This article originally published in Thompson’s ADA Compliance Guide, April 2009, Vol 20, No. 4. Copyright © 2009 Thompson Publishing Group Inc., Washington D.C. Reprinted with permission.

Irene Bowen, J.D., is president of ADA One, a Silver Spring, Md., company that offers consulting services and training with respect to the Americans With Disabilities Act and related laws. She is also senior policy advisor for LCM Architects. Prior to August 2008, she was deputy chief of the Disability Rights Section at the Department of Justice, where she oversaw enforcement of the ADA and did extensive training and speaking.

She was actively involved in the development of the ADA, the original ADA accessibility guidelines, and DOJ’s existing and proposed regulations. She also served as deputy general counsel of the Access Board. She holds a J.D. from the George Washington University Law School. Bowen can be reached by phone at 301-879-4542, by email, or through her Web site at http://ADA-One.com. The opinions expressed in this article are the author’s own and do not necessarily reflect those of the Guide.

Yes, change is coming in 2009. The ADA Amendments Act — expected to sweep many more individuals with disabilities under the ADA’s protections — took effect Jan. 1, 2009. On a separate track, in June 2008 the Department of Justice proposed major regulatory changes — the first since 1991 — under Title II (state and local governments) and Title III (places of public accommodation and testing entities) of the ADA. The changes would address numerous policy issues and include broader, more stringent and more detailed accessibility standards — with significant implications for both public and private entities.

There is no official word on when the final DOJ regulations might surface or what they will say, but we know they will signal major changes on the ADA front. So what should you be doing to prepare for change?

Are the New ADA Rules Coming Soon?

When former President Bush left office on Jan. 20, 2009, a draft final rule from the DOJ had been under review for several weeks by the Office of Management and Budget, which must approve any federal regulations before they are published as proposed or final rules. That day, President Obama directed that all pending regulations be returned to their agencies for consideration by his own appointees.

With the rule now back at DOJ, the department has not signaled what it might do about either process or substance. Taking into account the realities of the Administrative Procedure Act, various executive orders and the change in leadership within the DOJ, the final rules probably will not be published before July 2009. If the DOJ re-opens its proposals for public comment or makes significant changes from the proposed rules, we might not see the final versions before 2010. After the final regulations are published, there will be a period of at least 30 days before they take effect, and probably six months before some of the new construction and alterations provisions must be followed.

Keep in mind that the new administration has said that enforcement of civil rights laws, including the ADA, will be a priority and it has allocated increased funding for that purpose in its proposed budget. So what you don’t pay attention to now could hurt you later. Here are six tips for being aware and prepared.

Six Tips for Next Six Months

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

1. Plan to plan: plant the seeds for a new transition plan or barrier removal plan, as well as a self-evaluation.

The proposed rules would not require that you do a new transition plan (setting out changes required to buildings and facilities for program access under Title II) 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 — in the arena of policy as well as physical access — 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 — in 1992 — they’re in need of updating. Think about some of the changes we’ve seen in the last 17 years:

* The population that benefits from your services or comes to your business includes more people with disabilities. And they have:

  • a greater variety and range of severity of disabilities;
  • a wider range of service/support animals used for more purposes;
  • more technological devices; and
  • mobility devices that didn’t exist (such as Segways) or were in limited use (more “specialized” types and different sizes of wheelchairs and scooters) in prior decades.
  • You may take different or increased security and emergency evacuation concerns into account.
  • You probably offer more types of programs and/or services and in different ways.
  • You’ve probably built or altered some of your buildings or facilities, or you use them in different ways now.
  • You may have a Web site that you use for sales or for communicating about your services. You probably didn’t have a Web site when you first planned for ADA compliance. There were no Web sites in 1990; the first Web site came on line about a year after the ADA was passed.

So start thinking about how you will assess your buildings and services. You can budget time and money now so you’ll be positioned for compliance later.

