On March 15, 2011 revised federal regulations to implement the Americans with Disability Act (ADA) became effective. This change occurred because on September 25, 2008, former President George W. Bush signed the Americans with Disabilities Act Amendments of 2008, a federal statute with an effective date of January 1, 2009. Since that date, various federal agencies including the U.S. Department of Justice have promulgated regulations that would implement the changes created by the ADA Amendments of 2008.
Ironically, President Bush’s father President George H. W. Bush signed the original Americans with Disabilities Act into law on July 29, 1990. That federal law and the implementing regulations required employers, public entities and places of public accommodations to discontinue a pattern and practice of discrimination and the exclusions of individuals with disabilities from society. As the first President Bush so eloquently stated, the ADA represented “…taking a sledgehammer to another wall, one which has for too many generations, separated far too many Americans from the freedoms that they could glimpse but not grasp. With the fall of this wall we will not tolerate discrimination in America. Let the shameful wall of exclusion finally come down.” Unfortunately, in the years since the 1990 ADA’s enactment, there were a series of United States Supreme Court decisions in 1999 and 2002 that erected barriers resulting in restrictions on the scope of the ADA’s coverage and protections. The Court had defined disability in a manner that was entirely inconsistent with the intent of Congress, resulting in the exclusion of individuals who should have been covered. Consequently, Congress took action to reassert its legislative authority to enact the laws and restated its 1990 intent on the definition of disability and the scope of the ADA’s coverage and protections with the enactment of the ADA Amendments of 2008.
The U.S. Department of Justice had the responsibility to promulgate and enact the regulations for ADA Title II that covered public entities such as state and local government programs, activities and services. In addition, the Department had the responsibility to enact ADA Title III regulations that covered the programs, activities and services provided by private business and organizations. On September 10, 2010, the Department of Justice announced its final ADA Title II and Title III regulations with an effective date of March 15, 2011.
For parents of children with disabilities and students with disabilities enrolled in public or private schools, including post-secondary schools or colleges, these regulations will have a positive effect on ensuring equal access to the programs, services, and activities of public and private elementary, middle, high schools, and post-secondary education programs at vocational schools, colleges and universities. For, example, the ADA Amendments of 2008 have created a “broad” presumption of coverage by the ADA. The law has redefined the definition of disability by adding to the phrase “substantially limits a major life activity” additional language to the original definition: reading, concentrating, thinking, and communicating. Previously, only the function of “learning” had to be substantially limited. Also, in evaluating whether an impairment substantially limits a major life activity, such an assessment is to be made without regard to “mitigating measures” such as the use of medication, low vision devices, prosthetic devices, assistive listening devices, assistive technology or medical equipment or supplies. In one case, the U.S. Supreme Court held that the use of “mitigating measures” took an individual outside the definition of disability and therefore, the ADA’s coverage.
For high school students who are applying to college and/or college students who are taking college, graduate or professional school entrance exams such as the SAT, ACT, LSAT, MCAT, and GRE, the ADA Amendments of 2008 have made it less onerous for the student to establish that they have a disability, that they need auxiliary aides or services, or require reasonable accommodation for that examination such as a time extension, alterative test format, alternate test setting, or other accommodations. For example, a college and test organizations such as the College Board, can request documentation of a disability if that request is reasonable and limited to the need for the requested test or exam modification and/or request for a reasonable accommodation. Such documentation could include a student’s recent IEP, Section 504 Plan, and/or a history of receiving past accommodations, modifications, or auxiliary aides and services in the test or exam setting.
The author had recently represented a medical student with some mild to moderate learning challenges who had requested a reasonable accommodation in the form of an alternate test setting and time and one-half for a medical licensing exam. The student had received these accommodations since he was a student in high school and he had them in place at his college and medical school, as well as receiving these accommodations on the SAT, and MCAT exams. However, the private organization that administered the medical licensing exam had questioned whether the student had a disability and whether he demonstrated any need for any accommodation, despite several evaluation reports and letters from the student’s high school, college, and medical school that supported the applicant’s request for test accommodations. Nevertheless, the organization wanted even more information and when the applicant had submitted a current assessment report establishing his disability and need for test accommodations, his request was still denied. Clearly, if the Department of Justice’s regulations had been in effect, the student would not have encountered the obstacles outlined and his request would have received more favorable consideration by the private test organization.
Other changes in the ADA Amendments of 2008 and revised regulations include the requirement that public or private entities, such as public and private schools, and post-secondary institutions, must allow an individual with a disability to take their service animals into such facilities provided that the service animal is under the control of its owner or handler and that the animal is “housebroken.” In addition, public or private entities must allow a person with a disability to utilize manual and powered mobility devices such as walkers, manual wheelchairs, power wheelchairs, etc., absent legitimate safety concerns, that is, a legitimate safety concern that is based upon an actual risk and not speculation. A public or private entity has to ensure that its communication with individuals with disabilities is as effective as the communication provided to individuals without disabilities. This requirement also applies to telecommunication equipment. Therefore, the public or private entity cannot request the individual with a disability, their companions, or family members to provide interpreting services, as a form of accommodating the individual’s communication needs.
Public and private entities have been obligated to provide auxiliary aides and services to individual with disabilities since the 1990 ADA enactment to ensure an equal opportunity to participate or access the programs, activities, and services. However, with the ADA Amendments of 2008, the public or private entity must now give primary consideration to the request of the individual with a disability for the type of auxiliary aides and services that are to be provided, rather than providing what is available.
There are many changes to the ADA that are too numerous to cover with this article that will ensure physical, programmatic, communication, and other forms of equal access to employment, places of public accommodations and public entities and eliminate most forms of discrimination and unequal access. The U.S. Department of Education is also reviewing the ADA Amendments of 2008 in order to determine if the Section 504 regulations require any revisions in order to ensure that federal fund recipients such as public schools, local and state governments agencies and private schools and colleges, are covered by both sets of federal laws and regulations.
If you or a family member believe that you have been a victim of discrimination or that your rights are being denied by an employer, public entity, or place of public accommodations due to the existence of a disability, then do not delay and you should contact a knowledgeable attorney or any local, state or federal civil rights agency for information on your rights that are applicable to a specific set of circumstances, and if appropriate, whether to file a complaint in order to protect your rights. The ADA Amendments of 2008 and the implementing regulations have restated the Congressional intent from 1990 on the individuals who should be covered by this law, the protections from discrimination, and the obligations of public and private entities to accommodate the needs of individuals with disabilities and to remove barriers that exclude or tend to exclude people with disabilities from full and equal participation in all aspects in their schools, colleges, businesses, and employment opportunities.
Lawrence Berliner is an attorney who has practiced in the field of disability rights and special education law for over twenty-five years. He is currently a principle at the law firm of Klebanoff and Alfano, P.C., located in West Hartford, and Fairfield, CT. While employed at the Connecticut Office of Protection and Advocacy, he worked with the staff on the Senate’s H.E.L.P. Committee between 1986 and 1990 on the federal law that eventually became the ADA. In addition, he submitted comments on the Department of Justice’s proposed regulations to implement that 1990 federal law.
This article is for information purposes only and does not constitute the provision of specific legal advice on a particular matter. A copy of the ADA Amendments of 2008 and regulations are available on the U.S. Department of Justice’s website: www.justice.gov.