This article originally published in The Alert, January 2010, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2010 AHEAD. Reprinted with permission.

DOJ’s proposed ADA regulations: When in 2010? What do you need to know?

This is the third 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.

In June 2008 the Department of Justice (DOJ) proposed major regulatory changes – the first since 1991 — under the Americans with Disabilities Act (ADA). They would affect colleges and universities of all types, under title II (state and local governments) and title III (public accommodations), as well as testing entities. The rules would usher in new requirements covering areas from service animals to testing and documentation, from Segways and similar devices to event ticketing policies, and effective communication and program access. As proposed, the rules would require compliance with detailed accessibility standards that in many ways are more demanding than the current standards. But in some instances the new standards would reduce current accessibility requirements.

As we enter 2010, the rules (regulations) are still pending, with no official word from the Department of Justice. When should we expect them? And what do you need to know now?

The final DOJ regulations probably won’t be published before summer of 2010, if then

The Department of Justice has not signaled what the final regulations may require, or when they will appear. Tom Perez was not confirmed by the Senate as head of the Civil Rights Division (which writes and enforces the rules) until October 2009. He has said that he is reviewing recommendations from Division staff, and he must make some important decisions about the rules. Then the Division will forward its recommendations, along with the language of the draft final rules and the preambles (introduction and analysis), for review at other levels within DOJ. Then the federal Office of Management and Budget (OMB), which reports to the White House, must clear the rules before publication. The OMB process alone can take up to three months or more.

The twentieth anniversary of the ADA is this year, on July 26. Although some people anticipate that the Administration may aim to issue the regulations around that date, there has been no indication of an intention to do so. In fact, it is impossible to predict a publication date, in light of the magnitude of the regulations’ potential impact as well as the process just discussed. But it is probably realistic to expect the rules by the end of 2010.

These are NOT the ADAAA regulations or section 504 regulations

This article focuses on DOJ’s regulations only. The Equal Employment Opportunity Commission (EEOC) is proceeding on a separate track to amend its employment regulations to conform them to the ADA Amendments Act (ADAAA). The Act took effect on January 1, 2009, and brings the first significant changes to the ADA since its enactment in 1990. The changes are intended to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. The EEOC published a proposed regulation on September 23, 2009. During the public comment period (which ended November 23, 2009), the EEOC and DOJ held four full-day town hall listening sessions across the country. The final EEOC rule is expected at some time in 2010.

Become familiar with the proposed rules

One thing is clear: the final regulations will have significant impacts on higher education.

The chart accompanying this article highlights some of the issues of interest to higher education, by category: policies, program accessibility, new construction and alterations, communication, and testing. It will give you a basic overview of the proposals, but nothing substitutes for reading the language of the proposed and final rules on your own.

You can find the proposals at There are hundreds of pages, including the text of the proposed rule, the preambles (which explain the proposals and the most important issues and, in this case, ask specific questions for comment), the cost analysis, and appendices. You can start by reading just the regulatory text, which is only about six pages for each of the rules, at (title II) and (title III). Then read the preamble (at the first link above), as you have time. If you do this now, and become familiar with the issues, you’ll more quickly understand the final rules when they’re published.

Alert others on campus, and plan for changes

Be alert to – and alert others to – the pending changes, and the need to budget time and financial resources to comply with them.

The proposed rules would not specifically require that you do a new transition plan (setting out changes required to buildings and facilities in order to provide program access) or barrier-removal plan (if you’re a private entity), or self-evaluation of policies and practices. But these would be useful tools, as it would be difficult to comply with any new requirements — including changes to what you can do on the policy front, as well as new accessibility standards — unless you see how you measure up to them, once they’re issued. And if you did your ADA plans when they were first required – in 1992 — without a reassessment since then, they’re in need of updating. Think about some of the changes we’ve seen in the last two decades:

  • The population you serve — students, employees and faculty, and visitors — includes more people with disabilities. They have a greater variety and severity of disabilities and service/support animals, along with more technological devices and mobility devices that didn’t exist in prior decades. Examples of those that were not in existence – or were not widely used – when the rules were issued in 1991 include Segways™ and similar devices, scooters, “nonstandard” or specialized types and sizes of wheelchairs, service animals other than “seeing eye dogs,” companion animals, and support animals.
  • You probably offer more types of programs and/or services and in different ways.
  • You’ve probably altered some of your buildings or facilities, built new ones, or changed the use of many buildings.

