34 CFR Part 104 Discrimination on the Basis of Disability in Federally Assisted Programs and Activities - Notice of Interpretation

Accessibility Standards in Title II Regulations Issued by DOJ

DOJ's Title II regulations prohibit exclusion from participation in or the denial of the benefits of services, programs, or activities, or other discrimination because a public entity's facilities are inaccessible to or unusable by individuals with disabilities. The Title II regulations provide that design, construction, and alterations of facilities commenced after January 26, 1992, must be done in such a manner that the facility or part of the facility being built or altered is readily accessible to and usable by individuals with disabilities.^[20]

The Title II regulations issued in 1991 (which have been revised in relevant part, as discussed later in this section) incorporated by reference two sets of standards for new construction and alterations: UFAS and the 1991 Standards ^[21] without the “elevator exemption.” ^[22] The 1991 Title II regulations also permitted departures from the particular requirements of either standard by the use of other methods when it was clearly evident that equivalent access to the facility or part of the facility is thereby provided.^[23]

On September 15, 2010, DOJ published revisions to the Title II regulations.^[24]The revised regulations became effective March 15, 2011. Among other things, they provide that new construction and alterations that commence on or after March 15, 2012, must comply with the 2010 Title II ADA Standards.^[25]

The revised Title II regulations permit covered entities to use the 2010 Title II ADA Standards as an alternative to the 1991 Standards without the elevator exemption or to UFAS for new construction and alterations that commenced on or after September 15, 2010, but before March 15, 2012.^[26] This approach provides flexibility for covered entities that comply with building codes that have many of the same requirements as the 2010 Title II ADA Standards.

As emphasized by the revised Title II regulatory language as well as the interpretive guidance published with it, covered entities engaged in physical construction or alterations during this period may select only one standard from among the three options. They may not rely on some of the requirements contained in one standard and some of the requirements contained in the other standards.^[27]