This article originally published in The Alert, December 2012, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2012 AHEAD. Reprinted with permission.


This is the tenth in a series of articles, “AHEAD of the ADA Access Curve,” to assist disability service providers, ADA Coordinators, and others in promoting compliance with the Americans with Disabilities Act, section 504, and the Fair Housing Act. This series approaches physical access and related issues as key to the civil rights of individuals with disabilities. It is intended to provide some helpful tools in a time of shifting requirements and shrinking resources.

You may be breathing a sigh of relief because DOJ’s and EEOC’s ADA regulations’ deadlines and compliance dates have passed (with one exception), and you’re sure your college or university is in compliance – or at least it’s on the way to full compliance. You feel confident that your colleagues are making progress in ensuring access to web sites, on-line learning, and emerging technology, and you’re reducing burdensome documentation requirements, in line with federal and AHEAD guidance and developing case law. If that’s the case, you can also take a deep relaxing breath, and enjoy the holidays. But what other recent developments should you keep in mind, and what should you expect in the coming year from the federal government? With the caveat that my dusty crystal ball is out of warranty, here is a selection of issues and developments to anticipate in 2013.


There is one deadline to be aware of, and – let’s hope – more guidance to come on some thorny issues about housing in higher education.

The rules for pools

January 31, 2013: This is the one Department of Justice (DOJ) deadline/compliance date that’s still to come, and it’s listed first as a reminder.

In issuing its 2010 ADA regulation revisions, DOJ recognized that for too long people with disabilities had been excluded from participating in many recreational activities, including swimming. The 2010 Standards set minimum requirements for making swimming pools, wading pools, and spas accessible. Newly constructed and altered pools – those built or altered on or after March 15, 2012 — must meet these requirements. That generally means that at least one pool lift and/or sloped entry, depending on the size of the pool, must be provided.

Under title III, public accommodations, such as private colleges and universities, must bring existing pools into compliance with the 2010 Standards to the extent that it is readily achievable to do so. Under title II of the ADA, state and local governments, including public colleges and universities, must make recreational programs and services, including swimming pool programs, accessible to people with disabilities. Under the rules as issued in September 2010, any swimming pool (or wading pool or spa) that had to be brought “up to standards” for these purposes had to have a pool lift and/or other means of entry and exit by in March 2012.

In May 2012 DOJ extended the compliance date for these existing pools to January 31, 2013, after controversy arose surrounding hotel and motel owners’ understanding of, and ability to comply with, the deadline. DOJ also issued guidance about pool lifts, emphasizing that, among other things, a fixed lift must be independently operable by the user. If a fixed lift is not readily achievable, or creates an undue financial or administrative burden under title II, only then can a portable pool lift be used.

Accessibility standards: some good news about “conflicting” standards, but we need more guidance

Good news: The Department of Education (Education) has taken steps to eliminate the confusion created by inconsistent standards under section 504 of the Rehabilitation Act, issued by Education in 1991, and DOJ’s 2010 ADA Standards for title II. Both apply to public colleges and universities, but the two sets of standards are inconsistent and sometimes conflict with each other. On March 14, 2012, Education issued a notice, 77 Fed. Reg. 14972, interpreting the section 504 regulations to permit use of the title II regulations for new construction and alteration on or after September 15, 2010. Covered entities may also use the Uniform Federal Accessibility Standards (UFAS), currently referenced in the section 504 regulations. Use of the 2010 Title II ADA Standards will not be required under section 504 until the Department formally revises its section 504 regulations to adopt the 2010 ADA Standards.

Residence halls and other housing in higher education

While Education’s clarification is helpful, other applications of the ADA Standards may still lead to some confusion. For example, the 2010 ADA regulations newly define a category of “housing at a place of higher education.” Within that category, apartments or townhouse facilities leased “on a year-round basis exclusively to graduate students or faculty” are subject to different standards from other university or college housing, such as traditional undergraduate residence halls. “Residential dwelling units” within the first category are not eligible for the new safe harbor for existing facilities for purposes of program accessibility and barrier removal. Applying these requirements presents some difficulties, both obvious ones and less subtle ones. Those people responsible for planning, designing, or operating housing on behalf of a college or university would be well-advised to study these regulations as they construct or alter housing or attempt to determine whether they have met the title II and III requirements for existing facilities. DOJ representatives have said that the Department will be offering some guidance about how to apply these requirements.

Complicating matters is the fact that the regulations of the Department of Housing and Urban Development (HUD) under the Fair Housing Act (FHA), and in some instances HUD’s section 504 regulations, also apply to both types of housing. Those entities subject to section 504 are to follow UFAS, and those subject to FHA are to use one of HUD’s several “safe harbors.” There have been no indications from HUD as to whether it intends to follow Education’s lead in allowing the use of the ADA

Standards for section 504 purposes.


The Department of Education has clarified the “registration” issue. There may be a preliminary decision soon in an important case on emotional support animals, University of Nebraska at Kearney.

Guidance or case law will offer some clarification

Colleges and universities are understandably befuddled at times by unclear and apparently conflicting direction from various agencies about what types of animals must be allowed on campus on in housing, what questions can be asked, and what procedures should apply. The Department of Education has signaled recently that under section 504 and title II colleges and universities cannot require students with service animals (that is, dogs that are individually trained to do work or perform tasks for a person with a disability) to register the animals and produce documentation of the disability and the specific need for the animal as an accommodation. (See OCR letter and resolution agreement for complaint No. 01-12-2008, April 6, 2012, Community College of Vermont.) This approach is consistent with DOJ’s 2010 regulations, under which individuals with disabilities are entitled to be accompanied by their service animals in all areas where members of the public are allowed to go. DOJ has said that the only questions that can be asked when it is not obvious what service a dog provides are (1) whether the animal is required because of a disability and (2) what tasks it is trained to perform. Requiring registration of a service animal, or otherwise treating use of a service animal in the same way as a request for an academic adjustment and/or auxiliary aids and services, would run counter to these principles.

