Ahead of the ADA Access Curve: Part 7

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 MORE common myths and mistakes

This article looks at six more myths or mistakes that have come up in discussions of the new Department of Justice regulations with colleges and universities, and sets out the “real deal” (to the extent that DOJ has made it clear) as to each one. My prior Alert article addressed the first six myths and mistakes about DOJ’s updated ADA regulations, which became effective for most purposes about five 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, which these two articles attempt to resolve.

Myth number 7: We have to make our campus facilities accessible to devices like Segways and golf cars.

Facts: The 2010 revised regulations do require that you allow people who use motorized devices such as Segways and golf cars as mobility devices to operate them in your facilities where doing so is reasonable under the circumstances. The decision is to be based on such factors as the nature of the facility, the class of device, and safety considerations. But the regulations do not require that you make changes to facilities in order to do so.

Myth number 8: Disability services offices should make sure that documentation is current, that is, no more than three years old.

Facts: The 2010 regulations clarify a number of issues about documentation for testing accommodations. The DOJ regulations are specific to testing agencies, but it is advisable for colleges and universities to follow the requirements as well. For example, the regulation specifically says that any request for documentation must be reasonable and limited to the need for the particular modification requested. An entity must give “considerable weight” to documentation of past modifications or accommodations in similar testing situations, as well as those provided in an IEP or a section 504 Plan.

As to “recency” of documentation, DOJ gives some specific examples in its “preamble,” or regulatory guidance, to settle one issue: Documentation does not have a shelf life. In other words, there’s no three-year expiration date (or other expiration date) for documentation of a disability and a need for accommodations. DOJ notes with approval the comment of one organization that requiring an individual with a long and early history of disability to be assessed within three years of taking a particular test is burdensome, because persistent conditions such as dyslexia and attention deficit do not abate with time.

Myth number 9: We need to bring all our facilities on campus up to the 2010 Standards by March 15, 2012.

Facts: The basic principles haven’t changed: new construction and alterations have to be accessible, and existing facilities that are used by title II (public) entities must be accessible if they are used for the accessible delivery of services and programs. That’s the familiar concept of program accessibility. Program accessibility also must be achieved, under section 504, by public or private colleges and universities that receive federal funds. If you’ve met the program accessibility requirements by eliminating barriers to access under the 1991 Standards or UFAS for a particular building, you don’t have to bring those same buildings up to the new standards (unless you alter the buildings). Under a concept new to the 2010 revised regulations, they fall under a “safe harbor.” But there are some important exceptions; if the 1991/1994 Standards didn’t have specific requirements for a particular type of facility, those facilities can’t benefit from a safe harbor, and they must be brought up to the 2010 Standards to the extent they’re required to be accessible for the sake of program accessibility. For example, swimming pools, play areas associated with child care centers, and exercise equipment are newly covered by the standards. Your campus should evaluate whether particular spaces of this type need to be modified.

This explanation only skims the surface. For more, see my “Tips for the Transition to 2012 (PDF)”.

Myth number 10: If our college or university follows the 2010 ADA regulations and Standards, we’re also in compliance with section 504 and the Fair Housing Amendments Act (FHAA).

Facts: Let’s start with section 504 and the accessibility standards. Almost all agencies’ regulations “deem” UFAS (the Uniform Federal Accessibility Standards, issued in 1984) to be the accessibility standards for new construction and alterations by entities that receives federal grants or loans, as almost all colleges and universities do. DOJ has said that it will be working with federal agencies to revise their section 504 regulations (those that apply under section 504 of the Rehabilitation Act) to adopt the 2010 Standards as the appropriate accessibility standard for their recipients.  In the meantime, in March of this year DOJ issued a directive to agencies that provide federal financial assistance (such as the Department of Education, which is responsible for section 504 compliance as to educational entities, and the Department of Housing and Urban Development (HUD), which funds some college housing projects). DOJ said that the agencies could issue guidance saying that compliance with the 2010 Standards is an acceptable means of complying with section 504 accessibility requirements for new construction and alterations.  But in the meantime, some agencies are requiring compliance with UFAS. If you wish to follow the ADA standards until more guidance comes, the safe course is to also make sure you’re also complying with the parts of UFAS that are stricter than the ADA standards.

Don’t forget that the Fair Housing Act has its own accessibility guidelines and a number of standards that are considered “safe harbors” for compliance. Your architects and designers should be sure that all the bases are covered for all the applicable statutes.
In other areas – such as policy, communication, etc. – if you follow the ADA requirements you will generally be in compliance with section 504 as well.

Myth number 11: The 2010 Standards require that exercise equipment be accessible.

Facts: The Standards do require that in new construction or alterations, there be an accessible path to, and clear for space at, one each type of machine (e.g., treadmill, stair climber, stationary bike, biceps curl machine). But the operable parts and controls of the equipment are not required to comply with requirements for height/reach range, maximum force required for operation, etc. Specific requirements for features such as these are pending.

Myth number 12: If our college or university follows our state accessibility code, we are in compliance with the ADA because both basically adopt the International Building Code.

Facts: There’s good news and not-so-good news about the consistency of state and local codes and the new standards. While one purpose of the revisions to the ADA standards is to bring more consistency to the various applicable codes and regulations, we’re not there yet. The model and state codes change more often than the federal standards do, and there are some ADA requirements that are included in the 2010 revisions but are usually not found in state codes. For example, DOJ requires that in alterations to primary function areas, additional funds (up to 20% of the planned cost of the original alterations) be spent on improving accessibility of the “path of travel” (restrooms, accessible route, drinking fountains, etc.). This provision is not found in the model codes or most state codes.

Many of you are continuing to assess your policies for compliance with the new ADA regulations (as well as the ADAAA regulations from the Equal Employment Opporunity Commission), even as the effective date for most of those has passed. While the new DOJ regulations don’t change everything, they may also require some changes to your facilities by March 15, 2012. 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. You can find more details at DOJ’s website.