Information and Guidance on the
Americans with Disabilities Act

Summer 2003
Volume 7, Number 3

This Issue Highlights RECREATION

What's Inside?

Feature Stories

• MDA Sued by Camp Volunteers
• Policy Change Provides Opportunity for Hunters with Disabilities
• Massachusetts Beaches Providing More Access

Project Director's Report
DOJ Update
Access Board News
Employment Update
Regional News
Publications
Frequently Asked Questions
Great Web Sites
Accessible ITems
Breaking News
Events and Announcements

FEATURE STORIES

MDA Sued by Camp Volunteers

A battle over whether two women with neuromuscular diseases should be allowed to volunteer at a Muscular Dystrophy Association summer camp in Kansas could impact the organization's similar programs throughout the United States and Puerto Rico, a lawyer argued in federal court. Gina Bauer of Wichita and Suzanne Stolz of California, both of whom have neuromuscular diseases and use wheelchairs, are asking US Senior District Judge Wesley Brown for an injunction to allow them to work the camp July 13-19 near Perry, claiming an MDA policy established in 1955 discriminates against them under provisions of the ADA. Both have worked as volunteers at the Kansas camp for several years. Bauer, 30, has worked various jobs at the camp since 1995, after attending as a camper since she was 8.

MDA lawyer Jill Morris of St. Louis, argued at Wichita's US Court House that the MDA is fighting the injunction because it would violate a long-standing national policy. That policy prevents people from volunteering as camp counselors if they cannot lift and carry campers with MD. Morris said by not allowing Bauer and Stolz to work the camp this year, the MDA was only enforcing a long-standing policy that had been violated by their past participation.

Morris said MDA believes a decision in Kansas against the organization could restrict their abilities to serve 4,200 campers in 80 other camps around the nation and in Puerto Rico. Morris said she intends to call witnesses from the MDA headquarters in Tucson, AZ. David Calvert, a lawyer specializing in ADA issues, is arguing that by prohibiting Bauer and Stolz from volunteering as adults, the MDA is discriminating against the very people it purports to serve.

On June 12, 2003, US Senior District Judge Wesley Brown ruled that MDA's requirement that volunteer counselors be able to "assist in lifting campers -- on a regular basis and in the rare event of an emergency -- is an essential function of the position. In sum, the court concludes that MDA's requirements for its volunteer counselors are based on legitimate and neutral criteria that are necessary for the safe operation of its summer camps."

David Calvert said his clients have not decided whether or not to appeal the judge's ruling. "I'm certain that they're disappointed," Calvert told the Wichita Eagle. "They think they give a lot by way of being role models."

(Sources: "Federal Court Decision Could Impact Muscular Dystrophy Association Camps Nationwide," The Wichita Eagle, May 13, 2003 and "MDA Bans Volunteers With Muscular Dystrophy, Judge Says OK," by Dave Reynolds, Inclusion Daily Express, June 12, 2003.)

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Policy Change Provides Opportunity for Hunters with Disabilities

Tom LaQuey waited five years to hear he has the right to hunt deer and elk with other Colorado archers in the late summer. LaQuey, unlike other archers, cannot use a hand-drawn bow. His left shoulder has a titanium implant due to an old injury, and his arm is weak due to nerve and muscle damage around the prosthesis, he said. He first asked the Colorado Division of Wildlife (DOW) in the late 1990s if he could use a crossbow. The agency told him "no" for years. It forbade mechanized weapons such as the crossbow, which is fired by the pull of a trigger, like a firearm, during archery season.

In 2001 LaQuey filed a complaint under the ADA with the US Department of the Interior, which provides financial assistance to state wildlife agencies. LaQuey, 51, finally got his answer from Interior in mid-January. The letter urged him to resubmit his application for a hunting license because the Colorado Division of Wildlife revised its policy last year.

"Since your complaint was filed, the Colorado Division of Wildlife has adopted a new and more liberalized policy of approving the use of a crossbow as a disability rights accommodation during archery season," wrote E. Melodee Stith, director of Interior's Office of Equal Opportunity. However, Interior told LaQuey it would not make any determination as to whether DOW violated any federal laws in his case prior to its policy change.

Complaints similar to LaQuey's have also been filed in Washington and Montana. Roughly a dozen states still require hunters, even hunters with disabilities, to use hand-drawn bows during archery season or forgo the hunt. In Colorado, DOW now gives specific crossbow permits to archers it deems sufficiently disabled, Stith said in the letter. The application for the permit must include certification of the disability by a licensed physician or registered occupational or physical therapist.

Under the new policy, DOW has approved 12 permits, but it never notified LaQuey of the policy revision after his years of requests. A growing number of people were applying for permission to use crossbows in archery season, DOW program coordinator Rita Laitres said, so the DOW reviewed its policy last summer and it decided to expand opportunities. The permits are free. As for LaQuey, Laitres said the wildlife division would have informed him of the new policy had he called and asked about it.

When LaQuey first requested permission to use a crossbow, the DOW initially told him he could hunt with a crossbow during some rifle seasons or he could use a body brace for a bow or even use his teeth. Some bows are equipped with mouth tabs. LaQuey balked at the state's efforts to make him, he said, "more disabled" than he already was by foisting on him devices designed for one-armed hunters. He insisted that a crossbow is the most appropriate mechanical assistance for his disability. A crossbow is a bow attached at a right angle to a stock. It has a mechanism for holding the bowstring in a cocked position and firing an arrow from the shoulder. LaQuey said it enables him to participate as fully in the same state hunting program as able-bodied archers.

On average, the DOW approves 300 exceptions to its rules each year for qualifying disabled hunters, such as allowing use of specialized archery equipment and permission to shoot firearms from vehicles, Laitres said. The DOW has organized information about the new policy and all of its policies regarding disabled hunters on its website at: www.wildlife.state.co.us.

(Source: "Crossbow OK'd for Disabled Hunters," by Electa Draper, Denver Post, February 4, 2003.)

