[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Rules and Regulations]
[Pages 14972-14976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6122]
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DEPARTMENT OF EDUCATION
34 CFR Part 104
Discrimination on the Basis of Disability in Federally Assisted
Programs and Activities
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of interpretation.
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SUMMARY: The Department of Education (Department or Education) provides
notice of its interpretation of Section 504 of the Rehabilitation Act
of 1973 and the Department's implementing regulations, which prohibit
discrimination on the basis of disability in federally assisted
programs and activities (Education's Section 504 regulations). Among
other things, Education's Section 504 regulations address the
accessibility and usability of a recipient's facilities by persons with
disabilities. This document explains that for new construction and
alterations commenced on or after September 15, 2010, we will permit
recipients of Federal financial assistance from the Department to use
an additional alternative accessibility standard in lieu of the Uniform
Federal Accessibility Standards (UFAS) for the purpose of complying
with Section 504. Specifically, we will permit the use of the U. S.
Department of Justice's 2010 ADA Standards for Accessible Design as
defined in the Americans with Disabilities Act (ADA) Title II
regulation (referred to in this notice as the 2010 Title II ADA
Standards) except that Exception (1) to Section 206.2.3 does not apply.
Use of the 2010 Title II ADA Standards will not be required as a means
of compliance with Section 504,
[[Page 14973]]
however, until the Department revises its Section 504 regulations to
formally adopt the 2010 Title II ADA Standards in lieu of UFAS.
DATES: Effective date: March 14, 2012.
FOR FURTHER INFORMATION CONTACT: Arthur Goldman, U.S. Department of
Education, 400 Maryland Avenue SW., Washington, DC 20202-1100.
Telephone: (800) 421-3481, or by email at: [email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-
800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
disc) on request to the contact person listed in this section.
SUPPLEMENTARY INFORMATION:
Background
Section 504
Education implements the requirements of Section 504 of the
Rehabilitation Act of 1973 (Section 504),\1\ which prohibits
discrimination on the basis of disability \2\ in federally assisted
programs or activities, through regulations in 34 CFR part 104.
Education's Section 504 regulations apply to recipients to which the
Department extends Federal financial assistance. Among other things,
Education's Section 504 regulations prohibit denial of the benefits of,
exclusion from participation in, or other discrimination against
qualified individuals with disabilities in programs or activities
because a recipient's facilities are inaccessible to or unusable by
persons with disabilities.\3\
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\1\ 29 U.S.C. 794.
\2\ In this notice, we use the term ``disability,'' the term
that is currently used by Congress in legislation, in place of the
term ``handicap,'' which was used in the 1973 statute and our 1977
regulations. There is no substantive difference.
\3\ 34 CFR 104.21.
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Education's Section 504 regulations require that if construction of
a recipient's facility commenced after the effective date of the
regulations (June 3, 1977) \4\ the facility must be designed and
constructed so that it is readily accessible to and usable by persons
with disabilities.\5\ These regulations also require that facility
alterations commenced after June 3, 1977, that affect or may affect the
facility's usability must be accomplished so that, to the maximum
extent feasible, the altered portion of the facility is readily
accessible and usable by persons with disabilities.\6\
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\4\ The former Department of Health, Education, and Welfare
issued section 504 regulations, including this provision, with an
effective date of June 3, 1977. See 45 CFR part 84 (1978). Upon the
establishment of the Department of Education, 20 U.S.C. 3401 et
seq., we adopted those regulations without substantive change.
\5\ 34 CFR 104.23(a) provides: Design and construction. Each
facility or part of a facility constructed by, on behalf of, or for
the use of a recipient shall be designed and constructed in such
manner that the facility or part of the facility is readily
accessible to and usable by * * * persons [with disabilities], if
the construction was commenced after the effective date of this
part.
\6\ 34 CFR 104.23(b) provides: Alteration. Each facility, or
part of a facility which is altered by, on behalf of, or for the use
of a recipient after the effective date of this part in a manner
that affects or could affect the usability of the facility or part
of the facility shall, to the maximum extent feasible, be altered in
such manner that the altered portion of the facility is readily
accessible to and usable by * * * persons [with disabilities].
