Recent revisions to the Americans with Disabilities Act will substantially affect Title III public accommodations—including hospitals, hotels and motels, shopping centers, theaters, and stadiums.

On July 23, 2010, U.S. Attorney General Eric H. Holder, Jr., signed revised final regulations under Titles II and III of the ADA. The revised regulations address both accessible design issues and accessibility issues that go beyond design. For a discussion of the accessibility design changes, please click here.

A sampling of issues that go beyond design follows below:

Ticketing Regulations. The new final rules contain significant changes to regulations related to how public accommodations sell and issue tickets to individuals with disabilities. Under the new rules, private entities that manage theaters, concert halls, movie theaters, and stadiums must modify their ticket-selling practices to ensure that individuals with disabilities have an equal opportunity to purchase tickets to accessible seating. They also must inform individuals with disabilities, or those individuals' companions or other third parties purchasing tickets on behalf of individuals with disabilities, of the location and description of available accessible seating to all events or series of events.

Covered entities further must ensure that ticket prices for accessible seating to every event or series of events are not higher than prices for non-accessible seating and that, whenever possible, groups of individuals that include individuals with disabilities shall be permitted to sit together in accessible areas. Finally, the rules require that public accommodations take steps to ensure that, even when individuals with disabilities acquire tickets to events or series of events through the secondary ticket market, those individuals do so under the same terms and conditions as do nondisabled individuals.

Service Animals. The new rules require public accommodations to modify their policies to allow for the use of service animals by individuals with disabilities. For example, the rules prohibit surcharges against individuals accompanied by service animals. The same rules, however, do provide that disabled individuals, and not affected covered entities, are responsible for the care and maintenance of the service animals that they use. Under the rules, public accommodations may make only two inquiries when assessing a disabled individual's need for a service animal and their responsibility to accommodate that individual: (1) whether the use of the animal is required because of a disability and (2) what tasks or services the animal is trained to perform. Public accommodations may exclude only those animals that cannot be controlled by the disabled individual attempting to use them and those animals that are not housebroken.

Under the rules, a service animal is defined as a dog that has been trained to do work or perform tasks for an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Although it is not technically considered a service animal under the rules, a miniature horse must also be permitted by a public accommodation when the horse has been specifically trained to do work or perform tasks for an individual with a disability and it would be reasonable for a public accommodation to permit use of the animal. The rules provide factors that public accommodations must consider when assessing the reasonability of their permitting the use of miniature horses by individuals with disabilities.

Wheelchairs and Other Power-Driven Mobility Devices. Under the new rules, covered entities must modify their practices and procedures to allow for the use of wheelchairs, manually powered mobility aids, and other power-driven mobility devices. Public accommodations now must ensure that individuals who require the use of wheelchairs—which are any manually operated or power-driven devices designed primarily for use by individuals with mobility disabilities—or manual mobility aids, such as crutches and braces, have access to any areas open to pedestrian use. Public accommodations must also make reasonable modifications to allow for the use of other power-driven mobility devices by individuals with disabilities when such use does not compromise legitimately adopted safety guidelines.

Under the new rules, the term "power-driven mobility device" includes any mobility device powered by batteries, fuel, or other engines, regardless of the use for which the device is primarily designed. The rules specifically include golf carts and electronic personal assistance mobility devices (EPAMDs), such as the Segway PT, within this definition. In assessing the safety risks posed by the allowance of power-driven mobility devices other than wheelchairs, public accommodations are required to consider specific factors enumerated in the rules, including a facility's volume of pedestrian traffic and the risk of serious harm the use of such devices may cause to the accommodations’ immediate environment and natural or cultural resources.

Effective Communication. Other sections of the new rules require that public accommodations communicate effectively with patrons with disabilities. For example, these sections require that public accommodations not rely upon individuals with disabilities to be accompanied by nondisabled individuals in order to interpret for the disabled individual. Instead, the public accommodation must provide auxiliary aids or services that will vary based on the nature, length, and complexity of the communication involved. The new regulations also give public accommodations the option to use, in appropriate situations, video remote interpreting (VRI) services to communicate with patrons with disabilities. However, public accommodations using VRI must ensure that they do so with high-quality equipment and in a clearly visible and audible fashion.

Reservations Made by Places of Lodging. Under the new rules, places of lodging, including hotels, motels, inns, and other entities that provide guest rooms under similar conditions and with similar amenities, must modify their policies and procedures to ensure access by individuals with disabilities. Specifically, the rules require that places of lodging ensure that individuals with disabilities are able to make reservations for accessible rooms during the same hours and in the same manner as nondisabled individuals who do not need accessible rooms. Places of lodging must also provide information in detail sufficient to allow individuals with disabilities to assess whether particular rooms meet those individuals’ specific needs and ensure that accessible rooms are held for use by disabled individuals until all other rooms have been rented.

The new rules go into effect six months after their publication in the Federal Register. Note, however, that the effective date for 2010 ADA Standards for Accessible Design and those regulations related to Reservations Made by Places of Lodging is 18 months from the publication date.

This legal alert summarizes only some of the revised regulations, which also contain lengthy revisions related to how state and local governments (Title II) and public accommodations (Title III) must ensure accessibility for individuals with disabilities.

If you would like additional advice and guidance on the steps covered entities should take in response to these new rules, the lawyers of Ballard Spahr's Labor and Employment Group and Real Estate Department are prepared to assist you.

Copyright © 2010 by Ballard Spahr LLP.
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