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They issued new proposed ADA regulations in September of 2009, with public comments due in November (after a 60-day comment period). They received a lot of comments on a number of things, including the way they try to elaborate how it is that people would fit into categories where it’s a given that you’re protected and those who really are not people they intended [to be protected]. It’s what I call the “hangnail category”; they didn’t expect that everybody who had a boo-boo was going to be protected by the law, but you have to find a way of saying that.
They came up with three categories:
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a group that would generally be covered
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a group that might or might not be covered, depending on circumstances
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the group that generally wouldn’t be covered.
The problem with that middle group is that part of what the statute said was that this is not supposed to be a focus of the law. The law really doesn’t want you to focus your attention on whether someone has a disability. The law wants you to focus your attention on eliminating discrimination. And so many people felt that that middle category undid the general purpose in amending the ADA by drawing people’s attention once again to the issue, to this battle over whether or not you have a disability.
I understand that there were many, many comments to that effect. We do not yet have revised regulations from the EEOC. It’s now been over a year that they are going through the comments and massaging them and drafting revised regulations that will then be put out as final regulations. We don’t have a date [for the final regulations]. We had hoped to have something in time for the 20th anniversary of the ADA in July 2010 but that clearly did not happen. There is some hope that we would have it before the first of the year (2011), but I don’t see that happening either.
So right now, we’re sort of relying only on the statutory language and on the comments by congressional members on the floor when they discuss what it was they meant by who is supposed to be protected by the statute. So that’s one thing we’re waiting for and we will have further guidance on.
The other thing that happened was that, in the general course of business, the U.S. Department of Justice, which has the authority to enforce Titles 2 and 3 of the ADA -- Title 2 applies to state and local governments or public services, and Title 3 applies to public accommodations, meaning private entities whose services are open to the public. So it might be the stadium. It might be a private school. It might be the gas station. It might be the mom-and-pop shop. Those kinds of entities are subject to Title 3.
There are specific regulations that are part of this revised regulation by the Justice Department that deal with a lot of issues that we’re not going to address today…things like service animals, stadium seating in big arenas and football stadiums.
But one particular area that is relevant to students with learning disabilities is Section 309 of Title 3 of the ADA, which covers courses and testing that wouldn’t be part of a regular school program. By that I’m thinking of things like the course that somebody might take if they wanted to become a cosmetologist or a plumber, or somebody who might want to take the accountant’s exam, who would take a Kaplan course or a Princeton Review course. Those kinds of courses are subject to the ADA and have to be made accessible to students with disabilities of all kinds.
In addition to the courses, the test that you’re studying for would also be covered by Section 309, whether it’s the plumber’s exam or the cosmetician’s exam or the massage exam or the law school admissions exam or the Bar exam or the medical boards. Those would all be covered by Section 309.
Those regulations were put out to the public in 2008. Responses went back in. On the 20th anniversary of the ADA the Justice Department issued new regulations, final regulations for the sections that they were revamping for Titles 2 and 3. A good deal of those regulations will go into effect March 15, 2011, including the regulation for Section 309 that I just mentioned.
Candace Cortiella: And Section 309 also covers tests like the SAT and the ACT which many, many students at the high school level take.
Jo Anne Simon: Yes, absolutely, and that’s where there’s a little overlap between where IDEA and ADA Section 504 gets confusing for many people because there are different laws and they’re protecting students in similar ways but for different reasons and in connection with different parts of their secondary school career.
So when I talked about taking the plumber’s exam or the law school admissions exam and the Kaplan courses, I was also talking about courses like SAT prep courses or ACT prep courses as well as the SAT and the ACT itself, and any of the other tests they might give like the SAT 2 or the AP exams. Those are all covered. Those are all required to be accessible to people with disabilities under Section 309.
