['Disabilities and ADA']
['Disabilities and ADA']
05/22/2024
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Parts 35 and 36
[CRT Docket No. 124; AG Order No. 3702-2016]
RIN 1190-AA59
Amendment of Americans With Disabilities Act Title II and Title III Regulations To Implement ADA Amendments Act of 2008
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Final rule.
SUMMARY: The Department of Justice (Department) is issuing this final rule to amend its Americans with Disabilities Act (ADA) regulations in order to incorporate the statutory changes to the ADA set forth in the ADA Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009. In response to earlier Supreme Court decisions that significantly narrowed the application of the definition of “disability” under the ADA, Congress enacted the ADA Amendments Act to restore the understanding that the definition of “disability” shall be broadly construed and applied without extensive analysis. Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability. In this final rule, the Department is adding new sections to its title II and title III ADA regulations to set forth the proper meaning and interpretation of the definition of “disability” and to make related changes required by the ADA Amendments Act in other sections of the regulations.
DATES: This rule will take effect October 11, 2016.
FOR FURTHER INFORMATION CONTACT: Rebecca Bond, Section Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY); this is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
You may obtain copies of this final rule in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) and (800) 514-0383 (TTY). This final rule is also available on the ADA Home Page at www.ada.gov.
SUPPLEMENTARY INFORMATION: The meaning and interpretation of the definitions of “disability” in the title II and title III regulations are identical, and the preamble will discuss the revisions to both regulations concurrently. Because the ADA Amendments Act's revisions to the ADA have been codified into the U.S. Code, the final rule references the revised U.S. Code provisions except in those cases where the reference is to the Findings and Purposes of the ADA Amendments Act, in which case the citation is to section 2 of Public Law 110-325, September 25, 2008.1
1 The Findings and Purposes of the ADA Amendments Act are also referenced in the codification of the ADA as a note to 42 U.S.C. 12101.
This final rule was submitted to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs for review prior to publication in the Federal Register.
I. Executive Summary
Purpose
This rule is necessary in order to incorporate the ADA Amendments Act's changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department's ADA regulations and to provide additional guidance on how to apply those changes.
Legal Authority
The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110-325, sec. 8, 122 Stat. 3553, 3559 (2008). The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction set forth in section 3. 42 U.S.C. 12205a.
Summary of Key Provisions of the Act and Rule
The ADA Amendments Act made important changes to the meaning and interpretation of the term “disability” in the ADA in order to effectuate Congress's intent to restore the broad scope of the ADA by making it easier for an individual to establish that he or she has a disability. See Public Law 110-325, sec. 2(a)(3)-(7). The Department is making several major revisions to the meaning and interpretation of the term “disability” contained in the title II and title III ADA regulations in order to implement the ADA Amendments Act. These regulatory revisions are based on specific provisions in the ADA Amendments Act or on specific language in the legislative history. The revised language clarifies that the term “disability” shall be interpreted broadly and explains that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability and that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. The revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities that specifically includes the operation of major bodily functions. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity. These rules of construction state the following:
- —That the term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
- —that an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population;
- —that the primary issue in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual's impairment substantially limits a major life activity;
- —that in making the individualized assessment required by the ADA, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADA Amendments Act;
- —that the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence;
- —that the ameliorative effects of mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
- —that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
- —that an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. The final rule also states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. It also provides that individuals covered only under the “regarded as” prong are not entitled to reasonable modifications.
The ADA Amendments Act's revisions to the ADA apply to title I (employment), title II (State and local governments), and title III (public accommodations) of the ADA. Accordingly, consistent with Executive Order 13563's instruction to agencies to coordinate rules across agencies and harmonize regulatory requirements, the Department has adopted, where appropriate, regulatory language that is identical to the revisions to the Equal Employment Opportunity Commission's (EEOC) title I regulations implementing the ADA Amendments Act. See 76 FR 16978 (Mar. 25, 2011). This will promote consistency in the application of the ADA and avoid confusion among entities subject to both titles I and II, as well as those subject to both titles I and III.
Changes Made From the Proposed Rule
The final rule retains nearly all of the proposed regulatory text, although some sections were reorganized and renumbered. The section-by-section analysis in appendix C to part 35 and appendix E to part 36 responds to comments and provides additional interpretive guidance on particular provisions. The revisions to the regulatory text, which include substantive changes in response to comments, include the following:
- Added Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment in §§35.108(b)(2) and 36.105(b)(2).
- Added “writing” as an example of a major life activity in §§35.108(c) and 36.105(c).
- Revised the discussion of the “regarded as prong” in §§35.108(f) and 36.105(f) to clarify that the burden is on a covered entity to establish that, objectively, an impairment is “transitory and minor” and therefore not covered by the ADA.
- Modified the rules of construction to make them more consistent with the statute and to provide more clarity, including §§35.108(a)(2) and 36.105(a)(2), 35.108(c)(2) and 36.105(c)(2), and 35.108(d)(1) and 36.105(d)(1).
- Revised or added several provisions to more closely conform to the EEOC regulation.
II. Summary of Regulatory Assessment
As noted above, Congress enacted the ADA Amendments Act in 2008 to ensure that persons with disabilities who were denied coverage previously under the ADA would again be able to rely on the protections of the ADA. As a result, the Department believes that the enactment of the law benefits millions of Americans, and that the benefits to many of these individuals are non-quantifiable, but nonetheless significant. This rule incorporates into the Department's titles II and III regulations the changes made by the ADA Amendments Act. In accordance with OMB Circular A-4, the Department estimates the costs and benefits of this proposed rule using a pre-ADA Amendments Act baseline. Thus, the effects that are estimated in this analysis are due to statutory mandates that are not under the Department's discretion. The Department has determined that the costs of this rule do not reach $100 million in any single year, and thus it is not an economically significant rule.
In the Initial Regulatory Assessment (Initial RA), the analysis focused on estimating costs for processing and providing reasonable modifications and testing accommodations 2 to individuals with learning disabilities and ADHD 3 for extra time on exams as a direct result of the ADA Amendments Act. Although the Department's analysis focused only on these specific costs, the Department recognized that the ADA Amendments Act extends coverage to people with the full range of disabilities, and the accommodation of those individuals might entail some economic costs. After review of the comments, and based on the Department's own research, the Department has determined, however, that the above-referenced exam costs represent the only category of measurable compliance costs that the ADA Amendments Act will impose and the Department was able to assess. While other ADA Amendments Act compliance costs might also ensue, the Department has not been able to specifically identify and measure these potential costs. The Department believes, however, that any other potential costs directly resulting from the ADA Amendments Act will likely be minimal and have little impact on the overall results of this analysis.
2 For ease of reference for purposes of the discussion of costs in the Regulatory Assessment, the Department will use the term “accommodations” to reference the provision of extra time, whether it is requested as a reasonable modification pursuant to 28 CFR 35.130(b)(7) and 28 CFR 36.302, or as a testing accommodation (modifications, accommodations, or auxiliary aids and services) provided pursuant to 42 U.S.C. 12189 and 28 CFR 36.309. The Department wishes to preserve the legal distinction between these two terms in its guidance on the requirements of the ADA Amendments Act so it will use both terms where appropriate in the Section by Section Analysis and Guidance.
3 The Department is using the term ADHD in the same manner as it is currently used in the Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition (DSM-5), to refer to three different presentations of symptoms: predominantly inattentive (which was previously known as “attention deficit disorder); predominantly hyperactive or impulsive; or a combined presentation of inattention and hyperactivity-impulsivity. The DSM-5 is the most recent edition of a widely-used manual designed to assist clinicians and researchers in assessing mental disorders. See Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition DSM-5, American Psychiatric Association, at 59-66 (2013).
The data used to support the estimates in this Final Regulatory Assessment (Final RA) focus on (1) the increase in the number of postsecondary students or national examination test takers requesting and receiving accommodations—specifically, requests for extra time on exams—as a result of the changes made to the ADA by the ADA Amendments Act; and (2) the actual cost of these additional accommodations, which involves costs of providing staff with the training on the changes made to the ADA by the ADA Amendments Act, administrative costs to process the additional accommodation requests made as a direct result of the ADA Amendments Act, and the costs of additional proctor time needed for these additional accommodation requests. For both postsecondary institutions and national testing entities, costs are broken down into three components:
- One-time cost of training staff on relevant impact of ADA Amendments Act;
- Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
- Annual cost of proctoring additional time on exams as a direct result of the ADA. Amendments Act.
Based on the Department's calculations, total costs to society for implementing the revisions to the ADA Amendments Act range from $31.4 million to $47.1 million in the first year. The first year of costs will be higher than all subsequent years because the first year includes the one-time costs of training. Note that even the high end of this first-year cost range is well within the $100 million mark that signifies an “economically significant” regulation. The breakdown of total costs by entity is provided in the table below.
| Cost category | Low value | Med value | High value |
|---|---|---|---|
| Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | $12.8 | $18.0 | $23.1 |
| Postsecondary Institutions: ONE-TIME Cost for Additional Training at Institutions | 9.9 | 9.9 | 9.9 |
| National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | 6.8 | 9.5 | 12.2 |
| National Exams: ONE-TIME Cost for Additional Training at Institutions | 1.9 | 1.9 | 1.9 |
| Total | 31.4 | 39.3 | 47.1 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total costs of implementing this final rule are approximately $214.2 million over 10 years, as shown in the table below.
| Total discounted value ($ millions) | Annualized estimate ($ millions) | Year dollar | Discount rate (percent) | Period covered |
|---|---|---|---|---|
| $214.2 | $28.6 | 2015 | 7 | 2016-2025 |
| 243.6 | 26.3 | 2015 | 3 | 2016-2025 |
III. Background
The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110-325, sec. 8. As with other civil rights laws, individuals seeking protection in court under the anti-discrimination provisions of the ADA generally must allege and prove that they are members of the “protected class.” Under the ADA, this typically means they have to show that they meet the statutory definition of being an “individual with a disability.” See 154 Cong. Rec. S8840-44 (daily ed. Sept. 16, 2008) (Statement of the Managers); see also H.R. Rep. No. 110-730, pt. 2, at 6 (2008) (House Committee on the Judiciary). Congress did not intend, however, for the threshold question of disability to be used as a means of excluding individuals from coverage. H.R. Rep. No. 110-730, pt. 2, at 5 (2008).
