Ahead of the ADA Access Curve: Part 6

This article originally published in The Alert, January 2011, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2010 AHEAD. Reprinted with permission.

DOJ’s new ADA requirements: Six common myths and mistakes

Colleges and universities are now implementing the Department of Justice’s (DOJ) updated ADA regulations, which became effective for most purposes about three months ago, on March 15, 2011. (The new accessibility standards become binding a year later.) Many of the provisions are relatively straightforward. But some are the source of confusion or misunderstanding. This article takes a look at six myths or mistakes that I’ve noticed when discussing the new regulations with colleges and universities, and sets out the “real deal” (to the extent that DOJ has made it clear) as to each one. The next Alert article will address six more myths and mistakes.

Myth number 1: Students no longer have the right to have comfort animals such as cats in the residence halls

Facts: It is true that the 2010 regulation says that only dogs are considered service animals, and that comfort animals are not included within the definition of service animal under the ADA.

But the Fair Housing Act and section 504 also apply to residence halls. These laws are implemented by the Department of Housing and Urban Development (HUD) and, for higher education, the Department of Education’s Office for Civil Rights (OCR). Both agencies have said that emotional support animals, or comfort animals, are to be allowed, as appropriate, as a reasonable accommodation or reasonable modification in residence halls and that the college or university can ask for documentation from a professional about the disability-related need for the animal. This category of animals is not necessarily limited to dogs.

Myth number 2: A person who has a dog that assists with PTSD or another psychiatric disability doesn’t have the right to bring it on campus, because it’s a comfort animal.

Facts: The DOJ regulation includes in the definition of service animal a dog that is “individually trained to do work or perform tasks for the benefit of an individual with a disability.” Disabilities can include those that are psychiatric, intellectual, or other disabilities. “Work or tasks” can include providing non-violent protection or rescue work and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. DOJ considers a dog that has been trained to calm a person with PTSD when he or she has an anxiety attack to be a service animal. A dog that is trained to recognize that a person is about to have a psychiatric episode and is trained to respond (by, for example, nudging, barking, or removing the individual to a safe location until the episode subsides) is also a service animal. These are distinguished from those animals that provide solely emotional support, well-being, comfort, or companionship. The latter are not service animals within the ADA’s definition.

Myth number 3: Our college has to allow a miniature horse as an accommodation in a residence hall.

Facts: DOJ’s regulation says that miniature horses are to be allowed as a reasonable modification if the miniature horse is individually trained to do work or perform tasks for a person with a disability, and that certain “assessment factors” are to be considered when determining whether doing so is “reasonable.” They take into account the type of facility, safety considerations, whether the miniature horse is housebroken, etc. While there has been no specific guidance from DOJ about residence halls, DOJ representatives have noted that miniature horses cannot live indoors; they cannot survive without spending a significant amount of time outside. Because the college or university is not responsible for care or control of such an animal, it follows that in most instances it is not feasible for a miniature horse to be allowed as an accommodation in a residence hall.

Myth number 4: There are new requirements for websites and electronic devices such as Kindles.

Facts: When DOJ issued the final regulations in July 2010, it also published an “advance notice of proposed rulemaking” announcing that it was considering revising the ADA regulations to establish specific requirements for accessible websites. DOJ and the Department of Education have also reminded colleges and universities that when they require the use of technology such as electronic readers, they must ensure that those devices are accessible to people with disabilities. But no specific standards have yet been proposed for the web or other technology under the ADA. On the other hand, the requirements for accessibility in these areas are not really “new.” Rather, they involve specific applications of the principles set out in the ADA, as to technology that was not available — and therefore not specifically addressed — when the original regulations were issued.

Myth number 5: Complaints that DOJ receives about colleges and universities are automatically referred to OCR at the Department of Education.

Facts: Under the prior regulations, this was generally true, if the complaint was against a public (state or local) college or university. Under the new regulation, DOJ has the discretion to retain a complaint for investigation or to conduct a joint investigation with the Department of Education. Complaints against private colleges or universities can, as before, be retained by DOJ, which has the sole authority for investigations under title III, or be referred to OCR for investigation under section 504.

Myth number 6: As long our college or university has a barrier removal plan or transition plan that we developed under the 1991/1994 regulations, we are in compliance with the new requirements too.

Facts: One of a college or university’s priorities during the transition to the “compliance date” of March 15, 2012, should be to determine whether its existing facilities need changes to bring them into compliance with the new standards for purposes of program accessibility or barrier removal. While the 2010 regulations don’t specifically require new or updated barrier removal plans or transition plans, DOJ has pointed out in presentations and trainings that it will be very difficult to meet this objective without a plan.

For example, there are now standards for recreation facilities that were previously not addressed, such as exercise facilities, swimming pools, and golf courses. Each institution covered by title II should determine how many of its recreation facilities need to be accessible in order to ensure that its programs as a whole are accessible. If a facility needs to be accessible for program accessibility purposes, it should be brought up to the Standards by the 2012 compliance date – a task that would be difficult to achieve without a self-evaluation and transition plan addressing those areas. A similar assessment would be beneficial under title III’s barrier removal provisions. A transition plan or barrier removal plan ideally would set out what steps will be taken before March 15, 2012, as well as those that cannot be carried out by that date, the reason that they cannot be (e.g., undue financial burden), and the steps that will be taken apart from those changes, or at a later date, to achieve program accessibility.

While the new DOJ regulations don’t change everything, they do require some changes to policies and, most likely, to your facilities. If you haven’t started to implement the new policies and to educate others about the changes that may be needed to facilities, start now. These facts should help you understand the requirements, and you can find details at DOJ’s website.