Six Tips for the Next Six Months

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

The proposed rules would not require that you do a new transition plan (setting out changes required to buildings and facilities in order to provide program access) 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 — including changes to what you can do on the policy front, as well as new accessibility standards — 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 who benefits from your services or comes to your business includes more people with disabilities. And they have –
  • a greater variety and severity of disabilities
  • a wider range of service/support animals used for more purposes
  • more technological devices
  • 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 need to take different/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 use them in different ways now
• You may have a web site that you use for sales or for communicating about your services. You didn’t have one when the ADA was passed — the first web site came on line about a year later.

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 when the rules are closer to reality.

Read the proposed rules. There are hundreds of pages — and hundreds of thousands of words — in the June 2008 proposed rules and preambles (the narratives that come before the actual words of the regulations). Focus on the preambles because they explain the proposals and the most important issues and, in this case, ask specific questions for comment. 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 issues might be resolved. Then you’ll more quickly understand the final rules when they appear.

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 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 standards of the Department of Justice (for title II if you’re a public entity and title III if you’re a public accommodation (private)). This will usually mean that you follow DOJ’s 1991/1994 ADA Accessibility Standards or 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 ho using, the Department of Housing and Urban Development). Yes, it’s confusing; we’ll address the various standards on this web site at a later date.

You run the risk of violating the EXISTING access standards if you have a blanket policy of building to the “new” proposed standards now. Some of the proposed changes are more stringent than the existing requirements, but some are weaker. For example, compared to the current rules, the proposals would generally require a smaller percentage of assistive listening devices in larger assembly areas such as classroom auditoriums and performing arts facilities areas. But some devices 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 spaces.

[There’s another complication here. Your state may be one of many that have adopted part of the model International Buildings Codes (IBC) and consensus accessibility standards of the American National Standards Institute (ANSI). If so, then your new facilities may be subject to code requirements that are similar to those in the proposed standards.]

Don’t look to DOJ’s proposed rule to answer all your questions about service animals or program access. Yes, 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 state laws — and they may be more inclusive. Those include 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 recipients subject to section 504).

Similarly, don’t assume that providing “a reasonable number, but at least one” of a facility, when there are several facilities used in a program, would provide program access. 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 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 (with reason) that 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 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 (1) will offer an equal opportunity to participate in and benefit from the program and (2) provide services in the most integrated setting.

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

But if you are a state or local government, college or university, or non-profit organization with emergency preparedness or response duties, you still have civil rights obligations to your students, faculty, staff, and sometimes the community in this critical area. You should go ahead and evaluate or re-evaluate your policies and practices, and the facilities and transportation plans you use, under the ADA. You can be guided by DOJ’s Guide for Local Governments, Chapter 7 of its tool kit, and the language in DOJ’s settlement agreements with the University of Chicago and Swarthmore College (all at the Americans with Disabilities Act web site), as well as FEMA’s preparedness guide.