Ahead of the ADA Access Curve: Part 4

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

DOJ’s new ADA regulations: It’s about time!

Six steps for the next six months – and beyond

They’re finally “official.” The new ADA regulations from the Department of Justice (DOJ) were published on September 15, 2010, in the Federal Register and will be effective on March 15, 2011, with the new accessibility standards becoming binding on March 15, 2012. The regulations apply to state and local governments (including state universities and community colleges), which must follow the regulations for title II of the Act, and public accommodations (including private colleges and universities and proprietary schools), which are subject to title III.

Whether you work in Disability Services, are an ADA or 504 Coordinator, or play another role in higher education, you need to get up to speed quickly. It’s also important to let others in your institution know about the changes and to help them prepare for the changes.

So where do you start?

First, understand what the regulations do, and what they don’t do. These are the first major updates to DOJ’s regulations from 1991. They are based on changing times, accessibility research, new knowledge, and other factors. The updates usher in changes responding to advances in technology and ways of communicating, new types of mobility devices such as Segways, and increasing requests for a variety of animals to be considered service animals. They also conform the federal accessibility standards to model accessibility codes. The Standards cover some areas not included in the 1991 ADA Standards (such as play and recreation areas), and add specific provisions beyond the ADA Accessibility Guidelines.

Keep in mind that these regulations do not reflect the ADA Amendments Act (ADAAA) of 2009, which reset the definition of “disability.” The first rules from the federal agencies under the ADAAA will come from the Equal Employment Opportunity Commission (EEOC). They are expected within a few months and will affect your employment practices. Then it’s likely that DOJ will amend its ADA rules to be consistent with those of the EEOC. The future DOJ rules will clarify who has a disability and therefore has rights under the ADA as to services and policies other than those relating to employment.

Second, learn the policy implications of the new regulations, and urge an evaluation of your institution’s policies. You have to comply with most new policy provisions by March 15, 2011.

The policies you’ll need to revise or create include those about

• Use of video remote interpreting (VRI) services. The 2010 rules set standards for ensuring that these are employed effectively.
• Service animals. DOJ considers service animals to include only dogs that are trained to perform tasks or work for people with disabilities, including psychiatric disabilities. Emotional support animals are not service animals. In some cases, miniature horses are to be admitted with their handlers. (But other laws or regulations, including ones covering housing or under state or local jurisdiction, may require you to admit other types of animals besides those included in DOJ’s regulations.)
• Automated-attendant phone systems. If you use these, you must ensure effective real-time communication for people with disabilities.
• Ticketing. New provisions govern the sale of tickets for accessible seating at stadiums and in auditoriums/theaters, the sale of season tickets, and the hold and release of accessible seating.

Third, alert facilities and planning staff to significant dates concerning the new standards and their implications.

The rules impose a “compliance date” (a date when compliance with the new standards is required) of March 12, 2012. Any new construction and alterations that begin on or after that date must comply with the 2010 ADA Standards, those included in or referenced in DOJ’s publication of September 15.
The regulations also specify what is required in the transition between now and that date.

Between now and March 15, 2012, private colleges and universities can choose to comply with either the 1991 Standards or the 2010 Standards. But they must be applied on a building-by-building basis. In other words, you cannot choose to apply the 1991 Standards to a particular building for alterations to one part of the building and to apply the 2010 Standards to another part or an alteration at a different time.

Between now and March 15, 2012, public colleges and universities continue to have a choice of complying with the 1991 Standards or the Uniform Federal Accessibility Standards (UFAS) (a choice they have had since 1991) — or they can comply with the 2010 Standards. Again, application is building by building.

Your institution should decide as soon as possible which standards to follow during the transition. It may be easier to continue to do as you have done, or you may wish to apply the new standards to some buildings, depending on the nature of the building and the alteration. The 2010 Standards are stricter in some instances, and less stringent in others.