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For facilities subject to the new construction and alterations
requirements, 34 CFR 104.23(c) has always incorporated by reference an
accessibility design standard, such that construction or alterations in
conformance with that standard would be deemed compliance with
Education's Section 504 regulations.\7\ Under the current regulations,
at 34 CFR 104.23(c), new construction or alterations made in
conformance with the Uniform Federal Accessibility Standards (UFAS) are
deemed to be in compliance with Education's Section 504 regulations,
although a recipient may depart from UFAS when other methods provide
equivalent or greater access to and usability of the facility.\8\
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\7\ 34 CFR 104.23(c). This section, in its entirety, provides:
Conformance with Uniform Federal Accessibility Standards.
(1) Effective as of January 18, 1991, design, construction, or
alteration of buildings in conformance with sections 3-8 of the
Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR
subpart 101-19.6) shall be deemed to comply with the requirements of
this section with respect to those buildings. Departures from
particular technical and scoping requirements of UFAS by the use of
other methods are permitted where substantially equivalent or
greater access to and usability of the building is provided.
(2) For the purposes of this section, section 4.1.6(1)(g) of
UFAS shall be interpreted to exempt from the requirements of UFAS
only mechanical rooms and other spaces that, because of their
intended use, will not require accessibility to the public or
beneficiaries or result in the employment or residence therein of
persons with physical [disabilities].
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished
without removing or altering a load-bearing structural member.
\8\ 34 CFR 104.23(c)(1).
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The adoption of UFAS as an accessibility design standard in
Education's Section 504 regulations occurred in 1991 as part of a joint
rulemaking with other Federal agencies, led by the Department of
Justice (DOJ) pursuant to its coordinating authority for Section 504
under Executive Order 12250. We and the other participating agencies
adopted UFAS (effective January 18, 1991) to diminish the possibility
that some recipients of Federal financial assistance would face
conflicting enforcement standards either between Section 504 and the
Architectural Barriers Act of 1968,\9\ or among the Section 504
regulations of different Federal agencies.\10\ In addition, after DOJ
adopted the 1991 ADA Accessibility Standards for compliance with Title
II of the ADA, Education permitted entities subject to our Section 504
regulation and the ADA to use the 1991 Standards, except that the
elevator exemption contained at section 4.1.3(5) and section
4.1.6(1)(k) does not apply.\11\
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\9\ The Architectural Barriers Act of 1968 (ABA), 42 U.S.C.
4151-4157, directed four agencies, the General Services
Administration, the Department of Housing and Urban Development, the
Department of Defense, and the United States Postal Service, to
establish accessibility standards for the design, construction, and
alteration of certain Federal and federally funded buildings. The
four agencies adopted UFAS as the ABA standard in 1984.
\10\ 55 FR 52136-37 (1990).
\11\ See ``Major Differences Between the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities and the Uniform Federal Accessibility Standards,'' Office
for Civil Rights (OCR), U.S. Department of Education, September
1993, at 4. This technical assistance handout was distributed as an
attachment to a September 17, 1993, memorandum from Norma V. Cantu,
Assistant Secretary for Civil Rights, to OCR Senior Staff, with
instructions that it was designed to accompany technical-assistance
presentations on the issue of accessibility and that OCR staff
should disseminate copies to interested persons.
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Title II Regulations
Title II of the ADA prohibits discrimination on the basis of
disability by public entities. Public educational institutions that are
subject to Education's Section 504 regulations because they receive
Federal financial assistance from us are also subject to the Title II
regulations because they are public entities (e.g., school districts,
State educational agencies, public institutions of vocational
education, and public colleges and universities). Pursuant to a
delegation by the Attorney General of the United States, Education
shares in the enforcement of Title II by virtue of being the designated
agency to investigate complaints and seek voluntary compliance under
Title II for certain types of public educational entities.\12\ Thus,
for those entities, Education enforces both Section 504
[[Page 14974]]
and Title II, as well as the implementing regulations of both
statutes.\13\
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\12\ Education is the designated agency for public elementary
and secondary education systems and institutions, institutions of
higher education and vocational education (other than schools of
medicine, dentistry, nursing, and other health-related schools), and
libraries. 28 CFR 35.190(b)(2).
\13\ DOJ enforces Title III of the ADA and has advised Education
that private educational institutions that are subject to
Education's Section 504 regulations are in almost all cases also
subject to Title III.