Watch for further rulemaking from DOJ

The Department has a number of decisions to make about further rulemaking under the ADA and section 504.

Although the major impact of the ADA Amendments Act is in the employment arena, and EEOC will detail the requirements, DOJ must also amend its regulatory definitions under title II and title III, as well as section 504, to be consistent with the ADAAA. Look for those proposed regulations after DOJ acts on the title II and title III rules proposed in 2008.

There are also several areas that the Department did not address in the 2008 proposal and that are ripe for rulemaking: emergency preparedness, access to web sites, and access to equipment. Watch for DOJ to tackle these after it wraps up the current rulemaking.

Then we can anticipate conforming regulations from the Department of Education and others under section 504.

Help position your institution for compliance

No one knows exactly how the pending DOJ regulations will affect your facilities and policies, but you can get ahead of the learning curve. Start now to evaluate where you are, to plan, and to budget (or to encourage others to plan and to budget). Then you’ll be better prepared to understand the final rules when they do arrive, and positioned for compliance.

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.

Topic Current (1991) Regulation 2008 Proposal Comments
POLICY: Service animals, §§ 35.104, 35.136, 36.104, 36.302(c) No specific language in current title II regulation; addressed under requirement to make “reasonable modifications” to policies and practices, 28 C.F.R. § 35.130(b)(7). Title III rule has some requirements, § 36.302(c). “Service animals” would include only common domesticated animals (dogs and cats) that perform specific tasks or do work for an individual with a disability. Would specifically exclude comfort animals but include psychiatric service animals. Would formalize DOJ’s position, as articulated in technical assistance documents. This section received the largest number of public comments; there will likely be some changes. Remember: state/local laws, EEOC, the Fair Housing Act, and section 504 may require admitting a greater variety of animals in some settings.
POLICY: Event ticketing, §§ 35.138, 36.302 (f) No specific language. The regulations would impose more detailed and demanding requirements concerning equity in ticketing for accessible stadium seating. Individuals with disabilities must be able to purchase in same manner and at same time, transfer tickets in same way, as others; identify accessible seating; etc. Proposal allows those who issue tickets to take steps to prevent fraudulent purchase.
POLICY: Types of wheelchairs, Segways™ and similar devices, §§ 35.104, 35.137, 36.104, 36.311 No specific mention of mobility devices or types of wheelchairs. Would define “wheelchair” and “other power-driven mobility device.” Would require public entities to allow them in pedestrian areas and make reasonable modifications to policies to allow power-driven devices for sake of participation, unless fundamental alteration. The provisions about power-driven mobility devices were the source of much comment. The final rule may reflect recent litigation in the Disney World Segway™ case.
POLICY: Examinations and courses, § 36.309(b) Section 36. 309 applies to private entities that offer exams or courses re: applications, licensing, certification, credentialing. Requires exams in accessible locations and manner, with details. For the first time, DOJ would address documentation of (1) existence of disability and (2) need for modification or auxiliary aid/service. Requires any request for documentation to be “reasonable and limited to the need for the modification or aid requested.” DOJ says in preamble that it has found that documentation requests are often inappropriate or burdensome. They should be narrowly tailored, with documentation generally accepted without further inquiry if it reflects individualized assessment by qualified professional, is recent, and shows consistent history of diagnosis.
