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Disability Rights |
January 2011 Disability Rights Online News |
DEPARTMENT HOLDS PUBLIC HEARINGS ON PROPOSED RULEMAKING UNDER THE ADAThe Department is holding three public hearings on four advance notices of proposed rulemaking (ANPRMs) that were published in July 2010. (See previous article in issue # 38.) The purpose of the hearings is to get public comments on the possibility of drafting additional regulations for titles II and III of the ADA to address accessible websites; captioning and video description of movies shown in theaters; accessible features for Next Generation 9-1-1 (when 9-1-1 centers acquire new equipment that enables them to receive voice, text, and video calls over the Internet); and accessible equipment and furniture such as medical equipment, hotel beds, ATMs, interactive transaction machines (including point-of-sale devices), and kiosks. The first hearing was held on November 18, 2010, in Chicago, Illinois. Fifty people testified, including individuals with disabilities, disability rights advocates, rehabilitation specialists, and representatives of industries and goverment agencies that will be affected if the Department develops regulations on these topics. In addition, several golf course operators testified about their efforts to ensure access to golf courses for people with disabilities. Commenters unable to attend in person participated by telephone or videophone. The second hearing was held on December 16, 2010, in Washington, DC, and was webcast live. More than fifty people testified, including individuals with disabilities, advocates, industry representatives, and state and local government officials. A significant number of advocates and individuals who are blind or have low vision urged the Department to develop regulations that will give them access to goods and services offered through the Internet. A number of commenters with disabilities also described their personal experiences, including a 16-year old girl who testified about her daily struggle to fit in as a teenager with a severe hearing loss and how much she wants to be able to attend an open-captioned movie with her friends on opening night. The third public hearing was held on January 10, 2011, in San Francisco, California, and also was webcast live. Transcripts and on-demand video rebroadcasts of the three hearings are available on the Department’s ADA Website, archive.ada.gov. HILTON WORLDWIDE AGREES TO PRECEDENT-SETTING SETTLEMENT OF ADA ISSUESOn November 9, 2010, the Department simultaneously filed a lawsuit and a consent decree in the federal court in Washington, DC, resolving multiple complaints of discrimination by Hilton Worldwide, Inc. (HWI). HWI cooperated with the Department throughout the lengthy investigation and negotiation process. The consent decree, which was approved by the court on November 30, 2010, applies not only to hotels HWI owns or manages but also to hotels it franchises. The decree covers all ten hotel brands owned by HWI: Hilton Hotels, Conrad Hotels & Resorts, Waldorf Astoria Hotels & Resorts, Hilton Grand Vacations, Hilton Garden Inn, Hampton Inn, Homewood Suites, Embassy Suites Hotels, Home2Suites, and Doubletree Hotels. The consent decree is precedent-setting in three ways: this is the Department’s first case in which a franchisor has agreed to impose ADA requirements on franchisees; it is also the first case that sets out comprehensive standards for making a hotel reservations system accessible; and is the first case in which a hotel chain has agreed to provide specific information on its website about the accessible features of guest rooms and make its online reservations system accessible. |
All HWI-owned hotels built after January 26, 1993, as well as all HWI-managed and franchised hotels built since then that experience a “triggering event,” will be required to conduct an accessibility survey of its facilities and certify to an HWI-hired ADA consultant that the hotel complies with the ADA requirements specified in the survey. In the event the survey identifies barriers to access, the hotel will be required to develop a plan to comply with ADA requirements and submit the plan to the ADA consultant for review. The consultant will monitor surveys and plans and can conduct on-site inspections to verify ADA compliance. He or she will also file a report annually with the court. The survey requirements for franchised and managed hotels will be triggered by a new franchise or management agreement, a renewal or extension of a franchise agreement, or a change of ownership. It is anticipated that approximately 900 of the 2,200 Hilton branded hotels in the United States built after 1993 will undergo an accessibility survey during the term of the decree. Hilton’s ADA consultant will also review HWI’s prototype hotel design plans to ensure that they meet ADA requirements. In addition, HWI will amend the standards it imposes on the hotels it owns, manages, or franchises to require that they comply with the ADA, get an ADA compliance certificate from an architect when they build a new facility, train all employees on the ADA, and designate an ADA contact person at each hotel. This provision will affect 2,800 hotels in the United States. HWI’s reservations system will be improved so individuals with disabilities can learn what amenities are available (for example, whether an accessible room has a roll-in shower or an accessible tub) when reserving by telephone or online. Customers with disabilities will also be able to guarantee a reservation as easily as other customers. HWI will also pay a civil penalty of $50,000 to the United States. “The ADA protects the right of people with disabilities to stay in accessible hotel rooms, and to reserve those hotel rooms through the same convenient systems as everyone else,” said Thomas E. Perez, Assistant Attorney General of the Civil Rights