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This rule would propose to amend the Department's regulations implementing title II and title III of the Americans with Disabilities Act (ADA), 28 CFR part 35 and 28 CFR part 36, to implement changes to the ADA enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sept. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act amended the Americans with Disabilities Act, 42 U.S.C. 12101, et seq., to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability. These changes are intended to mitigate the effects of the Supreme Court's decisions in Sutton v. United Airlines, 527 U.S. 471 (1999), and Toyota Motor Manufacturing v. Williams, 534, U.S. 184 (2002). Specifically, the ADA Amendments Act (1) adds illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (42 U.S.C. 12102(2)); (2) clarifies that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (42 U.S.C. 12103(3)); and (3) adds rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (42 U.S.C. 12102(4).

Statement of Need:

This rule is necessary to bring the Department's ADA regulations into compliance with the ADA Amendments Act of 2008, which became effective on January 1, 2009. In addition, this rule is necessary to make the Department's ADA title II and title III regulations consistent with the ADA title I regulations issued on March 25, 2011 by the Equal Employment Opportunity Commission (EEOC) incorporating the ADA Amendments Act definition of disability.

Summary of the Legal Basis:

The summary of the legal basis of authority for this regulation is set forth above in the abstract.

Alternatives:

In order to ensure consistency in application of the ADA Amendments Act across titles I, II and III of the ADA, this rule is intended to be consistent with the language of the EEOC's rule implementing the ADA Amendments Act with respect to title I of the ADA (employment). The Department will, however, consider alternative regulatory language suggested by commenters so long as it maintains that consistency.

Anticipated Costs and Benefits:

The Department's preliminary analysis indicates that the proposed rule would not be "economically significant," that is, the rule will not have an annual effect on the economy of $100 million, or adversely affect in a material way the economy, a sector of the economy, the environment, public health or safety or State, local or tribal governments or communities. According to the Department's preliminary analysis, it is anticipated that the rule will cost between $36.32 million and $61.8 million in the first year (the year with the highest costs). The Department estimates that in the first year of the implementation of the proposed rule, approximately 142,000 students will take advantage of additional testing accommodations than otherwise would have been able to without the changes made to the definition of disability to conform to the ADA Amendments Act. The Department believes that this will result in benefits for many of these individuals in the form of significantly higher earnings potential. The Department expects that the rule will also have significant non-quantifiable benefits to persons with newly covered disabilities in other contexts, such as benefits of non-exclusion from the programs, services and activities of State and local governments and public accommodations, and the benefits of access to reasonable modifications of policies, practices and procedures to meet their needs in a variety of contexts. In this NPRM, the Department will be soliciting public comment in response to its preliminary analysis.

Risks:

The ADA authorizes the Attorney General to enforce the ADA and to promulgate regulations implementing the law's requirements. Failure to update the Department's regulations to conform to statutory changes and to be consistent with the EEOC regulations under title I of the ADA will interfere with the Department's enforcement efforts and lead to confusion about the law's requirements among entities covered by titles I, II and III of the ADA, as well as members of the public.