Ahead of the ADA Access Curve: Part 1

This article originally published in The Alert, January 2009, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2008 AHEAD. Reprinted with permission.

AHEAD OF THE ADA ACCESS CURVE

Get Ready for Disability Rights Changes in 2009 – or Not?

Yes, change is coming. During the summer of 2008, we saw a flurry of activity surrounding the work of Congress and the Department of Justice (DOJ) on the Americans with Disabilities Act (ADA). AHEAD participated in the debate on the law and the rules, both of which could have a huge impact on higher education.

At the White House in September, President Bush signed into law the ADA Amendments Act (ADAAA) – expected to sweep many more individuals with disabilities under the ADA’s protections.

But until early December 2008, DOJ’s proposed rules, published in June, seemed stalled within the Administration. So should you still be watching for new rules and accessibility standards from DOJ, and what should you be doing to prepare for change?

About this series

This is the first of a series of articles approaching higher education issues – especially those regarding physical access and related issues such as policies and emergency preparedness – from a civil rights standpoint. The series focuses on the ADA, section 504 of the Rehabilitation Act of 1973, and related issues that may affect the work of disability service providers, ADA Coordinators, and others.

My current perspective is as a former federal civil rights attorney and manager who worked with DOJ enforcing the ADA, initiated its reviews of college and university campuses, and co-authored the existing DOJ regulations and accessibility standards. I have recently become a private consultant.

It was the original — and logical — intention to start this series with an “ADA 101” overview. But with many possible changes on the horizon as we turn our calendars to 2009, it makes sense to start where we are now: in a state of anticipation and uncertainty.

The ADA Amendments Act takes effect, just around the corner

On January 1, 2009, the ADA Amendments Act — making the first significant changes to the ADA since its enactment in 1990 — took effect. Congress passed the amendments in response to Supreme Court decisions that had interpreted the ADA’s definition of “disability” in a way that was much more narrow than Congress intended. Specifically, those cases had focused on the threshold issue of to what extent an impairment must “substantially limit” a major life activity in order to rise to the level of a disability. Under the amendments, it is expected that more individuals will now be considered individuals with disabilities protected by the ADA.

So what’s next? Look for further guidance from Federal agencies:

• Congress expressed its “expectation” that the Equal Employment Opportunity Commission (EEOC), responsible for employment issues under title I of the ADA, will revise its definition of “substantially limits.” The EEOC issued a notice in October that it will evaluate the impact of the statutory changes. It has been reported that at its December 11, 2008, meeting, the Commission announced that it will not issue an interim final rule but will issue a proposed rule for public comment.
• The Department of Justice (which issues regulations under title II, state and local governments, and title III, public accommodations and testing/licensing entities) is expected to revise its regulatory definitions under the ADA and section 504. Look for those after the new ADA rules (discussed below) are finalized. Then we can anticipate conforming regulations from the Department of Education under section 504.

Are DOJ’s new ADA rules coming?

The first major regulatory changes – from the Department of Justice — under title II and title III of the ADA are proceeding on a completely separate track.

Or are they proceeding at all? It didn’t look like it, until December 3, when the Office of Management and Budget (OMB) posted a notice on its web site that the rule had been “accepted” for review. But it’s unclear how quickly they’re proceeding and whether they’ll be final by January 20. The reasons are a bit complicated.

In June 2008 DOJ published detailed proposals with significant implications for higher education and others. [You can see the proposals and link to AHEAD’s comments and others’ at http://www.ada.gov. The Department received more than 5000 comments, and you heard buzz that the final regulations would be issued and final before the Bush Administration leaves office in January 2009. But at this point, it would take a perfect alignment of events for that to happen.

For months after the comment period closed in August, there was no public indication as to when – or if — DOJ had drafted a final regulation. Then on October 31 the Speaker of the House Nancy Pelosi listed the rule as one of the “ghoulish midnight regulations” that are among the last-minute changes pending within the Administration (which suggests that the final rule had been sent to OBM on or before that date).

Then on December 3 OMB said that it had accepted the draft final rules for review. That acceptance triggers OMB’s review, and OMB generally can take up to 90 days to clear (or reject, or require changes in) draft rules. Obviously, that could extend to a time after the new President takes office, although the current Administration could expedite the process. But OMB took much longer — five months — to clear the proposed rule after it accepted it, and this time around some important and lasting decisions would need to be made.

Then there’s Congress. The Speaker of the House seems to be signaling that Congress may invoke its right to review – or halt – the final regulations under the rarely-used and complicated procedures of the Congressional Review Act.