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Massachusetts Beaches Providing More Access

In the summer of 2001, Sheryl Brecker approached a woman helping a man in a wheelchair at Good Harbor Beach, and learned that she had to park illegally just to gain access to the beach. After a few phone calls, Brecker found out that the beach's three accessible parking spaces were significantly short of the number mandated by the ADA and state regulations. Nearly a year after Brecker contacted Gloucester officials, the city added 14 accessible spaces at Good Harbor Beach. This year, Wingaersheek Beach also has expanded to 15 accessible spaces, and now both beaches offer beach wheelchairs.

An informal Boston Globe survey of beaches in 10 communities north of Boston shows that most meet the ADA and the Massachusetts Architectural Access Board requirements for accessible parking marked by appropriate signage. However, one of the largest beaches did not meet state and federal requirements. In Nahant, at the Metropolitan District Commission's Long Beach, there are 1,237 spaces, but only 20 accessible spaces - three short of the required number. In addition, just six of the parking spaces were marked by standing signs; the other 14 had painted symbols on the asphalt.

"The MDC will seek to replace any missing signs at this location in preparation for the beach opening on July 1," said Felix Browne, a spokesman for the state's Executive Office of Environmental Affairs. Browne said there would be at least 24 accessible parking spaces in the lot this summer.

"Unfortunately, all of these access regulations are complaint driven," said Myra Berloff, acting director of the Massachusetts Office on Disability. To rectify parking access problems, complaints must be directed to the Massachusetts Architectural Access Board - which can enforce the state statute - or the federal Department of Justice. Thomas Hopkins, executive director of the state's Architectural Access Board, said that after receiving a public complaint, the board sends a letter to the owner of the property. If the work is not completed, the board can hold a hearing and, ultimately force the owner to comply with the state regulations. Hopkins said he had yet to receive a complaint about the MDC beach lot in Nahant, but added, "The MDC has an obligation for their parking lots to comply with the rules and regulations."

While finding an accessible parking spot may be relatively easy, if you're a person with a disability, getting to the point where you can rub your toes in the sand and tide can prove to be more difficult. There are access ramps at all of the larger beaches on the North Shore, including Revere, Nahant, Lynn, Ipswich and Salisbury, but getting from the edge of the ramp to the sand can be nearly impossible if you're alone, and trying to wheel yourself.

"Wheelchairs don't go well in the sand," said Hugh Doherty, who was paralyzed in a car accident in 1976, and now uses an electric wheelchair. Doherty, who is 49, drives his van to the beach nearly every day in the summer, but has to view the shore from a boardwalk, such as the one at Nahant's Long Beach. He would like the opportunity to get to the shoreline. "I'd love to be able to do something like that," said the Saugus man.

While many beaches provide minimal access for people with disabilities, others provide transportation from the parking lot to the shore. Some beaches use beach wheelchairs with plastic tires that can be easily pushed along the sand, while one beach, Ipswich's Crane Beach, will drive a person from the lot to the shore. One beach wheelchair is shared by the MDC beaches at Winthrop, Revere, Nahant, and Lynn, and is available only by appointment. Further north, the options increase. At the Salisbury Beach State Reservation, there are six beach wheelchairs available, and at the Sandy Point State Reservation in Ipswich - also run by the state Department of Environmental Management - there are two beach wheelchairs. "Once the people find out how useful they are and how mobile they are, they go quick," explained Mike Magnifico, the reservation's supervisor.

At Crane Beach, a property of the Trustees of Reservations, beach officials have used a modified golf cart to drive people with disabilities and elderly persons from their cars to the shore. "We've had more complimentary letters about this service than any other service that we offer down at the beach," said Peter Pinciaro, superintendent of Crane Beach. When people are ready to return to the lots, they can signal a lifeguard who will send the cart back to pick them up. Pinciaro also plans to add a beach wheelchair in June for those who want to be more independent. "If it works out well, then we'll probably get several," said Pinciaro.

(Source: "Pushing Access to Local Beaches," by Steven Rosenberg, The Boston Globe, Globe North section, page 1, June 1, 2003.)

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PROJECT DIRECTOR'S REPORT

Re-creating Recreation

This issue of Access New England focuses on access to public recreation. You will read about people re-creating the concept of recreation to include those traditionally excluded. The concept of access to recreation had its beginnings in the child's play movement of the early 1900's. Spurred by immigration, urbanization, and industrialization---and fostered by progressive thinkers---play and recreation first received broad national attention in relation to human welfare in the twentieth century. Today, prompted by federal legislation, an increase in the population of people with disabilities, and an increased awareness of how design either promotes or excludes the participation of people with disabilities, public recreation is being re-created.

In the early 1900's, there were many problems associated with factory work and crowded living conditions. One problem was that children in the cities had no play areas. This led to the national play movement for children. The first official playground, in the form of two inexpensive sand piles, was in Boston's North End. Mayor Josiah Quincy got permission to create a comprehensive system of playgrounds in the parks of the city. Boston was one of the first cities to hire and staff civic leaders on the playgrounds to teach children how to be good citizens. (Knapp & Hartsoe, 1979.)

Today, the effort to design recreation environments responsive to the needs of children continues. During this century, there has been a growing awareness of designing for variations in abilities of children. In this edition of Access New England, you will read about a parent's vision of a playground designed for children who have low muscle tone and limited upper-body strength. Susan Jacoby began to work toward her vision three years ago when she realized that most playgrounds do not have equipment for children such as her daughter. Now a local city has offered a one-acre parcel, which would be the first playground of its type in Fairfield County. In a typical playground, about 25 percent of the equipment can be accessed by a child with a disability. At the new playground, the accessibility level will be about 80 percent. (See page 7.) Also, a newly completed Access Board study on materials used in designing accessible play surfaces can be found on page 3.

Throughout the development of the public play and recreation movements, the quest has been how to best design environments and programs to meet the human need to recreate. The play movement expanded into the adult recreation movement in the early 20th century, thus including people of all ages. The theme was recreation for all. However, children and adults with disabilities could not access public recreation for most of the 20th century.

Today, people with disabilities are voicing their need to participate in the quest for recreation. The US Forest Service is one government agency responding to these voices, preparing accessibility guidelines for outdoor recreation facilities, including campgrounds, picnic areas, beaches, and trails. (See page3 for details.) This action by the Forest Service builds on government's involvement in public recreation, ongoing since the early 1900's, and continuing today.