In the original ADA, Congress defined “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. 12202(1). Congress patterned this three-part definition of “disability”—the “actual,” “record of,” and “regarded as” prongs—after the definition of “handicap” found in the Rehabilitation Act of 1973. See H.R. Rep. No. 110-730, pt. 2, at 6 (2008). By doing so, Congress intended that the relevant case law developed under the Rehabilitation Act would be generally applicable to the term “disability” as used in the ADA. H.R. Rep. No. 101-485, pt. 3, at 27 (1990); see also S. Rep. No. 101-116, at 21 (1989); H.R. Rep. No. 101-485, pt. 2, at 50 (1990). Congress expected that the definition of “disability” and related terms, such as “substantially limits” and “major life activity,” would be interpreted under the ADA “consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act”—i.e., expansively and in favor of broad coverage. Public Law 110-325, sec. 2(a)(1)-(8) and (b)(1)-(6); see also 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (“When Congress passed the ADA in 1990, it adopted the functional definition of disability from . . . Section 504 of the Rehabilitation Act of 1973, in part, because after 17 years of development through case law the requirements of the definition were well understood. Within this framework, with its generous and inclusive definition of disability, courts treated the determination of disability as a threshold issue but focused primarily on whether unlawful discrimination had occurred.”); H.R. Rep. No. 110-730, pt. 2, at 6 & n.6 (2008) (noting that courts had interpreted the Rehabilitation Act definition “broadly to include persons with a wide range of physical and mental impairments”).
That expectation was not fulfilled. Public Law 110-325, sec. 2(a)(3). The holdings of several Supreme Court cases sharply narrowed the broad scope of protection Congress originally intended under the ADA, thus eliminating protection for many individuals whom Congress intended to protect. Id. sec. 2(a)(4)-(7). For example, in Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999), the Court ruled that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. In Sutton, the Court also adopted a restrictive reading of the meaning of being “regarded as” disabled under the ADA's definition of “disability.” Id. at 489-94. Subsequently, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court held that the terms “substantially” and “major” in the definition of “disability” “need to be interpreted strictly to create a demanding standard for qualifying as disabled” under the ADA, id. at 197, and that to be substantially limited in performing a major life activity under the ADA, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” Id. at 198.
As a result of these Supreme Court decisions, lower courts ruled in numerous cases that individuals with a range of substantially limiting impairments were not individuals with disabilities, and thus not protected by the ADA. See 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (“After the Court's decisions in Sutton that impairments must be considered in their mitigated state and in Toyota that there must be a demanding standard for qualifying as disabled, lower courts more often found that an individual's impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.”). Congress concluded that these rulings imposed a greater degree of limitation and expressed a higher standard than it had originally intended, and unduly precluded many individuals from being covered under the ADA. Id. at S8840-41 (“Thus, some 18 years later we are faced with a situation in which physical or mental impairments that would previously have been found to constitute disabilities are not considered disabilities under the Supreme Court's narrower standard” and “[t]he resulting court decisions contribute to a legal environment in which individuals must demonstrate an inappropriately high degree of functional limitation in order to be protected from discrimination under the ADA.”).
Consequently, Congress amended the ADA with the Americans with Disabilities Act Amendments Act of 2008. This legislation is the product of extensive bipartisan efforts, and the culmination of collaboration and coordination between legislators and stakeholders, including representatives of the disability, business, and education communities. See 154 Cong. Rec. H8294-96 (daily ed. Sept. 17, 2008) (joint statement of Reps. Steny Hoyer and Jim Sensenbrenner); see also 154 Cong. Rec. S8840-44 (daily ed. Sept. 16, 2008) (Statement of the Managers).
The ADA Amendments Act modified the ADA by adding a new “findings and purposes” section focusing exclusively on the restoration of Congress's intent in the ADA to broadly interpret the term “disability” to ensure expansive coverage. These new ADA Amendments Act-specific findings and purposes are meant to restore a broad scope of protection under the ADA by providing clear and enforceable standards that support the mandate to eliminate discrimination against people with disabilities. The “purposes” provisions specifically address the Supreme Court decisions that narrowed the interpretation of the term “disability,” rejecting the Toyota strict interpretation of the terms “major” and “substantially;” the Sutton requirement that ameliorative mitigating measures must be considered when evaluating whether an impairment substantially limits a major life activity; and the narrowing of the third, “regarded as” prong of the definition of “disability” in Sutton and School Board of Nassau County v. Arline, 480 U.S. 273 (1987). In addition, the ADA Amendments Act specifically rejects the EEOC's interpretation of “substantially limited” as meaning “significantly restricted,” noting that it is too demanding of a standard. See Public Law 110-325 sec. 2(b).
The findings and purposes section of the ADA Amendments Act “gives clear guidance to the courts and . . . [is] intend[ed] to be applied appropriately and consistently.” 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers). The Department has amended its regulations to reflect the ADA Amendments Act, including its findings and purposes.
IV. Summary of the ADA Amendments Act of 2008
The ADA Amendments Act restores the broad application of the ADA by revising the ADA's “Findings and Purposes” section, expanding the statutory language regarding the meaning and interpretation of the definition of “disability,” providing specific rules of construction for interpreting that definition, and expressly superseding the standards enunciated by the Supreme Court in Sutton and Toyota and their progeny.
First, the ADA Amendments Act deletes two findings that were in the ADA: (1) That “some 43,000,000 Americans have one or more physical or mental disabilities,” and (2) that “individuals with disabilities are a discrete and insular minority.” 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers); see also Public Law 110-325, sec. 3. As explained in the 2008 Senate Statement of the Managers, “[t]he [Supreme] Court treated these findings as limitations on how it construed other provisions of the ADA. This conclusion had the effect of interfering with previous judicial precedents holding that, like other civil rights statutes, the ADA must be construed broadly to effectuate its remedial purpose. Deleting these findings removes this barrier to construing and applying the definition of disability more generously.” 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers).
Second, the ADA as amended clarifies Congress's intent that the definition of “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. 12102(4)(A).
Third, the ADA as amended provides an expanded definition of what may constitute a “major life activity,” within the meaning of the ADA. 42 U.S.C. 12102(2). The statute provides a non-exhaustive list of major life activities and specifically expands the category of major life activities to include the operation of major bodily functions. Id.
Fourth, although the amended statute retains the term “substantially limits” from the original ADA definition, Congress set forth rules of construction applicable to the meaning of substantially limited that make clear that the term must be interpreted far more broadly than in Toyota. 42 U.S.C. 12102(4); see also Public Law 110-325, sec. 2(b)(5). Congress was specifically concerned that lower courts had applied Toyota in a way that “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” Public Law 110-325, sec. 2(b)(5). Congress sought to convey that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Id.
Fifth, the ADA as amended prohibits consideration of the ameliorative effects of mitigating measures such as medication, assistive technology, or reasonable modifications when determining whether an impairment constitutes a disability. 42 U.S.C. 12102(4)(E)(i). Congress added this provision to address the Supreme Court's holdings that the ameliorative effects of mitigating measures must be considered in determining whether an impairment substantially limits a major life activity. Public Law 110-325, sec. 2(b)(2). The ADA as amended also provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. 42 U.S.C. 12102(4)(D).
Sixth, the ADA as amended makes clear that, despite confusion on the subject in some court decisions, the “regarded as” prong of the disability definition does not require the individual to demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. 42 U.S.C. 12102(3). With this clarifying language, an individual can once again establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because of an actual or perceived physical or mental impairment. The ADA Amendments Act also clarifies that entities covered by the ADA are not required to provide reasonable modifications to policies, practices, or procedures for individuals who fall solely under the regarded as prong. 42 U.S.C. 12201(h).
Finally, the ADA as amended gives the Attorney General explicit authority to issue regulations implementing the definition of “disability.” 42 U.S.C. 12205a.
V. Background on This Rulemaking and Public Comments Received
The Department published its Notice of Proposed Rulemaking (NPRM) proposing to amend its title II and title III ADA regulations in the Federal Register on January 30, 2014. 79 FR 4839 (Jan. 30, 2014). The comment period closed on March 31, 2014. The Department received a total of 53 comments on the NPRM from organizations representing persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals. The Section-by-Section analysis in the appendix to this rule addresses the comments related to specific regulatory language proposed in the NPRM.
Many commenters on the NPRM noted the value of the regulation to people with disabilities while a number of commenters on the Department's NPRM expressed concern that the Department's regulatory assessment unduly focused on individuals with learning disabilities who sought accommodations in testing or educational situations. These commenters asserted that the Department's discussion of the potential costs for testing entities or educational entities of complying with the ADA Amendments Act and this rule could be misunderstood to mean that the Department believed the changes in the definition of “disability” did not have an impact on individuals with other types of disabilities.
As discussed in the regulatory assessment, the Department believes that persons with all types of impairments, including, but not limited to, those enumerated in §§35.108(b) and 36.105(b), will benefit from the ability to establish coverage under the ADA as amended, and will therefore be able to challenge the denial of access to goods, services, programs, or benefits based on the existence of a disability. The Department's regulatory assessment is not a statement about the coverage of the ADA. Rather, it is a discussion of identifiable incremental costs that may arise as a result of compliance with the ADA Amendments Act and these implementing regulations. As explained in the regulatory assessment and under Section VII.A below, the Department believes that those costs are limited primarily to the context of providing reasonable modifications in higher education and testing accommodations by testing entities.
VI. Relationship of This Regulation to Revisions to the Equal Employment Opportunity Commission's ADA Title I Regulation Implementing the ADA Amendments Act of 2008
The EEOC is responsible for regulations implementing title I of the ADA addressing employment discrimination based on disability. On March 25, 2011, the EEOC published its final rule revising its title I regulation to implement the revisions to the ADA contained in the ADA Amendments Act. 76 FR 16978 (Mar. 25, 2011).4
4 On September 23, 2009, the EEOC published its NPRM in the Federal Register proposing revisions to the title I definition of “disability.” See 74 FR 48431. The EEOC received and reviewed more than 600 public comments in response to its NRPM. In addition, the EEOC and the Department held four joint “Town Hall Listening Sessions” throughout the United States and heard testimony from more than 60 individuals and representatives of the business/employer industry and the disability advocacy community.
