Laws/Regulations

 

The following STATUTES, REGULATIONS AND RESOURCES and their summaries were provided by DRC, DREDF, DCARA, Norcal Services for the Deaf and Hard of Hearing, and beadhh for the Enough Is Enough Conference held on October 23 and November 6, 2015. Additional resources have been subsequently added.

AMERICANS WITH DISABILITIES ACT (ADA)

In passing the Americans with Disabilities Act, Congress recognized that individuals with disabilities “encounter various forms of discrimination,” including “communication barriers. 42 U.S.C. § 12101(a)(5).

Employment (Title I)

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including State and local governments. It also applies to employment agencies and to labor organizations.

For more information and materials please go to https://www.ada.gov/ada_title_I.htm.

ENFORCEMENT

U.S. Equal Employment Opportunity Commission — Disability Discrimination

How to File a Charge of Discrimination
If you think you have been discriminated against in employment on the basis of disability, you should contact the U.S. Equal Employment Opportunity Commission.  A charge of discrimination generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination on the basis of disability. However, to protect your rights, it is best to contact EEOC promptly if discrimination is suspected.

Title II

Title II Statute:

Title II applies to state and local governments, and directs that no individual with a disability shall “be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §§ 12131(1)(A), 12132.

Title II Regulations:

Title II directs that public entities “shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. § 35.160(a)(1).

Public entities must “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” 28 C.F.R. § 35.160(b)(1).

Title III

Title III Statute:

Title III applies to private entities, and directs that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Effective communication is crucial in achieving equal access. Discrimination by public accommodations under Title III includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services . . . . ” 42 U.S.C. § 12182(b)(2)(A)(iii).

A “public accommodation” includes businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. 28 C.F.R. § 36.104.

Title III Regulations:

Places of public accommodation must “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c). Closed captions are an established auxiliary aid and service, and provide an “effective method of making aurally delivered information available to individuals who are deaf or hard of hearing.” 28 C.F.R. § 36.303(b)(1)

Auxiliary Aids and Services
Statute:

Auxiliary aids and services are divided into four categories:

  1. Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments
    1. A “qualified” interpreter means someone who is able to interpret effectively, accurately, and impartially, both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using any necessary specialized vocabulary.
  2. Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments
  3. Acquisition or modification of equipment or devices
  4. Other similar services and actions. 42 U.S.C. § 12103(1).
Regulations:

Examples of auxiliary aids and services for people who are deaf/hard of hearing include:

  • Note takers
  • Real time computer-aided transcription services
  • Written materials / exchange of written notes
  • Telephone handset amplifiers
  • Assistive listening devices and/or systems
  • Telephones compatible with hearing aids
  • Closed caption decoders
  • Voice, text, and video-based telecommunications products and systems
  • Open and closed captioning, including real-time captioning
  • Videotext displays
  • Accessible electronic and information technology

Code of Federal Regulations

28 C.F.R. § 36.303(b)(1).

Entities should “consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication.” However, places of public accommodation are the ultimate deciders of which auxiliary aid to offer “provided that the method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii).

Video Remote Interpreting (VRI)

Regulations:

Performance standards under 28 C.F.R. § 36.303(f) and 28 C.F.R. § 35.160(d): A public accommodation that chooses to provide qualified interpreters via VRI service shall ensure that it provides—

(1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;

(2) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.”

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DEPARTMENT OF JUSTICE (DOJ) GUIDANCE

DOJ Guidance on Effective Communication: http://www.ada.gov/effective-comm.pdf

Summary: The DOJ revised regulations implementing the ADA in 2010, and these rules clarify and refine issues that have arisen over the past 20 years and contain new, updated requirements. This document clearly explains the 2010 standards for accessible design, including effective communication, for people who have “communication disabilities.”

DOJ Advance Notice of Proposed Rulemaking: http://www.gpo.gov/fdsys/pkg/FR-2010-07-26/pdf/2010-18334.pdf#page=1

Summary: Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III. 42 U.S.C. § 12134.

The DOJ is considering revising the regulations implementing Title III of the ADA in order to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities.

DOJ has solicited comments on particular questions.  Some specifically address closed captioning.  Question 15 of the ANPRM: “What, if any, are the likely or potential unintended consequences (positive or negative) of Web site accessibility requirements? For example, would the costs of a requirement to provide captioning to videos cause covered entities to provide fewer videos on their Web sites?” The comments for this question have not been published yet by the DOJ.

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Additional Resources:

— The Americans with Disabilities Act (amended 2011): http://www.ada.gov/2010_regs.htm

Summary: Website containing the complete statute and regulations for Title II and Title III of the ADA.