Landmark federal legislation has greatly fueled the philosophical shift from segregated to inclusive recreation programs. The Architectural Barriers Act of 1968 requires federal recreation facilities to be made accessible. The Rehabilitation Act of 1973 prohibits disability-based discrimination in federally-funded recreation programs. The Americans with Disabilities Act of 1990 expands civil rights in the areas of public accommodations stating that recreation areas must be made accessible and nondiscrimination practices must be implemented.

In the early 20th century, public recreation was intimately associated with the broader thrust for social justice. Many progressives believed that promoting social justice meant fostering constructive citizenship by providing creative outlets through recreation.

Today, two women with neuromuscular diseases want to provide constructive role models to children with disabilities. Read about whether they will be allowed to volunteer at a Muscular Dystrophy Association camp this summer. (See Feature Stories.)

Throughout the short history of the public recreation movement, government, recreation professionals and now people with disabilities have continued to ask "how can we design environments and programs to meet the recreation needs of all people?" These ongoing efforts to re-create the concept of public recreation remind us of 'recreation's' original meaning - to refresh, invigorate, or revive.

Renew your spirit! Put some re-creation into your summer!

Oce Harrison, Project Director

Bibliography
Knapp, R. & Hartsoe, C. (1979). Play for America. Arlington, VA: National Recreation and Park Association.

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DOJ UPDATE

Theater Chains Found in Violation of ADA

A federal judge has ordered two major movie theater chains to offer stadium-style seating to people in wheelchairs, saying the companies violated the ADA by denying them access to the best seats in the house. Judge William Young ruled that National Amusements Inc. and Hoyts Cinemas Corp., ranked among the 10 largest movie theater companies in the country, discriminated against disabled people by segregating them in the lower, traditional seating sections or access aisles on the edge of the popular stadium-style seats.

"As a matter of simple geometry, the seats on the access-aisle and in the traditional seating section always offer an inferior viewing angle to the stadium seats," Young ruled.

However, he stopped short of ordering the companies to reconfigure the seating immediately, instead saying they must retrofit the facilities only when they undertake other renovation work. Young's ruling applies to the two companies' nine stadium-style complexes in Massachusetts and about 40 in other parts of the country.

Stan Eichner, litigation director of the Disability Law Center, called Young's ruling "an important victory." "For too long people with disabilities have been stuck in the least desirable sections of theaters, stadiums, and ballparks," Eichner said. "Judge Young's decision is an important reaffirmation that integrated quality seating is an important value under the ADA."

The US Attorney's office had sued the two chains in 2000, alleging they designed, built, and operated movie theaters that deny equal access to wheelchair users. "We are pleased with the legal reasoning of the court and its holding," said Assistant US Attorney Michael Pineault.

Hoyts and National Amusements began building stadium-style theaters in 1997 as part of a national trend. Most of the theaters have two types of seats: a limited number of traditional seats at the front on either a sloped or flat floor and a much larger number of stadium-style seats on a series of risers, each of which is 12 to 18 inches above the riser in front of it. The suit charged that disabled moviegoers were mostly relegated to traditional seats, which are almost always closest to the screen. "There are measurable negative side effects of being too close," Eichner said. "It's either nauseating or your head goes back and forth like a ping-pong ball. The law says you don't have to have the best seats, but you have to have a choice."

This decision follows an earlier ruling in a federal court in Los Angeles, CA last November that the American MultiCinema, Inc., (AMC) movie theater chain violated the ADA by offering patrons who use wheelchairs and their companions only inferior seating in the front rows of its new stadium-style movie theaters. US District Court Judge Florence-Marie Cooper held that, while AMC publicizes its stadium-style movie theaters as providing enhanced, unobstructed lines of sight to the screen that "virtually suspend the moviegoer in front of the wall-to-wall screen," patrons who use wheelchairs are excluded from the most popular stadium sections in the vast majority of AMC's stadium-style theaters. The court concluded that AMC violated the ADA by failing to provide its patrons who use wheelchairs with comparable lines of sight to the movie screen in its stadium-style movie theaters nationwide.

The Justice Department filed this lawsuit against defendants AMC Entertainment, Inc. and American Multi-Cinema, Inc. ("AMC") in the US District Court for the Central District of California in January 1999. The complaint alleged that AMC violated Title III of the ADA by engaging in a pattern and practice of denying persons with physical disabilities equal access to goods, benefits, and services in their stadium-style movie theaters.

Several issues, including the damages to be awarded disabled moviegoers who were discriminated against by AMC, are still pending before the court. Also pending is the United States' motion for an order requiring AMC to remedy all of the other ADA violations that do not involve line of sight issues (such as concession counters, companion seating, wheelchair ramps, and parking lots) at its stadium-style theater complexes. AMC currently owns and/or operates over 80 stadium-style movie theater complexes nationwide.

"This court decision ensures that people with disabilities will have a movie-going experience that is comparable to that of other patrons," said Ralph Boyd, Jr., Assistant Attorney General for Civil Rights.

(Source: "Cinemas Found in Violation of ADA," by Andrea Estes, The Boston Globe, page B4, April 2, 2003.)

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ACCESS BOARD NEWS

Forest Service Posts Draft Guidelines for Outdoor Environments

The US Forest Service is preparing accessibility guidelines for outdoor recreation facilities, including campgrounds, picnic areas, beaches, and trails. The guidelines would apply to those facilities built or altered by the Forest Service. Provisions are included for constructed features such as campsites, viewing areas at overlooks, pit toilets, warming huts, among others. Requirements for trails are addressed in a separate set of guidelines. Drafts of these documents are currently available for review on the Forest Service's website at www.fs.fed.us/recreation/programs/accessibility/.

The draft guidelines incorporate provisions from an existing design guide developed by the Forest Service and are also based on a report available from the Access Board about outdoor developed areas. The Board's report was prepared by an advisory body it chartered, the Outdoor Developed Areas Regulatory Negotiation Committee. The committee used a consensus approach in developing requirements for outdoor environments and represented people with disabilities, owners and operators of outdoor developed areas, designers, trail groups, and government land management agencies, including the Forest Service. The report contains recommended accessibility guidelines for newly constructed and altered trails, picnic and camping facilities, and beaches. Technical provisions for trails include specifications for the running slope or grade, cross slope, width, surface, passing space, edge protection, and signs. The Board intends to develop guidelines for outdoor environments based on the committee's report. Further information on the Board's rulemaking, including copies of the committee's report, are available on the Board's website at www.access-board.gov/outdoor/status.htm.