Because the ADA's definition of “disability” applies to title I as well as titles II and III of the ADA, the Department has made every effort to ensure that its proposed revisions to the title II and III regulations are consistent with the provisions of the EEOC final rule. Consistency among the title I, title II, and title III rules will promote consistent application of the requirements of the ADA Amendments Act, regardless of the Federal agency responsible for enforcement or the ADA title that is enforced. Further, because most entities subject to either title II or title III are also subject to title I with respect to employment, they should already be familiar with the revisions to the definition of “disability” in the 4-year-old EEOC revised regulation. Differences in language between the title I rules and the Department's title II and title III rules are noted in the Section-by-Section analysis and are generally attributable to structural differences between the title I rule and the title II and III rules or to the fact that certain sections of the EEOC rule deal with employment-specific issues.
VII. Regulatory Process Matters
A. Executive Order 13563 and 12866—Regulatory Planning and Review
This final rule has been drafted in accordance with Executive Order 13563 of January 18, 2011, 76 FR 3821, Improving Regulation and Regulatory Review, and Executive Order 12866 of September 30, 1993, 58 FR 51735, Regulatory Planning and Review. Executive Order 13563 directs agencies, to the extent permitted by law, to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Department has determined that this rule is a “significant regulatory action” as defined by Executive Order 12866, section 3(f). The Department has determined, however, that this rule is not an economically significant regulatory action, as it will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule has been reviewed by the Office of Management and Budget (OMB) pursuant to Executive Orders 12866 and 13563.
Purpose and Need for Rule and Scope of Final Regulatory Assessment
This rule is necessary in order to incorporate into the Department's ADA regulations implementing titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) the ADA Amendments Act's changes to the ADA and to provide additional guidance on how to apply those changes. The ADA Amendments Act, which took effect on January 1, 2009, was enacted in response to earlier Supreme Court decisions that significantly narrowed the application of the definition of “disability” under the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The ADA Amendments Act clarifies the proper interpretation of the term “disability” in the ADA and fulfills congressional intent to restore the broad scope of the ADA by making it easier for individuals to establish that they have a disability within the meaning of the statute. See Public Law 110-325, sec. 2(a)(3)-(7). The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction presented in section 3. 42 U.S.C. 12205a. The Department is making several revisions to the title II and title III ADA regulations that are based on specific provisions in the ADA Amendments Act.
The Department notes that the Supreme Court cases limiting the application of the definition of “disability” had the most significant impact on individuals asserting coverage under title I of the ADA with respect to employment. The legislative history of the ADA Amendments Act is replete with examples of how individuals with a range of disabilities were unable to successfully challenge alleged discriminatory actions by employers because courts found that they did not qualify as individuals with disabilities under the Supreme Court's narrow standards. See, e.g., S. 154 Cong. Rec. S8840-44 (daily ed. Sept. 16, 2008) (Statement of the Managers). With respect to titles II and III, while the statutory amendments required by the ADA Amendments Act affect persons with all types of disabilities and across all titles of the ADA, Congress anticipated that the ADA Amendments Act's expanded definition would especially impact persons with learning disabilities who assert ADA rights in education and testing situations. See H.R. Rep. No. 110-730, pt. 1, at 10-11 (2008); see also 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008). Congress was concerned about the number of individuals with learning disabilities who were denied reasonable modifications or testing accommodations (e.g., extra exam time) because covered entities claimed these individuals did not have disabilities covered by the ADA.
In the NPRM, the Department requested public comments on whether the changes made by the ADA Amendments Act to titles II and III and that are addressed in the proposed rule would have benefits or costs in areas other than additional time for postsecondary students and national examination test takers with ADHD or learning disabilities. Those comments and the Department's response are discussed below. The Department wishes to stress that, although its economic analysis is focused on estimating costs for processing requests and providing extra time on exams as a direct result of the ADA Amendments Act, the ADA, as amended, extends coverage to individuals with the full range of disabilities and affords such individuals the full range of nondiscrimination protections under the ADA.5 The Department is aware that the accommodation of those individuals might entail some economic costs; however, it appears that in light of the legislative history and the experience of the Department in resolving ADA claims from 1990 to the present, the above-referenced exam costs represent the only category of measurable compliance costs that the ADA Amendments Act will impose and the Department was able to assess. While other ADA Amendments Act compliance costs might also ensue, the Department has not been able to specifically identify and measure these potential costs. The Department believes, however, that any other potential costs directly resulting from restoration of coverage to individuals with disabilities who assert their rights under other ADA nondiscrimination provisions will likely be minimal and have little impact on the overall results of this analysis.
5 A number of commenters on the NPRM expressed concern that the Department's focus on the economic impact of the ADA Amendments Act with respect to individuals with learning disabilities and in the area of education and testing might lead the public to think that the Department did not believe the ADA Amendments Act would benefit persons with other disabilities or in the full range of situations and contexts covered by titles II and III of the ADA.
Public Comments on Regulatory Assessment and Department Responses
This section discusses public comments to the Initial RA that accompanied the NPRM, as well as changes made to the estimation of likely costs of this rule in response to those comments.
While more than 50 comments were received during the NPRM comment period, only a few of those directly addressed the assumptions, data, or methodology used in the Initial RA. The Department received comments from persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals. The preamble to this final rule provides the primary forum for substantive responses to these comments.
General and Recurring Concerns Expressed in Comments
Many commenters expressed appreciation for the proposed regulation, with several noting that the regulation would offer qualitative and quantitative benefits. Some of the quantitative benefits noted by commenters were a reduction in litigation costs as well as access to educational opportunities for persons with disabilities that would enhance employment prospects, productivity, and future earnings and investments. Qualitative benefits referenced in the comments included enhanced personal self-worth and dignity, as well as the values of equity, fairness, and full participation. Other commenters expressed concern about costs associated with implementation of the regulation.
The Department reviewed a number of comments suggesting that it underestimated the costs that postsecondary schools or national testing entities will incur to comply with the ADA Amendments Act. Commenters stated that the ADA Amendments Act will lead to a significant increase in the number of students seeking accommodations from postsecondary schools, which will lead to substantially increased direct costs (e.g., the costs of providing additional exam time and other accommodations to students with disabilities) and indirect costs (e.g., the costs of processing these requests, complaints to the Office for Civil Rights at the U.S. Department of Education, and lawsuits). Commenters further stated that the Department overlooked the costs that postsecondary schools will incur in providing accommodations other than additional exam time, such as tutors, note takers, auxiliary aids, e-books, etc. These commenters suggested that postsecondary schools will need to hire additional staff to manage the additional administrative burden that the ADA Amendments Act imposes.
Those comments and as well as other related comments, are specifically addressed below. But, as a threshold matter, the Department believes that the concerns predicated on the assumption of a significant rise in students seeking accommodations due to changes brought about by the ADA Amendments Act are overstated. One of the primary purposes of the ADA Amendments Act was to restore ADA coverage to a subset of individuals with disabilities who lost ADA protection as a result of a series of Supreme Court decisions dating back to 1999.
While the Department recognizes that there has been an increase in the number of students with disabilities requesting accommodations at postsecondary institutions, much of this increase is likely not attributable to the passage of the ADA Amendments Act. Commenters and existing data suggest that, for the most part, increases in the number of students with disabilities attending college and seeking accommodations are likely related to the following factors:
- There are more diagnoses of disabilities in children overall since 1997; 6
6 Coleen A. Boyle, et al., Trends in the Prevalence of Developmental Disabilities in US Children, 1997-2008, 127 Pediatrics 1034 (2011), available at http://pediatrics.aappublications.org/content/pediatrics/early/2011/05/19/peds.2010-2989.full.pdf (last visited April 22, 2016); see also Matt Krupnick, Colleges respond to growing ranks of learning disabled, The Hechinger Report (Feb. 13, 2014), available at http://hechingerreport.org/colleges-respond-to-growing-ranks-of-learning-disabled/ (last visited Feb. 3, 2016). - More students are attending college generally; 7
7 U.S. Department of Education, National Center for Education Statistics, Fast Facts: Enrollment, available at http://nces.ed.gov/fastfacts/display.asp?id=98 (last visited Feb. 3, 2016). - Other laws such as the Individuals with Disabilities Education Act (IDEA) and section 504 are causing students with disabilities to be identified more widely and at a younger age; 8
8 See Stephen B. Thomas, College Students and Disability Law, 33 J. Special Ed. 248 (2000), available at http://www.ldonline.org/article/6082/ (last visited Apr. 22, 2016). - The stigma of identifying as a person with a disability appears to have diminished since the passage of the ADA in 1990;
- Diagnoses of autism spectrum disorders among children have increased significantly since 1997, perhaps as a result of improved diagnostic tools and protocols; 9 and
9 Centers for Disease Control and Prevention, Prevalence of Autism Spectrum Disorder Among Children Aged 8 Years—Autism and Developmental Disabilities Monitoring Network, 11 Sites, United States, 2010, MMWR 2014; 63 (SS-02), available at http://www.cdc.gov/mmwr/pdf/ss/ss6302.pdf (last visited April 22, 2016). - Postsecondary schools have improved their ability to accommodate students with disabilities, thus encouraging more students to seek such accommodations, and empowering students with disabilities to enroll in college and remain enrolled there.10
10 See Justin Pope, Students with Autism, Other Disabilities Have More College Options Than Ever Before, Huff Post Impact, available at http://www.huffingtonpost.com/2013/09/16/autism-college-options_n_3934583.html (Sept. 16, 2013) (last visited Feb. 3, 2016).
