The Department of Justice (DOJ) yesterday published a proposed rule to expand the definition of the term “disability” under Titles II and III of the Americans with Disabilities Act (ADA).  (Title II applies to state and local governments and Title III applies to public accommodations.) The revision purports to make the Title II and III regulatory definition of the term “disability” consistent with the definition of that term contained in the ADA Amendments Act of 2008.   The Notice of Proposed Rulemaking states that the public accommodations to be impacted are post-secondary educational institutions and entities that provide test administration services due to the increased number of people who will have qualifying disabilities entitling them to test-taking accommodations.  The DOJ estimates the financial impact of the rule on public accommodations to be $382 million over the next eleven years (in net present value terms, applying a 7% discount rate).

Our impression after a first read is that the expanded definition of what constitutes a protected disability under the ADA will have a far broader impact on public accommodations than advertised.  We are reviewing the proposed rule and will be back with further analysis in the coming weeks.

The public comment period for this proposed rule is 60 days from the regulation’s publication date of January 30, 2014.