This article originally published in Thompson’s Section 504 Compliance Handbook, June 2009, No. 367. Copyright © 2009 Thompson Publishing Group Inc., Washington D.C. Reprinted with permission.

Irene Bowen, J.D., is president of ADA One, in Silver Spring, Md., offering 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 the 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 e-mail or through her Web site at http://ADA-One.com. The opinions of this column are the author’s own, and do not necessarily reflect those of the Handbook.

At the semiannual conference of the National Association of ADA Coordinators during the week of April 20, participants — including ADA and 504 coordinators, design professionals and state and local policymakers — heard from government leaders of all levels, including several from federal agencies. One significant piece of information: the Department of Justice will probably issue final ADA regulations for Title II and Title III, followed by Section 504 regulations. And the department is stepping up enforcement.

1. Look for final ADA rules from DOJ by the end of the year. In June 2008, the DOJ proposed the first major regulatory changes under Title II and Title III of the ADA since the original 1991 rules. Toward the end of the year, a draft final rule was awaiting clearance at the Office of Management and Budget. The DOJ is now re-evaluating the proposed rules, in line with the White House’s direction on Jan. 20, 2009 — the day President Obama took office — that all pending regulations must be reconsidered by his administration.

Speaking at the NAADAC conference, John Wodatch, the DOJ’s acting deputy assistant attorney general for civil rights, predicted that a final rule could be issued by the end of the year. As chief of the Disability Rights Section in the Civil Rights Division, Wodatch had overseen the development of the proposed regulations. The proposals affect all types of public and private entities, including colleges and universities, under both Title II and Title III of the ADA. They would require compliance with detailed accessibility standards that in many ways are more demanding than the current standards. They would also bring sweeping changes to some policy-related provisions of the rules. The proposals have drawn significant attention from the business community and state and local governments — including some suggestions that they are unnecessarily costly — and from people with disabilities. Some advocacy groups objected to the limited period for comment (60
days), “safe harbors” for public and private entities, limitations on what types of animals would be considered service animals and what they saw as discriminatory limits on the program access requirements.

The department is expected to soon decide whether to publish a final rule based on the more than 4,400 comments received during the summer 2008 comment period, open the proposal for further comment or revise the proposal and seek comment on a new version of the rule.

Noticeably absent from the proposed rules was any mention of a number of areas about which the DOJ has issued technical assistance or pursued enforcement:

  • emergency preparedness;
  • voting accessibility;
  • access to equipment; and
  • Web sites and effective communication.

It appears that under the Administrative Procedure Act, the DOJ could not cover these areas in a final rule without notice and comment because they weren’t addressed in the proposal. One alternative would be to publish a final rule and — at the same time, or shortly after — to issue one or more additional notices of proposed rulemaking, addressing some of these areas.

2. Expect other rulemaking proposals, too. Wodatch said that the DOJ will probably start other rulemaking this year:

  • first, modifications to the definition of “disability” and related terms under Title II and Title III, to conform to the ADA Amendments Act; and
  • second, changes to the DOJ’s current “coordination regulation” under Section 504 of the Rehabilitation Act (applying to recipients of federal financial assistance), followed by federal funding agencies’ changes to their own rules.

3. Prepare for changes to the existing requirements. We don’t know what the final rules will say, but if they track the ones that were proposed, they would have significant effects on state and local governments as well as public accommodations. For example:

  • Only common domesticated animals (dogs and cats) that perform specific tasks or do work for an individual with a disability (not including “comfort animals”) would be considered “service animals” for purposes of Title II and Title III.
  • The meaning of “program access” could be recast or clarified.
  • At colleges and universities, the standards that apply to hotels would specifically apply to residence halls and dormitories. Individual apartments and town houses would be treated as residential facilities, with different requirements.
  • Direct access to stages from audience seating areas would be required.
  • The regulations would impose more detailed and demanding policies concerning equity in ticketing for accessible stadium seating.

