DOJ Adopts Revisions to ADA Title II and III, Issues 2010 Standards

Long awaited, the U.S. Department of Justice has adopted revisions to Title II and III of the Americans with Disabilities Act. The amended regulations were published in the Federal Register on September 15, 2010.  These final rules will take effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012.  Changes to the ADA regulations include DOJ adoption of the 2010 ADA Standards for Accessible Design. The 2010 ADA Standards have been harmonized with the Architectural Barriers Act. They also include scoping and technical provisions for facilities not previously addressed including recreation facilities, sports courts, amusement rides, golf courses, playgrounds, swimming pools, spas, boating facilities, and fishing piers. 
 
Revisions to the Title II and III regulations give more clear guidance on policy and procedural issues. Recreation land managers have struggled with policy modifications to permit the use of service animals in areas typically not opened to pets. The definition of “service animal” has been scrutinized over the last several years as more people look to the use of exotic animals for comfort and therapy. The rule defines "service animal" as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of "service animal."
 
The definition and regulation to permit the use of mobility devices has been amended. The rule adopts a two-tiered approach to mobility devices, drawing distinctions between wheelchairs and "other power-driven mobility devices" such as the Segway. Wheelchairs (and other devices designed for use by people with mobility impairments) must be permitted in all areas open to pedestrian use. "Other power-driven mobility devices" must be permitted to be used unless the covered entity can demonstrate that such use would fundamentally alter its programs, services, or activities, create a direct threat, or create a safety hazard. The rule also lists factors to consider in making this determination.
 

In 2002, NCA conducted a survey on ticketing policies at performance venues, theaters and sports arenas in partnership with the John F. Kennedy Center for Performing Arts, the ADA/504 Coordinators for the Arts, and the Indiana Institute on Community and Disability. The policy and procedural issues identified in the survey were submitted to DOJ with request for more guidance. The amended regulations provide guidance on the sale of tickets for accessible seating, the sale of season tickets, the hold and release of accessible seating to persons other that those who need accessible seating, ticket pricing, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating. It requires a venue operator to accommodate an individual with a disability who acquired inaccessible seating on the secondary ticket market only when there is unsold accessible seating for that event.

 

U.S. Department of Justice Links:

 

Title II: Final Rule amending 28 CFR Part 35: Nondiscrimination on the Basis of Disability in State and Local Government Services (HTML) | (PDF)  (as published in the Federal Register September 15, 2010)

Title III: Final Rule amending 28 CFR Part 36: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (HTML) | (PDF)  (as published in the Federal Register September 15, 2010)

 

Appendix B to Final Title III Regulation:

  

Appendix B: Analysis of the 2010 ADA Standards (HTML) | PDF format

 

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