(Source: Access Currents, Volume 9, No.1 January/February 2003.)

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Study Completed on Play Surfacing Treatments

A key consideration in the design of accessible play areas is the type of surfacing to use. It is important that play surface materials be suitable for cushioning falls, yet firm and stable enough for accessibility. Surfacing is addressed by guidelines for play areas the Board developed under the Americans with Disabilities Act which reference standards developed by the American Society for Testing and Materials (ASTM) for impact attenuation and wheelchair maneuverability. The Board has sponsored research on the suitability of engineered wood fiber, a popular surfacing material, and various binding agents that can enhance its usability. A report is now available on the results of field testing completed last fall by the US Forest Service's Forest Products Laboratory in Madison, WI. (See below.)

In a preliminary phase, researchers analyzed various surface treatments on different types of engineered wood fiber. Based on this analysis, different test configurations were selected for field evaluations and performance testing. The study tested various types of binders (latex, silicone, and polyurethane) that can enhance surface firmness and stability of engineered wood fiber. The study included seven surface treatments and one untreated control surface installed in a series of outdoor test beds which were evaluated over a six-month period. Researchers exposed the surfaces to a wide range of climatic conditions, including freeze-thaw cycles, rain, and heat.

Periodic tests of surface firmness and stability were performed to assess durability and performance loss before and after field exposure. At the end of the test period, impact tests were conducted according to ASTM protocols. Durability and moisture levels were also evaluated. All surface treatments of the study passed ASTM specifications for impact attenuation, and some (silicone and latex) had levels similar to the untreated material. The polyurethane binder scored higher on firmness and stability than the other treatments and the untreated material. The study also found that the surface treatments caused the underlying wood material to retain moisture, which may necessitate further study on this effect. The results are summarized in a report, "Improved Engineered Wood Fiber Surfaces for Accessible Playgrounds," which is available from the Board and posted on its website at www.access-board.gov/research&training/play-surfaces/report.htm. Follow-up testing is to be conducted to measure 12-month field exposure.

A third phase is planned which will further assess those treatments that ranked highest in the completed study (polyurethane and latex). This next phase will involve a full-scale field assessment of these surface stabilizers at a playground. The Board is seeking good candidates for site testing where the Forest Products Laboratory can install the surfaces to be tested, assess their performance, and receive user reactions. For further information, contact Bill Botten of the Board at (202) 272-0014 (v), (202) 272-0082 (TTY), or botten@access-board.gov (e-mail).

(Source: Access Currents, Volume 9, No. 2 March/April 2003.)

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EMPLOYMENT UPDATE

Employee, "Regarded As" Disabled, Sues McDonald's

Samantha Robichaud was born with a dark purple birthmark covering her face. In school, she remained an outcast because of her birthmark. Robichaud is 32 now, married and the mother of two, and past worrying about schoolyard cruelty. Her struggle now is to obtain justice in a lawsuit that charges her former employer, a McDonald's restaurant, with violating the ADA by refusing to promote her to manager because of how she looks.

In August 2000, Robichaud took a job at a McDonald's. From 4 am to 2 pm each day, she worked the grill, rushing Big Macs and Egg McMuffins to the drive-through window and front counter. Eager to move up, she mastered the skills of running a McDonald's, stocking the restaurant and working the counter and drive-through window when co-workers were sick. She grew frustrated when some workers hired after her were promoted to manager.

In January 2001, she said, opening the restaurant with the shift manager, the manager complained of health problems and voiced concern that there was no suitable replacement if she were sick. "I asked her, 'Why don't you train me to be a shift leader?'" Robichaud said. "She said: 'I'm tired of telling you a bunch of lies and coming up with different excuses. You will never be in management here because I was told you would either make the babies cry or scare customers off.'"

After the rebuff, Robichaud said, the shift manager criticized her for working slower than usual, saying she had developed a morale problem. Robichaud was so upset that she clocked out. She never went back, considering herself forced out. She contacted the Equal Employment Opportunity Commission (EEOC), which concluded that she had been discriminated against. After efforts to reach a settlement, the commission filed suit on March 7, seeking compensatory and punitive damages.

This lawsuit is unusual because EEOC officials acknowledge that Robichaud is not disabled, but the lawsuit relies on a part of the law that protects workers regarded as having a disability. Robichaud asserts that McDonald's viewed her as having a disability that disqualified her from becoming a manager.

"This is an important case," said Sharon Rennert, acting director of the EEOC's ADA division, "because this is a qualified person, an individual who met all the requirements to work at this McDonald's, who showed enthusiasm, a desire to improve herself, and yet for all her efforts, all the employer could see was this facial disfigurement."

(Source: "Lifetime Affliction Leads to a U.S. Bias Suit," by Steven Greenhouse, NY Times, March 30, 2003.)

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Supreme Court Determines who is an Employee

The US Supreme Court adopted standards to decide whether shareholders who own a corporation, constitute its board of directors and actively engage in the business count as employees under the ADA. By a 7-2 vote, the justices ruled a court must examine whether such shareholder-directors operate independently and manage the business or are subject to the firm's control. The high court endorsed guidelines by the Equal Employment Opportunity Commission (EEOC) on the question of who counts as an employee and when partners, officers, members of the board of directors and major shareholders qualify. An employer falls under Title I of the ADA when it has 15 or more employees.

The case, Clackamas Gastroenterology Associates v. Wells, No. 01-1435, involved an Oregon medical clinic which was sued by a former employee who claimed she was discriminated against because of a disability. At issue was how to count the four physician-shareholders who constituted the medical practice's board of directors. If they were not counted as employees, the clinic would fall below the 15-employee threshold under the law. A federal judge ruled the physician-shareholders were partners, not employees. However, a US appeals court ruled the physician-shareholders were employees because they had been actively engaged in conducting the business of the corporation. The Supreme Court reversed the appeals court's ruling. Justice John Paul Stevens said for the majority that the findings in the case appeared to weigh in favor of concluding that the four physicians were not employees. He said there may be evidence that supports a different conclusion under the EEOC's standard, and the high court sent the case back for further proceedings. The decision can be found at: http://supct.law.cornell.edu/supct/html/01-1435.ZS.html.

