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METROPOLITAN MAYORS CAUCUS ADA COORDINATORS GROUP TRENDS IN ADA COMPLIANCE AND ENFORCEMENT PRESENTED JULY 12, 2017

OUR CONTENT THIS MORNING... There is a new Sheriff (and new Deputy) in town Enforcement trends and compliance activity What’s going on with IAC? Lessons learned Conclusion and Resources

THE NEW REALITY

Recognize this man? Donald J. Trump is the current leader of the free world and the undisputed President of the United States of America. The President also oversees the regulatory tools for the implementation of the Americans with Disabilities Act (ADA). The Presidential directive that for “every regulation or standard issued, two must be rescinded” is stalling all pending ADA guidance. That includes PROWAG, golf cars, fitness machines, outdoor developed areas, hospital and medical treatment rooms, the internet, and much more, are on hold.

The “Deputy” is US Attorney General Jeff Sessions The “Deputy” is US Attorney General Jeff Sessions. Appointed by President Trump, and confirmed by the US Senate, he oversees the work of the US Department of Justice (US DOJ), the entity that sets the minimum regulations and standards to implement the ADA. The Attorney General drives several functions important to the ADA. These include advancement of new standards developed by the US Access Board, determining whether to seek Court enforcement of US DOJ settlement agreements under the ADA, and determining if new ADA settlement agreements are able to be enforced in Federal District Court. Human resource allocations is also a factor.

OTHER KEY US DOJ ROLES... Interpretation of ADA requirements Technical assistance hotline (202-514-0301) Technical assistance papers on website (www.ada.gov) Controlling designated federal agency civil rights staffs Speaking at ADA conferences nationwide

ENFORCEMENT TRENDS AND COMPLIANCE ACTIVITY

ENFORCEMENT TRENDS... Title II still leans towards the complainant Title III is likely down the middle... Title I is in favor of the employer Disability Rights Bureau of the Illinois Attorney General leans in favor of the complainant

COMPLIANCE ACTIVITY

OUR CONTENT THIS MORNING... There is a new Sheriff (and new Deputy) in town Enforcement trends and compliance activity What’s going on with IAC? Lessons learned Conclusion and Resources

Florida Department of Environmental Protection 2008 dispute Glass bottomed boat? Are contractors and concessionaires subject to ADA mandates? What does your concessionaire contract say about the ADA?

City of Whitewater, Wisconsin Should the words “Miss Wheelchair USA” mean anything to you? Downtown curb ramps, park renovations, City Hall, softball fields Two years, out of town expert, settled for fees and negotiated retrofits Risk pool perspective...

Montgomery County, Maryland 50% of US DOJ staffs live in this county Comprehensive review of all new construction, policies, HR issues, communications, existing facilities Washington Post estimated compliance costs at more than $200M Three years of access audits, seven years for transition plan

Prince George’s County, Maryland Two years of access audit Six year transition plan Very successful model of train-the-auditor, with administrative buy- in on implementation Addressed policies and programs too

Greenacre Park District, Greenacre, Illinois Dispute in 2009 with a CIL Sparked by a building retrofit and poor A/E compliance and fueled by customer service errors When is something free not good? The two-story rule... Still alive, IL AG DRB should sign off this year or 2018

Affluent Park District, Illinois 2008 dispute Addition to existing building, failed due to .5” versus the as-builts Sparked by bad A/E, fueled by poor customer service Ended 2011, after District conducted mandated access audit and transition plan of all sites and facilities

City of Cedar Rapids, Iowa Comprehensive 2015 PCA settlement agreement addresses facilities and parks since 1992, and curb ramps since 1992 (more than 4,000) Significant impact on A/E community and contractor community Addresses policies and programs ALL RETROFIT WORK to be completed by September 30, 2019

San Juan County, New Mexico 2015 PCA agreement addresses policies, existing sites and facilities, polling places, and staff training Not a wealthy county, and complicated because many polling places are within the Navajo Nation Request to extend compliance date by two years granted by US DOJ ILA has caused the County to select A/E differently

Township of South Orange Village Recreation and Cultural Affairs, South Orange, NJ 2014 US DOI dispute Small community replaces a walking path, fails to meet cross and running slope requirements in Access Board work Citizen complaint to Interior Office of Civil Rights through BLM Outcome: complete access audit and transition plan, retrofit path

Barden v. Sacramento Settled in 2004 Clearly establishes sidewalks as a “program” under title II Requires the City to, for 30 years, set aside 20% of annual transportation budget for pedestrian infrastructure audit and retrofit Good analysis at http://dralegal.org/case/barden-v-sacramento/

Los Angeles County 2015 US Federal District Court settlement agreement Sidewalk system never audited, no transition plan Sidewalks fail to meet PROWAG running and cross slope tests LA will spend $1,300,000,000 over the next 30 years to retrofit

Council for Disability Rights v. City of Chicago 2005 US Federal District Court settlement agreement Multi-phased approach to PROW, sidewalks are a program Sidewalks fail to meet PROWAG running and cross slope tests City to spend approximately $50,000,000 to retrofit

WHAT’S GOING ON WITH IAC?

CHANGE IS IMMINENT... 2014 RFP issued by Capital Development Board and work not awarded CDB and IL AG rewrite Draft finished in 2016 JCAR process Likely issued in 2017 2018 2019!

WHICH AGENCY INTERPRETS...CDB OR AG DRB? CDB can advise but cannot issue waivers Interpretation will be the role of the IL AG Disability Rights Bureau New IAC content: beaches, playgrounds, sports fields and courts, pools, golf, fitness, PROW, to catch up with the 2010 Standards and the US Access Board JCAR process will invite comment Do not go the path of California!

LESSONS LEARNED

Lean towards yes To the greatest extent possible adhere to guidance in development Citizen advisory committees are essential as both communication and risk management Exceed the minimum Participate in the development of state and federal guidance

Complete access audits of existing sites and facilities Complete access audits of policies Complete access audits of programs and services, and how the entity supports people with disabilities Complete access audits of pedestrian infrastructure Develop a transition plan that moves promptly to retrofit assets

Seek and listen to public feedback on access priorities and preferences Mandate annual training for contractors and professionals Adopt an OPDMD policy and a service animal policy Provide annual training for employees Fund and implement the transition plan

Have not yet experienced an ADA lawsuit? Learn from those who have... Fire drills: use the Project Civic Access cases as in-house risk management scenarios Do address the un-addressed elements that cities and villages often develop (community gardens, dog parks, disc golf parks, skate parks, and more) Do address domestic abuse shelters and emergency shelters Do address polling places

RESOURCES... US DOJ is an excellent source at 202-514-0301 or www.ada.gov for program and policy advice US Access Board is best for interpretation of the 2010 Standards for Accessible Design at 202-272-0080 or www.access-board.gov Disability Rights Bureau of the Office of the Attorney General is the IAC source at http://www.ag.state.il.us/rights/disabilityrights.html and 312- 814-5684 DBTACs great second or third opinion at 800-949-4232

The W-T Group, LLC Accessibility Division Doing business as Recreation Accessibility Consultants, LLC Two Certified ADA Coordinators One RAS and one CASp One attorney licensed in IL John McGovern at 224-293-6451 or john.mcgovern@rac-llc.com

Conclusion... Access and inclusion is everyone’s job As the types of disabilities and treatments we see become more complex, expect more unusual requests for reasonable modification With static status of guidance in Washington and Springfield, realize you may have to solve the problem without authoritative state and federal guidance Invite, ask, and listen before doing...