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

Are You There Yet? See if you’ll measure up to DOJ’s new ADA rules by March 15, 2012.

This is the ninth 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 other 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.

Sometimes it’s surprising how things sneak up on us. We’ve known about the “new” ADA regulations from the Department of Justice since they were announced in July 2010. Now, a year and a half later, we’ll turn the calendar page and see that date of March 15, 2012. The date is significant for a number of reasons – and now’s a good chance to see if your campus is going to measure up to what DOJ expects.

Here is a basic checklist to guide you, with some suggestions for implementation.

Two caveats: This checklist is not all-inclusive. It is not a substitute for reading the regulations and ensuring compliance with the 2010 changes, and it doesn’t address the provisions of the 1991 regulations that haven’t changed.

And keep this in mind: you should have taken care of items 1-8 by March 15 of last year.

  1. Update policies on service animals. Clarify what qualifies as a service animal (under the ADA, a dog that performs tasks for a person with a disability, including a mental disability).
    • Train staff about the two questions they can ask.
    • Consider having a point person for difficult issues. (Avoid an escalation by front-line staff.)
    • Consider a separate internal policy addressing difficult issues.
    • Be sure you distinguish – and address – emotional support and other assistance animals that may be allowed in campus residences under the Fair Housing Act (FHAct) and section 504. This is a broader category than “service animal” under the ADA. (See my last ALERT article about what DOJ and HUD expect under the FHAct, as illustrated by DOJ’s lawsuit about the University of Nebraska.)
  2. Alert staff to the new provisions on miniature horses. These are allowed under certain circumstances when they assist people with disabilities, even though they’re not technically considered “service animals.” Don’t wait until somebody shows up with a miniature horse (a breed of animal that is about the size of a large dog) at an event or in the food court before you have a policy.
    • Develop guidelines for the facilities and circumstances under which trained miniature horses are appropriate on your campus, using DOJ’s specific assessment factors.
  3. Develop clear policies about OPDMD’s. OPDMD’s are “other power driven mobility devices” – devices like Segways and golf cars, which weren’t originally developed for people with disabilities necessarily but are used as mobility devices. You have to allow their use by people with disabilities unless you “prove the existence of a valid exception.” Apply DOJ’s specific assessment factors to various types of facilities and devices as you develop a policy.
    • Direct staff’s attention to the policy.
    • Train them, so they know what to do if someone comes to class or a crowded campus gathering (like graduation) with an OPDMD.
    • Consider having a point person to handle the difficult issues. Front-line staff can’t be expected to know all the details and shouldn’t have to handle the hard questions.
  4. If you use video remote interpreting, be sure it works, according to DOJ’s new performance standards. The rule now identifies video remote interpreting (VRI) services — which use video conference technology and an interpreter at a “remote” location — as a kind of auxiliary aid that may be used to provide effective communication. The 2010 regulation imposes performance standards: VRI must use dedicated lines or wireless technology with a high-speed, wide-bandwidth video connection and deliver high-quality video images. Users and other individuals must be trained so that they can quickly and efficiently set up and operate the VRI system.
  5. Check your phone systems: Be sure they ensure effective real-time communication for people with disabilities. The 2010 regulations have a new requirement that applies to automated-attendant systems, including voicemail and messaging, or interactive response systems (for example, for receiving and directing incoming telephone calls through options on an automated menu). These must provide effective real-time communication with individuals using auxiliary aids and services, including TTY’s and relay systems. DOJ has provided little guidance about the meaning of this provision but has suggested that more information will be coming.
    • In the meantime, be sure that any automated system allows adequate time for responding to prompts for those who are using a TTY or relay service, or someone who needs more time than others to respond to cues because of a disability.
    • One way of meeting the new requirement is to allow callers to bypass the system and connect with a live person, although DOJ declined to require override capacity.
  6. Don’t drop the call — a TRS or TTY call, that is. DOJ’s guidance does say that if an automated system already provides an option to speak to a person, that system must accept TTY and relay calls and must not disconnect or refuse to accept such calls. The regulation also requires that you answer telecommunications relay calls in the same manner that you respond to other telephone calls.
    • Educate staff about relay services and how to both make and place calls using the services.
    • Remind staff that a relay call may take longer than a “regular” call and that they are expected to spend the time required on such a call.
  7. Study the provisions about examinations and courses. The 2010 regulations clarify a number of issues that have arisen since the 1991 regulations were issued, about the documentation that testing agencies can require for testing accommodations. It is also advisable for colleges and universities to follow the requirements. 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.

    DOJ makes clear that there is no specific time frame after which documentation is considered too dated to be adequate 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.

  8. If you sell tickets for assigned seats at events such as concerts, plays, and sporting events, align your event ticketing policies with the 2010 regulation. There are detailed requirements on the sale of tickets for accessible seating, the sale of season tickets, the hold and release of accessible seating to persons other than those who need accessible seating, ticket pricing, prevention of the fraudulent purchase of accessible seating, seating acquired on the secondary ticket market, and the ability to purchase multiple tickets when buying accessible seating.
  9. If you have a conference center for overnight guests, or a hotel on campus, be sure your reservation systems comply with the new regulation. The rule requires you to identify and describe accessible features of guest rooms, allow individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests, hold back the accessible guest rooms for people with disabilities until all other guest rooms of that type have been rented, and ensure that a reserved accessible guest room is removed from reservations systems so that it is not inadvertently released to someone other than the person who reserved the accessible room.
  10. Follow the 2010 Standards for new construction and alterations beginning on or after March 15, 2012. Until that date, colleges and universities have a choice of following the 1991/1994 Standards or the 2010 Standards (or the Uniform Federal Accessibility Standards, for public entities). As of March 15, following the 2010 Standards will be the only way to achieve compliance.
    • Public entities should pay careful attention to the “path of travel” requirements or “20% rule,” new to the title II rule: it requires that when a “primary function area” is altered, the path of travel to that space must be accessible as well, with certain limitations.
    • There are new, specific provisions that address new construction and alterations in housing at a place of education, distinguishing between types of residences.
  11. Complete barrier removal and program accessibility changes by March 15, to those elements that are addressed for the first time in the new standards. These include swimming pools, which must now have an accessible means of access under the new construction standards, and several other types of recreation facilities. (For example, there must be an accessible path to at least one of each type of exercise equipment in a facility.) Note that this does not necessarily mean that all swimming pools on a campus with more than one pool must be accessible. It means that for purposes of program accessibility and barrier removal, compliance will be measured by the new standards.

Go to the DOJ website – — to learn more about the regulations and to keep up with more proposed rules to come, probably later this year, on topics like web accessibility and equipment (including lab stations, exercise equipment, and classroom furniture).

Remember, as you’re checking to see if you “measure up,” that when you’re evaluating compliance with the communications and program access/barrier removal requirements, cost and other factors can be considered under the “undue financial or administrative burdens” rubric (or, for barrier removal, “readily achievable”). These are not ways to avoid compliance, but they provide for some flexibility in making choices as to what specific steps you will take. Keep in mind that you should document any instance in which you use these provisions as a basis for not making changes that would otherwise be required.

And one more thing to remember: Apart from the accessibility standards, most of the provisions of the 1991 regulation have not changed. While a list of changes such as this may at first appear daunting, breaking it down step-by-step should help you understand the changes and what you need to do. At this point, you should mostly be fine-tuning and ready to measure up, and there should be little reason to beware this Ides of March.

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.