Division. “Persons with disabilities who travel for pleasure or business must be able to count on getting the accessible room they reserved, and the hotel must provide the choice of amenities that everyone comes to expect from a major national hotel chain like Hilton.” TWO LARGEST MOVIE THEATER COMPANIES AGREE TO IMPROVE ACCESSIBILITY AND ENHANCE VIEWING EXPERIENCE IN STADIUM-STYLE THEATERSRegal Entertainment Group, America’s largest movie theater company with more than 6,700 screens nationwide, and AMC Entertainment, Inc., the second largest company with more than 5,300 screens, recently entered into consent decrees with the Department resolving claims that they violated the ADA by failing to provide patrons who use wheelchairs with comparable lines of sight relative to other movie patrons. These consent decrees will improve the movie-going experience for people who use wheelchairs and their companions at AMC and Regal stadium-style theaters across the country. The consent order negotiated with AMC, which was approved by the federal court in Los Angeles on November 29, 2010, and the renewed consent order negotiated with Regal, which was endorsed by the federal court in Boston on December 9, 2010, have similar accessibility provisions. With respect to existing stadium-style theaters (as well as stadium-style theaters acquired during the terms of the decrees), both companies have agreed to make sure that a specified percentage of auditoriums provide wheelchair spaces and companion seating in the stadium section. AMC and Regal also will, as needed, relocate wheelchair seating from the front row to locations further back from the screen and otherwise ensure that movie patrons who use wheelchairs enjoy an unobstructed view of the screen. Moreover, all stadium-style theaters opened by AMC or Regal during the respective five- and three-year terms of these consent decrees will be constructed in accordance with design requirements that place accessible seating near the middle of the auditorium. AMC also will pay $25,000 in civil penalties to the United States and a total of $50,000 in monetary damages to individual complainants. Stadium-style theaters were introduced in the United States in the mid-1990’s. They offer superior lines of sight and a better movie-going experience for most moviegoers compared with previous theater designs. In early stadium theater designs, accessible seating was often located at or near the very front of the auditoriums, which resulted in uncomfortable and distorted views of the screen for patrons with disabilities and their companions seated in these locations. The two recent consent decrees culminate the Department’s efforts over more than ten years to ensure that movie patrons with disabilities have equal access to the enhanced viewing experience of stadium-style theaters. OREGON HOTEL AGREES TO ACCEPT NON-DRIVER IDENTIFICATIONOn September 10, 2010, the American Hospitality Inn in Portland, Oregon, entered into a settlement agreement with the Department resolving a complaint from a man who is blind who, when registering for a room at the hotel, produced a state-issued identification card and a Veteran’s Administration identification card but was turned away because the desk clerk refused to accept anything other than a driver’s license for identification. Under the terms of the settlement, the hotel will adopt a formal policy on acceptable forms of identification as well as a policy on acceptable treatment of people with disabilities who use service animals and will pay $1,000 in compensatory damages to the complainant. NEW PROJECT CIVIC ACCESS SETTLEMENTSProject Civic Access (PCA) is the Department’s wide ranging initiative to work cooperatively with local governments to ensure that their programs and activities comply with the ADA, allowing people with disabilities to participate more fully in the civic life of their communities. More than 175 agreements have been reached with communities small and large throughout the United States under this initiative. PCA reviews have been conducted in all 50 States, as well as Puerto Rico and the District of Columbia, helping to improve the lives and broaden opportunities for more than 3 million Americans with disabilities. (See previous articles in issues # 3, 5, 9, 17, 18, 28, 32, and 37.) Since June 10, 2010, six local governments entered into settlement agreements with the Department under the PCA initiative. The new agreements are with:
Did you know...Settlement agreements and other information about Project Civic Access are available at www.ada.gov/civicac.htm NEW HAMPSHIRE TOWN AGREES TO MAKE ITS FACILITIES ACCESSIBLEOn October 26, 2010, the Town of Wolfeboro, New Hampshire, entered into a settlement agreement with the Department to resolve an allegation that town programs and facilities violated the “program access” requirements of title II of the ADA. The town agreed to make a host of architectural changes to improve physical access to a variety of town facilities, including the town hall, public safety building, library, and community center. The agreement sets forth changes that the town made during the course of the investigation and establishes a three-year timetable for the completion of additional changes. RECENT ACTIVITIES TO ENFORCE OLMSTEAD DECISIONOn October 12, 2010, the Department filed a Statement of Interest in Boyd v. Herrmann-Steckel, a lawsuit challenging the State of Alabama’s refusal to provide community-based services for a young man with quadraplegia who currently resides in a nursing home. The facility’s restrictions and conditions make it difficult for him to pursue his graduate studies at a local state university. The Department’s brief, filed in the federal court in Montgomery, Alabama, argued that the plaintiff is suffering irreparable harm and should be provided with community-based services while the case is pending. On October 15, 2010, the