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Definitions of Standards Referenced in This Notice
In this notice, we explain our interpretation of 34 CFR 104.23 as
it relates to new construction and alterations commenced on or after
September 15, 2010. As described more fully later in this notice, our
purpose is to inform all interested parties that for new construction
and alterations commenced after that date, we are interpreting
Education's current Section 504 regulations to permit use of
accessibility standards that are consistent with DOJ's Title II
regulations until Education's Section 504 regulations are revised.\14\
DOJ first issued the Title II regulations in 1991,\15\ and published
revisions to the regulations on September 15, 2010. These revised
regulations included modifications to the Title II ADA
nondiscrimination requirements and they adopt revised ADA accessibility
standards (the 2010 Title II ADA Standards). Before discussing
Education's decision to deem the 2010 Title II ADA Standards as an
acceptable alternative to UFAS, we first introduce and define the
various accessibility standards referenced in the Title II regulations
or Education's Section 504 regulations that are used for designing,
constructing, or altering a facility:
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\14\ 34 CFR 104.23(c). 42 U.S.C. 12131 et seq.; 28 CFR part 35.
The Title II regulations and supplementary information were
published in the Federal Register on September 15, 2010 (75 FR
56164-56236). DOJ's ADA Web site contains links to HTML and PDF
versions at www.ada.gov/regs2010/ADAregs2010.htm.
\15\ 28 CFR part 35 (1992). DOJ also issued regulations in 1991
under Title III of the ADA, 42 U.S.C. 12181 et seq., 28 CFR part 36
(1992), that prohibit discrimination on the basis of disability by,
among other entities, private educational institutions. As
previously noted, DOJ enforces Title III of the ADA.
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UFAS means the Uniform Federal Accessibility Standards. Education's
Section 504 regulations reference sections 3 through 8 of UFAS.\16\
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\16\ 34 CFR 104.23(c).
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1991 Standards means the requirements in the ADA Standards for
Accessible Design originally published as Appendix A to 28 CFR part 36
on July 26, 1991, and republished as Appendix D to 28 CFR part 36 on
September 15, 2010.\17\
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\17\ 28 CFR 35.104. These standards were based on the ADA
Accessibility Guidelines (ADAAG) published by the Access Board
(Architectural and Transportation Barriers Compliance Board) in 1991
(1991 ADAAG). DOJ's ADA Web site contains links to HTML and PDF
versions of the 1991 Standards at www.ada.gov/stdspdf.htm.
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2010 Standards as defined in the Title II regulation, means the
2010 ADA Standards for Accessible Design, which consist of the 2004
ADAAG and the requirements contained in 28 CFR 35.151.\18\ In this
notice, these standards are referred to as the ``2010 Title II ADA
Standards.''
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\18\ 28 CFR 35.104. DOJ provides an online compilation of the
revised ADA regulations that includes the 2010 Standards, guidance
about the 2010 Standards, and the Title II and Title III regulations
and the interpretive guidance accompanying the regulations, at
www.ada.gov/2010ADAstandards_index.htm. There are links to HTML,
PDF screen, and PDF print versions of the 2010 Standards and the
regulations. (The online version also includes the 2010 Title III
ADA Standards for the purposes of the Title III regulations, i.e.,
28 CFR part 36, subpart D, and 2004 ADAAG.)
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2004 ADAAG means the requirements set forth in appendices B and D
to 36 CFR part 1191 (2009).\19\
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\19\ 28 CFR 35.104.
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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\
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\20\ 28 CFR 35.151(a) (new construction); 28 CFR 35.151(b)
(alterations).
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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\
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\21\ See definition of 1991 Standards in the Definitions of
Standards Referenced in this Notice section of this notice.
\22\ The 1991 Title II regulations provided that design,
construction, or alterations of facilities in conformance with UFAS
or the 1991 Standards shall be deemed compliant with the relevant
requirements, except that if the public entity chose the 1991
Standards, the elevator exemption set forth at section 4.1.3(5) and
section 4.1.6(1)(k) of those standards did not apply. All references
in this notice to the ``elevator exemption'' in connection with the
1991 Standards refer to the exemption from these specific sections
of the 1991 Standards. The elevator exemption, applicable to certain
private buildings under the 1991 Standards pursuant to the 1991
Title III ADA regulations, provided that, with some exceptions,
elevators were not required in facilities that have less than three
stories or have less than 3,000 square feet per story. Consequently,
although the 1991 Standards contained an elevator exemption, the
Title II regulations prohibited public entities that chose to use
the 1991 Standards for new construction or alterations from applying
the elevator exemption. 28 CFR 35.151(c).
\23\ 28 CFR 35.151(c).
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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\
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\24\ That same day, DOJ also published revisions to the Title
III regulations (75 FR 56236).
\25\ See definition of the 2010 Standards (2010 Title II ADA
Standards) in the Definitions of Standards Referenced in this Notice
section in this notice.
