The combined efforts of the Rocky Mountain ADA Center — a national not-for-profit — and locally based for-profit Meeting the Challenge Inc. have resulted in a more accessible world for the disabled.
The Americans with Disabilities Act passed 24 years ago this month and, according to Chief Operating Officer Kent Kelley of Meeting the Challenge, ADA compliance has been on the rise, especially in light of increased enforcement.
“We’re going to see more awareness,” Kelley said of the law. “Since it was passed, businesses have put in a few ramps and [accessible] bathroom stalls, and that’s good. But they’ve found the laws go further than that. This is about how to make the community equal and accessible to all.”
Rocky Mountain ADA Center, a member of the National Network of ADA Centers, is funded by the National Institute on Disability and Rehabilitation Research, a division of the U.S. Department of Education. According to its website, the ADA Center’s mission is “to provide information on the Americans with Disabilities Act … to individuals and organizations in Colorado, Utah, Montana, Wyoming, North Dakota and South Dakota.”
The center is operated by Meeting the Challenge Inc. and, according to Kelley, his group has seen an increase in settlements from increased enforcement by the Department of Justice. In 2011, Verizon paid a record $20 million ADA settlement for what was ruled too rigid an attendance policy, including firing workers with disabilities for no-fault absences.
“We’ve seen some landmark decisions,” Kelley said. “The number of cases is higher and the settlement agreements have increased.”
Kelley said the ADA covers such a broad spectrum, from housing to transportation to communications, most businesses have no idea what compliance is.
“The average business owner probably doesn’t understand what is required,” he said, “until someone files a complaint or there’s a lawsuit.”
Rachael Stafford, project director for Rocky Mountain ADA Center, sees two primary reasons why disability-law awareness is on the rise.
“We have an increasingly aging population and returning veterans who spotlight certain disabilities,” she said. “It’s no longer a friend of a friend of a guy you know who might use a wheelchair. It’s now your mother who lives in your home and you need to accommodate her. And now you see it’s not easy to navigate with a walker through a public voting office or a restaurant.”
Stafford said the ADA Center supplies compliance information through training, presentations and technical assistance, adding the center is politically neutral and not the “ADA police.”
“We’re not about providing special rights, but rather equal access,” she said.
Of the common violations, many begin before customers enter the door. Inaccessible parking, Kelley said, is one of the most common infractions.
“If people can’t park, that is obviously where lots of these settlements start,” he said. Secondly, he explained, if the disabled can’t get through the door, they can’t take advantage of services. Kelley said often a step or two leads into an establishment built within the past several years. He also said merchandise must be stocked allowing a person with a disability the same access.
“A hot seller on the top shelf is a violation of the ADA,” he said.
Everything from the amount of room one has to move about an establishment to the accessibility of public restrooms has requirements.
“I know of maybe 20 lawsuits with $5,000 to $10,000 settlements because the grab bars and mirrors in a restroom weren’t at the right height,” Kelley said, adding he’s aware the litigiousness of compliance is polarizing.
“Some people think the lawsuits are excessive and a waste of the court’s time, but the [DOJ] is out there and there is a risk,” he said. “If you’re not complying because it’s the right thing to do, start looking at your risks.”
Title II’s effect
Compliance grows more complicated with state and local governments. Title II protects qualified individuals with disabilities from discrimination in services, programs and activities provided by those entities, including parks and recreation facilities, sidewalks, intersections and communications.”
By law, these organizations are required to complete self-evaluations to determine their ADA compliance. All programs and services must be accessible, going beyond structural compliance and accessible merchandise.
“We’re not about providing special rights, but rather equal access.”
– Rachael Stafford,
Rocky Mountain ADA Center
• Relocation of programs to accessible facilities;
• Offering programs in an alternative accessible manner;
• Structural changes to provide program access;
• Policy modifications to ensure nondiscrimination; and
• Auxiliary aids needed to provide effective communication.
“The lack of self-evaluation and transition plans is really alarming,” Kelley said. “Departments of transportation are required to have transition plans to get federal funding from the [Federal Highway Commission.] Out of 50 states, 12 have transition plans. The deadline, and it was firm, was .”
Colorado’s DOT is among the group with transition plans, Kelley said.
He added that, of the 12 states with plans, many have barely made progress. Kelley said 10-15 percent of Colorado’s Title II entities have self-evaluation and transition plans.
“If you don’t have compliance or plans in place ahead of time and the DOJ swoops in, they give a much shorter time frame [to comply],” he said. “They don’t care about budgets and there is a very small window to comply before violations go public. Now you have a budget and a public relations nightmare.”
Colorado Springs has made “great strides” in addressing accessibility issues in the past several months, Kelley said, including hiring Michael Killebrew, the city’s first Title II ADA coordinator (see interview on page 4).
“We’re providing him with all the technical assistance he can stand,” Kelley said. “He knows the ADA and is working diligently to improveaccess.”
Stafford added the city has literally experienced a trial by fire the past two years as a result of the Waldo Canyon and Black Forest disasters.
“There were complications and a lack of understanding of the resources in place,” she said of efforts to communicate emergency information to and evacuate the disabled. “It was a wake-up call to the county and the city regarding the scope of things that needed to be done.”
Kelley said the onus rests with business owners and government entities to be inclusive. Compliance can be costly, but less than a compliance violation.
“If a business determines that barriers to accessibility exist either at its facility, or within their policies and procedures, it is that business’ legal responsibility to eliminate those barriers,” Kelley explained. “Costs for eliminating those barriers can vary greatly. … The important thing to remember is that, with some exceptions, usually there is more than one option for accessibility.”
He said business owners can benefit from “significant tax credits;” a building renovation or modification that improves accessibility is eligible for a $15,000 tax deduction. Small businesses can receive a $5,000 credit for most compliance expenses such as facility improvements, auxiliary aids and services, and providing accommodations for employees with disabilities.
Kelley said the most obvious return on investment to a business is mitigating risks and expenses associated with potential legal action.
“The coined phrase, ‘good access is good business’ is a clever phrase for business owners to keep in mind,” Kelley explained. “Economically speaking, global economic outlooks suggest people with disabilities represent a severely underserved section of the population. Current estimates reveal that nationally, people with disabilities represent over $1 trillion in disposable income. … Globally, people with disabilities have over $9 trillion in disposable income.”
Cart before the horse
Kelley said ADA laws are “extraordinarily complicated,” and building codes, for much of the act’s life, have been generated independently from accessibility laws.
“The ADA is a civil rights law. It’s not meant to enforce or necessarily shape building codes,” he said. “Codes are up to the regional building department. Things like how high an electrical outlet should be or framing requirements aren’t enforced with the ADA.”
He added that the Denver Regional Building Department is beginning to integrate ADA standards.
“Colorado is at the forefront,” Kelley said. “It’s not just a concept.”
Kelley said a business owner renovating or building a structure from scratch should ensure the design team has a thorough knowledge of ADA compliance. If the team lacks that expertise, a consultant should be hired. If a business owner is leasing space, Kelley said the owner will often place responsibility, and legally so, on the tenant.
“Lessors need to check where responsibility lies,” he said. “It’s almost always pushed to the tenant.
“Providing training for those small and large businesses, hotels, parks and recreation departments and government entities is a big part of what we do. We provide a robust training curriculum that teaches people how to comply. Some don’t have the resources for a consultant and we can help them figure it out on their own.”
Though national progress has been slow, he said regional momentum is building.
“We’re trying to make a difference here where we can,” Kelley said. “We’ve been talking about [access] for 20 years. Now is the time to do something about it.” nCSBJ