Most of the students affected by the ADA Amendments Act are students whose impairments did not clearly meet the definition of “disability” under the ADA after the series of Supreme Court decisions beginning in 1999 reduced the scope of that coverage. For instance, under the narrowed scope of coverage, some individuals with learning disabilities or ADHD may have been denied accommodations or failed to request them in the belief that such requests would be denied. As a result, the most likely impact of the ADA Amendments Act is seen in the number of students with disabilities eligible to request and receive accommodations in testing situations. There are different types of accommodations requested in testing situations, but requests for additional exam time appear to be the type of accommodation most likely to have a significant, measurable cost impact. Other types of accommodations requested in testing situations are expected to incur few to no additional costs as a result of the ADA Amendments Act and this rule. For instance, requests for accommodations such as the use of assistive technology or the need for alternative text formats were the types of accommodations that would have been granted prior to the passage of the ADA Amendments Act because students with sensory disabilities needing these types of accommodations would have been covered by the ADA even under the narrower scope of coverage arising from the application of the Supreme Court's decisions in Toyota and Sutton. As a result, those types of accommodations cannot be directly attributed to the ADA Amendments Act. In addition, other types of accommodations such as adjustments to the testing environment (e.g., preferential seating or alternative locations) or the ability to have snacks or drinks would result in minimal or no costs. Therefore, the Department's examination of the costs of this rule is confined to those accommodations that individuals at postsecondary institutions or taking national examinations are most likely to request as a result of the ADA Amendments Act and that are most likely to incur measurable costs—extra time on tests and examinations.
One commenter, however, asserted that costs should be estimated for entities other than postsecondary institutions and testing entities, such as elementary and secondary schools, courthouses, etc. Certain concerns related to elementary and secondary schools are addressed below, but the Department found no direct evidence to indicate that institutions other than postsecondary institutions and testing entities will incur any significant economic impact as a result of accommodating individuals now covered under the ADA after passage of the ADA Amendments Act. Even after conducting further research, the Department was unable to identify any accommodations that would result in compliance costs that could be specifically attributable to the ADA Amendments Act other than those identified and measured in this analysis—i.e., accommodations for extra time on exams. While the Department anticipates that other individuals with disabilities will benefit from the ADA Amendments Act, no specific subsets of individuals with disabilities or specific accommodations were identified. Accordingly, it appears that the economic impact of ADA Amendments Act compliance for entities other than postsecondary schools and testing entities will not significantly affect the overall economic impact of the rule, and thus those costs are not analyzed here.
One commenter cited the 2013-2014 Institutional Disability Access Management Strategic Plan at Cornell University 11 as an example of the kind of careful planning done by postsecondary institutions to address the needs of students with disabilities as a basis for determining that the costs of implementing the ADA Amendments Act will be very high. This document focuses almost exclusively on initiatives taken in furtherance of ADA compliance generally, rather than compliance with the ADA Amendments Act specifically. Further, this document discloses that Cornell University annually updates its plans and policies toward individuals with disabilities. Nothing in this document indicates that Cornell University is absorbing high costs as a result of such ongoing updates, or that the ADA Amendments Act has presented Cornell University with an unusually high burden, over and above the ordinary obligations that the ADA itself imposes. It is true that this document reflects careful, comprehensive, and possibly costly planning on the behalf of students with disabilities, but the expense inherent in such planning is attributable to the overall requirements of the ADA itself, rather than the implementation of the ADA Amendments Act.
11 Cornell University—Disability Information, Institutional Disability Access Management Strategic Plan for Cornell University, July 1, 2013-June 30, 2014, available at http://disability.cornell.edu/docs/2013-2014-disability-strategic-plan.pdf (last visited Feb. 3, 2016).
Comments Regarding the ADA and Related Laws
Many of the commenters' points regarding increased costs appear to apply to concerns about the costs of complying with the ADA generally and not to costs related to expanded coverage due to the ADA Amendments Act. It is true that in some cases the costs of accommodating some students with more severe mobility and sensory disabilities could be significant, but these students were clearly covered even under the restrictive standards set forth by Sutton and Toyota, and accordingly, such costs cannot be attributed to the implementation of the ADA Amendments Act. One commenter expressed a concern that there has been an increase in requests for “exotic or untrained animals as service or emotional support animals” in student housing provided by postsecondary institutions. The Department notes that neither “exotic animals” nor “emotional support animals” qualify as service animals under the existing regulations implementing titles II and III of the ADA and thus, any costs related to allowing such animals are not due to the application of the requirements of this rule.12 And, similar to the observation noted above, the vast majority of students who use service animals as defined under the ADA have disabilities that would have been covered prior to passage of the ADA Amendments Act, even under the Supreme Court's more narrow application of the definition of “disability.” So, although such costs may be measurable, they cannot fairly be attributed to the implementation of the ADA Amendments Act.
12 As in other types of housing environments, students who wish to have emotional support animals in housing provided by their place of education may make those requests under the Fair Housing Act, 42 U.S.C. 3601 et seq., and not the ADA.
Comments Regarding the Costs for the Adjustment of Existing Policies
The Department acknowledges that postsecondary schools and national testing entities will incur some costs to update their written policies and training procedures to ensure that the definition of “disability” is interpreted in accordance with the requirements of the ADA Amendments Act, but has found no evidence to indicate that such costs would be high. The Department also notes that even prior to passage of the ADA Amendments Act, many postsecondary schools had policies in place that were broader and more comprehensive than would have been required under the more restrictive coverage set forth in Sutton and Toyota. As a result, their policies and procedures may require few, if any, updates to conform to the ADA Amendments Act and the revised regulations. The Department has found no evidence to suggest that the changes required by the ADA Amendments Act have placed or will place a significant burden upon the ongoing processes of evaluating and updating policies that already exist at postsecondary schools or with national testing entities. Nevertheless, the Department has attempted in this Final RA to quantify the cost of training staff members and updating policies as a result of the changes that the ADA Amendments Act final rule may require.
Some commenters argued that the Department's estimate of a one-time cost of $500 per institution to change policies and procedures in compliance with the ADA Amendments Act was too low. Instead, one commenter proposed an estimated one-time cost of $2,500 per institution, and another commenter suggested an estimated one-time cost of $5,000 per institution for the first year's training costs. The underlying data and methodology to support these estimates were not provided by these commenters.
The Department has found no data to substantiate the claims that the cost of changing existing policies and training procedures to comply with the ADA Amendments Act will be $2,500 or $5,000 per institution. The commenters proposing those costs did not provide any detailed evidence or arguments in support of such costs, and the Department's research found no evidence to indicate that any institutions have incurred training or policy revision costs of that magnitude since the ADA Amendments Act became effective in 2009. The commenter suggesting a $5,000 cost cites to one institution's disability access plan to suggest some of the types of costs that might be incurred. The referenced document, however, does not provide specific dollar figures and is not ADA Amendments Act specific. Therefore, the Department does not believe that the commenter's projected cost increases are correct because, as discussed above, the programmatic concerns identified in this document pertained to ADA compliance as a whole, but not with changes to the ADA created by the ADA Amendments Act specifically. The Department acknowledges that the absence of evidence of such costs, however, is not necessarily conclusive that some costs do not or will not exist. Nevertheless, the Department believes that, had postsecondary schools incurred $2,500 to $5,000 in such compliance costs since 2009 or if they expected to incur such costs going forward, some indicia of these costs would be readily apparent.
Because no relevant supporting information regarding the commenters' estimates was provided, the Department conducted additional independent research and interviewed representatives at two postsecondary institutions to determine whether any additional formal or informal training had been needed to understand the implications of the ADA Amendments Act (and make adjustments to existing policies and procedures to conform to the Act's requirements). One of those two institutions stated that no additional training had been needed. The second institution said that additional training had been provided during meetings with staff. Approximately two hours per staff member (i.e., two hours per meeting) had been dedicated to this training. Approximately two part-time staff and six graduate students (working part time) received this training. In addition, the staff member providing the training had to attend a one-day conference to receive the information to pass along to the other staff. The Department conducted research to determine the costs of attending such a conference and receiving training on the changes to the law resulting from the ADA Amendments Act. Based on this independent research and feedback from representatives of two postsecondary institutions, the Department increased its estimate for one-time training costs from approximately $500 to $1,371 (see below for greater details on how the $1,371 was derived).
Comments Regarding the Costs of Additional Staff Time for the Administration of the Rule
Some commenters argued that the rule will lead to a significant increase in postsecondary institution accessibility support staff time devoted to disability accommodation issues, perhaps even requiring postsecondary institutions to hire additional personnel. One commenter representing higher educational institutions estimated that each affected institution would be required to hire one new full-time staff member, at $40,000 per year, to address increased student requests. This commenter cited a study that indicated that the mean number of staff who assist students with disabilities is four per campus. The Department questions the commenter's estimate that each affected institution would have to increase their staff by one full-time staff person, or approximately 25 percent of the mean entire staff, to address the incremental changes created by the ADA Amendments Act. The general increase in accommodation requests is likely attributable to a number of other factors not related to the ADA Amendments Act, including higher enrollment of students with disabilities. While there will likely be an incremental increase in the number of testing accommodations requested and granted as a direct result of the ADA Amendments Act, this incremental increase is unlikely to be the driving factor for hiring additional staff.
Similarly, some commenters argued that the Department needed to incorporate estimates of the additional administrative time needed to review and administer additional requests for testing accommodations for both postsecondary and national testing entities. To address these concerns, the Department contacted several universities and testing entities, but received responses from only one school and one testing entity, and those responses were inconclusive. The postsecondary school said that there has been no noticeable increase in applications for accommodations since the passage of the ADA Amendments Act, but the testing entity stated that it has detected a large increase in requests for additional testing time since the passage of the ADA Amendments Act. In light of the uncertainty regarding any potential additional staff time needed to review additional requests for accommodations, the Department has made several assumptions based on research and discussions with subject matter experts and impacted entities so as to incorporate estimated costs for this item. This information is presented further below.
Comments Regarding the Costs of Additional Disputes
Some commenters argued that the ADA Amendments Act would lead to increased litigation and internal disputes against institutions, as the scope of potential litigants would expand due to the increase in individuals covered by the ADA as a result of the passage of the ADA Amendments Act. Other commenters disagreed, stating that the new regulation would reduce the volume of complaints and litigation and streamline outstanding complaints and litigation due to increased consistency and predictability in judicial interpretation and executive enforcement. The Department does not agree with the commenters who asserted that the impact of the ADA Amendments Act will lead to an increase in litigation and disputes. The ADA Amendments Act clarified several contentious or uncertain aspects of the ADA, and thus may have decreased the overall amount of ADA litigation by reducing ambiguities in the law. However, assessing the impact of covered entities' failures to comply (or alleged failures to comply) with the requirements of the ADA, as amended, and the legal challenges that may result from compliance failures, are not properly within the ambit of the Final RA, nor do we have any relevant information that would assist in an analysis of such issues even if it they were appropriate to include in the Final RA.
