Six tips for the next six months of pending change

  1. Plan to plan: plant the seeds for a new transition plan or barrier removal plan, and a self-evaluation.
  2. Read the proposed rules.
  3. DO NOT start complying with “new” ADA accessibility standards, because there aren’t any.
  4. You run the risk of violating the EXISTING access standards if you have a blanket policy of building to the “new” proposed standards now.
  5. Don’t look to the proposed DOJ rule to answer all your questions about service animals or program access.
  6. Go ahead with your emergency preparedness planning, if you’re a state or local government, college or university, or non-profit with emergency preparedness or response duties.

Read more advice on preparing for pending ADA changes »

Yes, change is coming — and most likely, by the end of 2009. The groundwork was laid in 2008:

In September, President Bush signed into law the ADA (Americans with Disabilities Act) Amendments Act -– expected to sweep many more individuals with disabilities under the ADA’s protections. Those changes took effect January 1, 2009.

On a separate track, the Department of Justice (DOJ) published proposed regulations for both title II and title III of the ADA in June 2008. The resulting draft final regulations were withdrawn from review by the Office of Management and Budget in January 2009, and there has been no further word from DOJ. So should you still be watching for new rules and accessibility standards from DOJ? And what should you be doing to prepare for change?

Are DOJ’s new ADA rules really coming?

The ADA Amendments Act 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 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.

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 had approved a proposed rule implementing 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) has begun revising its regulatory definitions under the ADA and section 504. Look for those after the new ADA rules are finalized. Then we can anticipate conforming regulations from the Department of Education and others under section 504.

The bottom line:

The proposed rules are now undergoing renewed review within DOJ. On January 22, 2009, the Department withdrew its draft final ADA rules from review by the Office of Management and Budget (OMB), a federal agency that must clear rules before they’re published in proposed or final form in the Federal Register. The draft had been under review by OMB since December 3, 2008. When President Obama took office on January 20, 2009, the Administration directed that all pending regulations be returned to their agencies for consideration by his Administration. Now DOJ has several options after it reconsiders: send a draft final rule to OMB again, with or without major changes; re-open the comment period on the initial proposals; or revise the proposal and publish a new version for public comment. We’re not likely to see a final rule before October, at the earliest.

The details:
In June 2008 the Department of Justice proposed the first major regulatory changes under title II and title III of the ADA since 1991, with significant implications for both public and private entities. (You can see the proposals and link to comments at the Americans with Disabilities Act web site.) The Department received more than 5000 comments, and you heard buzz that the final regulations would be issued before the Bush Administration left office in January 2009.

It didn’t look like the rules were proceeding at all until December 3, 2008, when the federal Office of Management and Budget (OMB) “accepted” the rules. 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. (But OMB took much longer than the 90 days — five months — to clear the proposed rules after OMB accepted them.) Before OMB cleared the rules, President Obama took office and the rules went back to DOJ.

As of July 26, 2009, President Obama’s nominee for Assistant Attorney General (AAG) for Civil Rights, Thomas Perez, had not been confirmed by the Senate. That person heads the Civil Rights Division, responsible for drafting the regulations. But the Department could go ahead with its review (even before an AAG is confirmed,) because Eric Holder has taken office as the new Attorney General. Then, if the Department makes major changes to the proposed rules, it would most likely publish them again for public comment under the Administrative Procedure Act. That same Act requires that a 30-day period elapse after publication of a final rule before it takes effect.

In my view, we’re not likely to see final rules until October of November of 2009 at the earliest. The rules would be final earlier than that only if the new AAG for Civil Rights is nominated and confirmed in August (or DOJ goes ahead with its review before the new AAG is confirmed), the Administration makes the rules a high priority, and few changes are made to the final (compared to the proposed) rules. If the new draft final rule is significantly different from what was proposed in June 2008, a new public comment period could follow (this time for perhaps 90 days, in light of complaints about the 60-day limit on comments last year). Then the rule would go through OMB review again. This process could take us into next year.

Here are what I see as three possible scenarios:

  1. DOJ sends a revised rule to OMB for clearance. It’s published in the Federal Register for public comment for 90 days. The final rule is published in early 2010.
  2. DOJ re-opens the June 2008 proposal for public comment, then sends a final rule to OMB. The final version is issued in late 2009 or early 2010.
  3. DOJ quickly sends a revised draft final rule to OMB for clearance. The final regulation is published in October 2009 or shortly after.

We’ll keep you posted with developments or signs of progress. Check back here!

Revised July 26, 2009