The New ADA: What Every Municipality Should Know 2014 Maryland Municipal League Convention Ocean City, MD Prepared and Presented by John N. McGovern, JD, President, Recreation Accessibility Consultants LLC

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What will we cover?  Methods of enforcement and consequences  New design and construction  The program access test  Failure to meet administrative requirements  Policies that fail title II requirements  Smart practices  Resources

Methods of Enforcement US Congress wanted more ways to enforce this civil right Congress did not require exhaustion of administrative remedies Interpreted broadly Based on case law of Section 504

Internal Complaints Have 50 or more ees? Must have internal complaint process for prompt and effective relief No legal fees, just solve the problem RAC, DOJ have sample processes

US DOI Administrative Complaints  Interior (DOI) is a “designated agency” with parks and recreation expertise  Can receive and investigate complaints  Injunctive relief only, sites, programs, policies!  “Losing” city can be compelled to pay legal fees and costs of complainant  Reluctant city can be sued by US DOJ

Federal District Court  Skip internal process, DOI, go to court  Injunctive relief only  “Losing” city can be compelled to pay legal fees and costs of complainant  Sites, programs, policies!  Trend on behalf of people with disabilities in title II and title III complaints

89,004  How many states and local governments are in the United States?  DOJ recognized it couldn’t monitor ADA implementation  Created Project Civic Access to randomly visit and review policies, sites, programs  Read the settlement agreements at

TIP: Regarding Enforcement, Lean to the Left  Trend is on behalf of the complainant  Are you asking should you do it? Perhaps ask what good comes of refusing to do it?  Read the US DOJ Project Civic Access settlement agreements and substitute your name for the city in the settlement…are you able to satisfy every question asked?

New Design and Construction  New is January 26, 1992  Followed 1991 Standards  “new” New is March 15, 2012  Follows 2010 Standards  Includes additions and alterations

New Design and Construction  Construction tolerance  Equivalent facilitation  Structural impracticability  RFP requires 2010 compliance, city will reject noncompliant bids

The Big News: Parks and Recreation Requirements  Playgrounds  Sports courts and fields  Boating and fishing areas  Swimming facilities, golf, and fitness  More on the way (trails, campsites, picnic areas, etc.)

Some Examples  City builds addition alongside existing facility but fails to make parking, entries, ramps, and other areas compliant  Town acquires a new building designed and constructed for it and fails to meet elevator requirement  Parks Department builds new conservatory but fails to assure 5% max accessible route

Some More Examples  City builds addition alongside existing facility but every grab bar in every accessible restroom is.5” too high because the contractor centered the grab bar at 36” aff  Village resurfaces and restripes parking lot but stalls are at slopes of 5% plus (max is 2%)  City refuses to relocate city council meeting on an evening when the elevator is being repaired and a man in a wheelchair wants to attend Council meeting

DOJ Program Access Test  Applies to existing sites  Congress recognized not all existing sites could be made, or need to be made, accessible  Disperse throughout the city  What counts is the program, service, or activity in the site

Sample Playground Program Access Test Map Playgrounds with changes recommended: Playgrounds with no change: Playgrounds currently accessible: Parks without Playgrounds:

Application…  DOJ wants the result to match the city  Factors are number and diversity of sites, cost of retrofit, degree of use, scheduled replacement, and feasibility of retrofit  DOJ guidance is vague, we suggest that cities aim for 1 of 3 recurring assets

Typical Municipal Issues  Municipality fails to provide effective communication  No sign language interpreter  Website fails  Front line staff have no training

Typical Municipal Issues  Purchase of new busses for transportation are not lift-equipped

Typical Municipal Issues  Training for public safety staffs regarding individuals with health issues, mental health issues, or developmental disabilities

Typical Municipal Issues  Failure to create access at municipal sites, or  Failure to require accessible elements when renovations occur

Typical Municipal Issues  Including retrofit costs for existing sites in every annual budget  Denying business permits unless a commitment to make sites and services accessible exists

CDR v Caltrans (2008)  Similar to Kinney v Yerusalim and Barden v City of Sacramento  Court notes that Caltrans “failed” to audit its 2,500 miles of sidewalks  Declares sidewalks (as other decisions do) as a local government “program” for the program access test  Largest architectural access settlement at $1.1?

Let’s Simplify Caltrans…  Has your city evaluated all existing sites, facilities, programs, and policies?  Does your city require bidders to attest that designs, work and plans meet title II requirements?  Does your city inspect work as it occurs for slopes and heights re title II?

Project Civic Access Settlements: Right Here in Maryland  DOJ evaluated more than 30 sites each in two large county systems  Required 6 year plan for agency to evaluate its other sites and annual reports  Evaluation and retrofit work ongoing for a decade

Let’s Simplify PCA Agreements  All now require program access evaluation of all sites  All now are implementing emergency shelter, voting, and police reviews  All now set timetables and establish reporting requirements

Administrative Requirements  Internal complaint process?  ADA Coordinator?  Access audits and transition plan?  Services in the most inclusive setting

Say no…after an assessment  Requests for inclusive participation must be met with an assessment by the city  Supports must be planned based on the assessment  If city answer is “no” create a writing

POLICIES THAT FAIL TITLE II  OPDMD  Service Animals  Advance notice  Higher fees

More Policies that Fail  No sign language interpreter  No accessible golf car  Fail to maintain accessible characteristics  Require participation in special programs, not inclusive programs

Smart Practices…  Always exceed the minimum  Require bidders to attend workshop re access  Make access and inclusion part of job descriptions and evaluations

MORE SMART PRACTICES…  US DOJ Letter of Findings for State of Alabama: implications for Maryland General Assembly?  Involve people with disabilities in advisory boards and plan development  Follow and adhere to evolving guidelines re golf cars, exercise machines, outdoor recreation

SHORT CUTS? BARE MINIMUM?  There are no short cuts that will protect you  Bare minimum #1: name an ADA coordinator and create a dispute resolution process  Bare minimum #2: evaluate all existing sites  Bare minimum #3: evaluate all existing policies and add new policies regarding people with disabilities  Bare minimum #4: invite and provide inclusive services to people with disabilities  Bare minimum #5: require design and construction to meet or exceed 2010 Standards for Accessible Design

RESOURCES Have a policy or program question? Reach the US DOJ at 202/ Make their website a favorite at Have a question about technical requirements in the 2010 Standards for Accessible Design? Call the US Access Board at 202/ and make their website a favorite at board.gov. board.gov

DOJ RESOURCES! DOJ title II technical assistance manual at US DOJ ADA Common Problems in Local Government at US DOJ Guide for Small Towns at

MORE RESOURCES! Want a second opinion? Visit the Disability and Business Technical Assistance Centers at 800/ or go to Confused about scoping (how many of a thing must be accessible)? Call US DOJ at 202/

CALL RAC TOO! John McGovern can help with all aspects of making local government accessible. New sites and facilities, access audits, plan review, help with ADA disputes, inclusion policies, policy review, public feedback, and more are all in our skill set. Reach John at 224/ or by at Subscribe to our monthly