Comments Regarding the Computation of Costs for Additional Examinations and Testing
One commenter stated that the Department placed too much emphasis on the cost of proctor supervision when assessing the cost of extra exam time in postsecondary institutions. The commenter posited that many tests are administered electronically; accordingly, the costs of those tests are appropriately based on the cost of “seat time” and not the cost of proctor supervision. Unfortunately, no commenter provided a description of what the additional costs per student might be in such circumstances, nor did any commenter explain how such costs could be computed. The Department contacted several postsecondary institutions and testing entities for approximations of seat time costs, but did not receive any relevant information.
Two commenters noted that for some long national examinations, additional testing time would necessitate the provision of an additional testing day that would increase costs substantially. This potential cost was not estimated in the Initial RA because research indicated that prior to the passage of the ADA Amendments Act, national examination institutions were already accommodating individuals who required additional time because of disabilities already explicitly covered by the ADA. As a result, testing entities were already providing an additional testing day where necessary. Therefore, any individuals who would now request additional time on national exams lasting six hours or more as a direct result of the ADA Amendments Act would be accommodated alongside those individuals who would have been covered prior to the ADA Amendments Act, and any potential costs would likely be minimal. Despite this conclusion, the Department has nonetheless conducted a sensitivity analysis to assess these potential costs with the assumption that testing entities were not already providing an additional testing day to accommodate certain individuals with disabilities. Because an additional testing day for these examinations was likely already provided prior to passage of the ADA Amendments Act, the Department continues to believe that the costs of accommodating any additional students who are now seeking additional exam time as a direct result of the ADA Amendments Act will be minimal. As a result, the sensitivity analysis the Department has conducted likely overestimates these potential costs. Further information on the potential range of these costs can be found below.
Comments Regarding the Estimate of ADHD Prevalence Among Postsecondary Students
Several commenters questioned the Department's approach of reducing the portion of students with ADHD who would be impacted by the ADA Amendments Act. In the Initial RA, the Department had assumed based on some available research that 30 percent of those who self-identify as having ADHD as their primary disability would not need additional testing time because they would not meet the clinical definition of the disability. One commenter raised concern about presenting a specific percentage of students with ADHD who would not meet that clinical definition, because that number might inadvertently become a benchmark for postsecondary institutions and national testing entities to deny accommodations to a similar percentage of applicants requesting additional exam time because of their ADHD. The Department did not intend for this percentage to establish a benchmark. Covered entities should continue to evaluate requests for additional exam time by all individuals with disabilities on an individualized basis. In direct response to these concerns, the Department has decided not to reduce the number of individuals with ADHD who could now receive testing accommodations as a direct result of the ADA Amendments Act.
Comments Regarding the Economic Impact of the Rule on Industries
A commenter representing institutions of higher education stated that the rule would have a significant impact on higher education as an industry, such that the rule should be considered “economically significant.” For the reasons indicated throughout the Final RA, however, the Department does not believe that this commenter's points were persuasive. Based on the Department's own research and evaluation, it is convinced that the cost of ADA Amendments Act compliance will be far less than $100 million dollars in any given year.
The commenter stated that the Department erred in its analysis by focusing primarily on college students with learning disabilities or ADHD and did not factor in potential costs related to students with other impairments including depression, schizophrenia, obsessive compulsive disorder, traumatic brain injuries, post-traumatic stress disorder, visual impairments not rising to the level of blindness, anxiety, autism, food allergies, or transitory impairments. Prior to passage of the ADA Amendments Act, higher educational institutions already were incurring costs to accommodate students with the above-referenced impairments that constituted disabilities. These costs are not attributable to this rulemaking and thus not analyzed as such. For the relatively small number of students with the above-referenced disabilities who might not have been covered prior to the passage of the ADA Amendments Act, the Department was unable to specifically identify or measure any potential costs that postsecondary institutions would incur in accommodating these students.
The commenter also stated that the Department's Initial RA should have considered the costs of academic accommodations other than extended testing time, such as “note takers, tutors, technology-based auxiliary aids, electronic versions of text-books and class materials, and other accommodations and aids,” as well as “significant costs resulting from accommodation requests outside the classroom context, such as those involving residence halls, food services or athletics.” The Department notes that, as with reasonable modifications and testing accommodations required prior to the ADA Amendments Act, the accommodations or auxiliary aids or services described by the commenter were being provided before the passage of the ADA Amendments Act and will not entail new costs specifically attributable to the ADA Amendments Act.
Comments Regarding ADA/IDEA Concerns
Several commenters addressed the possibility that the expanded definition of “disability” could result in more cases arising under the ADA, rather than under the IDEA, in elementary and secondary schools. An association focusing on children with learning disabilities noted that students who manage their disabilities well often find that school districts challenge their IDEA claims of disability, but that such claims may meet with more success under the ADA or section 504 of the Rehabilitation Act. One commenter, whose comments were endorsed by several other groups, noted that particular subsets of children may be eligible for benefits under the ADA but not under the IDEA. These include students with episodic conditions, mitigated conditions, and conditions such as diabetes and seizure impairments that may require maintenance support, such as diet or medications. A national association of kindergarten through twelfth-grade educators indicated that, increasingly, in its view, some parents are more likely to seek school-related modifications for their child under the ADA, rather than the IDEA. This commenter suggested, accordingly, that ADA litigation would increase once parents become aware of the application of a broader definition of “disability” due to the ADA Amendments Act.
The Department recognizes that the definition of “disability” under the IDEA is different than that under the ADA.13 While many students will be covered by both statutes, some students covered by the ADA will not be eligible for special education services under the IDEA; however, such students are covered by section 504 of the Rehabilitation Act and are entitled to a “free appropriate public education” (FAPE) under the Department of Education's section 504 regulation. The Department acknowledges commenters' views that some parents may assert rights for their elementary, middle, and high school students under the ADA due to the expanded definition of “disability.” However, the Department believes that the overall number of additional requests for reasonable modifications by elementary and secondary students that can be attributed to the ADA Amendments Act will be small and that any resulting economic impact is likely to be extremely limited. Students with ADHD and learning disabilities who already are covered by section 504 and, in many instances, the IDEA as well, are entitled to needed special education, related aids and services, modifications or auxiliary aids or services under those statutes. Further, prior to filing suit under the ADA, any student that is covered under both the ADA and the IDEA must exhaust administrative remedies under the IDEA if seeking a remedy that is available under that statute. Thus, while the ADA is critical to ensuring that students with disabilities have a full and equal opportunity to participate in and benefit from public education, when viewed in concert with the protections already afforded by section 504 and the IDEA, the economic impact of implementing the ADA Amendments Act in K-12 schools will be minimal. The Department also notes that none of these commenters provided any data demonstrating that elementary and secondary schools have incurred additional costs due to the passage of the ADA Amendments Act more than six years ago.
13 Under the IDEA, a “child with a disability” is a child “with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities [and] who, by reason thereof, needs special education and related services.” 20 U.S.C. 1401(3). The IDEA regulation elaborates on each disability category used in the statute. See 34 CFR 300.8.
Comments Regarding Possible Fraudulent Claims of Disability
A number of commenters stated that the rule might encourage some people without learning disabilities to claim that they have learning disabilities, so that they can take advantage of extra exam time. The Department has not identified any study suggesting that the release of this rule—more than six years after the effective date of the ADA Amendments Act—likely will motivate a spike in false claims for students seeking extra time on examinations. While individuals with learning disabilities previously denied accommodations may be motivated to seek recognition of their disabilities under this rule, because it may offer an improved opportunity for consideration of their unmet needs, the Department does not believe that individuals who might feign disabilities in pursuit of extra time would modify their behavior as a result of this rule; to the contrary, the motivation and opportunity to feign such disabilities would have existed prior to the passage of the ADA Amendments Act. The Department acknowledges that there will always be some individuals who seek to take advantage of rules that extend benefits to particular classes of individuals. However, the Department has determined that the costs of such fraudulent behavior cannot readily be computed. It appears that there is no generally accepted metric for determining how many claims of disability are fraudulent, or how the cost of such fraudulent activity should be computed. And, the Department found no evidence to indicate that the rate of fraudulent claims of disability has increased since the implementation of the ADA Amendments Act in 2009. It should be emphasized that individuals seeking accommodations for their disabilities in testing situations under the ADA will still undergo an individualized assessment to determine whether they have disabilities covered by the statute. Extended exam time is an accepted reasonable modification or testing accommodation under the ADA for persons whose disabilities inhibit their ability to complete timed tests. Because the Department is not able to identify or measure an increase in fraudulent claims associated with this rule, those potential costs are not reflected in the economic analysis.
Final Results of the Primary Analysis
This section presents the calculations used to estimate the total costs resulting from the revisions to the title II and title III regulations to incorporate the changes made by the ADA Amendments Act. Costs are first presented for postsecondary institutions and then for national testing entities. For a more detailed explanation of the Department's methodology and data used to calculate these costs, please refer to relevant sections in the Final RA. The Final RA is available on Department's Web site at www.ada.gov.
As explained above, total costs to postsecondary institutions will include three components:
- One-time cost of training staff on relevant impact of ADA Amendments Act;
- Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
- Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.
To calculate the annual costs to all postsecondary institutions for processing these additional accommodation requests and proctoring additional exam time as a direct result of the ADA Amendments Act, the potential number of students who could request and receive these accommodations needs to be calculated. Calculations for the three costs listed above plus the number of students who are eligible to receive and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act are presented below.
