Click here for a .pdf of the Disability Law Alert: What’s on Tap for Accessibility Regulations in 2009
On May 11, 2009, the U.S. Department of Justice issued its semiannual regulatory agenda, in which the Department announced that it anticipates issuing final rules to amend its regulations implementing Title II and Title III of the Americans with Disabilities Act (ADA) and to adopt revised ADA Standards for Accessible Design in September 2009. To the extent that the proposed effective date for the revised ADA Standards remains the same – six months from publication of the final rule – the revised standards will take effect in approximately March 2010. The Department has proposed to adopt as its ADA Standards the revised ADA Accessibility Guidelines issued by the U.S. Architectural and Transportation Barriers Compliance Board in July 2004. The rulemakings also address several additional issues, including, but not limited to, the extent to which existing facilities must comply with the revised ADA Standards, clarification of the definition of “service animal,” use of electronic per¬sonal assistive mobility devices (such as Segways), hotel reservation policies and practices, ticketing policies and practices for assembly areas, captioning requirements, and criteria for video interpretation services.
Prior to the final Title II (state and local governments) and Title III (public accommodations) rules being issued, they must first be reviewed by the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) pursuant to Executive Order 12866. On January 21, 2009, the Department withdrew its draft final rules from OIRA pending review by President Obama’s administration. It is anticipated that the Title II and Title III rules will not be resubmitted to OIRA until the Senate confirms President Obama’s nomination of Mr. Thomas E. Perez to serve as the Assistant Attorney General for Civil Rights. Mr. Perez previously served as the Deputy Assistant Attorney General for Civil Rights in President Clinton’s administration. The Senate Judiciary Com¬mittee held a hearing on Mr. Perez’s nomination on April 29, 2009.
The Department also announced that it will initiate a rulemaking to implement the ADA Amendments Act, which legislatively overruled several U.S. Supreme Court decisions regarding the definition of “disability,” thus broadening the scope of individuals protected under the ADA. The Department anticipates issuing a Notice of Proposed Rulemaking to conform its Title II and Title III regulations with the ADA Amendments Act in September 2009. The Equal Employment Opportunity Commission similarly has announced that in August 2009, it will issue a Notice of Proposed Rulemaking to conform its regulation implementing Title I (employment) of the ADA with the ADA Amendments Act.
To best prepare for the final rules and adoption of revised ADA Standards for Accessible Design, entities subject to Titles II and III of the ADA are encouraged to review their facilities, as well as their operational policies and procedures, and to address noncompliant elements before the revised ADA Standards take effect. As proposed by the Department, elements that comply with the current ADA Standards will not have to be modified to comply with the revised standards (which in many instances establish heightened accessibility requirements) unless such elements are otherwise altered subsequent to the effective date of the revised standards.
To obtain more information on these rulemakings or current accessibility requirements under the ADA, please contact the Barnes & Thornburg attorney with whom you work, or Teresa L. Jakubowski, a partner in our Disability Law Practice and Washington, D.C., office (202-371-6366).© 2009 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is proprietary and the property of Barnes & Thornburg LLP. It may not be reproduced, in any form, without the express written consent of Barnes & Thornburg.
This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.