On March 15, 2011, the U.S. Department of Justice’s amended Final Rule substantially revising and expanding the regulations implementing the Americans with Disabilities Act will become effective. Compliance, however, is not mandated until March 15, 2012. Among other substantive changes, the amended regulations adopt the 2010 ADA Standards for Accessible Design, which implement new accessibility guidelines for government facilities and commercial places of public accommodation. In addition, the amended regulations address numerous accessibility issues, including selling and issuing tickets to individuals with disabilities; accommodating service animals, wheelchairs and other power-driven mobility devices; providing auxiliary communication aids; and making reservations in places of lodging.
The new regulations apply to Title II of the ADA, covering programs, activities, and services of public entities, and Title III of the ADA, covering public accommodations, commercial facilities and private entities offering certain examinations and courses. Common examples of facilities covered under Title III include hospitals, doctors’ offices, restaurants, retail stores, hotels, movie theaters, private schools, convention centers, day care centers, and recreation facilities, such as sports stadiums and fitness clubs. Below is a description of some of the significant changes and additions made by these new regulations.
- Adoption of the 2010 ADA Standards for Accessible Design: The DOJ characterized these new guidelines as “more than incremental” compared with the previously applicable standards, which were issued in 1991. The heightened standards are technical in nature and include, for example: wheelchair access points (e.g., wheelchair spaces and companion seats may not be located on or obstructed by temporary platforms or other movable structures); reach ranges; single-user toilet rooms; assembly areas; location of accessible routes; entrances from parking structures; and location of guest rooms in lodging facilities.
- Wheelchairs and Other Mobility Devices: The regulations adopt a two-tiered approach to mobility devices, distinguishing between wheelchairs and “other power-driven mobility devices,” which include a range of devices not specifically designed for individuals with mobility impairments (e.g., Segways). 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 unless such use would fundamentally alter the entity’s programs, services or activities, create a direct threat, or create a safety hazard.
- Service Animals: The regulations define a “service animal” as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Other animals and dogs that are not trained to assist with a disability or who merely provide emotional support are excluded from this definition.
- Reservations for Places of Lodging: Places of lodging must: (1) allow individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; and (2) identify and describe accessible features in the hotels and guest rooms. Furthermore, places of lodging must ensure that reserved accessible guest rooms are actually available for those disabled guests upon their arrival.
- Communication: The new regulation includes guidance on how to provide effective communication to guests with disabilities. For example, the regulation allows for use of video remote interpreting services as an auxiliary aid, if the entity complies with specified performance standards.
- Ticketing: The regulations provide guidance on the sale of tickets for accessible seating, the sale of season tickets, the hold and release of accessible seating to non-disabled individuals, ticket pricing, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating.
The final rule includes a “safe harbor” provision protecting facilities built or altered in compliance with the 1991 Standards for Accessible Design. Those facilities are not required to comply with the 2010 Standards until future alterations or renovations impact issues addressed by the 2010 Standards. Notably, however, the safe harbor provision does not apply to those portions of existing facilities that are subject to new accessibility requirements not covered by the 1991 Standards; rather, those features must be modified to the extent readily achievable to comply with the 2010 Standards.