— List of ADA Enforcement Cases: http://www.ada.gov/enforce_current.htm

Summary: List of seminal cases enforcing ADA compliance

For more information about the ADA, call ADA Information Line to speak with an ADA Specialist (calls are confidential):

800-514-0301 (voice)

800-514-0383 (tty)

Call M-W, F 9:30am – 5:30pm, Th 12:30pm-5:30pm  (Eastern Time), or call 24 hours a day to order publications by mail.

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SECTION 504 OF THE REHABILITATION ACT OF 1973

Section 504 Statute:

The Rehabilitation Act, enacted in 1973, is a federal anti-discrimination law that addresses federal and federally funded programs in their treatment of individuals with disabilities.  Section 504 prohibits denying a person with a disability the opportunity to participate in or benefit from a service, affording a person with a disability to participate in or benefit from a service that is not equal to that afforded others, provide a person with a disability a service that is not offered to others, or otherwise limit a person with a disability from enjoying any right or opportunity enjoyed by others receiving the same benefit. In other words, people with disabilities can receive no more and no less than other qualified individuals receiving the same benefit or service. 29 U.S.C. § 794.

Section 504 Regulations:

A recipient of federal funding may not: “(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others; (iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others . . . .” 34 C.F.R. § 104.4(b)(i)-(iv), (vii).

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INDUSTRY-SPECIFIC REGULATIONS

  • Department of Health and Human Services: Medical providers that receive federal funds must establish an effective communication procedure for “purpose of providing emergency health care.” 45 C.F.R. § 84.52(c).
  • Department of Education: Recipients of federal funding must “ensure that no [disabled] student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.” 34 C.F.R. § 104.44(d)(1).

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Additional Resources

For information on how to file 504 complaints with the appropriate agency, contact:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section – NYAV
Washington, D.C. 20530

www.ada.gov

(800) 514-0301 (voice)
(800) 514-0383 (TTY)

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SECTION 508 OF THE REHABILITATION ACT OF 1973

Section 508 Statute:

With the advent of the Internet, an amendment (Section 508) was signed into law in 1998, expanding the Rehabilitation Act to include equal access to electronic and information technology. Section 508 of the Rehabilitation Act is a fairly broad law that requires all federal electronic and information technology to be accessible to people with disabilities including employees and the public. 29 U.S.C. § 794(d).

“When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency … shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology, individuals with disabilities […] to have access to and use of information and data that is comparable to the access of [those] who are not individuals with disabilities.” 29 U.S.C. § 794(d)(1)(A).

Section 508 Regulations:

The technical standards under Section 508 require all analog and digital television displays as well as computers be equipped with necessary technology to decode and display closed captions. The technical standards note that the captions must include important non-speech sounds, otherwise known as all aural content. 36 C.F.R. § 1194.

Additional Resources

Section 508: http://www.section508.gov/

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WEB CONTENT ACCESSIBILITY GUIDELINES (WCAG) 2.0


WCAG 2.0
: available at http://www.w3.org/TR/WCAG20/

Summary: Web Content Accessibility Guidelines (WCAG) 2.0 covers a wide range of recommendations for making Web content more accessible. Following these guidelines will make content accessible to a wider range of people with disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity and combinations of these. Following these guidelines will also often make your Web content more usable to users in general. These are guidelines, and therefore entities are not required to follow them.

The following guidelines and explanations are taken from the above website.

Guideline 1.2 Time-based Media: Provide alternatives for time-based media.

—       The intent of this guideline is to provide access to time-based and synchronized media, which includes media that is audio-only, video-only, audio-video, and audio and/or video combined interaction.

—       Synchronized media: audio or video synchronized with another format for presenting information and/or with time-based interactive components, unless the media is a media alternative for text that is clearly labeled as such.

Guideline 1.2.2 Captions (Prerecorded): Captions are provided for all prerecorded audio content in synchronized media, except when the media is a media alternative for text and is clearly labeled as such. (Level A)

—       The intent of this guideline is to enable people who are deaf or hard of hearing to watch synchronized media presentations. Captions provide the part of the content available via the audio track. Captions not only include dialogue, but identify who is speaking and include non-speech information conveyed through sound, including meaningful sound effects.

—       Current difficulties in creating captions for time-sensitive materials may result in the author being faced with the choice of delaying the information until captions are available, or publishing time-sensitive content that is inaccessible to the deaf.

—       Common failures include omitting some dialogue or important sound effects, providing synchronized media without captions when the synchronized media presents more information that is presented on the page, and not labeling a synchronized media alternative to text as an alternative

Guideline 1.2.4 Captions (Live): Captions are provided for all live audio content in synchronized media. (Level AA)

—       The intent of this guideline is to enable people who are deaf or hard of hearing to watch real-time presentations, and is intended to apply to broadcast and synchronized media.

