal of wheelchair-accessible seats; the accessibility of routes into and within the stadium; the number and accessibility of restrooms; and the accessibility of concession stands and souvenir shops.5

Much of the dispute in the University of Michigan case revolved around whether renovations to the stadium concrete and seating over the past few decades had constituted additions or alterations requiring that the altered areas be made accessible under UFAS standards (which include, for instance, specific numerical and dispersal standards for stadium seating). In addition, OCR addressed whether the stadium complied overall with the “program access” requirements applicable to existing facilities. Both Title II and Section 504 require that an educational institution operate each service, program, or activity so that, viewed in its entirety, that activity is readily accessible to and usable by individuals with disabilities. These same statutes and

5 This letter recounts OCR’s findings of violation, as well as OCR’s version of the extensive procedural history that preceded this particular investigation. It should be noted that, unlike in the other OCR matters summarized herein, this OCR investigation did not result in a negotiated resolution; on the contrary, the University of Michigan strongly disputed OCR’s conclusions. The DOJ eventually intervened in the MPVA case on behalf of the plaintiff organization and a settlement was negotiated (as summarized in Section III-A above).


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regulations require that the service, program, or activity be offered in the most integrated setting appropriate.

OCR concluded that, by engaging in periodic stadium and seating reconstruction projects (including the addition of approximately 7000 seats between 1991 and 1998), the University became subject to UFAS requirements for the altered or added spaces – and fell short of complying with specific UFAS standards regarding the number of accessible seats and dispersal of accessible seating throughout the stadium. OCR found that the stadium’s wheelchair seating was grouped together in one section, which was always crowded; that this section lacked sufficient companion seating options; and that the stadium’s wheelchair seats were grouped in undesirable locations near the end zones, away from preferred sight-lines. Moreover, according to OCR, no wheelchair seating was located in what were widely viewed as “preferred” sections on the sidelines, and the press box and “Regents” area (where VIPs were invited to sit) were not accessible. OCR also noted that wheelchair-users who wanted to exchange tickets for more favorable locations would have trouble doing so because the “Will-Call” ticket area was inaccessible.

In addition, OCR found non-compliance in the parking and paths of travel to the stadium, as well as in paths of travel and restrooms within the stadium. OCR also found that newly-constructed souvenir shops and concession stands had not been constructed to comply with UFAS standards and were not accessible. On the basis of the above, OCR concluded that the University had failed to comply with applicable design standards for alteration of facilities and with program access requirements for existing facilities. In the process, OCR rejected the University’s arguments that it was meeting verifiable need and use requirements and that the stadium was not subject to “alteration” standards.

This OCR letter is useful to review because it articulates at great length the OCR’s position regarding the applicable Title II and Section 504 standards for existing facilities and altered or added elements. In particular, this letter offers insight into how OCR believes these concepts play out in the context of stadiums and sports programs, which present unusual issues both with respect to alterations and also with respect to program relocation (which usually is not an option in the context of sporting events).

As noted in Section III-A above, the issues in this OCR investigation became a part of the MPVA litigation against the University, and the resolution in that matter also encompassed the issues addressed in this OCR letter.

Other OCR accessibility determinations:

Lufkin School District (2009 NDLR LEXIS 493; 40 NDLR 125):

- In this OCR matter involving a public school district, the complainants made a claim similar to that addressed by OCR in the University of Michigan stadium case. These complainants alleged failure by the school district to make elements in


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a high football stadium – specifically, the parking, seating, and paths of travel into and within that stadium -- accessible to users of wheelchairs. The complainants also alleged that there was no wheelchair access to the middle school flagpole, which was the site of numerous school functions.

- OCR noted that the stadium was built in 1973 and thus constituted an “existing facility” under both Title II and Section 504. This allowed the school district the option of relocating programs in lieu of making the facility accessible. In this instance, however, the football games at issue could not practicably be relocated (nor could school functions be relocated away from the flagpole area).

- OCR concluded that the stadium evidenced significant compliance issues. Paths of travel to and within the stadium were not accessible, and the parking lot had been repaved in 2002 without being made accessible. Moreover, OCR believed there had been substantial upgrades to the seating in the stadium (here, every seat had been replaced in 2002), without provisions being made for dispersed, accessible seating or accessible restrooms. The flagpole area also lacked curb cuts allowing wheelchair users to enter the area and participate in functions around the flagpole.

- The school district entered into a resolution with OCR, agreeing to bring its stadium, parking, and flagpole area into compliance after conducting a survey and developing a plan.

