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Capitol Report

Coverage of legislation and regulatory activity that affects higher education

Cell Phones No Longer Considered “Listed Property”

As part of legislation including $12 billion in tax relief aimed at helping small businesses, Congress has passed legislation removing employer-provided cell phones from the definition of “listed property.” President Obama signed the Small Business Jobs and Credit Act (H.R. 5297) into law on September 27; the effective date of the provision is retroactive to Jan. 1, 2010.

In response to the outpouring of employer opposition (including colleges and universities) to taxability and complicated recordkeeping requirements related to personal use of employer-provided cell phones, the Department of the Treasury and the Internal Revenue Service were very vocal in pushing Congress to remove cellular phones and similar telecommunications devices (smart phones) from the definition of listed property.

The following text of footnote No. 90 in the Joint Committee on Taxation's technical explanation of the bill provides insight into congressional intent to enable Treasury to allow the nontaxability of cell phones under two exceptions in the tax code:

“The provision does not affect Treasury's authority to determine the appropriate characterization of cell phones as a working condition fringe benefit under section 132(d) or that the personal use of such devices that are provided primarily for business purposes may constitute a de minimis fringe benefit, the value of which is so small as to make accounting for it administratively impracticable, under section 132(e).”

Working with both the higher education community as well as larger coalitions in favor of this provision, NACUBO pushed for this legislative change. While it is a win, it is not without some administrative hurdles and uncertainty for college and university business officers. Considering the administration's strong support for eliminating the taxability of employer-provided cellular phones, further interest in this issue on the Service's part is unexpected. It is unclear if and when the IRS will provide guidance to assist employers with the many questions they have related to moving forward on these issues. In the meantime, NACUBO is working to provide additional information on options and strategies for institutions that may be making adjustments to policies and practices in light of the new law. 

RESOURCE LINK An explanation of the cell phone provision begins on page 26 in the Joint Committee on Taxation's technical explanation of the bill.

NACUBO CONTACT Mary M. Bachinger, director, tax policy, 202.861.2581

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Justice Revises ADA Regulations  

The Department of Justice (DOJ) recently revised its regulations implementing Title II and Title III of the Americans With Disabilities Act. Title II governs state and local government services, including public institutions; Title III applies to public accommodations and commercial facilities, including nonprofit institutions. The two sets of rules largely parallel each other. The amended regulations, published on September 15, affect college and university obligations toward individuals with disabilities in several areas.

Implementation will be phased in according to the following timetable: 

  • March 15, 2011. Beginning six months from the publication date, newly constructed and altered facilities may choose to follow either the 1991 accessibility standards or the 2010 accessibility standards.
  • March 15, 2012. One year later, all newly constructed and altered facilities must comply with the 2010 accessibility standards.

Following are some of the key provisions:

Campus housing. The previous ADA standards did not specifically address how the ADA applies to dormitories or other types of residential housing on campus. The new standards do, providing a definition of “housing at a place of education” and generally applying the standards for transient lodging. Several additional requirements relating to kitchens and accessible routes, taken from the residential facilities standards, also apply to dorms. At least 5 percent of sleeping rooms must be accessible to individuals with mobility impairments. In addition, at least 2 percent must be accessible to individuals with communications-related disabilities. Residential units leased on a year-round basis to graduate students or faculty are also subject to the residential facilities standards.

Service animals. ADA rules have long required institutions to modify their policies, practices, and procedures to allow for the use of service animals by individuals with disabilities, including students, school staff, and visitors. Under the new regulations, a “service animal” is defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Except for miniature horses, other species of animals—or animals used for other reasons such as emotional support or companionship—are not covered by the definition.

By March 2012, all newly constructed and altered facilities must comply with the 2010 accessibility standards.

Some state laws also impose specific requirements with regard to the use of service animals in public places. Additionally, federal laws, such as Section 504 of the Rehabilitation Act of 1973 and the Individuals With Disabilities Education Act of 2004, require an individualized determination of whether a student may need a service animal as part of his or her Section 504 Plan or individualized education program. Thus, institutions should carefully review their policies and procedures to ensure that they properly align with the new federal requirements.

Equal opportunity to ticketed events. The guidance covers the sale of tickets for accessible seating, the sale of season tickets, the hold and release of accessible seating to persons other than those who need accessible seating, ticket pricing, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating. The use of temporary platforms to provide or conceal accessible seating is generally not allowed.