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21st CENTURY COMMUNICATIONS AND VIDEO ACCESSIBILITY ACT (CVAA):

Available at https://www.fcc.gov/encyclopedia/twenty-first-century-communications-and-video-accessibility-act-0

The following summaries and explanations are taken from the above website

Summary:  The CVAA contains groundbreaking protections to enable people with disabilities to access broadband, digital and mobile innovations — the emerging 21st century technologies for which the act is named. The CVAA is divided into two broad titles or sections. Title I addresses communications access to make products and services using Broadband fully accessible to people with disabilities. Title II of the accessibility act breaks new ground to make it easier for people with disabilities to view video programming on television and the Internet.

Title I – Communications Access

—       Requires advanced communications services and products to be accessible by people with disabilities. Advanced communications services are defined as (1) interconnected voice over Internet protocol (VoIP) service; (2) non-interconnected VoIP service; (3) electronic messaging service; and (4) interoperable video conferencing service. This includes, for example, text messaging, e-mail, instant messaging, and video communications.

— Requires access to web browsers on mobile devices by people who are blind or visually impaired (a “ramp” to the Internet on mobile devices).

— Creates industry record keeping obligations; requires changes to complaint and enforcement procedures; tightens deadlines for the FCC to respond to consumer complaints; requires biennial reporting by the FCC to Congress; and directs the Comptroller General to issue a five-year report on the FCC’s implementation.

Requires an FCC clearinghouse on accessible communications services and equipment.

Applies the hearing aid compatibility mandates to telephone-like equipment used with advanced communications services.

Updates the definition of telecommunications relay services (TRS) to include people who are deaf-blind and to allow communication between and among different types of relay users.

Requires interconnected and non-interconnected VoIP service providers to contribute to the Interstate TRS Fund.

Directs the allocation of up to $10 million per year from the Interstate TRS Fund for the distribution of specialized equipment to low-income people who are deaf-blind, to enable these individuals to access telecommunications service, Internet access service, and advanced communications.

Authorizes FCC action to ensure reliable and interoperable access to next generation 9-1-1 services by people with disabilities.

Title II – Video Programming

Restores video description rules promulgated by the FCC in 2000 and authorizes some expansion of those obligations over the next 10+ years.

Requires video programming that is closed captioned on TV to be closed captioned when distributed on the Internet (does not cover programs shown only on the Internet).

Establishes deadlines for the FCC to respond to requests for exemption from the closed captioning rules.

Requires video programming distributors, providers, and owners to convey emergency information in a manner that is accessible to people who are blind or visually impaired.

Expands the requirement for video programming equipment (equipment that shows TV programs) to be capable of displaying closed captions, to devices with screens smaller than 13 inches (e.g., portable TVs, laptops, smart phones), and requires these devices to be able to pass through video descriptions and emergency information that is accessible to people who are blind or visually impaired, if technically feasible and achievable.

Requires devices designed to record TV programs to pass through closed captions, video description, and emergency information so viewers are able to turn on/off the closed captions and video description when the TV program is played back, if achievable.

Requires interconnection mechanisms (cables) to carry (from the source device to the consumer equipment – e.g., TV set) the information necessary to permit the display of closed captions and make video description and emergency information audible.

Requires user controls for TVs and other video programming devices to be accessible to people who are blind or visually impaired, and requires TVs and other video programming devices to have a button, key, icon, or comparable mechanism designated for activating closed captioning and video description.

Requires on-screen text menus and program guides displayed on TV by set-top boxes to be accessible to people who are blind or visually impaired and requires set-top boxes to have a button, key, icon, or comparable mechanism designated for activating closed captioning (when built-in to the set-top box).

ADDITIONAL RESOURCES

CVAA consumer guide: https://transition.fcc.gov/cgb/consumerfacts/CVAA-access-act.pdf

FCC Extends Waiver of Advanced Communications Services Accessibility Requirements for Basic E-Readers

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Federal Communications Commission

From the FCC website, www.fcc.gov/what-we-do: The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the commission is the United States’ primary authority for communications law, regulation and technological innovation.

Summary: FCC Public Notice DA 14-1896, available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1229/DA-14-1896A1.pdf: On February 24, 2014, the FCC released the Closed Captioning Quality Order, which adopted closed captioning quality standards and technical compliance rules to ensure that video programming is fully accessible to individuals who are deaf and hard of hearing through the provision of closed captioning. On December 18, 2014, the Office of Management and Budget approved the following rules that took effect on March 16, 2015:

—       Maintenance of records of video programming distributors’ monitoring and maintenance activities

—       Procedures relating to informal complaints regarding use of the Electronic Newsroom Technique (ENT)

—       Compliance procedures relating to use of ENT

—       The one-time ENT progress report, which is due no later than June 30, 2015

—       Rules containing captioning quality obligations and standards 47 C.F.R. § 79.1(k)

—       Captioning Best Practices 47 C.F.R. § 79.1(k)

Regulations Implemented by the Closed Captioning Quality Order:

Captioning quality standards: “Closed captioning shall convey the aural content of video programming in the original language (i.e. English or Spanish) to individuals who are deaf and hard of hearing to the same extent that the audio track conveys such content to individuals who are able to hear. Captioning shall be accurate, synchronous, complete, and appropriately placed as those terms are defined herein.” 47 C.F.R. § 79.1(j)(2).