2. Read the proposed rules.

There are hundreds of pages — and hundreds of thousands of words — in the June 2008 proposed rules and preamble. Focus on the preamble because it explains the proposals and the most important issues and highlight specific questions. Of course there will be some changes to the rules when they’re published in final, but it’s a good idea to know what areas are addressed and how the rules might affect you.

3. Do NOT start “complying” with “new” ADA accessibility standards, because there aren’t any.

There are no new accessibility standards — at least not yet. If the 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, you should continue to comply with the current standards for Title II if you’re a public entity and Title III if you’re a public accommodation. This will usually mean that you follow the DOJ’s 1991/1994 ADA Accessibility Standards (Title II entities can choose UFAS, the Uniform Federal Accessibility Standards), as well as any applicable state or local requirements.

You also are bound by the regulations under section 504 of the Rehabilitation Act of 1973 of any federal agency from which you receive financial assistance (for example, for almost all institutions of higher education, the Department of Education; for federally-assisted health care facilities, the Department of Health and Human Services).

4. Avoid a blanket policy of building to the “new” proposed standards now, or you run the risk of violating the EXISTING access standards.

Some of the proposed changes are more stringent than the existing requirements, but some are less so. For example, compared to the current rules, the proposals would generally require a smaller percentage of assistive listening devices (ALDs) in larger assembly areas such as classroom auditoriums and performing arts facilities. But some ALDs would have to be hearing-aid compatible. The proposals 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 seating areas. 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 all or part of the model International Building Code and the consensus accessibility standards of the American National Standards Institute. If so, your new and altered facilities also may be subject to code requirements that are similar to those in the proposed standards.)

5. Don’t look to the DOJ rule to answer all your questions about service animals or program access.

Yes, the 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 you may also be subject to regulations and guidance from other agencies and those may be more inclusive. Other agency regulations include those of the Equal Employment Opportunity Commission for the ADA employment provisions; the Department of Education for their recipients of federal financial assistance (e.g., schools, colleges, universities), and the Department of Housing and Urban Development (under the Fair Housing Amendments Act or for recipients subject to section 504).

Similarly, don’t assume that providing “a reasonable number, but at least one” facility, when there are several facilities used in a program, would provide program access under Title II. The Department of Justice asked if this would be a workable standard for program access to existing play areas and recreation facilities. Many advocacy groups criticized the DOJ’s proposal as “neither workable nor reasonable,” and said that it would be discriminatory because it would result in unequal access and the segregation of disabled and nondisabled persons.

Some of the comments seemed to assume that the DOJ might use the “reasonable number” approach in other areas of program access as well. For now, consider this an issue that will be intensely debated before the new Title II rule is final. Approach program access as the current rules provide: ensure access to each program when “viewed in its entirety,” based on methods that offer an equal opportunity to participate in and benefit from the program, and provide services in the most integrated setting.

6. Go ahead with your emergency preparedness planning, if you’re a state or local government, college or university, or nonprofit with emergency preparedness or response duties.

The current rules don’t address emergency preparedness. The DOJ has focused on giving guidance in this area through technical assistance materials and even amending its Project Civic Access agreements with the City of New Orleans and Harrison County, Miss., (both of which were severely affected by Hurricanes Rita and Katrina). Somewhat surprisingly, the rules proposed in June 2008 are silent about emergency preparedness.

If you are a state or local government, college or university, or nonprofit organization with emergency preparedness or response duties, you still have civil rights obligations to those who use your buildings — employees, students, visitors — and sometimes the community at large, under various provisions of the ADA. You should evaluate or re-evaluate your policies and practices, and the facilities and transportation plans you use, under the ADA. You can be guided by the DOJ’s ADA Guide for Local Governments, Chapter 7 of its tool kit, and the language in the agency’s settlement agreements with the University of Chicago and Swarthmore College (all available at http://www.ada.gov), as well as FEMA’s new preparedness guide (found at http://www.fema.gov/news/newsrelease.fema?id=45436).

No one knows exactly how the pending regulations will affect your policies and your facilities, but you can start now to evaluate where you are, to plan and to budget. Then you will be ahead of the curve, better prepared to understand the final rules when they do arrive, and positioned for compliance.