Ahead of the ADA Access Curve: Part 2

This article originally published in The Alert, May 2009, electronic newsletter of the Association on Higher Education and Disabilities (AHEAD) Copyright © 2004-2008 AHEAD. Reprinted with permission.

A NEW DAY FOR THE ADA?

What to expect from the Department of Justice in regulations and enforcement

In January, we wondered if the Department of Justice (DOJ) would issue final rules under the Americans with Disabilities Act (ADA) before President Bush left office. As we approach the end of April 2009 — and one hundred days into the Obama Administration – the rules are still pending. But there are signs that we will see final regulations before the end of the year, and it appears that DOJ is also stepping up enforcement.

Look for final ADA rules by the end of the year

In June 2008 DOJ proposed the first major regulatory changes under title II and title III of the ADA since the original 1991 regulations. As of the end of the year, a draft final rule was under review within the Administration and pending at the Office of Management and Budget (OMB), which must clear any proposed or final regulations before an agency publishes them.

The proposed rules are now undergoing renewed review within DOJ. On January 20, 2009 — the day Barack Obama took office — the White House directed that all regulations pending at OMB be returned to their agencies for consideration by his Administration.

In January, John Wodatch, who as Chief of the Disability Rights Section in DOJ’s Civil Rights Division oversaw the development of the proposed regulations, was named Acting Deputy Assistant Attorney General for Civil Rights. Speaking at the end of April to the National Association of ADA Coordinators, Mr. Wodatch predicted that a final rule could be issued by the end of the year. He said that a decision can be expected by the end of May about whether the Department will go forward with a final rule in light of the more than 4000 comments received on the June proposals.

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. They 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 must now decide whether it should

• publish a final rule based on the comments received
• open the proposal for further comment or
• revise the proposal and seek comment on a new version of the rule

Another alternative would be to publish a final rule and — at the same time, or shortly after that — to issue one or more additional notices of proposed rulemaking, addressing some of the areas not raised in the June proposals. These could include:

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

Expect other rulemaking proposals too.

Mr. Wodatch said that DOJ will probably start other rulemaking this year:

• changes to the current regulations under section 504 of the Rehabilitation Act (applying to recipients of federal financial assistance)
• modifications to the definition of “disability” and related terms, to conform to the ADA Amendments Act, under title II and title III.

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 impacts on higher education. For example,

• Only common domesticated animals (dogs and cats) that perform specific tasks or do work for an individual with a disability would be considered “service animals” for ADA purposes.
• 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

• A greater number of required accessible entrances, in some cases
• More accessible van spaces
• Lower limit on reach ranges for controls, elevator buttons, light switches, etc. (48” vs. the 54” now allowed in some cases)
• Specific accessibility features for play and recreation facilities, including swimming facilities and golf courses
• Accessible emergency notifications in stadiums seating more than 25,000.

But in some instances the new standards would reduce current accessibility requirements:

• Fewer assistive listening devices required in auditoriums (but more than one type required)
• Fewer wheelchair seating areas required for some assembly areas (such as stadiums and performing arts centers), but with more specifications as to specialty seating areas, dispersal, and viewing angles.

Anticipate stronger ADA enforcement

In the meantime, even without a confirmed Assistant Attorney General for Civil Rights, the Civil Rights Division has strengthened ADA enforcement. Although none of the announced efforts focus specifically on colleges and universities, they do indicate the general direction in which the Division may be going.

On April 16 the Division announced a settlement agreement with the City of Philadelphia aimed at accessibility improvements at the city’s 1200 polling places. In a press release announcing DOJ’s first settlement with a city focused solely on accessible polling places, Loretta King, Acting Assistant Attorney General, said, “The Justice Department is committed to continued, vigorous enforcement of the Americans with Disabilities Act.”

Since January 20, DOJ has also entered into at least five other settlement agreements, including with

• Hampton Inn Ann Arbor North, in Ann Arbor, Michigan, concerning physical access
• Marcus Amphitheater, an outdoor venue located on Milwaukee’s Summerfest grounds and primarily used for live music performances during the summer, also about physical accessibility
• Central DuPage Hospital in Illinois, about alleged denial of a sign language interpreter to a patient
• Dakota County, Minnesota, about its alleged failure to provide a TDD to an arrestee in its county jail and
• World Fresh Market in the Virgin Islands, which reportedly told a person with a service animal to leave its supermarket.

Also since that time, the Division has filed briefs in at least three ADA cases as amicus (friend of the court) – again, a sign of increased aggressiveness in implementing the Act:

• Ault v. Walt Disney World, 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 DOJ is finalizing its regulation in this area
• 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 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.

All these agreements and briefs are available on the Disability Rights Section’s web site, http://www.ada.gov, along with a notice reminding recipients of funds under the American Recovery and Reinvestment Act of 2009 that they must comply with the ADA.

As the January ALERT article emphasized, it’s important for AHEAD members to stay informed about what the federal government is doing with the ADA rules and to help your colleges or universities prepare for their impact. You can alert others on campus now 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.

Watch this space: the next ALERT article in this series will bring your more about where DOJ is headed with enforcement, and any news about how DOJ’s actions could affect you and your college or university.