Legal Obligations for Waiting Lists & Accessible Units in Public Housing
By Marc Dubin April 4, 2011
When a wheelchair accessible unit becomes available should it be offered to the first
applicant on the waiting list, or the first person with a disability who requires the accessible features?
HUD’s Section 504 regulations (24 CFR sec. 8.27) require recipients of federal funds to take reasonable steps to assure that information on available accessible units reaches otherwise qualified individuals with disabilities who need the features of those units. The regulations provide that whenever a unit that meets the requirements of the Uniform Federal Accessibility Standards (UFAS) for a mobility-impaired person becomes available for occupancy, a recipient shall first offer the unit to a qualified individual with disabilities currently residing in a non-accessible unit in the same project or comparable projects, under common control, who requires the accessible features. If there are no such persons currently residing in the recipient’s projects, the recipient shall then offer the unit to the next available qualified individual with disabilities on its waiting list, provided that the person
requires the accessibility features of the unit. The recipient shall skip over non-disabled applicants on the waiting list to offer the unit to the next qualified individual who requires the unit’s accessibility features.
If no qualified applicant with disabilities requires the accessible features of a unit, and the recipient places a family where none of the family members have disabilities in that unit, the recipient may include language in the lease requiring this family to agree to move to a nonaccessible unit, as soon as one becomes available that otherwise meets the family’s needs.
Attorney Marc Dubin is Director of Advocacy for the Center for Independent Living of South Florida.
You can follow his ADA commentary on Twitter (@adaexpertise) and via his blog at
http://www.DisabilityAdvocacyBlog.org. We are proud to list him as one of our valued members!
The following articles demonstrate that the federal government is getting serious about enforcing the laws prohibiting disability discrimination. It is nice to have a more reliable partner in this effort.
Delta Fined $2 Million for Violating Air Travel Disabilities Rules
February 17, 2011
WASHINGTON – The U.S. Department of Transportation (DOT) announced today that it has assessed a fine of $2 million against Delta Air Lines for violating rules protecting air travelers with disabilities. This fine is the largest civil penalty ever assessed against an airline by DOT in a nonsafety-related case. “Ensuring that passengers with disabilities receive fair treatment when they fly is a priority for the Department of Transportation,” said U.S. Transportation Secretary Ray LaHood. “We take our aviation disability rules seriously and will continue to enforce them vigorously.” Of the of $2 million penalty, $750,000 must be paid by the carrier and up to $1,250,000 may be used to improve its service to passengers with disabilities beyond what is
required by law. The order also directs Delta to cease and desist from future violations of the Air Carrier Access Act (ACAA) and Part 382, DOT’s implementing regulations for the ACAA.
The DOT requires airlines to provide assistance to passengers with disabilities while boarding and deplaning aircraft, including the use of wheelchairs, ramps, mechanical lifts and service personnel where needed. Carriers also must respond within 30 days to written complaints about their treatment of disabled passengers, and specifically address the issues raised in the complaints. In addition, airlines must properly code and record their disability-related complaints in connection with required reporting to the Department.
An investigation of disability complaints filed with Delta and DOT revealed many violations of the requirement to provide assistance getting on and off the airplane. The carrier’s complaint files also showed that it frequently did not provide an adequate written response to disability complaints from passengers. The DOT’s Aviation Enforcement Office further found that Delta failed to properly report each disability complaint in reports filed with the Department.
Delta admitted no wrongdoing. It says it will install more elevators, and allow customers to specify what type of wheelchair help they need when they buy a ticket on the airline’s website. It will also install additional jetways – instead of stairs – for boarding regional flights. It is expected that Delta’s actual costs to implement these improvements will be significantly greater than the credited amounts.
The consent order, docket DOT-OST-2011-0003, is available on the Internet at
http://www.regulations.gov/#!documentDetail;D=DOT-OST-2011-0003-0007. Visit the
Disability.Blog (http://blog.govdelivery.com/usodep/transportation/) to read and comment on transportation-related subjects and other issues of interest to the disability community. Travelers with disabilities should review DOT’s pamphlets, New Horizons for the Air Traveler with a Disability and Fly Rights, for more information about the Air Carrier Access Act. These resources can be found at http://www.dot.gov/. Air travelers, who experience disability-related air travel
service problems, may call a toll free number at 1-800-778-4838 or 1-900-455-9880 (TTY) 9 a.m. to 5 p.m., Monday through Friday (except federal holidays) to obtain assistance.
Houston Bus Company Fined $55,000 for Violating the ADA
March 28, 2011
WASHINGTON – A Houston bus company was fined $55,000 for violating passenger carrier accessibility requirements under the Americans with Disabilities Act (ADA), announced the Departments of Justice and Transportation. In addition to the fine, a consent agreement reached with the Federal Motor Carrier Safety Administration (FMCSA) and the Justice Department requires Autobuses Ejecutivos LLC d/b/a Omnibus Express to upgrade its fleet to meet ADA requirements by July 2011 or have its operating authority revoked.