The regulation also allows private entities to continue to do “barrier removal” (removal of physical barriers to the extent removal is readily achievable) following the 1991 Standards until March 15, 2012, or to choose the 2010 Standards for that purpose. After that date, the 2010 Standards become the new measure. Completing barrier removal by March 2012 will offer you greater flexibility, then, than waiting until later. After that, you risk having to upgrade according to the 2010 Standards. In the meantime, document your current compliance with the 1991 Standards in “existing” facilities.
Fourth, highlight some of the major changes in the standards for facilities and planning staff.

As part of the 2010 Standards, DOJ has adopted the Access Board’s 2004 ADAAG (ADA Accessibility Guidelines). If your institution follows a state or local code based on the 2003 International Building Code (IBC) and ANSI A117.1-2003, many of these provisions will be familiar. Here are a few examples:

• Controls and operating mechanisms have lower reach limits.
• Where a direct circulation path connects an audience area to a stage, a direct accessible route must be provided.
• New or altered work areas must include accessible common use circulation paths within the work areas

In addition, DOJ has supplemented 2004 ADAAG. For example,

• Housing in higher education: residence halls are treated as transient lodging (similar to hotel rooms) and apartments and townhouses occupied year-round are considered residential. Different standards apply to the two categories.
• There are more detailed requirements about horizontal and vertical dispersal of accessible seating.
• The 20% rule, or “path of travel” rule, now applies to public entities as well as private entities. It imposes additional expenditures for improvements to access to a primary function area and to the restrooms and drinking fountains serving it when such an area is altered.

Fifth, start planning for March 15, 2012, and beyond

Compliance with both the policy and facility accessibility portions of the new regulations will require focused planning, budgeting, and scheduling.

The departments responsible for your facilities should review all those that will be constructed or altered on or after March 15, 2012, for strict compliance with the new Standards. In addition, DOJ urges title III (private) entities to have a barrier removal plan for each building, and to document steps that have already been taken. Logically, the same principle would apply to “program access” measures taken by public entities (ensuring that people don’t face discrimination because of physical barriers). There are “safe harbors” for barrier removal, program access, and alterations in the regulations that can be a bit difficult to understand, and their importance is heightened after the 2012 date. They will be the subject of another article.

If you are a public institution and have updated your self-evaluation recently, it may be adequate to center your policy efforts on the specific policy changes made by DOJ. If not, this is a good time to evaluate all your policies. If you do not have a transition plan that ensures program accessibility and takes into account the current uses of your facilities and the impact of the new Standards, this is a good time to lay the groundwork for creating or updating your plan.

If you are a private institution, you should consider the same kinds of updates. Remember that barrier removal is an ongoing obligation; this necessitates that you monitor the ways in which you use your facilities and whether barriers exist.
Sixth, study up and stay alert.

For the basics about the new regulations, see DOJ’s short fact sheets. There is one about the title II regulations at http://www.ada.gov/anprm2010.htm, one about the title III regulations at http://www.ada.gov/regs2010/factsheets/title3_factsheet.html, and one about the Standards at http://www.ada.gov/regs2010/factsheets/title3_factsheet.html.

The regulations themselves and the preamble (explanation) are easily found at http://www.ada.gov, DOJ’s ADA website. Even more details about the Standards are in Appendix B to the title III regulation, also on the website.

Check that site regularly starting around March of 2011, because DOJ will be updating its many technical assistance documents starting then.
Next year DOJ is also expected to proposed regulations with significant implications for higher education: ones addressing web site accessibility, and equipment and furniture (including lab stations, exercise equipment, and classroom furniture). The Department took preliminary steps toward regulating these and other areas by issuing four “pre-rules” on July 26. They can be found at http://www.ada.gov/anprm2010.htm.

No one will be able to remember all the details of the Standards or the specific sections of the regulations that apply to every policy at a college or university. But you should know what resources you have available, and where to turn for answers. The more you know, the better you’ll serve students and others at your campus, and the better equipped you’ll be to guide your institution into a decade of change and opportunity.