Department filed a Statement of Interest in Hiltibran v. Levy, a lawsuit challenging the State of Missouri’s refusal to provide incontinence supplies, particularly incontinence briefs, for four individuals with disabilities who live in the community with their families and have medical incontinence. The state refuses to provide these supplies in the community, but will provide them if the plaintiffs enter a nursing home – at a cost approximately 20 times the cost of providing the supplies in the community. The Department’s brief, filed in the federal court in Kansas City, Missouri, argued that the plaintiffs are likely to win the lawsuit and should be provided with the needed supplies while the case is pending. Since 2009, the Department has filed Olmstead complaints in Arkansas and Georgia, moved to intervene in cases in Florida, New Jersey, and New York; filed seven amicus briefs in cases in California (2), Connecticut, New Jersey, North Carolina, Pennsylvania, and Virginia; and filed ten statements of interest in cases in Alabama, California, Florida (2), Georgia, Illinois (3), Missouri, and North Carolina. FLORIDA COUNTY PAYS $400,000 TO RESOLVE FHA LAWSUITOn October 25, 2010, Polk County, Florida, entered into a consent decree with the Department resolving a lawsuit filed on September 30, 2010, alleging that the county violated the Fair Housing Act (FHA) when it denied New Life Outreach Ministries the right to operate a faith-based transitional residency program in Lakeland, Florida, for homeless men with disabilities, including those in recovery from drug and alcohol abuse. The county had originally approved the project, but subsequently reversed itself after community opposition arose because of the disabilities of the residents. Under the terms of the consent decree, which was approved by the federal court in Tampa on October 30, the county will pay $280,000 in compensatory damages to New Life, up to $80,000 in compensatory damages to individuals who were forced to relocate from New Life’s facility as a result of the county’s conduct, and a civil penalty of $40,000 to the United States. The consent decree also prohibits the county from further discrimination and requires county employees who have responsibilities related to zoning and land-use to receive fair-housing training. “Equal access to housing is a basic necessity and a civil right, and the Fair Housing Act guarantees that all individuals can access that right free from discrimination,” said Assistant Attorney General Thomas E. Perez. “This settlement will ensure that the equal housing opportunities required by law are available to all citizens of Polk County and send a message to other states and municipalities that we have no tolerance for discrimination against persons with any type of disability.” DEPARTMENT BRIEF EXPLAINS FHA RULES REGARDING ASSISTANCE ANIMALSOn November, 2, 2010, the Department filed a friend-of-the-court brief on behalf of the plaintiffs in Fair Housing of the Dakotas v. Goldmark Property Management Co., an FHA case pending in the federal court in Fargo, North Dakota. Goldmark manages more than 10,000 apartment units throughout North Dakota, Minnesota, Iowa, and Nebraska, serving over 25,000 residents a year. The plaintiffs are a fair housing organization and five individuals from Bismarck and Fargo, North Dakota, and Moorhead, Minnesota, who have mental disabilities and use assistance animals. The lawsuit challenges policies and practices on assistance animals that apply in Goldmark’s North Dakota region, which encompasses 7,600 apartment units in North Dakota and part of western Minnesota. Goldmark requires tenants with disabilities who use an assistance animal that is not specially trained, such as an emotional support or companion animal, to pay an extra non-refundable deposit of several hundred dollars, a one-time reasonable accommodation request fee, and a monthly fee for the animal, and to obtain $100,000 in liability insurance. Goldmark does not impose these requirements on tenants with disabilities who use specially trained animals, such as guide dogs or hearing dogs. In its brief, the Department explained that 1) the FHA requires landlords to make reasonable accommodations to their normal policies in cases where people with disabilities use assistance animals, regardless of whether those animals have special training; 2) the ADA regulation on service animals, which requires that animals be trained, does not apply to residential settings governed by the FHA; 3) under the FHA, generally applicable fees, such as pet fees, must be waived when necessary to provide tenants with disabilities an equal opportunity to use and enjoy their residence; 4) while the FHA allows landlords to recover the cost of damage caused by a tenant’s assistance animal, Goldmark has not established a connection between its fees and damages caused by tenants’ assistance animals; and 5) Goldmark’s policy discriminates against tenants with mental disabilities who use emotional support animals because it imposes fees and other requirements not imposed on tenants with disabilities who use trained assistance animals. ADA MEDIATION HIGHLIGHTSThe ADA Mediation Program is a Department-sponsored initiative intended to resolve ADA complaints in an efficient, voluntary manner. Mediation cases are initiated upon referral by the Department when both the complainant and the respondent agree to participate. The program uses professional mediators who are trained in the legal requirements of the ADA and has proven effective in resolving complaints at less cost and in less time than traditional investigations or litigation. Over 78% of all complaints mediated have been resolved successfully. In this issue, we highlight complaints about exercise and sports facilities that have been successfully mediated. RECENT OUTREACH ACTIVITIES |
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January 31, 2011