“We owe it to the traveling public to make sure commercial buses are safe and accessible for everyone,” said FMCSA Administrator Anne S. Ferro. In February 2009, FMCSA and the Justice Department entered into a memorandum of understanding concerning the enforcement of commercial passenger buses.
More information about the Civil Rights Division and the laws it enforces is available at www.justice.gov/crt. The consent agreement with Omnibus Express can be viewed at www.fmcsa.dot.gov/documents/ABOUT/News/Omnibus-ConsentAgreement-508.PDF.
Justice Department Reaches Agreement with Rhode Island on Voter Registration at Public Assistance and Disability Offices
March 28, 2011
WASHINGTON – The Justice Department announced today that it has reached an agreement with Rhode Island officials to ensure that all public assistance and disability services offices in Rhode Island offer voter registration services to their clients. The agreement is necessary to bring Rhode Island into compliance with the National Voter Registration Act (NVRA).
The agreement was filed in conjunction with a lawsuit by the Justice Department’s Civil Rights Division alleging that Rhode Island violated federal law by failing to provide voter registration services at all public assistance offices and all offices that provide state-funded programs primarily aimed at persons with disabilities. Congress enacted the NVRA in 1993 in part to enhance citizen participation in elections by making voter registration opportunities available at offices that provide essential services like public assistance and disability services.
“The voting process begins with registration, and it is essential that all citizens have unfettered access to voter registration opportunities,” said Thomas E. Perez, Assistant Attorney General for the Justice Department’s Civil Rights Division. “I am pleased that officials in Rhode Island worked cooperatively with the Justice Department to reach this agreement, which will ensure that all citizens who apply for public assistance or disability services in Rhode Island will be able to register to vote as easily and conveniently as possible.”
The two-year agreement, if approved by the district court, commits Rhode Island to undertake a variety of measures, including offering voter registration opportunities to all applicants for public assistance, WIC, rehabilitative services, developmental disabilities services and mental health services; distributing voter registration applications in public assistance and disability services offices and via mail; training employees on NVRA compliance; conducting regular internal compliance audits; and reporting the number of voter registration applications processed by public assistance and disability service offices. In the event compliance is not achieved within two years, the agreement will continue until compliance is reached.
More information about the NVRA and other federal voting laws is available on the Department of Justice website at www.justice.gov/crt/about/vot/. Complaints about discriminatory voting practices may be reported to the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.
NEW ADA REGULATIONS TOOK EFFECT MARCH 15
From: New England ADA Center <adainfo@NewEnglandADA.org>
March 14, 2011
Important changes to the ADA Title II and Title III regulations are in effect starting March 15, 2011. Title II applies to state and local governments. Title III applies to the private sector: stores, hotels, day care centers, non-profit organizations, medical providers, etc. Most of the changes in the two regulations are the same.
WHAT ARE THE CHANGES?
The definition of service animals now only includes dogs. Other animals, whether wild or domestic, do not qualify as service animals. Dogs must be individually trained to do work or perform tasks.
Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The regulations also clarify that the animal must be under the handler’s control at all times, that the handler is responsible for the animal’s care and what questions can and can’t be asked a person regarding whether his or her dog is a service animal.
Although not under the definition of service animals, the regulations permit the use of trained miniature horses as alternatives to dogs, where appropriate. Assessment factors to determine appropriateness include the type, size, and weight of the miniature horse; whether the facility can accommodate these features; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
Wheelchairs and Other Power-Driven Mobility Devices
The regulations distinguish wheelchairs and “other power-driven mobility devices” (OPDMDs).
OPDMDs are mobility devices not designed for people with disabilities, but which are often used by people with disabilities (such as the Segway). Wheelchairs must be permitted in all areas open to pedestrian use. OPDMDs must be permitted unless their use would fundamentally alter programs, services, or activities; create a direct threat or create a safety hazard.
Ticketing (not parking tickets – tickets to sporting events, concerts, theater, etc.)
Tickets for accessible seating must be available to purchase during the same hours; during the same stages of ticket sales (pre-sales, promotions, lotteries, wait-lists, and general sales) and through the same methods of distribution (phone, in person, internet, third party) as tickets for non-accessible seating. The regulations also include requirements concerning information about the location and availability of accessible seating, hold and release of accessible seating to persons without
disabilities, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating.
The regulations include video remote interpreting (VRI) services as a type of auxiliary aid that may be used to provide effective communication. To ensure that VRI is effective, the regulations include performance standards for VRI and require training for users of the technology. The regulations state that a minor child may not be used to interpret or facilitate communication except under emergency situations.
More ADA Title II and Title III regulations changes go into effect next year on March 15, 2012.
We will discuss those in future updates.