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

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]

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.