1/1/2009 - Two Items of Continued Progress
Two Items of Continued Progress Regarding Adoption of New
ADA Standards and Regulations
1. OMB "Accepts" DOJ ADA Rules for Review
On December 3, the Office of Management and Budget "accepted" the Department of Justice's draft final ADA regulations for review. In light of the process involved in moving from this point to adoption of effective, enforceable rules, Irene Bowen, a former Deputy Section Chief at DOJ who is now in private consulting with ADA One, has offered the following assessment:
"DOJ issued the proposed rules for both public and private entities in June 2008 for public comments and received over 5,000 comments. Although it looked like the draft FINAL rule had gone to OMB on October 31, there hadn't been any further public action until last week.
This doesn't necessarily mean we'll see final rules before January 20 but it means things are moving forward. Some in Washington think the Administration is making the rules a priority and that they will be cleared quickly for publication. However, the rules face several hurdles. For example:
The rules might not get out of OMB until next year. An executive order gives OMB up to 90 days for its review, but it took OMB five months to clear the draft PROPOSED rules for June publication.
Then there's Congress. There have been signs that Congress may invoke its right to review - or halt - the final regulations under the rarely-used and complicated procedures of the Congressional Review Act.
The final rules would have a delayed ‘effective date,' by law, usually 30 days after publication in the Federal Register. If, when the new Administration takes office January 20, the rules are in that period between being published and being effective, the new Administration could ‘freeze' them (prevent them from becoming effective) along with other rules in that ‘limbo.' That wouldn't be surprising; President Bush froze 90 rules the day he was inaugurated in 2001.
So we should all stay tuned. There's no way to predict when the rules
will be issued and effective at this point."Irene Bowen ADA One 9 Montvale Court Silver Spring, MD 20904
Tel: (301) 879-4542
We'll keep you informed via this email format as the adoption process progresses.
2. DoD adopts New ABA Guidelines as Their Standards
On October 31, the Department of Defense adopted as Standards the New ADA/ABA Guidelines as published in the Federal Register on July 23, 2004 (69 FR 44083), and also available online at http://www.access-board.gov/ada-aba/aba-standards-dod.cfm . The Access Board has made editorial corrections and then updated these guidelines so you may want to watch their site at http://www.access-board.gov/ada-aba/guide.htm to see if any additional changes are made to them in the future. These Standards are adopted for both ABA and 504 compliance. In general, this adoption applies, worldwide, to all facilities designed, constructed, altered, leased, or funded by DoD that are open to the public, or to limited segments of the public, or that may be visited by the public, or by limited segments of the public, in the conduct of normal business. A more detailed list is provided in the adopting document referred to below which is available as a 4MB pdf attachment (see below). The DoD adoption document states:
"Subject to the special provisions specified in the attachment [html version] provided on DoD facilities, which is also part of the DoD standards, you are directed to meet the requirements of ABA Chapters 1 and 2 and Chapters 3 through 10, and to require recipients of financial assistance from your organization to do the same. Such recipients include only those private sector programs and activities covered by Section 504 of the Rehabilitation Act."
Due to an exception in Section 553 of the Administrative Procedures Act, DoD did not have to publish an NPRM to adopt these Standards so you won't find them in the Federal Register. That's why we've provided the copy referenced above on newadaag.com.
The House gave final approval on September 17 for legislation to stop discrimination against individuals with disabilities by restoring the original intent of the Americans with Disabilities Act. The House passed the ADA Amendments Act by voice vote to overturn the Supreme Court decisions that have eroded protections for people with disabilities.
The ADA Amendments Act of 2008 (S. 3406, passed by the Senate unanimously on September 11, 2008):
- under the ADA, restoring original Congressional intent.
- Rejects strict interpretation of the definition of disability, and makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability.
- Strikes a balance between employer and employee interests.
- Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability.
- Covers people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability.
- Provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only "regarded as" having an impairment.