The annual one-time training cost for all postsecondary institutions is presented in Table 1 below. The methodology used to calculate this cost is explained further in Section 2.1 of the Final RA, and the sources for the data used are provided in Section 3.1.1 of the Final RA.
| Variable | Value |
|---|---|
| Number of Postsecondary Institutions | 7,234 |
| One-Time Cost of Training on the Impacts of ADA Amendments Act per Institution | 1,371 |
| One-Time Training Cost for Postsecondary Institutions | 9,917,633 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |
The number of additional eligible students likely to request and receive extra time on exams at postsecondary institutions as a direct result of the ADA Amendments Act is calculated in Tables 2 and 3 below. The methodology used for this calculation is explained further in Section 2.2 of the Final RA, and the sources for the data used are provided in Section 3.1.2 of the Final RA.
| Row # | Variable | Value | Source |
|---|---|---|---|
| 1 | Total Number of Postsecondary Students | 20,486,000 | See Table 9 of the Final RA. |
| 2 | Percentage of Postsecondary Students with a Learning Disability or ADHD | 2.96% | See Table 11 of the Final RA. |
| 3 | Total Postsecondary Students with a Learning Disability or ADHD | 606,386 | Calculation (Multiply Row 1 and Row 2). |
| 4 | Percentage of Students with Learning Disabilities or ADHD Already Receiving Accommodations for Extra Exam Time Prior to Passage of the ADA Amendments Act | 51.1% | See Table 12 of the Final RA. |
| 5 | Total Number of Students with Learning Disabilities or ADHD who were Requesting Accommodations for Extra Exam Time Prior to the ADA Amendments Act | 309,863 | Calculation (Multiply Row 3 and Row 4). |
| 6 | Percentage of Students with Learning Disabilities or ADHD Not Receiving Accommodations for Extra Exam Time Prior to Passage ADA Amendments Act | 48.9% | See Table 12 of the Final RA. |
| 7 | Total Eligible Students who Could Potentially Request and Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 296,523 | Calculation (Multiply Row 3 and Row 6). |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
| Row # | Variable | Low value | Med value | High value | Source |
|---|---|---|---|---|---|
| 1 | Total Eligible Students who Could Potentially Request and Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 296,523 | 296,523 | 296,523 | See Table 2 above. |
| 2 | Percentage of Eligible Students Who Were Not Previously Receiving Accommodations for Extra Exam Time Prior to Passage of the ADA Amendments Act Who are Now Likely to Request and Receive this Accommodation | 50% | 70% | 90% | See Table 13 of the Final RA. |
| 3 | Number of Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 148,261 | 207,566 | 266,870 | Calculation (Multiply Row 1 and Row 2). |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||||
Table 4 below presents the calculations of the annual cost to postsecondary institutions for processing new accommodation requests for extra exam time. These requests are in addition to the ones currently received and processed by postsecondary institutions that are not being made as a direct result of the ADA Amendments Act. Costs depend on the number of students who will now be eligible to request and receive an accommodation for extra time on an exam as a direct result of the ADA Amendments Act revisions. The methodology used to calculate this cost is explained further in Section 2.3 of the Final RA, and the sources for the data used are provided in Section 3.1.3 of the Final RA.
| Variable | Low value | Med value | High value |
|---|---|---|---|
| Number of Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time | 148,261 | 207,566 | 266,870 |
| Number of Staff Hours to Process each Accommodation Request | 2 | 2 | 2 |
| Total Staff Hours to Process New Requests | 296,523 | 415,132 | 533,741 |
| Staff Hourly Wage Rate for Processing Accommodation Requests | $24.91 | $24.91 | $24.91 |
| Annual Cost to Postsecondary Institutions for Processing Additional Accommodation Requests for Extra Exam Time | $7,387,118 | $10,341,966 | $13,296,813 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
Tables 5 and 6 calculate the annual costs to postsecondary institutions for proctoring additional time on exams requested by eligible students as a direct result of the ADA Amendments Act. The methodology used to calculate this cost is explained further in Section 2.4 of the Final RA, and the sources for the data used are provided in Section 3.1.4 of the Final RA.
| Variable | Value |
|---|---|
| Average Length of an Exam at a Postsecondary Institution in Hours | 1.5 |
| Average Additional Time Requested, as a Percentage of Total Exam Time | 75% |
| Average Amount of Extra Time per Exam in Hours | 1.13 |
| Average Number of Exams per Class | 3 |
| Average Number of Classes per Year | 8 |
| Average Number of Exams per Student | 24 |
| Average Annual Additional Exam Time per Student in Hours | 27 |
| Average Proctor to Student Ratio | 0.11 |
| Average Hourly Wage of Exam Proctor | $12.90 |
| Annual Cost for Proctoring Additional Time on Exams per Student | $36.67 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |
| Variable | Low | Med | High |
|---|---|---|---|
| Annual Cost for Proctoring Additional Time on Exams per Student | $36.67 | $36.67 | $36.67 |
| Number of Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time | 148,261 | 207,566 | 266,870 |
| Annual Cost to Postsecondary Institutions for Proctoring Extra Time on Exams | $5,437,419 | $7,612,387 | $9,787,355 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
Just as with postsecondary institutions, the costs to national testing entities from the revisions to the ADA Amendments Act will include three components:
- One-time cost of training staff on relevant impact of ADA Amendments Act;
- Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
- Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.
The annual costs of processing additional accommodation requests and proctoring the extra exam time depends on the number of test takers who will request accommodations for extra exam time as a direct result of the ADA Amendments Act. Calculations for the three costs listed above plus the number of test takers who are eligible to receive and likely to request accommodations of extra exam time as a direct result of the ADA Amendments Act are presented below.
The annual one-time training cost for all national testing entities is presented in Table 7 below. The methodology used to calculate this cost is explained further in Section 2.1 of the Final RA, and the sources for the data used are provided in Section 3.2.1 of the Final RA.
| Variable | Value |
|---|---|
| Number of National Testing Entities | 1,397 |
| One-Time Cost of Training on the Impacts of ADA Amendments Act per Institution | $1,371 |
| One-Time Training Cost for National Testing Entities | $1,915,252 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |
The number of test takers who are now eligible to receive and likely to request extra time on national exams is calculated in Tables 8 and 9 below. The methodology used to calculate this number is explained further in Section 2.2 of the Final RA, and the sources for the data used are provided in Section 3.2.2 of the Final RA.
| Row # | Variable | Value | Source |
|---|---|---|---|
| 1 | Total Number of Test Takers | 10,450,539 | See Table 23 of the Final RA. |
| 2 | Percentage of Test Takers with a Learning Disability or ADHD * | 2.96% | See Table 11 of the Final RA. |
| 3 | Total Test Takers with a Learning Disability or ADHD | 309,336 | Calculation (Multiply Row 1 and Row 2). |
| 4 | Percentage of Test Takers with Learning Disabilities or ADHD Already Receiving Accommodations for Extra Exam Time Prior to Passage of the ADA Amendments Act.* | 51.1% | See Table 12 of the Final RA. |
| 5 | Total Number of Test Takers with Learning Disabilities or ADHD who were Requesting Accommodations for Extra Exam Time Prior to the ADA Amendments Act | 158,071 | Calculation (Multiply Row 3 and Row 4). |
| 6 | Percentage of Test Takers with Learning Disabilities or ADHD Not Receiving Accommodations for Extra Exam Time Prior to Passage ADA Amendments Act.* | 48.9% | See Table 12 of the Final RA. |
| 7 | Total Eligible Test Takers who Could Potentially Request and Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 151,265 | Calculation (Multiply Row 3 and Row 6). |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
| * For these assumptions, the Final RA assumes the same values for national test takers as found for postsecondary students, since no specific data for national examinations was found and many national exams are designed for students or recent graduates. | |||
| Row # | Variable | Low | Med | High | Source |
|---|---|---|---|---|---|
| 1 | Total Eligible Test Takers who Could Potentially Request and Receive Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 151,265 | 151,265 | 151,265 | See Table 8 above. |
| 2 | Percentage of Eligible Test Takers Who Were Not Previously Receiving Accommodations for Extra Exam Time Prior to Passage of the ADA Amendments Act Who are Now Likely to Request and Receive this Accommodation | 50% | 70% | 90% | See Table 13 of the Final RA. |
| 3 | Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act | 75,633 | 105,886 | 136,139 | Calculation (Multiply Row 1 and Row 2). |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||||
Table 10 illustrates the calculations of the annual cost to national testing entities for processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act. The methodology used to calculate this cost is explained further in Section 2.3 of the Final RA, and the sources for the data used are provided in Section 3.2.3 of the Final RA.
| Variable | Low value | Med value | High value |
|---|---|---|---|
| Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time | 75,633 | 105,886 | 136,139 |
| Number of Staff Hours to Process each Accommodation Request | 2 | 2 | 2 |
| Total Staff Hours to Process Additional Accommodation Requests for Extra Exam Time | 151,265 | 211,771 | 272,278 |
| Staff Hourly Wage Rate for Processing Accommodation Requests | $24.91 | $24.91 | $24.91 |
| Annual Cost to National Testing Entities for Processing Additional Accommodation Requests for Extra Exam Time | $3,768,396 | $5,275,755 | $6,783,113 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
Finally, Tables 11 and 12 calculate the annual costs to national testing entities for allowing test takers to receive additional time on exams. Again, the cost here may be calculated as the opportunity cost of the seat occupied by the test taker for the additional hours of testing. However, because the seat cost per test taker was not available for this Final RA analysis, the additional time spent by a test proctor to oversee the exam is used as a proxy for the cost. The methodology used to calculate this cost is explained further in Section 2.4 of the Final RA, and the sources for the data used are provided in Section 3.2.4 of the Final RA.
| Variable | Value |
|---|---|
| Average Length of a National Exam in Hours | 4.11 |
| Average Extra Time Requested, as a Percentage of Total Exam Time | 75% |
| Average Amount of Extra Time per Exam in Hours | 3.09 |
| Average Number of Exams per Test Taker per Year | 1 |
| Average Annual Extra Exam Time per Test Taker in Hours | 3.09 |
| Average Proctor-to-Test-Taker Ratio | 1 |
| Average Hourly Wage of Exam Proctor | $12.90 |
| Cost to National Testing Entities for Proctoring Extra Time on Exams per Test Taker | $39.81 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |
| Variable | Low value | Med value | High value |
|---|---|---|---|
| Cost to National Testing Entities for Proctoring Extra Time on Exams per Test Taker | $39.81 | $39.81 | $39.81 |
| Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time each year | 75,633 | 105,886 | 136,139 |
| Annual Cost to National Testing Entities for Proctoring Extra Time on Exams | $3,011,096 | $4,215,534 | $5,419,973 |
| Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table. | |||
Based on the calculations provided above, total costs to society for implementing the ADA Amendments Act revisions into the title II and title III regulations will range between $31.4 million and $47.1 million in the first year. The first year of costs will be higher than all subsequent years because the first year includes the one-time cost of training. Note that even the high end of this first-year cost range is well below the $100 million mark that signifies an “economically significant” regulation. The breakdown of total costs by entity is provided in Table 13 below.
| Cost category | Low value | Med value | High value |
|---|---|---|---|
| Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | $12.8 | $18.0 | $23.1 |
| Postsecondary Institutions: ONE-TIME Cost for Additional Training at Institutions | 9.9 | 9.9 | 9.9 |
| National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | 6.8 | 9.5 | 12.2 |
| National Exams: ONE-TIME Cost for Additional Training at Institutions | 1.9 | 1.9 | 1.9 |
| Total | 31.4 | 39.3 | 47.1 |
| Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table. | |||
Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total cost of implementing the ADA Amendments Act revisions is approximately $214.2 million over 10 years, as shown in Table 14 below.
| Total discounted value ($ millions) | Annualized estimate ($ millions) | Year dollar | Discount rate (percent) | Period covered |
|---|---|---|---|---|
| $214.2 | $28.6 | 2015 | 7 | 2016-2025 |
| $243.6 | 26.3 | 2015 | 3 | 2016-2025 |
Potential Additional Costs to National Testing Entities
The ADA Amendments Act revisions will allow eligible individuals with disabilities to receive additional time on exams, both for course-work exams at postsecondary institutions and standardized national examinations. Some national examinations are long and can last up to eight hours per test. Thus, when test takers request additional time on these longer exams, such requests will inevitably push the exam into an additional day.