(Source: "High Court Sets Standards on Employees, Bias Law," Reuters, April 22, 2003.)

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NEWS FROM THE CENTER

Audio Conferences Co-Sponsored By The ADA Center

The following audio conferences are a collaborative effort among regional ADA Centers. Participate from your home or office, and call in using a toll-free number.

August 19 - Accessibility of the Performing Arts: Assuring Access for Everyone
September 16 - Best Practices in Accessible Electronic & Information Technology Policy

All audio sessions run from 2-3:30 pm EST. Cost per session is $35 for government and not-for-profit groups and $50 for for-profit entities. Audio conference descriptions are available at www.adagreatlakes.org/training/schedule.htm. To register e-mail adainfo@adaptiveenvironments.org or call 800-949-4232 (v/tty).

Making Information Technology Accessible in Massachusetts

The New England ADA & Accessible IT and the Massachusetts Office on Disability are presenting a one-day training event on Making Information Technology Accessible in Massachusetts. State and municipal IT and ADA coordinators and the general public are invited to join us on Thursday, September 25, 2003 from 9:30 am -- 3:00 pm at Framingham State University in Framingham, MA for an informative and educational day of speakers, workshops, and demonstrations. Topics will include: designing accessible web sites, making PDF files accessible, e-learning, and more. For more information, contact Rachel Tanenhaus at rtanenhaus@NewEnglandADA.org or 800-949-4232 (v/tty).

ADA Center To Exhibit At Upcoming Events

9/12-14 Abilities Expo -- World Trade Center in Boston

DOJ Holds ADA Business Connections Meeting in MA

Photo Caption: From left to right, Peter Lawrence, CEO of Corporate Design
Foundation; Ralph Boyd, Jr., Assistant Attorney General
for Civil Rights; Valerie Fletcher, Principal Investigator for the
New England ADA & Accessible IT Center; and Andy Imparato, President
and CEO of the American Association of People with Disabilities.)

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REGIONAL NEWS

Old Orchard to Provide Beach Access

Old Orchard Beach in Maine plans to build five wooden ramps to ensure beach access for all. An Old Orchard Beach councilor, Joe Kline, hopes to have at least one ramp ready by this summer to make the beach more accessible to people with disabilities, as well as a roll-up mat that lifeguards can use to get people with disabilities from the dunes to the hard-packed sand nearer the shore. Kline is working with Denis Pratt, architect/accessibility specialist at Alpha One, to make the beach accessible.

Alpha One, a nonprofit group in South Portland specializing in disability and accessibility issues, also worked with Scarborough in making its beach accessible. Scarborough built a walkway to the beach last year. The Maine Human Rights Commission had told Scarborough it was violating the Maine Human Rights Act by not providing access to Higgins Beach. Mary Ellen Valentine of Gorham sued in US District Court in July 2000, claiming the town had dragged its feet in making the beach accessible. (Source: "Old Orchard Plans Five Ramps to Ensure Beach Access for All," by Ted Cohen, Portland Press Herald, February 10, 2003.)

ADA Coalition Projects Flourish

Early this year, the ADA Coalition of Connecticut (ADACC) completed its second project in collaboration with the Connecticut Commission on the Arts called "Artful Access." ADACC now has an established partnership with the Commission that has resulted in the evaluation of 37 cultural entities.

Likewise, the Coalition's "Heaven and Earth" project has become a regular feature of its publishing calendar. This project is a social history series that introduces, celebrates and memorializes late individuals who, although often not broadly recognized, transformed the landscape of civil rights in Connecticut. From the Pentecostal reverend, husband and father who challenged every stereotype to the physician who touched her patients' lives through the enormity of both her intelligence and her spirit, these are the unforgettable characters whose liveliness transcends their absence.

The opportunity to develop new ideas and test them on a limited basis is an important attribute of receiving incentive grants from the New England ADA & Accessible IT Center. The Coalition takes this opportunity to thank the Center for enabling us to further the civil rights of people with disabilities.

Accessible Recreation Sites in Rhode Island

Photo caption: Accessible fishing pier with ramp
at Carboncle Pond in Rhode Island.

The Rhode Island Governor's Commission on Disabilities has been actively partnering with the Department of Environmental Management to increase the accessibility of recreational facilities throughout the state. This partnership has been growing over the last six years, and in 2002, three major state sites were made fully accessible. By cultivating a close partnership with another state agency, the Commission has been able to maximize the impact of our technical assistance, site surveys, and over $100,000 in renovation funds. In addition, a dedication ceremony at the conclusion of each site renovation increased public awareness about the importance of accessible recreational facilities.

"Boundless Playground" to be Opened in CT

When Susan Jacoby sees an overgrown patch of land in Mathews Park that slopes toward the river, she envisions a playground for children with disabilities. Jacoby began to work toward her vision three years ago, when she realized that most playgrounds do not have equipment for children such as her daughter, who uses a wheelchair. Now the city of Norwalk, CT has offered a 1-acre parcel in Mathews Park for Devon's Place, which would be the first "boundless playground" in Fairfield County. There are five other similar playgrounds in the state, and 26 in the country, said Mike Moccaie, director of recreation and parks.

The playground will contain swings, a sandlot, and equipment that children with disabilities can climb. In a typical playground, about 25 percent of the equipment can be accessed, Jacoby said. At Devon's Place, the accessibility level will be about 80 percent. Besides children in wheelchairs, the playground is being designed for children who have low muscle tone and limited upper-body strength. It will have "balance pads" for children who struggle to retain their balance, and Braille pads for blind children.

A visitor walking into Devon's Place from the west main entrance will encounter the playground's centerpiece -- a 20-foot lighthouse that will have doors wide enough to accommodate wheelchairs. Once inside, children can pull a series of ropes to work its lights and foghorn. To the right of the lighthouse will be a composite structure consisting of slides and crawl spaces for younger children, ages 2 to 5. A dry creek will lead to the "water play area," including a skeletal model of a whale. By touching a nearby pad, water will shoot through the ribs of the whale.

