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

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:

UFAS means the Uniform Federal Accessibility Standards. Education's Section 504 regulations reference sections 3 through 8 of UFAS.[16]

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]

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.”

2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009).[19]

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.

16.  34 CFR 104.23(c).

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.

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.)

19.  28 CFR 35.104.


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