As commenters pointed out in response to the Initial RA, there are costs associated with providing exams on an additional day. While there is no data to predict which exams will extend to an additional day, especially given that specific accommodations are determined individually, this Final RA assumes that exams that normally would take six hours or more to administer and be scheduled for one day may require an additional day of testing if the test taker seeks more time as an accommodation. To quantify the total costs of providing an additional day of testing for those individuals who would not previously have received this additional time, prior to the passage of the ADA Amendments Act, the following two costs are quantified:
Exam Revision Costs
While it appears that many national testing entities do not revise the content of exams that span an additional day, the exam format and materials can be affected by such an extension. For instance, computer-based exams are programmed to span a certain amount of time, allowing for timed break periods throughout. When more time is provided to take the exam, the exam must be reprogrammed to span the new amount of time, with planned breaks for the test taker. For paper-based exams, test booklets are often reprinted to allow one set of questions for one day of testing, and another set for the extra day of testing. This form of printing prevents test takers from going home and looking up the answers for the next set of questions.
Room Rental Cost
Exams are delivered in different settings depending on the type of national exam. Some exams are delivered at testing centers where different types of exams are administered at once in the same room. In this case, the cost of an extra day of testing could be captured by the seat cost per test taker. Other exams are delivered to test takers exclusively taking that exam, and those exams are often administered in rooms rented out at a university, hotel, or other building. This cost could be captured by the room rental cost. The Final RA takes a conservative approach, using the room rental cost to approximate the cost of delivering an exam over an additional day, as this is the larger of the two costs.
Based on the calculations provided in Sections 4.2.1 and 4.2.2 of the Final RA, the total additional costs of providing an extra testing day to eligible test takers will likely range between $2.7 and $4.8 million per year. Table 15 adds this into the total costs in the first year to approximate the range of total costs to society from implementing the ADA Amendments Act revisions. For further information on the methodology, data, and assumptions used to analyze these potential additional costs for national testing entities, please refer to Section 4.2 of the Final RA.
| Cost category | Low value | Med value | High value |
|---|---|---|---|
| Postsecondary Institutions: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | $12.8 | $18.0 | $23.1 |
| Postsecondary Institution: ONE-TIME Cost for Additional Training at Institutions | 9.9 | 9.9 | 9.9 |
| National Exams: ANNUAL Total Costs of Processing Additional Requests and Proctoring Extra Exam Time | 6.8 | 9.5 | 12.2 |
| National Exams: ONE-TIME Cost for Additional Training at Institutions | 1.9 | 1.9 | 1.9 |
| National Exams: ANNUAL Potential Additional Costs for Exams that Run over onto an Additional Day | 2.7 | 3.8 | 4.8 |
| Total | 34.1 | 43.1 | 52.0 |
| Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table. | |||
Benefits Discussion
The Department believes that the enactment of the ADA Amendments Act benefits millions of Americans, and the benefits to those individuals are non-quantifiable but nonetheless significant. The Department determined, however, that there was a group of individuals with disabilities who would be able to receive benefits in the form of increased access to accommodations in testing from postsecondary institutions and national testing entities, and that these benefits would be associated with specific costs to those institutions and entities, which are analyzed above.
With respect to specific benefits, in the first year, our analysis estimates that approximately 148,261 to 266,870 postsecondary students will take advantage of accommodations for extra exam time that they otherwise would not have received but for this rule. Over 10 years, approximately 1.6 million to 2.8 million students will benefit. An additional 802,196 to 1.4 million national exam test takers would benefit over that same 10 years (assuming that people take an exam one time only).
Some number of these individuals could be expected to earn a degree or license that they otherwise would not have as a result of the testing accommodations they are now eligible to receive as a direct result of the ADA Amendments Act. The Department was unable to find robust data to estimate the number of students who would receive a bachelor's degree or licenses after this rule goes into effect that would not otherwise have received one. However, extensive research has shown notably higher earnings for those with college degrees over those who do not have degrees. Estimates of this lifetime earnings vary, with some studies estimating an earning differential ranging from approximately $300,000 to $1 million.14 In addition, some number of students may be able to earn a degree in a higher-paying field than they otherwise could, and yet other students would get the same degree, but perhaps finish their studies faster or more successfully (i.e., higher grades) than otherwise would be the case. All of these outcomes would be expected to lead to greater lifetime productivity and earnings.
14 See Mark Schneider, How Much Is That Bachelor's Degree Really Worth?: The Million Dollar Misunderstanding, American Enterprise Institute, AEI Online (May 2009), available at http://www.aei.org/article/education/higher-education/how-much-is-that-bachelors-degree-really-worth/ (last visited Feb. 3, 2016); U.S. Census Bureau, Work-Life earnings by Field of Degree and Occupation for People with a Bachelor's Degree: 2011, American Community Survey Briefs (Oct. 2012), available at http://www.census.gov/prod/2012pubs/acsbr11-04.pdf (last visited Feb. 3, 2016); Anthony P. Carnevale et al., The College Payoff-Education, Occupations, Lifetime Earnings, Georgetown University Center on Education and the Workforce (2011), available at https://cew.georgetown.edu/wp-content/uploads/2014/11/collegepayoff-complete.pdf (last visited April 22, 2016).
In addition to these quantitative benefits, this rule will have significant non-quantifiable benefits to individuals with disabilities who, prior to the passage of the ADA Amendments Act and this rule, were denied the opportunity for equal access to an education or to become licensed in their chosen professions because of their inability to receive needed testing accommodations. As with all other improvements in access for individuals with disabilities, the ADA Amendments Act is expected to generate psychological benefits for covered individuals, including reduced stress and an increased sense of personal dignity and self-worth, as more individuals with disabilities are able to successfully complete tests and exams and more accurately demonstrate their academic skills and abilities. Some individuals will now be more likely to pursue a favored career path or educational pursuit, which will in turn lead to greater personal satisfaction.
Additional benefits to society arise from improved testing accessibility. For instance, if some persons with disabilities are able to increase their earnings, they may need less public support—either direct financial support or support from other programs or services. This, in turn, would lead to cross-sector benefits from resource savings arising from reduced social service agency outlays. Others, such as family members of individuals with disabilities, may also benefit from reduced financial and psychological pressure due to the greater independence and earnings of the family member whose disability is now covered by the ADA under the revised definition of “disability.”
In addition to the discrete group of individuals with learning disabilities and ADHD who will benefit from the changes made to the definition of “disability,” there is a class of individuals who will now fall within the nondiscrimination protections of the ADA if they are refused access to or participation in the facilities, programs, services, or activities of covered entities. The benefits to these individuals are significant, but unquantifiable. The Department believes (as did Congress when it enacted the ADA) that there is inherent value that results from greater accessibility for all Americans. Economists use the term “existence value” to refer to the benefit that individuals derive from the plain existence of a good, service, or resource—in this case, the increased accessibility to postsecondary degrees and specialized licenses that would arise from greater access to testing accommodations or the increased accessibility to covered entities' facilities, programs, services, or activities as a result of the ADA Amendments Act. This value can also be described as the value that people both with and without disabilities derive from the guarantees of equal protection and nondiscrimination. In other words, people value living in a country that guarantees the rights of persons with disabilities, whether or not they themselves are directly or indirectly affected by disabilities. There can be a number of reasons why individuals might value accessibility even if they do not require it now and do not ever anticipate needing it in the future. These reasons include bequest motives and concern for relatives or friends who require accessibility. People in society value equity, fairness, and human dignity, even if they cannot express these values in terms of money. These are the exact values that agencies are directed to consider in Executive Order 13563.
B. Regulatory Flexibility Act
In the NPRM, the Department stated that, based on its analysis, it “can certify that the rule will not have a significant economic impact on a substantial number of small entities.” The Department sought public comment on this proposed certification and its underlying analysis, including the costs to small entities, but received no public comments on these issues. The Attorney General has again reviewed this regulation in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), and by approving it hereby certifies that it will not have a significant economic impact on a substantial number of small entities for the reasons discussed more fully below.
First, the ADA Amendments Act took effect on January 1, 2009; all covered entities have been required to comply with the Act since that date and thus should be familiar with the requirements of the law. Second, the rule does not include reporting requirements and imposes no new recordkeeping requirements. Third, as shown above, the only title II and title III entities that would be significantly affected by the proposed changes to the ADA regulations are national testing entities and postsecondary institutions. The type of accommodations that most likely will be requested and required by those whose coverage has been clarified under titles II and III of ADA Amendments Act will be additional time in testing situations. While many of these national testing or postsecondary institutions are small businesses or small governmental entities, the costs associated with additional testing time are minimal; therefore, the Department believes the economic impact of this rule will be neither significant for these small entities nor disproportionate relative to the costs for larger entities.
