Amendments to the Regulations Implementing Title II and Title III of the Americans with Disabilities Act

Amendments to the regulations implementing Title II of the Americans with Disabilities Act (ADA), 28 CFR 35.101 et seq., which applies to public entities, went into effect on March 15, 2011. A public entity is defined in the regulations as: “(1) Any state or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).” See 28 CFR 35.104. On the same date, amendments to the regulations implementing Title III of the ADA, 28 CFR 36.101 et seq., which applies to public accommodations (including private businesses that fall within one of twelve categories established by the statute) and commercial facilities also went into effect.

Key components of the amendments include:

• 2010 ADA Standards for Accessible Design: As of March 15, 2012, all new construction and alterations by public entities must comply with the 2010 ADA Standards for Accessible Design (“2010 Standards”). Between September 15, 2010 and March 15, 2012 public entities can choose between the requirements set forth in the ADA Standards for Accessible Design published in 1991 (“1991 Standards”), the Uniform Federal Accessibility Standards (“UFAS”), and the 2010 Standards. Covered entities that should have complied with the 1991 Standards or the UFAS during any new construction or alteration of facilities or elements, but have not done so by March 15, 2012, must comply with the 2010 Standards. A “safe harbor” provision provides that facilities built or altered in compliance with the 1991 Standards are not required to comply with the 2010 Standards until future alterations or renovations occur. The safe harbor provision, however, does not apply to those portions of existing facilities that are subject to new accessibility requirements which were not covered by the 1991 Standards. Those portions of existing facilities must be modified to the extent readily achievable to comply with the 2010 Standards.
• Ticketing: The regulations provide guidance on issues related to tickets, including the sale of tickets for a single event or series of events, identification of available accessible seating, ticket prices for accessible seating, the hold and release of accessible seating to non-disabled individuals, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating. A venue operator must now accommodate a disabled individual who purchased inaccessible seating on the secondary ticket market (which is a transfer of tickets after the covered entity’s initial sale of tickets) only when there is unsold accessible seating for the event.

• Communication: Guidance is provided on how to make effective communication available to guests with disabilities. By way of example, the regulations allow for use of video remote interpreting services as an auxiliary aid. The regulations establish performance standards for these services and required training for users of these services so that they can quickly and efficiently operate the systems.
• Service Animal: The regulations define a “service animal” as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Excluded from this definition are other animals and dogs who only provide emotional support and are not trained to assist with a disability. Although not in the definition of a “service animal”, the regulations may permit the use of trained miniature horses in lieu of a dog when certain “assessment factors” are met.
• Wheelchairs and Mobility Devices: The regulations provide that wheelchairs and manually powered mobility aids must be permitted in all areas open to pedestrians. A public entity cannot ask an individual using a wheelchair or other power-driven mobility device questions about the individual’s disability but may ask the individual using such a device to provide “credible assurance” that the mobility device is required because of the person’s disability. The regulations also list various factors to be used in determining whether these mobility devices can be allowed at a facility as a reasonable modification.
• Lodging: Places of lodging must ensure that there are reserved guest rooms that are actually available for those guests with disabilities upon their arrival. The regulations also provide that places of lodging must: (1) ensure that people with disabilities are allowed to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; (2) identify and describe accessible features in the hotels and guest rooms to reasonably permit disabled individuals to determine if a guest rooms meets their accessibility needs; and (3) “ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type.” In addition, the regulations provide guidance about the factors to consider to determine if a facility that is not an inn, motel, or hotel does in fact qualify as a place of lodging. They further clarified that timeshare and condominium properties that operate like hotels are subject to Title III of the ADA.

While the amendments clarify certain issues, they also impose stringent requirements which public entities and private enterprises alike must be aware of and adhere to in order to avoid liability.