Accessible design. The standards support a long-term effort to minimize ADA compliance burdens on public entities like campuses by eliminating inconsistencies among federal, state, and local accessibility requirements.

Stadiums and assembly areas. The 2010 standard reduces the scoping requirements for assembly areas. Facilities with 501 to 5,000 seats must provide one additional wheelchair space for each additional 150 seats (or fraction thereof), and facilities with more than 5,001 seats must provide one additional space for each 200 seats over 5,001. In addition, lawn seating areas and exterior overflow areas without fixed seats must now connect to an accessible route.

Employee paths to work areas. New or altered work areas need to include accessible, common-use circulation paths within employee work areas, subject to certain specified exceptions.

Location of accessible routes. All accessible routes connecting site-arrival points and accessible building entrances now must coincide with or be located in the same general area as general circulation paths. Also, where a circulation path is interior, the required accessible route must also be located in the facility's interior.

Parking structures. Where levels in a parking garage have direct connections for pedestrians to another facility, all of these direct entrances must now be accessible.

Mobility devices. The new regulations draw distinctions between wheelchairs and “other power-driven mobility devices.” The latter are defined as “any mobility device powered by batteries, fuel, or other engines” and include electronic personal assistance mobility devices, such as Segways and golf carts, among others. Although some of these devices are not primarily designed for individuals with disabilities, institutions must permit their use on campus unless such use would fundamentally alter their programs, services, or activities, or create a direct threat or safety hazard. The new regulations provide a list of considerations for making this determination.

Communication and distance learning. The amended regulations expand the requirements for providing auxiliary aids and services to individuals with disabilities. Now, “companions with disabilities” (i.e., family members, friends, or associates of an individual seeking access to a service, program, or activity of an institution) are entitled to receive auxiliary aids and services, where necessary, to ensure effective communication.

Institutions that use video-remote interpreting services (i.e., video conference technology over dedicated lines or wireless technology) need to comply with specific requirements, such as ensuring that the service produces a clear, audible transmission of voices as well as high-quality video images.

Telecommunications. The amended Americans With Disabilities Act regulations require institutions that communicate by telephone to use text telephones (i.e., teletypewriters) or equally effective telecommunications systems to communicate with individuals who are deaf, hard of hearing, or speech-impaired. In addition, where an institution uses an automated-attendant system, such as voicemail, or an interactive voice-response system for receiving and directing incoming telephone calls, the system must provide for effective real-time communication with individuals who use auxiliary aids and services.

NACUBO recommends that institutions begin developing or modifying their existing policies, procedures, and practices to comply with the newly amended ADA regulations. Consult legal counsel to determine how these regulations may affect your particular needs and obligations under federal and state laws.

RESOURCE LINKS For more information on the revised Americans With Disabilities Act, go to the following sites: Federal Register Title II; Federal Register Title III; Fact Sheet.

NACUBO CONTACT Tadu Yimam, policy analyst, 202.861.2541

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Temporary Measure Funds Federal Agencies

In a typical year, the annual appropriations process is complicated and drawn out, and 2010 is no exception. Before leaving town until mid-November, Congress passed, and President Obama subsequently signed into law, a measure to fund through December 3 federal departments and agencies and the programs they administer.

Prior to taking this action, Congress had not passed any of the 12 separate appropriations bills that will fund the U.S. government for the fiscal year that began October 1. Further spending decisions for the year are now scheduled to be made during a lame-duck session after the November elections. The short-term spending measure temporarily funds all federal education programs subject to annual appropriations at fiscal year 2010 levels, without making any legislative changes to the operation of these programs.

Delays in the appropriations process actually started this spring when it became clear that there was a lack of consensus among lawmakers about the desired total federal spending levels for fiscal year 2011. The time spent unsuccessfully trying to get such an agreement meant that Congress was substantially delayed in establishing allocations for each of the 12 separate funding bills. During the summer and fall, the Senate Appropriations Committee did approve a bill funding the Labor, Health and Human Services, and Education departments but that bill was not debated by the full Senate. The House Appropriations Subcommittee on Labor, HHS, and Education has yet to even approve its bill. The lack of detail may complicate slightly the process of reaching agreement on a final spending bill either during the lame-duck session or in early 2011.

NACUBO CONTACT Matt Hamill, senior vice president, advocacy and issue analysis, 202.861.2529

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