A path for tricycles will lead to a sand area that, unlike regular sand pits, will be even with the ground to accommodate wheelchairs. On the other side of the main path will be a "seaside village" with four little homes for children to play in and a boat with a swing on it. Farther down the path will be another composite structure, this one designed for children ages 5 to 12. It will be in the shape of a boat. Near the playground's Crescent Street entrance will be a labyrinth, a gazebo and a picnic area. The design is intended to be soothing, Jacoby said.

Moccaie said people will be able to purchase trees to be planted in Devon's Place as memorials. Once the park is open, the city will maintain it. If the effort does not meet its fund-raising goal by the time construction is completed, some parts will be put in later. With help from family and consultants, Jacoby has raised $500,000 toward a goal of $600,000. A plan for Devon's Place has been designed; a contractor and landscape architect have been hired. A ceremony to open the playground is slated for September.

(Source: "Mother's Vision of Boundless Playground to Become Reality," by Ryan Jockers, Stamford Advocate, May 26, 2003.)

Accessible Fishing Sites in Massachusetts

The Public Access Board, an agency within the Massachusetts Department of Fisheries, Wildlife & Environmental Law Enforcement, is charged with providing access to waterways throughout the Commonwealth. It manages the construction, repair, and operation of state boat ramps, canoe and car-top launch sites, parking areas, and approach roads and its funds are used to construct fishing piers and purchase shoreline fishing areas.

Municipalities provide the Public Access Board with their plans to construct recreational sites on publicly owned waterways. For the past four years, the Massachusetts Office on Disability (MOD) has been working cooperatively with the Public Access Board to improve access at public fishing sites. MOD has reviewed site plans and performed on-site surveys at various fishing locations focusing on accessible paths of travel and accessible fishing piers. Currently, there are eleven accessible fishing locations in the Commonwealth:

The following sites are currently under design and will be constructed over the next few years:

Additional information can be found at www.state.ma.us/dfwele/PAB.

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PUBLICATIONS

New Publications Available from our Center

Recreation Documents

• ADAAG for Recreation Facilities: Amusement rides, boating facilities and docks, fishing piers, golf courses, miniature golf, exercise equipment, bowling, swimming pools and spas - $2
• Accessibility Guidelines for Outdoor Developed Areas: Final Report - includes information on trails, beaches, and picnic and camping areas. 56 pp - $4
• ADAAG for Buildings and Facilities: Final Rule for Play Areas - $3
• Accessible Stadiums Information Sheet - no cost
• Common ADA Problems at Newly Constructed Lodging Facilities - no cost
• Five Steps To Make New Lodging Facilities Comply With The ADA - no cost
• ADA Checklist for New Lodging Facilities - no cost
• Guide to Play Area Guidelines - no cost
• Access Board's ADAAG Technical Bulletins -- Movie Captioning - $2
• Accommodating All Guests Booklet - no cost
• Everyone's Welcome: The ADA & Museums - $30
• Accessible Temporary Events: A Planning Guide - $7

These publications are available from our Center by calling 800-949-4232 V/TTY or order online using our new publications shopping cart at www.ncaonline.org/pub-vid/index.shtml, and others may be purchased. Call NCA to order: (812) 856-4422 (v) or (812) 856-4421 (tty).

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FREQUENTLY ASKED QUESTIONS

Theatrical Movie Captioning

Q: How are movies presently made accessible to people who are deaf or hard-of-hearing?

A: Theatrical movies are presently made available in a very limited fashion through the use of open or closed captions. Some theaters hold screenings of films with open captions (subtitles that are permanently placed on the film) based on specific demand. This option is limited by the fact that most theatrical releases of first-run films are not made available with open captions by movie studios and by the fact that most exhibitors believe their general audiences would be distracted by visible text on the screen. However, because most non-English-language foreign films contain English subtitles, those films are equally accessible to all audiences.

Q: How many people who are deaf or hard-of-hearing can benefit from captioned movies?

A: According to the National Institute on Deafness and Other Communication Disorders of the National Institutes of Health, there are more than 28 million Americans who have some degree of hearing loss. Captioning makes films accessible to those people whose hearing is too limited to benefit from assistive listening devices.

Q: What design principles are used for the inclusion of hidden or discreet captioning systems in movie theaters?

A: The following principles apply to the design of hidden or discreet captioning systems in theaters:

• the system should be flexible and easy to use by patrons who are deaf or hard-of-hearing of different heights, physical capabilities and ages;
• the system should operate effectively from as many seats in the auditorium as possible;
• the system should be very durable so as to withstand use by many people over a long period of time and so that only minimal maintenance is required for effective usage;
• the system's user interface should not require wiring for power or signal reception;
• the system should neither obstruct nor distract other patrons in the theater when in use by a person who is deaf or hard-of-hearing;
• the system should not be vulnerable to theft;
• the system should be inexpensive to purchase and maintain so as not to require a significant financial commitment by the facility owner.

Q: What does the ADA and its regulations say about making movies accessible in theaters?

A: The ADA contains the following information about the accessibility of movies in theaters:

1. The Congressional Conference Report, giving background to legislative deliberations behind the ADA, states the following:

   "Open-captioning, for example, of feature films playing in movie theatres, is not required by this legislation. Filmmakers are, however, encouraged to produce and distribute open-captioned versions of films and theaters are encouraged to have at least some pre-announced screenings of captioned versions of feature films." -- Report 101-116, August 30, 1989, page 64.

   When the ADA was signed into law in 1990, there were no systems available for providing closed captions in theaters; only open-captioning of theatrical films had been in use at that time.

2. "Movie theaters are not required to present open-captioned films. However, other public accommodations that impart verbal information through soundtracks on films, videotapes, or slide shows are required to make such information accessible to persons with hearing impairments. Captioning is one means to make the information accessible to individuals with disabilities." (Appendix B to 28 CFR 36.303)

Q: Why should captions be provided?