Harvard University (2006 NDLR LEXIS 581; 34 NDLR 200):

- A student with mobility impairments (among other disabilities) complained about insufficient access to Harvard’s dining hall services during semester breaks, insufficient signage regarding accessible locations and services on campus, transportation problems, and unequal access to classroom and library facilities. In addition, the student complained about the University’s failure to communicate effectively with disabled students about the location of campus events.

- The University addressed most of these issues effectively during the course of OCR’s investigation; OCR noted, among other things, that the institution had taken “extensive, pro-active steps” during the investigation to resolve the concerns identified by the complainant. In particular, the University adopted procedures to ensure that disabled students received timely and accurate information about campus events and accessible elements at those venues (which was the only compliance concern remaining by the time OCR concluded its investigation).

University of Southern Indiana (2004 NDLR LEXIS 593; 29 NDLR 105):

- The complainant alleged that University Home, a campus venue serving as the President’s residence and also being used for University functions, was inaccessible to persons using wheelchairs because (i) the front entrance had four


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steps; (ii) the one concrete ramp into the building was too steep; (iii) the routes to the ramp were inaccessible, and (4) accessible parking was too far from the residence.

- OCR found compliance issues under Title II and Section 504 with respect to use of the first floor of University Home for institutional functions. The building, erected in 1982, was an “existing facility” under Title II because it was built before 1991 but “new construction” under Section 504 because it was built after 1977. The first floor of this building did not meet the standards for existing facilities or new construction, however; in addition to the issues raised by the complainant, the interior of the first floor proved inaccessible.

- Under the “program access" provisions of Title II and Section 504, the University was entitled to relocate programs away from the building in lieu of making structural changes to the building. Accordingly, it entered into a Resolution with OCR allowing the University either to move functions away from University Home or to submit a plan for altering University Home consistent with the applicable construction standards.

Indiana University South Bend (2003 NDLR LEXIS 825; 26 NDLR 325):

- A student complained that the University was violating Title II and Section 504 with regard to the number and location of parking spaces, selected ramps, one building entrance (to Riverside Hall), and the parking garage.

- OCR found that most of the areas challenged were, in fact, compliant with Title II and Sections 504. One location – the ramp into Riverside Hall – proved to have an unacceptable cross slope. The University therefore agreed either to relocate programs and services away from Riverside Hall or to alter the front sidewalk and entrance slope to bring that entrance into compliance.

University of Illinois at Chicago (2003 NDLR LEXIS 562; 26 NDLR 48):

- Students challenged the University’s compliance with Title II and Section 504 with regard to the accessible parking available at the University (which was allegedly too far from buildings and otherwise non-compliant). The students also challenged the manner in which metered street parking was handled near the University.

- OCR’s investigation resulted in a letter finding no violations on the part of the University. OCR noted that UIC’s parking facility was built before 1991; nonetheless, the University had voluntarily complied with these heightened standards when constructing the garage, and its parking facilities were therefore fully compliant. Despite this finding, the University agreed to post signs waiving parking meter payments for disabled students at selected locations.


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Arizona State University (2002):

- Complainants asserted that the University’s emergency evacuation procedures discriminated against students with mobility issues by allegedly (i) excluding them from mandatory fire drills, and (ii) failing to incorporate into the institution’s emergency plans what the complainants believed to be effective evacuation procedures for students with mobility impairments.

- In this Letter, OCR first clarified that the ADA does not specifically require adoption of special emergency procedures applicable to disabled students, nor do ADAAG or other standards address this issue.

- OCR then addressed the nub of the dispute. This proved to be that complainants wanted the University’s emergency policy to require that student residence assistants physically carry disabled students out of buildings during emergencies. OCR found this to be a “personal service” that was not required under the ADA or Section 504 (and, further, noted that this practice raised safety concerns and that carrying was perhaps best performed by trained emergency personnel).

- OCR also found that the University’s practice of notifying wheelchair users before otherwise mandatory fire drills in the dorms -- and allowing those students the option of not exiting the building during drills -- did not deny disabled students equal access under the ADA or Section 504.

Please see Attachments A and B for further information (including citations) regarding the statutes, regulations, lawsuits, and agency actions that are discussed above.


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Documents

Surviving an ADA Accessibility Audit: Best Practices for Policy Development and Compliance€¦ · Web view · 2014-01-28Policy Development and Compliance. June 27 ... These laws