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

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]

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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