The Department estimates that approximately 7,234 postsecondary institutions could be impacted based on data from the U.S. Department of Education National Center for Education Statistics.15 The Department used data from the U.S. Census Bureau 16 from 2012 for Junior Colleges (NAICS 17 6112) and Colleges, Universities, and Professional Schools (NAICS 6113) to estimate the proportion of those entities that would meet the Small Business Administration's criteria for small business or small governmental entity.18 As shown in Table 18 and Table 19 below, small postsecondary institutions are estimated to account for approximately 35.3 percent of all postsecondary institutions. Therefore, the Department estimates that 2,556 small postsecondary institutions would be impacted by this rule.
15 U.S. Department of Education, National Center for Education Statistics (2015). Digest of Education Statistics, 2013 (NCES 2015-011), Chapter 2. 2011-2012 academic year—Number of Title IV institutions, by level and control of institution and state or other jurisdiction, available at https://nces.ed.gov/fastfacts/display.asp?id=84 (last visited Feb.3, 2016).
16 U.S. Census Bureau, Number of Firms, Number of Establishments, Employment, Annual Payroll, and Estimated Receipts by Enterprise Receipt Sizes for the United States, NAICS Sectors: 2012, available at http://www.census.gov/econ/susb/ (last visited Feb. 3, 2016).
17 North American Industry Classification System.
18 U.S. Small Business Administration, Table of Small Business Size Standards, available at https://www.sba.gov/content/small-business-size-standards (last visited April 22, 2016).
The overall costs of this rule for postsecondary institutions were calculated based on the number of entities and number of postsecondary students affected. The cost of processing additional accommodation requests for extra exam time and the cost of additional time spent proctoring exams depend on the number of students. This methodology assumes that per-student costs are roughly the same for institutions of differing sizes. Because larger entities have more students on average than smaller ones, the Department used the proportion of the industry sub-group's revenues for small and large entities as a proxy for the number of students. Thus, using receipts for Junior Colleges (NAICS 6112) and Colleges, Universities, and Professional Schools (NAICS 6113) as a proxy for number of students, small postsecondary institutions are estimated to bear 4 percent of the processing and proctoring costs for providing additional exam time for that industry sub-group—or approximately $726,534 of the $17.95 million first-year costs. Additionally, postsecondary institutions are expected to incur one-time costs for additional training of $1,371 per entity (see Tables 6-8 in the Final RA). In total, small postsecondary institutions would incur $4.2 million in costs in the first year, which would average approximately $1,655 for each of the 2,556 small postsecondary institutions. The average annual revenue for each these small postsecondary institutions is $501,600. The cost is 0.33 percent of their revenue. Therefore, the costs will not be substantial for these small entities.
In comparison to the number of small postsecondary entities, there are approximately 4,678 postsecondary institutions (64.7 percent of the 7,234) that would be considered larger entities, and these larger entities would incur $23.6 million in costs during the first year, which would average out to approximately $5,053 per large postsecondary institution during the first year. This $5,053 per large postsecondary institution during the first year is approximately 3.1 times higher than the cost that would be incurred by small postsecondary institutions during that same time.
| Firms | Establishments | Est. receipts ($000,000) | |
|---|---|---|---|
| All Junior Colleges | 464 | 953 | 8,449 |
| Small Junior Colleges (estimated)* | 378 | 427 | 1,723 |
| Small Junior Colleges as a Percentage of All Junior Colleges | 81.5% | 44.8% | 20.4% |
| * SBA small business standard is $20.5 million; small business totals here include those with receipts under $25 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. | |||
| Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016). | |||
| Firms | Establishments | Est. receipts ($000,000) | |
|---|---|---|---|
| All Colleges, Universities, and Professional Schools | 2,282 | 4,329 | 222,854 |
| Small Colleges, Universities, and Professional Schools (estimated) * | 1,369 | 1,439 | 7,637 |
| Small Colleges, Universities, and Professional Schools as a Percentage of All Colleges, Universities, and Professional Schools | 60.0% | 33.2% | 3.4% |
| * SBA small business standard is $27.5 million; small business totals here include those with receipts under $30 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. | |||
| Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016). | |||
| Firms | Establishments | Est. receipts ($000,000) | |
|---|---|---|---|
| All Junior Colleges, and Colleges, Universities, and Professional Schools | 2,746 | 5,282 | 231,303 |
| Small Junior Colleges, and Colleges, Universities, and Professional Schools (estimated) * | 1,747 | 1,866 | 9,360 |
| Small Junior Colleges, and Colleges, Universities, and Professional Schools as a Percentage of All Junior Colleges, and Colleges, Universities, and Professional Schools | 63.6% | 35.3% | 4.0% |
| * SBA small business standard for Junior Colleges is $20.5 million; small business totals here include Junior Colleges with receipts under $25 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. The SBA small business standard for Colleges, Universities, and Professional Schools is $27.5 million; small business totals here include Colleges, Universities, and Professional Schools with receipts under $30 million. This is due to data being reported in size categories that do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to $19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. | |||
| Source: Calculated from data provided by the U.S. Census Bureau, Statistics of U.S. Businesses. See SBA Office of Advocacy and U.S. Census Bureau, Statistics of U.S. Businesses, Table 2—Number of firms, establishment, receipts, employment, and payroll by firm size (in receipts) and industry, 2012, available at https://www.sba.gov/advocacy/firm-size-data (last visited April 22, 2016). | |||
| Total Postsecondary Establishments (All Firms/Entities); Academic year 2010-2011 * | 7,234 |
| Percent Small Entities (2012) ** | 35.3% |
| Total Impacted Small Entity Establishments *** | 2,556 |
| * U.S. Department of Education, National Center for Education Statistics, (2015), Digest of Education Statistics, 2013 (NCES 2015-011), available at https://nces.ed.gov/fastfacts/display.asp?id=84 (last visited Feb. 3, 2016). | |
| ** Derived from Tables 16-18 above. | |
| *** Estimated using percentage of small establishments for NAICS sectors 6112 and 6113. | |
In addition to postsecondary institutions, some national testing entities would also be impacted. The Department used data on Educational Test Development and Evaluation Services (NAICS 6117102) 19 to estimate the number of affected entities. Approximately 1,397 national testing entities would be impacted by this rule, irrespective of size. Small entity establishments are estimated to account for 923 (66.1 percent) of these.
19 Using data reported by the Census Bureau for 2007, the most recent year for which information on NAICS 6117102 was available.
| Firms | Establishments | Est. receipts ($000,000) | |
|---|---|---|---|
| Small, Medium, and Large Entities * | 748 | 1,144 | 2,843 |
| Small Entities ** | 734 | 756 | 704 |
| Percentage Small Entities | 98.1% | 66.1% | 24.8% |
| Total Entities | 1,000 | 1,397 | 2,907 |
| Estimated Total Small Entities *** | 981 | 923 | 720 |
| * Includes only those entities which were categorized by annual revenue in the available data. | |||
| ** Data is reported in size categories that do not exactly match industry small business classifications: i.e. from $5 million to $9.99 million, and from $10 million to $24.99 million. SBA small business standard is $15.0 million for all Educational Support Services; small business totals here include those with receipts under $25 million. | |||
| *** Applying the estimated percentage of small entities to the total number of entities. | |||
| Source: Calculated from data provided by the U.S. Census Bureau. See U.S. Census Bureau, 2007 Economic Census, Educational Services: Subject Series—Estab and Firm Size: Receipts/Revenue Size of Establishments for the United States: 2007 (EC0761SSSZ4), available at http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_61SSSZ1&prodType=tableE: (last visited Feb. 3, 2016). | |||
Small entity establishments in the Educational Test Development and Evaluation Services industry group account for 24.8 percent of that industry's receipts. If receipts are used as a proxy for number of test takers in a manner similar to that described above for postsecondary institutions, then small national testing entities can be expected to bear 24.8 percent of the industry's $9.49 million first-year costs of processing additional accommodation requests for extra exam time and additional time spent proctoring exams—or approximately $2.35 million. Additionally, national testing entities are expected to incur a fixed cost for additional training of $1,371 per entity. Thus, for the approximately 923 small national testing entities, total costs in the first year are estimated to average $3,918 each. Average revenue for these entities is $780,264. The cost is 0.50 percent of their revenue. Therefore, the costs will not be substantial for these small entities.
In comparison to the number of small testing entities, approximately 474 national testing center establishments (33.9 percent of the 1,397) would be considered larger entities, and they would incur $7.79 million in costs during the first year, which would average out to approximately $16,440 per large national testing center establishment during the first year. This $16,440 per large national testing center establishment is approximately 4.2 times as high as the cost that would be incurred by small national testing center establishments during that same time.
As explained above, the Department estimates that approximately 2,556 small postsecondary establishments and 923 small national testing establishments would be impacted by this rule, for a total of approximately 3,479 small business establishments. The estimates were based on average estimates for all entities, irrespective of size. The Department notes that the average first-year cost estimates presented above for small entities are higher than the first-year cost estimates presented in the NPRM because the Department's estimates for the initial training costs (which will be incurred during the first year) are now higher based on public comment and further research and analysis conducted by the Department. However, the overall costs of this rule for small entities over the 10-year period are lower because the Department's final overall cost estimates in the Final RA are lower as a result of refinements made to the analysis in response to public comment and based on further research conducted by the Department.
Based on the above analysis, the Attorney General can certify that the rule will not have a significant economic impact on a substantial number of small entities.
C. Executive Order 13132: Federalism
Executive Order 13132 of August 4, 1999, Federalism, directs that, to the extent practicable and permitted by law, an agency shall not promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, that is not required by statute, or that preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. Because this rule does not have federalism implications as defined in the Executive Order, does not impose direct compliance costs on State and local governments, is required by statute, and does not preempt State law within the meaning of the Executive Order, the Department has concluded that compliance with the requirements of section 6 is not necessary.
D. Plain Language Instructions
The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department operates a toll-free ADA Information Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is welcome to call to obtain assistance in understanding anything in this final rule.
E. Paperwork Reduction Act
This final rule does not contain any new or revised “collection[s] of information” as defined by the Paperwork Reduction Act of 1995. 44 U.S.C. 3501 et seq.
F. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.
List of Subjects for 28 CFR Parts 35 and 36
Administrative practice and procedure, Buildings and facilities, Business and industry, Civil rights, Communications equipment, Individuals with disabilities, Reporting and recordkeeping requirements, State and local governments.
Dated: July 15, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-17417 Filed 8-10-16; 8:45 a.m.]
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