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:

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 beyond March 15, 2011

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 before March 15, 2012.
  • 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 ready to follow the 2010 Standards starting no later than March 15, 2012
  • 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, how to make the choice of the “old” or “new” standards before March 15, 2012, 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:

ADA Guidance (HTML) or ADA Guidance (PDF)

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:

  • 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

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 ADA rules are effective as of March 15, 2011.

On the 20th anniversary of the ADA, President Obama signs an Executive Order increasing federal employment of individuals with disabilities.

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. They have an effective date of March 15, 2011, for most provisions about policies and effective communication, including new or modified requirements as to –

  • Segways and similar devices
  • Service animals
  • Miniature horses
  • Testing and licensing
  • Automated phone systems
  • Video remote interpreting and
  • Event ticketing policies.

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.

Second, the ADA Amendments Act (ADAAA) took effect January 2009. Regulations may come from the EEOC by mid-2011.

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, will revise its definition of “substantially limits” because of the ADAAA. The EEOC issued a proposed rule implementing the statutory changes on September 23, 2009. It has been reported that at its December 2010 meeting, the Commission approved the language of a final rule, which is now pending approval by the Office of Management and Budget (which can take up to 90 days, or even more).

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? 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. We can anticipate that DOJ and the agencies will state – through regulations, subregulatory guidance, or in another way – that compliance with the 2010 ADA Standards will achieve compliance with section 504.

DOJ issued its first technical assistance piece about the new regulations on February 16, 2011, clarifying the rules’ “compliance dates” and “effective dates.” On March 15, 2011, it issued guidance for small businesses. Look for other technical assistance as well.

How ADA One can help:

We understand the 1991/1994 DOJ regulations and the 2010 changes. We stay current on developments.

We can guide you in understanding how the changes may affect you and how to prepare, through our consulting and training services.
We can help you assess where you are and what steps you need to take, prepare a self-evaluation and transition plan, and make ADA compliance a part of your culture.