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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.
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\26\ 28 CFR 35.151(c)(2).
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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\
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\27\ 75 FR 56164, 56213 (Sep. 15, 2010).
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Education's Enforcement of DOJ's Title II Regulations
Public entities that receive Federal financial assistance are
subject to both Title II and Section 504, and, as described previously,
Education shares enforcement responsibilities with DOJ for Title II
because it is the designated agency for investigation of complaints and
voluntary compliance under Title II. For new construction and
alterations commenced on or after March 15, 2012, the 2010 Title II ADA
Standards will be
[[Page 14975]]
used by Education in its enforcement of the Title II regulations.\28\
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\28\ 28 CFR 35.151(c)(3). In other words, for the purposes of
Title II compliance, a public entity must comply with the 2010 Title
II ADA Standards as of March 15, 2012, even if UFAS remains an
option under the Section 504 regulations for some period after this
date. In addition, DOJ, which enforces Title III of the ADA, has
advised Education that as of March 15, 2012, entities subject to
Title III must use the 2010 Title III ADA Standards for the purposes
of Title III ADA compliance.
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Education's Intent To Revise its Section 504 Regulations To Adopt the
2010 Title II ADA Standards
In the preamble to the final Title II regulation, DOJ stated that
Federal agencies that extend Federal financial assistance should revise
their Section 504 regulations to adopt the 2010 Standards as Section
504 standards for new construction and alterations.\29\ Following
issuance of the final rule, DOJ reiterated its intent to work with
Federal agencies ``to revise their Section 504 regulations in the near
future to adopt the 2010 Standards as the appropriate accessibility
standard for their recipients.'' \30\ The 2010 Standards were adopted
through formal rulemaking and were subject to substantial scrutiny and
deliberation, including consideration of costs and benefits; we intend
to harmonize the corresponding requirements of Education's Section 504
regulations with the Title II requirements. For these reasons, in
coordination with DOJ, we are planning to initiate rulemaking to
address the relevant standards of Education's Section 504 regulations
for new construction and alterations commencing on or after March 15,
2012, by proposing an amendment to adopt the 2010 Title II ADA
Standards, in lieu of UFAS, except that Exception (1) to Section
206.2.3 would not apply.\31\
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\29\ 75 FR 56164, 56213 (Sep. 15, 2010) (Because ``construction
in accordance with UFAS would no longer satisfy ADA requirements[,]
* * * the Department [of Justice] would coordinate a government wide
effort to revise Federal agencies' section 504 regulations to adopt
the [2010 Title II ADA Standards] as the Standard for new
construction and alterations.'').
\30\ Memorandum dated March 29, 2011, from Thomas E. Perez,
Assistant Attorney General, Division of Civil Rights, U.S. DOJ, to
Federal Agency Civil Rights Directors and General Counsels, titled
``Permitting Entities Covered by the Federally Assisted Provisions
of Section 504 of the Rehabilitation Act to Use the 2010 ADA
Standards for Accessible Design as an Alternative Accessibility
Standard for New Construction and Alterations'' (March 29, 2011 DOJ
memorandum.) This memorandum is available on DOJ's ADA Web site at
http://www.ada.gov/504_memo_standards.htm.
\31\ Section 206.2.3 of the 2010 Title II ADA Standards requires
that an accessible route connect each story and mezzanine in multi-
story facilities, which means that an elevator is required unless
there is an applicable exception. Exception (1) to Section 206.2.3
exempts from this requirement certain private facilities that are
less than three stories or that have less than 3000 square feet per
story. Because Education's Section 504 regulations for new
construction and alterations impose the same obligation on
recipients whether they are public or private entities, the
Department is announcing that it will not permit recipients that are
private entities to avail themselves of Exception (1).
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Applicable Standards Under the Department of Education's Section 504
Regulation
Because the only standard specifically incorporated by reference in
Education's Section 504 regulations at this time is UFAS, we have
received questions both about whether, for new construction and
alterations commenced on or after September 15, 2010, but before March
15, 2012, we will interpret Education's Section 504 regulations to deem
conformance with the 2010 Title II ADA Standards or the 1991 Standards
without the elevator exemption as compliance with these requirements,
and about which standards will be permissible on or after March 15,
2012. DOJ, exercising its Section 504 coordinating authority, has
advised all affected Federal agencies that, until the agencies revise
their Section 504 regulations, they may issue guidance to recipients
that permits, but does not require, recipients to use the 2010 Title II
ADA Standards as an acceptable alternative to UFAS for the purposes of
compliance with Section 504.\32\
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\32\ March 29, 2011 DOJ memorandum.
