Change is in the air! See three steps you should take immediately to keep pace with new requirements. Read on for a grounding in where we are and where we may be going.
First, DOJ’s “new” 2010 rules are in effect.
The Department of Justice issued the first and long-awaited major revisions to the title II and title III regulations in September 2010, with corrections published on March 11, 2011. The provisions about policies and effective communications are in effect and include:
- Segways and similar devices
- Service animals
- Miniature horses
- Testing and licensing
- Automated phone systems
- Video remote interpreting and
- Event ticketing policies.
Generally, the new 2010 accessibility standards must be followed starting March 15, 2012 — including those addressing, for the first time —
- Judicial facilities and courtrooms
- Detention and correctional facilities
- Holding and housing cells
- Residential dwelling units and facilities
- Recreational facilities including amusement rides, exercise machines and equipment; boating, fishing, golf and miniature golf facilities, play areas, swimming pools and spas.
On May 18, 2012, DOJ extended the compliance date for 28 CFR 35.150(b)(1) and (b)(2)(ii), and 28 CFR 36.304(d)(2)(iii) as to existing POOLS, to January 31, 2013
Second, the ADA Amendments Act (ADAAA) took effect January 2009.
This feature focuses on DOJ’s rules. But a separate major development affecting disability rights laws is the ADA Amendments Act. It took effect on January 1, 2009, and makes the first significant changes to the ADA itself since its enactment in 1990. 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.
Congress expressed its “expectation” that the Equal Employment Opportunity Commission (EEOC), responsible for employment issues under title I of the ADA, would revise its definition of “substantially limits” because of the ADAAA. The EEOC issued implementing regulations in March 2011.
Third, DOJ has announced its intention to regulate in areas not specifically addressed by the 2010 regulations:
- Accessibility of web information and services provided by entities covered by the ADA
- Movie captioning and video description
- Accessibility of next generation 9-1-1
- Equipment and furniture
After hearings and public comment on these advance notices of proposed rulemaking (or “pre-rules”), which closed January 24, 2011, the next step is for DOJ is to prepare proposed regulations for further comment.
So what’s next?
First, look for further guidance from Federal agencies:
The Department of Justice (which issues regulations under title II, state and local governments, and title III, public accommodations and testing/licensing entities) has begun revising its regulatory definitions under the ADA and section 504 (in response to the ADA Amendments Act). Then we can anticipate conforming regulations from the Department of Education and others under section 504.
The section 504 regulations still allow recipients to follow the Uniform Federal Accessibility Standards (UFAS). But the DOJ regulations require compliance with the 2010 Standards for title II and title III, one of which will almost always apply to recipients who are subject to section 504. In 2011 DOJ reiterated its intent to work with Federal agencies to revise their section 504 regulations in the near future to adopt the 2010 Standards as the appropriate accessibility standard for their recipients. So far, only the Department of Education has stated generally that compliance with the 2010 ADA Standards will achieve compliance with section 504.
DOJ has issued several technical assistance pieces about the 2010 regulations and plans to issue more. Areas covered include service animals, ticket sales, and effective dates and compliance dates.
Second, look for DOJ to step up enforcement in several areas, including health care, recreation, education, and technology. See more about DOJ’s future direction here: “Which Way DOJ?”
What should you do NOW?
Learn the basics
For a quick summary of the major changes to the DOJ regulations, and an overview of the 2010 Standards, read DOJ’s fact sheets:
- Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title II of the ADA
- Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title III of the ADA
- Adoption of the 2010 Standards for Accessible Design
Delve more deeply
Learn the rules. The text of the rules (which is not very many pages, apart from the accessibility standards) is found here along with the “preamble” or analysis, which explains the changes and how DOJ has responded to comments.
If you are responsible for any aspect of design, construction, or alterations, read the 2010 Standards (adopting the 2004 ADA Accessibility Guidelines, or 2004 ADAAG).
Plan for existing, new, and altered facilities
Compliance with both the policy and facility accessibility portions of the new regulations will require focused planning, budgeting, and scheduling. The 2010 DOJ regulations don’t specify that you must do a new barrier removal plan under title III, or a new self-evaluation or transition plan under title II (setting out changes required to policies, programs, activities, and facilities). BUT it would be difficult to comply with the new requirements – as to policy as well as physical access – unless you see how you measure up to them. And if you did your ADA plans when they were first required – in 1992 – they’re in need of updating. Much has changed in 19 years:
- More people with disabilities, and a greater variety of disabilities, and wider range of severity of disabilities, use your services.
- They bring a wider variety of service animals and emotional support animals.
- They use more technological devices.
- They use mobility devices that didn’t exist or were in limited use in prior decades.
- You have different or increased security and emergency evacuation concerns (not addressed specifically by the rules, but the subject of extensive DOJ guidance).
- You 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 probably have a web site that you use for sales or for communicating about your services.
The bottom line:
- Be sure you have evaluated your policies in the areas where new requirements have been introduced.
- Then evaluate your operations in light of changing times and the changing needs of people with disabilities.
- Make any changes to facilities that are required for barrier removal or program access.
- The most effective way to take these steps is through a new or “refreshed” self-evaluation and transition plan (under title II) or a self-assessment and barrier-removal plan (under title III).
- Then be sure that those responsible for design, construction, or alterations are following the 2010 Standards.
- Watch for new guidance and future rulemaking from DOJ
Some of it’s not so easy
If you’re unclear about how and when to apply the new standards and how the new “safe harbors” work, read our Tips for the Transition to 2012.
For more information about the Standards and how to apply them to particular situations, see DOJ’s helpful and often-overlooked Guidance on the 2010 Standards for Accessible Design, first issued as an appendix to the regulations:
Use the resources on this site to learn even more about how to apply the new DOJ regulations:
For a plain-language introduction to immediate steps you should take and why, see these two articles:
- DOJ’s new ADA regulations: It’s about time! Six steps for the next six months – and beyond (October 2010)
- The Ides of March are upon us: Are you complying with DOJ’s new regulations about service animals? (February 2011)
- Are you there yet? See if you’ll measure up to DOJ’s new ADA rules by March 15, 2012 AHEAD Alert newsletter, February 2012
- Ahead of the ADA Access Curve: Part 6 – DOJ’s new ADA requirements: Six common myths and mistakes
- Ahead of the ADA Access Curve: Part 7 DOJ’s new ADA requirements: Six MORE common myths and mistakes
- Ahead of the ADA Access Curve: Part 10 – ON THE FEDERAL FRONT: WHAT TO WATCH FOR IN 2013
See Renewing the Commitment: An ADA Guide for Nonprofits, which was authored by ADA One and issued by The Chicago Community Trust in January 2011, http://www.cct.org/disabilities for an overview of many of the ADA’s requirements (including the 2010 regulations and standards) and practical ways to assess and ensure compliance. Although focused on nonprofits, the content applies to all title III entities and many of the principles apply to title II entities. (Title II’s program accessibility requirement is not addressed.) The guide doesn’t address all areas of the 2010 regulations, but these pages may be helpful:
- ADA’s basic principles, pages 10-14
- Facilities: new construction, alterations, barrier removal, leasing, and maintenance, pages 25-36
- Effective communication, pages 37-46
- Service animals and miniature horses, pages 51-53