For another reason too, timing is critical. By law, the rules would have a delayed “effective date,” meaning that they would take effect 30 to 60 days after they’re published in the Federal register. If that time includes January 20, Inauguration Day, the New Administration could “freeze” them, along with other rules in that state of limbo. That wouldn’t be a surprise. President Bush froze 90 rules on the day he took office in 2001.

So it seems we would see a rule published in January only if the current Administration makes the rule a high priority in December and waives its own deadlines, and Congress takes no action to stop it. Then we’d have to see if the new Administration took action to delay or stop it. It’s possible the rule won’t be final until the summer of 2009 — or even later.

So what do you need to do — or not — about DOJ’s proposed rules now?

So what should you be doing while we wait for the DOJ rules? Here are six tips for being aware and prepared before the rule “hits.” (Remember there will be probably be a 60-day period between publication and effective date, and six months before some of the new construction and alterations provisions take effect.)

The theme of the first three tips: Don’t spend your money in the wrong way!

1. Caution your college NOT to start “complying” with “new” ADA accessibility standards, because there aren’t any.

   There are no new accessibility standards – at least not yet. If DOJ proceeds as it has proposed, the 2004 ADAAG (ADA Accessibility Guidelines, issued by the Access Board) will become the new standards, but with some possible exceptions. In the meantime, your institution should continue to comply with the standards of the Department of Education (for federal fund recipients) and the Department of Justice (for title II if you’re public and title III if you’re private). This will usually mean that you follow DOJ’s 1991/1994 ADA Accessibility Standards or UFAS (the Uniform Federal Accessibility Standards) and your state requirements. Yes, it’s confusing; we’ll address the various standards in a later article.

2. You run the risk of violating the EXISTING access standards if you have a blanket policy of building to the “new” proposed standards now. Some of the proposed changes are more stringent but some are weaker. For example, compared to the current rules, the proposal would generally require a smaller percentage of assistive listening devices in larger assembly areas such as classroom auditoriums and performing arts facilities areas. But some would have to be hearing-aid compatible. The proposal would also allow a lower percentage of wheelchair accessible spaces in large stadiums and similar spaces but require (arguably) greater horizontal and vertical dispersal of those spaces. Designing and building a new facility with the smaller numbers would create a violation of the current standards.

   [There’s another complication here. Your state may be one of many that have adopted part of the model International Buildings Codes (IBC) and consensus accessibility standards of the American National Standards Institute (ANSI). If so, then your new facilities may be subject to code requirements that are similar to those in the proposed standards. We’ll address this in a later article.]

3. Plan to plan: plant the seeds for a new transition plan or barrier removal plan, and a self-evaluation.

   The proposed rules would not 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 it would be difficult to comply with any new requirements 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, they’re in need of updating. A lot has changed in 15 years:

   • The population of students and others on campus includes people with a greater variety of disabilities, mobility aids, and technological devices
   • A population with more severe disabilities in some cases
   • Returning veterans
   • Increased security concerns
   • More types of programs and services
   • Changed uses of buildings
   • New programs
   • New buildings
   • Web sites
   • Distance learning

   So get others thinking about this. You can help your institution position itself now to budget time and money for compliance when the rules are closer to reality.

4. Read the proposed rules. Focus on the narrative that comes before the proposed regulatory language (the “preamble”), because it explains the proposals and the most important issues. Then you’ll more quickly understand the final rules when they appear.

5. Don’t look to the DOJ rule to answer all your questions about service animals. Yes, DOJ proposes to limit the ADA definition of service animals (for non-employment purposes) to common domesticated animals such as dogs or cats, and to exclude “comfort” animals from the definition. But regulations of other agencies also apply to universities and colleges and they may be more inclusive. You still need to follow existing regulations and guidance from the Department of Housing and Urban Development (under the Fair Housing Amendments Act, which applies to student and faculty housing) and the Department of Education.

6. Go ahead with your emergency preparedness planning. The proposed rule doesn’t even address this issue. But you still have civil rights obligations to your students, faculty, staff, and sometimes the community in this critical area. You can be guided by DOJ’s Guide for Local Governments, Chapter 7 of its tool kit, and the language in DOJ’s settlement agreements with the University of Chicago and Swarthmore College (all at http://www.ada.gov), as well as FEMA’s new preparedness guide . http://www.fema.gov/news/newsrelease.fema?id=45436

   Watch this space for the next article, which will go into more detail on the provisions of the proposed title II and III rules (including housing, stadiums, service animals, and barrier removal) and potential enforcement changes. Then we’ll move on to “Keeping it Legal: What you can learn from DOJ, OCR, and private settlement agreements.”

   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 her web site or 301 879 4542. (Watch for ADA One’s web site coming in the new year.) It’s here!

   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.