PROGRAM ACCESSIBILITY(title II) Criteria for determining whether program access is achieved are not included. § 35.150. Suggested that “a reasonable number, but at least one” facility, when there are several used in a program, would satisfy program access requirements, in the context of play areas and recreation facilities. See discussion in preamble, Subpart D, Program Accessibility. Clarification can be expected. Many advocacy groups criticized this approach as not workable and not reasonable, and discriminatory because it would place what they saw as discriminatory limits on the program access requirements and result in unequal access and segregation.
NEW CONSTRUCTION AND ALTERATIONS: Standards, §§ 35.151, 36.406 Public entities can follow either Uniform Federal Accessibility Standards (UFAS) or ADA Standards for Accessible Design. Public accommodations must follow ADA Standards. New requirements would apply to construction beginning six months after effective date of regulations. Public entities could no longer choose UFAS. Standards would be 2004 ADA Accessibility Guidelines (2004 ADAAG). Public entities would be subject to path of travel (20% rule) rule in alterations. Architects and builders objected to what they saw as a short phase-in period for new standards, in light of the time generally required to design and plan for new construction and alterations.
NEW CONSTRUCTION AND ALTERATIONS:Residence halls, campus apartments,§§ 35.151(f), 36.406(e) Dorms are subject to section 9 of ADA Standards (transient lodging). No specifics on apartments (usually covered under FHAA). UFAS requires 5% of units to be accessible. § 4.1.4(11). Standards for transient lodging (hotels) would apply to residence halls and dormitories. Individual apartments and townhouses would be treated as residential facilities, with different requirements. Impact: Transient lodging standards call for 3% of units to be accessible. Residential standards require 5% but are less strict as to communication accessibility, do not require access to upper floors if required features can be provided on a single level, and don’t require roll-in showers.
ADOPTION OF ADAAG 2004 as ADA Standards: Entrances Generally, 50% of entrances must be accessible. Standards §§ 4.1.3(8)(a), 4.1.6(1)(h). (Under UFAS §4.1.2(8), at least one.) Generally, 60% must be accessible. ADAAG § 206.4.1. In some cases will mean more accessible entrances. But current requirements often result in more than 50% because of egress requirements.
ADOPTION OF ADAAG 2004: Parking One in eight accessible spaces must be van-accessible. Standards § 4.1.2(b). One in every six accessible spaces must be van-accessible. ADAAG § 208.2.4. More accessible van spaces. Otherwise parking scoping is unchanged.
ADOPTION OF ADAAG 2004: Recreation areas Generally not addressed. Would require accessible means of entry for swimming pools. Standards would apply to golf courses, boating and fishing facilities, play areas, and clear floor space at exercise machines and equipment. ADAAG §§ 235-243, Chapter 10. DOJ asks numerous questions about alterations to these areas and program access, and offers some exceptions for comment. See preamble, questions 6, 7, and 24-31 and discussion prior to each question.
ADOPTION OF ADAAG 2004: Assistive listening devices (ALD’s) Generally, 4 % of seats must be equipped. Standards §§ 4.1.3(19)(b), 4.33. Would require smaller percentage in larger assembly areas. But some ALD’s would have to be hearing-aid compatible. ADAAG §§ 216.10, 219.
ADOPTION OF ADAAG 2004 and additional DOJ requirements: Seating in stadiums, theaters, and other assembly areas, §§ 35.151(g), 36.406 (f) Standards address wheelchair seating areas, companion seats, armrests, etc. Standards §§ 4.1.3(19), 4.33. Requires fewer wheelchair seating areas for some large assembly areas (if more than 5000 seats, requires .5% rather than 1% of additional seats). But includes more specifications as to specialty seating areas, dispersal, and viewing angles. ADAAG § 221.
COMMUNICATION: Video interpreting services (VIS), §§35.104, 35.160(d), 36.104, 36.303(f) No mention of video interpreting services Would define VIS and establish standards concerning quality of video and audio, clarity of picture, etc.