A: Captions should be provided to give those who are deaf or hard-of-hearing equal access to the first-run movies that many millions of hearing people are able to enjoy. As the percentage of the population that is deaf or hard-of-hearing steadily increases - based on the growing number of older people (aged 65 or older) and the longer life expectancy of adults - the need for captions will become more urgent. Currently, members of this population depend on closed-captioned television and video for their audio-visual entertainment, which significantly limits their ability to participate in the social, recreational and educational aspects of movie-going. Assistive listening devices, presently made available under ADA regulations, do not serve the significant portion of the population who rely on visual translations of sounds due to more severe hearing losses.

Q: What solutions exist for providing closed captions in movie theaters?

A: A number of technological developments have made the provision of discreet, or hidden, captions in movie theaters possible. One system presently in distribution is the "Rear Window Captioning" system. Another called the "Bounce Back Mirror Image Captioning System" is being marketed and, like the Rear Window System, uses the concept of reflecting captions from a reverse-text display at the rear of a theater. These systems differ in how the caption displays are synchronized and the hardware required, as well as how the caption production is paid for.

In addition, experiments have been performed with glasses that include a small monitor that displays captions. Though an interface for movie theaters hasn't yet been developed, this system, called "Personal Captioning Glasses," is being marketed for classroom and lecture hall use.

Seat-back displays have been employed in a number of non-conventional settings such as planetariums and opera houses. These systems employ a display which is mounted on the seat in front of the patron. Though others in the audience can see the captions, distractions have been minimized through the use of filters.

(Source: "Bulletin #8: Theatrical Movie Captioning Systems," US Architectural and Transportation Barriers Compliance Board, www.access-board.gov/publications/8-Captioning/bulletin8.html.)

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GREAT WEB SITES

Helpful Recreation Web Sites

National Center on Accessibility (NCA)
www.ncaonline.org
The NCA provides technical assistance to organizations of all sizes who are designing and retrofitting leisure areas and programs for accessibility. The NCA conducts, promotes, and facilitates research on issues essential to accessibility. NCA serves organizations working to make the arts, beaches, sports, national monuments, resorts, amusement parks and playgrounds inclusive to all people.

Recreation.Gov
www.recreation.gov
Recreation.Gov is a partnership among federal land management agencies aimed at providing a single, easy-to-use website with information about all federal recreation areas. The site allows you to search for recreation areas by state, by recreational activity, by agency, or by map. Recreation.Gov includes information about: National Parks, Forests, and Wildlife Refuges; Bureau of Land Management sites; Army Corps of Engineers sites; and Bureau of Reclamation sites.

Massachusetts Department of Environmental Management
www.magnet.state.ma.us/dem/access.htm
DEM's Universal Access Program is dedicated to providing outdoor recreation opportunities in Massachusetts State Parks for visitors of all abilities. Accessibility to State Parks is achieved through site improvements, specialized adaptive recreation equipment, and accessible recreation programs. Use this site to discover accessible parks and forests that offer recreation opportunities.

Access Outdoors
www.accessoutdoors.org
Access Outdoors, a service of Wilderness Inquiry, is a comprehensive resource for accessible outdoor recreation. They have two primary objectives: to make it easy for people with disabilities to connect with organizations that are capable of providing or contributing to an accessible outdoor experience and to provide consultation and assessment services to organizations that are interested in making their program or facility more accessible without compromising natural or historic features.

Architectural and Transportation Barriers Compliance Board
www.access-board.gov/outdoor/status.htm
The Access Board is the federal agency which develops minimum guidelines and requirements for standards issued under the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA). Direct link to ADAAG for Recreation Facilities and Outdoor Developed Areas rulemaking on access to trails, beaches, and picnic and camping areas and the report developed by the Outdoor Developed Areas Regulatory Negotiation Committee.

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ACCESSIBLEITEMS

New Version of MAGpie Released

Version 2.01 of the Media Access Generator (MAGpie) - free, do-it-yourself captioning, subtitling and audio-description software for digital multimedia developed by the CPB/WGBH National Center for Accessible Media (NCAM) - is now available to download at http://ncam.wgbh.org/webaccess/magpie/. By adding captions, subtitles and audio descriptions to Web-based media, CD-ROM and DVD-ROM, multimedia specialists, publishing companies or service providers enable full access to millions of people with hearing or vision loss, as well as speakers of other languages. Audio descriptions provide access for people who are blind or visually impaired by adding narration that describes the visuals, including action, scene changes, graphics and on-screen text. Descriptions can also assist students with learning disabilities by reinforcing through audio what the user is watching on the screen.

Using MAGpie 2.01, authors can add captions and audio descriptions to the most popular media platforms: Apple's QuickTime, RealNetworks' RealPlayer and Microsoft's Windows Media. MAGpie is friendly to those who are new to multimedia, educators and even to young users. New features greatly expand the software's capabilities and ease of use. MAGpie 2.01 features:

• Java-based - will run on Windows 98, NT4, 2000 and XP, and on Macintosh OS X.
• Support for playback of QuickTime, Real and Windows media file formats.
• Audio description support, users can write, time and record audio descriptions for digital media.
• Caption, subtitle and description tracks can be created in multiple languages.
• Multiple captions and description tracks can be created for a single multimedia clip.
• Spell check eliminates typographical errors more easily.
• Segmented captioning enables users to create captions with karaoke-like effects.
• Improved user interface/authoring grid.

Funding for MAGpie Development
Funding for the development of MAGpie 2.01 comes from the US Department of Education's National Institute on Disability and Rehabilitation Research (www.ed.gov/offices/OSERS/NIDRR/) and the Mitsubishi Electric America Foundation (www.meaf.org/).

Additional Resources Available from NCAM
Samples of accessible multimedia delivered in the various formats (QuickTime, SMIL and SAMI), as well as source code and tutorials, are available from NCAM's Rich Media Access Project at http://ncam.wgbh.org/richmedia. Additional resources on making Web sites and software accessible, including general captioning conventions and general audio description guidelines, are available from NCAM's recently published "Making Educational Software and Web Sites Accessible: Design Guidelines Including Math and Science Solutions." The Guidelines are available free of charge in print form (email access@wgbh.org, or call 617 300-3400) and to download at http://ncam.wgbh.org/cdrom/guideline/.