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Standards Applicable Prior to March 15, 2012
We announce, through this notice, that we will permit, but not
require, recipients to use the 2010 Standards as adopted in the Title
II regulations, except that Exception (1) in Section 206.2.3 does not
apply, as an acceptable alternative accessibility standard for new
construction and alterations commencing on or after September 15, 2010,
but before March 15, 2012. In addition, based on our longstanding
policy, we will also continue to interpret 34 CFR 104.23(c), which
addresses UFAS and departures from UFAS, to permit, but not require,
recipients to use the 1991 Standards without the elevator exemption as
an acceptable alternative accessibility standard for new construction
and alterations that commence before March 15, 2012. This is also
consistent with the corresponding provision in the Title II
regulations, 28 CFR 35.151(c), which provides:
If physical construction or alterations commence on or after
September 15, 2010 and before March 15, 2012, then new construction
and alterations subject to this section may comply with one of the
following: The 2010 Standards, UFAS, or the 1991 Standards except
that the elevator exemption contained at section 4.1.3(5) and
section 4.1.6(1)(k) of the 1991 Standards shall not apply.
Departures from particular requirements of either standard by use of
other methods shall be permitted when it is clearly evident that
equivalent access to the facility or part of the facility is thereby
provided.\33\
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\33\ 28 CFR 35.151(c)(2).
Thus, for the period spanning September 15, 2010, to March 14,
2012, we are deeming compliance with any of the following three
accessibility standards as compliance with 34 CFR 104.23: (1) The 1991
Standards without the elevator exemption, (2) the 2010 Title II ADA
Standards except that Exception (1) to Section 206.2.3 does not apply,
or (3) UFAS. We note, however, that a recipient may select only one
standard from among these options for purposes of complying with 34 CFR
104.23.
Because under Education's Section 504 regulations we apply the same
accessibility standards for new construction and alterations to private
and public recipients, this notice applies to recipients of Federal
financial assistance from the Department regardless of whether they are
public or private entities. That is, under the interpretation announced
in this notice, both private and public recipients may make the same
choice of a standard for the purposes of compliance with Education's
Section 504 regulations. Education wishes to emphasize that private
entities that are covered both by our Section 504 regulation and by
Title III of the ADA and that choose the 2010 Standards may not rely on
the elevator exception found at Exception (1) to section 206.2.3 of the
2010 Standards.
Standards Applicable Under Section 504 as of March 15, 2012
In addition, effective March 15, 2012, because the 1991 Standards
will no longer be an applicable standard under the ADA for any new
construction and alterations, we are announcing that for Section 504,
recipients will have the choice of the 2010 Title II ADA Standards
(except that Exception (1) to Section 206.2.3 does not apply) or UFAS
until Education has revised its Section 504 regulation to adopt the
2010 Title II ADA Standards. Please refer to the following table of
dates and accessibility standards for a quick
[[Page 14976]]
reference to standards for complying with 34 CFR 104.23.
Table of Applicable Standards for Complying With 34 CFR 104.23
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Date construction or alteration Applicable standards for
commenced complying with 34 CFR 104.23
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Between 6/3/77 and 1/17/91............. ANSI A117.1-1961 (R1971).\34\
Between 1/18/91 and 1/25/92............ UFAS.
Between 1/26/92 and 9/14/10............ UFAS or 1991 Standards without
the elevator exception.
Between 9/15/10 and 3/14/12............ UFAS, 1991 Standards without
the elevator exception, or
2010 Title II ADA Standards
except that Exception (1) to
Section 206.2.3 does not
apply.
On or after 3/15/2012 (until the UFAS or 2010 Title II ADA
regulations are revised). Standards except that
Exception (1) to Section
206.2.3 does not apply.
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\34\ This is the ``American National Standards Specifications
for Making Buildings and Facilities Accessible to, and Usable by,
the Physically Handicapped,'' published by the American National
Standards Institute, Inc.
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Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
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You may also access documents of the Department published in the
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by the Department.
This notice is also available on OCR's Web site at: http://www.ed.gov/ocr.
Authority: 29 U.S.C. 794.
Dated: March 8, 2012.
Arne Duncan,
Secretary of Education.
[FR Doc. 2012-6122 Filed 3-13-12; 8:45 am]
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