We can still hope for further guidance as to how a college or university should handle situations in which it suspects that an animal is not a “legitimate” service animal.

In addition, institutions of higher education need to draw careful distinctions between their approach to service animals and their approach to requests for emotional support or other assistance animals in a residential setting, because of the separate provisions of the Fair Housing Act (FHA).

The most significant case to watch, in which a court decision would bring clarification of how the FHA applies to higher education, is DOJ’s suit against the University of Nebraska at Kearney challenging its alleged refusal to allow students with emotional disabilities to live in campus housing with an emotional assistance animal. The FHA protects the right of people with disabilities to keep assistance animals as a “reasonable accommodation” in housing, even when a landlord’s policy explicitly prohibits pets. The Kearney suit is the first one brought by the federal government against a university to enforce these provisions as to emotional support animals for people with emotional or psychiatric disabilities. The case was filed in November 2011, and just two weeks ago — in November 2012 — both the government and the university filed motions and briefs on the threshold question raised by the defendants: whether the FHA applies to colleges and universities. The university claims that the university’s student housing is not a “dwelling” used as a “residence” and that therefore the case should be dismissed. If the case survives this motion, and the mattered is not settled, it is likely that the court will reach the question of what types of inquiries can be made about an individual’s disability, and the connection between the disability and the animal requested, under the FHA. (The briefs mentioned are not yet available at a lay web site. For background on the case, see my Alert article from December 2011.)


The year 2013 may bring some proposed rules on the ADA Amendments Act, equipment and furniture (including electronic technology), and web sites.

After the usual several-month slowdown in regulatory activity prior to an election, some pending proposed regulations may be released for publication in 2013. In 2010 DOJ issued notices (advance notices of proposed rulemaking, or ANPRMs) stating its intent to amend the ADA regulations in several respects. The next step would be a notice of proposed rulemaking (NPRM) for each, including the text of a proposed rule. It is difficult to know which rules would be proposed first because the last official statement as to timing (the Regulatory Agenda) was filed in the fall of 2011, but it appears some are on a faster track than others. Of course, budget constraints that affect staffing and the ability to fund regulatory impact analyses may cause delays in any rulemaking. Monitor DOJ’s web site at for these:

Amendments to section 504 regulations and ADA regulations in light of the ADAAA The Equal Employment Opportunity Commission finalized its regulations implementing the ADA Amendments Act (ADAAA) in 2011, to address Congress’ resetting of the definition of disability and to establish standards that must be applied to determine if a person has a covered disability. DOJ has said that it intends to revise its section 504 regulations (including those that guide other agencies’ section 504 regulations) and ADA regulations to reflect the ADAAA as well. This may be the first proposal to emerge from DOJ in 2013.

Equipment and furniture, including electronic technology

The DOJ equipment and furniture ANPRM addresses a wide range of issues including the accessibility of kiosks, ATMs, vending machines, washing machines, golf carts, electronic technology (which may include clickers, e-readers, etc.), and medical equipment. After the ANPRM appeared, the Department stated that it will first publish a separate NPRM on beds in accessible guest rooms (for example, in hotels but probably also in residence halls) and a more detailed ANPRM focusing solely on accessible medical equipment and furniture. The remaining items of equipment and furniture will be the subject of a later, separate NPRM. In the meantime, it appears that DOJ will be publishing proposals about next generation 9-11 and movie captioning, issues also raised in the ANPRMs.

Web site accessibility

DOJ has made it clear through guidance, litigation, settlements, and other announcements that it considers web sites of state and local governments, as well as those of public accommodations, to be covered by the ADA’s mandates on equal opportunity and effective communication, but there are no specific regulations about how to make web sites accessible to and usable by individuals with disabilities. The ANPRM stated DOJ’s intent to issue a proposed rule, specifically mentioning higher education:

Beyond goods and services, information available on the Internet has become a gateway to education. Schools at all levels are increasingly offering programs and classroom instruction through Web sites. Many colleges and universities offer degree programs online; some universities exist exclusively on the Internet. Even if they do not offer degree programs online, most colleges and universities today rely on Web sites and other Internet-related technologies in the application process for prospective students, for housing eligibility and on-campus living assignments, course registration, assignments and discussion groups, and for a wide variety of administrative and logistical functions in which students and staff must participate.

Specific accommodations that may be addressed in an NPRM include captioning for videos posted online, alt text descriptions for photos, accessible online forms, and elimination of CAPTCHAs (wavy letter boxes).

This possible NPRM was not even mentioned in the latest regulatory agenda, which suggests that this proposal may come later than the others listed.

All told, there may be a lot on our plates in 2013. But for now, just file this away and enjoy what’s on your festive holiday plate. There will be plenty of time to study up and follow federal developments after the holidays.

This series of articles is provided as a member service by Irene Bowen, J.D., with ADA One, LLC. Until August 2008, Irene was Deputy Chief of DOJ’s Disability Rights Section. She is also former Deputy General Counsel of the Access Board. ADA One provides consulting, training, and alternative dispute resolution services related to the Americans with Disabilities Act and similar laws. You can contact Irene at or by phone at 301 879 4542. Her web site is

The content in this article is for informational purposes only. It is not and shall not be deemed to be legal advice or a legal opinion. You cannot rely on the content as applicable to a particular circumstance or fact pattern. If you need legal advice about a particular issue and particular facts, you should seek professional legal advice.