Overall, the new accessibility standards would be more extensive and more detailed, including requirements for the following:

  • a greater number of required accessible entrances, in some cases;
  • a greater number of accessible van spaces;
  • lower limits on reach ranges for controls, elevator buttons, light switches, etc. (48 inches vs. the 54 inches now allowed in some cases);
  • specific accessibility features for play and recreation facilities, including swimming facilities and golf courses; and
  • accessible emergency notifications in stadiums seating more than 25,000.

However, in some instances the new standards would reduce current accessibility requirements. For example, in some assembly areas such as theaters and sports arenas, fewer wheelchair seating areas and assistive listening devices would be mandated. But owners and operators would have to provide more than one type of ALD and meet more detailed specifications as to specialty seating areas, dispersal and viewing angles.

4. Anticipate stronger ADA enforcement. At the NAADAC conference, Wodatch acknowledged the tough economic times, but cautioned that a difficult economy does not lead to a halt in enforcement. He pointed out that the ADA takes cost into account under the mandates for program access, policy modifications and effective communication, and that — due to limited resources — state and local governments may not be able to take some planned compliance measures right away. But he reminded participants that although financial limitations may allow for postponing actions a year or two, they do not provide an excuse for noncompliance.

Wodatch said that Attorney General Eric Holder has directed the Civil Rights Division to be “appropriately aggressive” in its enforcement of federal laws. In fact, the division’s announced actions show a decided trend toward increased ADA enforcement. Even without a confirmed assistant attorney general, the DOJ has brought two significant law suits, filed briefs in three others and entered at least six formal settlement agreements since President Obama took office. And Loretta King, acting assistant attorney general for civil rights, asserted the Justice Department’s commitment to “continued, vigorous enforcement of the Americans With Disabilities Act” in a press release of April 16, announcing a groundbreaking settlement agreement with the city of Philadelphia aimed at accessibility improvements at the city’s 1,200 polling places.

In late April, DOJ sued Nobel Learning Communities Inc., a network of more than 180 private schools, alleging the company violated Title III of the ADA by excluding children with autism spectrum disorders and other disabilities from its schools and programs. The department also filed an action against the city of Baltimore, charging that the city’s zoning code discriminates against individuals with disabilities by requiring substance abuse treatment facilities to go through a burdensome “conditional ordinance” process to locate in any zone.

Since Jan. 20, the division has filed briefs in at least three ADA cases as “amicus” (friend of the court) — again, an apparent sign of increased aggressiveness in implementing the ADA:

  • Ault v. Walt Disney World Co., objecting to a proposed agreement in a nationwide class action, partly because it would allow Disney’s policy of banning “Segways®” and instead offer visitors the “opportunity” to rent Disney’s own mobility devices, at a time when the DOJ is finalizing its regulation in this area (254 F.R.D. 680 (M.D. Fla. 2009));
  • Long v. Benson, supporting a private right of action under Title II to obtain integrated community based services under the Supreme Court’s 1999 decision in Olmstead v. Zimring ((No. 4:08cv26-RH/WCS (N.D. Fla. Oct. 14, 2008)); (527 U.S. 581 (1999))); and
  • Arizona v. Harkins Amusement Enterprises, arguing that providing closed captions and video descriptions as auxiliary aids does not fundamentally alter the nature of a movie theater’s services (548 F.Supp.2d 723 (D. Ariz. 2008)).

Also since that time, the DOJ has entered into settlement agreements with a hotel and an outdoor entertainment venue, both about physical access; a hospital in Illinois, resolving allegations of its denial of a sign language interpreter to a patient; a county jail, about its alleged failure to provide a telecommunications device for the deaf to an arrestee; and a supermarket, which reportedly told a person with a service animal to leave the premises.

The division has issued a notice reminding recipients of funds under the American Recovery and Reinvestment Act of 2009 that they must comply with the ADA when using those funds. Wodatch warned that additional ARRA funds will not be available to fix any violations of applicable accessibility standards.

What can you take away from this? It is important to stay informed about what the federal government is doing with the ADA rules and to prepare for their impact. You can be alert to — and alert others to — the pending changes, the need to budget time and financial resources to comply and signs that the federal government will maintain and likely strengthen ADA enforcement.