Media Access Group at WGBH
The Media Access Group at WGBH, with offices in Boston, New York and Los Angeles, is a non-profit service of Boston public broadcaster WGBH. The service group includes Descriptive Video ServiceŽ, which has made television, film and video more enjoyable to viewers who are blind or visually impaired since 1990, as well as The Caption Center - the world's first captioning agency - founded in 1972. The third branch of the Media Access Group, the CPB/WGBH National Center for Accessible Media (NCAM), is a research, development and advocacy entity that works to make existing and emerging technologies accessible to all audiences. Members of the Group's collective staff represent the leading resources and experts in their fields. For more information, visit http://access.wgbh.org.

Section 508 Tutorials Available

Since issuing its standards for electronic and information technology, the Access Board has maintained a program of continuing on-line guidance and training on the requirements of the standards. These standards, issued under Section 508 of the Rehabilitation Act, cover various means of disseminating information, including computers, software, websites, and electronic office equipment. Federal agencies must ensure that the technologies they procure are accessible according to the standards.

The Board has sponsored the development of a series of interactive web-based tutorials on different sections of the standards. The tutorials supplement previously released material and provide advanced guidance on how products can conform to the standards. Three new courses are available that cover requirements for software applications and operating systems; desktop and portable computers; and self contained, closed products, such as information kiosks, calculators, and fax machines. The courses are part of the on-line "508 Universe" at www.section508.gov, which was developed by the Federal Information Technology Accessibility Initiative, an interagency partnership on the implementation of Section 508. Additional information on developing accessible software has also been posted on the Board's Section 508 homepage at www.access-board.gov/508.htm.

(Source: Access Currents, Volume 9, No. 2 March/April 2003.)

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BREAKING NEWS

Supreme Court Accepts One Title II Case, Rejects Another

On, June 23rd, the US Supreme Court agreed to hear another case involving the constitutionality of Title II of the ADA. At issue in the case, called State of Tennessee v. George Lane and Beverly Jones, is whether Congress had the constitutional authority to require states to pay money damages for violations of Title II of the ADA. Plaintiffs George Lane and Beverly Jones, both with paraplegia, sued Tennessee for failing to ensure that courthouses are accessible to individuals with disabilities. Both plaintiffs were denied access to courtrooms on the second floors of buildings lacking elevators. One plaintiff, Beverly Jones, worked as a court reporter. The other, George Lane, was a defendant in a criminal case. The state arrested Lane for failure to appear when he refused to crawl or be carried up the stairs.

Lane and Jones filed suit under Title II in 1998. The Tennessee Attorney General moved to dismiss the case on sovereign immunity grounds, arguing that Congress did not have the authority to subject the state of Tennessee to suit. The US District Court denied the state's motion and ruled that the case could go forward. The Tennessee Attorney General appealed to the US Court of Appeals for the Sixth Circuit, which affirmed the trial court's decision, and again said that the case could proceed. The Tennessee Attorney General then appealed again - this time to the US Supreme Court. Five years after filing their lawsuit, Lane and Jones have yet to have their day in court.

Since the Supreme Court's decision in University of Alabama v. Garrett, which held that individuals could not sue the state for money damages under the employment provisions of the ADA, the federal appellate courts have been split over whether private individuals cannot sue the state for money damages under Title II. In five appellate circuits, covering 24 states, courts have ruled that individuals with disabilities can sue their states under Title II. In three other circuits, covering 10 states (including Tennessee), courts have ruled that individuals can sue for money damages only under very limited circumstances, namely, in cases implicating constitutional concerns.

As a result, the US Department of Justice had urged the Supreme Court to hear Lane's and Jones's case. Plaintiffs Lane and Jones also filed a brief agreeing that the Court should hear their case, as it seems all but inevitable that the Supreme Court will soon consider this issue, and it would make little sense to proceed to trial when the trial court's decision could be overturned.

On, June 27th, the US Supreme Court let stand a ruling that the city of Sacramento must make all public sidewalks accessible. Without comment, the high court rejected an appeal by Sacramento, which had asked the court to overturn a ruling that city sidewalks were covered by the ADA and therefore have to be accessible. Sacramento argued the ruling by a US appeals court in California imposed a "staggering" financial burden on thousands of state and local governments. The US Justice Department urged the high court to reject the city's appeal, arguing that the law covered public sidewalks.

The case stemmed from a class-action lawsuit against the city by disabled citizens. The lawsuit said the city was required to alter and even rebuild its sidewalks to widen them. It also asked that the city remove such obstacles as benches, fire hydrants, newspaper racks, mailboxes, trees and utility, traffic signal and telephone poles. The lawsuit asked the city to get rid of roots and other protruding objects and to make sure sidewalks were level. A federal judge sided with the city. However, a federal appeals court disagreed and ruled sidewalks were clearly covered by the law.

The Justice Department said the cost issue might be addressed in further hearings. Department lawyers said the appeals court held the city might present evidence in hearings before the federal judge that modifying its sidewalks would subject it to "undue financial and administrative burdens" so that it would be exempt under the law.

(Sources: "US Top Court Won't Review Sidewalk Disability Case," by James Vicini, Reuters, June 27, 2003 and "Tennessee Asks Supreme Court To Hear ADA Title 2 Case," ADA Watch ACTION ALERT, June 16, 2003.)

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EVENTS & ANNOUNCEMENTS

Fair Housing Accessibility FIRST Program
Design and Construction Resource Center
Adaptive Environments, in collaboration with Bearing Point, Inc. and the US Department of Housing and Urban Development (HUD), is providing design and construction technical assistance nationwide on the Fair Housing Act of 1988 to builders, design professionals, housing authorities, fair housing organizations, advocates, service providers and consumers. Adaptive Environments, as the Design and Construction Resource Center, will respond to questions regarding fair housing compliance through a national toll-free number (888) FH1RST1 / (888) 341-7781 (v/tty) or by e-mail at contact@fairhousingfirst.org. The Fair Housing Accessibility FIRST Program has information on training events, resources and additional assistance through its website www.fairhousingfirst.org.

Look for the NEXT issue of Access New England!

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