Significant changes to the federal regulations that apply to places of public accommodation, commercial facilities, and private entities offering examinations and courses have taken effect over the past year and it is critical that regulated communities understand the impact of these changes. Both Title III and Title II of the Americans with Disabilities Act (ADA) Regulations have been amended: Title III of the ADA applies to hospitals, doctors’ offices, restaurants, retail stores, hotels, movie theaters, private schools, convention centers, day care centers, and recreation facilities, such as sports stadiums and fitness clubs, banks, ATMs, and any other facility that welcomes the public or provides a public service. Title II of the ADA include state and local government offices, public schools, and state licensing and exam centers.
Key changes in the revised regulations
The amended regulations adopt the 2010 ADA Standards for Accessible Design, which implement new accessibility guidelines for government facilities and commercial places of public accommodation. In addition, the amended regulations address numerous accessibility issues, including selling and issuing tickets to individuals with disabilities; accommodating service animals, wheelchairs and other power-driven mobility devices; providing auxiliary communication aids; and making reservations in places of lodging. The heightened standards are technical in nature and include, for example: wheelchair access points (e.g., wheelchair spaces and companion seats may not be located on or obstructed by temporary platforms or other movable structures); reach ranges; single-user toilet rooms; assembly areas; location of accessible routes; entrances from parking structures; and location of guest rooms in lodging facilities
Reservations for Places of Lodging
Places of lodging must: (1) allow individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; and (2) identify and describe accessible features in the hotels and guest rooms. Places of lodging must also ensure that reserved accessible guest rooms are available for those guests with disabilities upon their arrival.
The new regulations update guidance for effective communication for persons with disabilities. For example, the regulation allows for use of video remote interpreting services as an auxiliary aid, if the entity complies with specified performance standards.
The regulations provide guidance on the sale of tickets for accessible seating, the sale of season tickets, the hold and release of accessible seating to non-disabled individuals, ticket pricing, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating.
The new federal regulations governing patient access to medical services took effect in March 2011 and apply to the services provided by hospitals, medical offices and care facilities. They are part of the amendments to the Americans with Disabilities Act's (ADA) public accommodation regulations and are NOT related to the ADA regulations for employment.
The new Regulations take effect during a time when the Civil Rights Division of the U.S. Department of Justice (DOJ) has heightened its focus on accessible medical care and has settled some notable ADA cases involving hospitals and physicians’ offices. DOJ also issued special guidance about providing medical care to persons with physical disabilities. The guidance emphasizes that exam tables, scales, radiological equipment such as x-ray and mammography machines, and all other medical equipment must be accessible to persons with a physical disability.
ADA compliance priorities from the Department of Justice include the following:
- Providers must ensure effective communication both with a patient as well as with a patient’s companion who has difficulty with communication. For example, a hospital’s emergency department or a physician’s office may need to provide a sign-language interpreter for a patient’s spouse who is deaf. This obligation exists even if the patient does not require assistance communicating with providers and staff.
- Providers may not treat a patient seated in a wheelchair if the patient would otherwise be treated while on an exam table or another piece of equipment. Facilities must have mechanized tables and other accessible devices available, and employees must be trained to safely transfer and position patients onto them. The failure to have the required equipment available and to train employees in its use may be tantamount to denying effective medical treatment.
- To the extent feasible, patients and visitors must be allowed to use Segways as mobility devices. In addition, dogs must be permitted as service animals. Accessible patient rooms must be dispersed throughout a facility in a manner that is proportionate to each medical specialty. This means, for example, that a facility cannot place all patients with physical disabilities in an orthopedic area if the patients actually need cardiovascular or neurological care.
Facilities need to assess whether changes in common-space accessibility requirements necessitate modifications or remodeling. As an example, built-in elements now must have side reach of no more than 48 inches. This can affect the height of door handles, counters, pay phones, security card readers, fire-alarm pulls, elevator buttons, etc. The previous maximum was 54 inches.
Impact on Regulated Businesses
ADA missteps can be costly. Justice Department investigations can be lengthy, and remedies may include a term of court-ordered oversight, victim compensation, fines and retrofits for construction issues. Fennemore Craig works with our clients to conduct efficient, cost effective compliance reviews and to assist them in creating and implementing policies, procedures, and treatment protocols tailored to their specific needs. The Firm also provides training for employees, including security personnel, on how to properly implement ADA policies and procedures to maximize customer service and avoid liability.