Best practices for closed captioning: standards for live captions. Vendors performing real-time captioning should “[c]onsider, at a minimum, mistranslated words, incorrect words, misspelled words, missing words, and incorrect punctuation that impedes comprehension and misinformation as errors.” 47 C.F.R. § 79.1(k)(2).

For full Code of Federal Regulation § 79.1, visit: http://www.ecfr.gov/cgi-bin/text-idx?SID=72eb5a624e8dc043293819a5663dff41&node=47:4.0.1.1.6.1.1.1&rgn=div8=47

FCC Guide to Closed Captioning on Television: https://www.fcc.gov/guides/closed-captioning

How to File a Complaint: You have multiple options for filing a complaint with the FCC:

File a complaint online

By phone: 1-888-CALL-FCC (1-888-225-5322); TTY: 1-888-TELL-FCC (1-888-835-5322)

By mail (please include include your name, address, contact information and as much detail about your complaint as possible):

Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, S.W.
Washington, DC 20554

What to include in your complaint

Your complaint should include the following information:

—       The TV channel number, call sign and network

—       The name of your subscription service, if you pay to receive TV

—       The location of the TV station or subscription service

—       The date and time when you experienced the captioning problem

—       The name of the program or show with the captioning problem

—       A detailed description of the captioning problem, including specifics about the frequency and type of problem (e.g., garbling, captions cut off at certain times or on certain days, captions missing only with HD programming)

—       Any additional information that may assist in processing your complaint.

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Announcements:

NAD and Gogo LLC Agree to Make Closed Captions Available on In-Flight Entertainment Systems

https://nad.org/news/2016/1/nad-and-gogo-llc-agree-make-closedaptions-available-flight-entertainment-systems 

FCC Releases New Rules for NDBEDP/iCanConnect and HAC, and Proposes VRS Interconnection Standards

Source: AccessInfo <AccessInfo@fcc.gov>

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SB 210 LANGUAGE ACQUISITION ACCOUNTABILITY LAW

For Deaf children between ages of 0-5 to ensure their Kindergarten readiness 

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB210

CAD and SB 210 Senate Bill — Interview with Julie Rems Smario

http://deafnation.com/news/cad-and-sb-210-senate-bill/

— Information provided by Julie Rems Smario

COMMUNCATION ACCESS AT BAY AREA SPORTS ARENAS

Settlement agreement for O’Hara (and Berkeley Center for Independent Living) v Oakland-Alameda County Coliseum Authority et al (including Oakland A’s Baseball Company, Oakland Raiders, Bill Graham Enterprises). The complaint was filed on behalf of a class of people with disabilities, including mobility, vision and hearing impairments.The Oakland Colliseum and Oracle Arena share an accessibility site: http://www.oraclearena.com/plan-your-visit/accessibility

According to the agreement, patrons are asked to contact the ADA coordinator for accommodations: “We take pride in complying with the Americans with Disabilities Act to enhance your enjoyment of the event. In striving to make your event experience as user friendly as possible, we ask that if there are ways in which we can improve our service to our guests with disabilities we encourage you to contact our ADA Coordinator.”

Specifically, “AUXILIARY AIDS & SERVICES

Patrons needing a sign-language interpreter, real-time transcription or printed program text should make such a request to the ADA Coordinator at least 10 business days before the event. The ADA Coordinator may be unable to accommodate such requests made less than 10 days in advance due to time and coordination restraints.”

 Information provided by Namita Gupta, DREDF

Airline Travel

The following information is provided by the Deaf and Hard of Hearing Consumer Advocacy Network (DHHCAN):

The Air Carrier Access Act (ACAA):

  • Prohibit U.S. and foreign airlines from discriminating against passengers on the basis of disability;
  • Require airlines to make aircraft, other facilities, and services accessible; and
  • Require airlines to take steps to accommodate passengers with a disability.

This means:

  • Information and reservation services must be accessible;
  • Information at airports must be accessible after self-identification;
  • Televisions at airports must have captions turned on;
  • Communication on aircraft must be effective after self-identification;
  • Service animals are permitted;
  • Safety assistants are provided for Travelers who are Deaf-Blind;
  • Assistance with moving within the airport.

DHHCAN Airline Travel Action Guide – Please click on the following link to access the guide: http://dhhcan.org/airline-travel/