Changes to ADA are on the horizon

(This article originally ran in Lawyers Weekly USA, Boston, MA, another Dolan Media publication.)

Fifteen years after Congress passed the Americans with Disabilities Act, the first major revisions to the Act's accessibility guidelines are making their way through the regulatory system and generating plenty of buzz.

I don't think most people have grasped the full impact of the changes yet, said Minh N. Vu, an employment and disability law specialist at Epstein Becker & Green in Washington, D.C.

The Access Board, an independent federal agency with the responsibility for fashioning the guidelines, issued its final, 300- page proposal in July 2004. The Department of Justice issued an Advanced Notice of Proposed Rulemaking in October 2004, and the comment period ended May 31.

A DOJ spokesperson said the comments are being analyzed now. Once this process is completed, the Department will draft a Notice of Proposed Rulemaking and cost-benefit analysis and invite more comments.

The Board's proposal suggests a wide number of changes, including new requirements for accessible parking, recreational facilities and hotel rooms.

According to spokesperson Dave Yanchulis, the final proposal was the result of a decade of work.

In 1994, the Board established a 22-member advisory committee, comprised of representatives from the design and construction industry, the building code community, state and local government entities and people with disabilities.

The committee reviewed the ADA accessibility guidelines and made recommendations for updating them to remain consistent with technological developments and changes in model codes and national standards.

The guidelines cover the construction and alteration of facilities in both the private sector (places of public accommodation and commercial facilities) and the public sector (state and local government facilities).

New guidelines will clearly have a far-reaching effect, said Vu.

Syracuse University and University of Iowa Law School professor Peter Blanck noted that, given our aging society, increased accessibility under the guidelines will impact people other than the disabled.

My view is that these accessible design guidelines transcend people with disabilities, said Blanck, who is the director of the Law, Health Policy & Disability Center at Iowa College of Law.

Major Changes

A primary goal for the Board was to bring the guidelines into conformity with industry standards and building codes, Yanchulis said.

Some changes attracted more comment than others. Here are some of the more controversial issues:

ATMs

When the guidelines were first promulgated in the early 1990s, audio-capable ATM technology was relatively new, Yanchulis explained. The new proposal requires the use of this technology and sets forth detailed specifications for the machines.

This is really breaking newer ground and greatly increasing access for people with vision impairment, said Yanchulis.

While some banks - especially small, local institutions - have expressed cost concerns, Blanck said market forces will change the banks' tune.

Hotel Rooms

Currently, when a hotel makes alterations to its rooms, for every 25 rooms it changesone has to be disabled-accessible, up to the maximum number required (depending on schedules based on a variety of factors). Vu said the new proposal maintains the ratio, but now requires hotels to disperse their accessible rooms across different categories. This could be expensive for hotels, she explained, because of plumbing requirements.

If you stack the accessible rooms from floor to floor, fewer retrofits will be required for the plumbing, reducing the cost, Vu said. But if rooms at different places in the building - one ocean view room, one suite and one garden view room - require different plumbing, work gets much more complicated and expensive, she said.

Recreational Facilities

Under the current regulations, while recreational facilities such as swimming pools and boating slips are covered entities, there is no standard that dictates specific requirements. The new proposal would change that, with specific standards for facilities including children's playgrounds, gyms and golf courses.

An example of this, said Vu, would be requirements for pools of a certain size to have at least two means of accessible entry, such as a pool lift and/or a sloped entry. Saunas and steam rooms are also covered, which could pose problems because of their typically small size.

Restrooms

The biggest change for restrooms would apply to reach ranges, or the height of things such as soap dispensers, hand dryers, garbage cans, coat hooks and storage shelves. Other changes include requirements for swing spaces for restroom doors and access space for urinals and stalls.

Parking And Entrances

Currently, for every eight parking spaces, a covered entity must provide one van-accessible disabled space. The new rules would increase that number to one in six, a significant loss of space, Vu noted, as vans take up a wider space. In addition, buildings with two or more entrances must now make at least 50 percent of their entrances disabled-accessible. The proposed changes increase that percentage to 60 - meaning that a two-entrance building would have to make both entrances accessible.

Employee Work Space

The proposed guidelines broaden the specifications for employee work areas, requiring that areas of 1,000 square feet or more have accessible circulation paths within them. In addition, employers must provide visual alarms for the safety of the hearing disabled.

Other proposed changes, which have been less controversial, would apply to sales and service counter access, signs, drinking fountains and storage facilities.

What Is Covered?

The guidelines as currently drafted would apply only to new construction or alterations begun after their effective date, but Yanchulis pointed out that the Department of Justice has the power to expand the guidelines' coverage.

Statutory language requires the DOJ to act consistent with [the] guidelines proposed by the Access Board, Yanchulis explained.

The guidelines provide a minimum baseline, so [DOJ] could only strengthen them, he added.

However, the consensus is that the DOJ is likely to simply adopt the guidelines in their entirety.

Until that happens, Vu said she isn't telling clients to start complying with the new guidelines wholesale. [But] we are advising people that if they can comply with both the current and the new regulations without significant expense or difficulties, they should go ahead and do that.

Vu doesn't expect a final version to be released for at least a year, and a recent lawsuit could delay the process further.

The National Federation of Independent Businesses in Washington, D.C. has filed a suit against the Access Board. Vu, who represents the plaintiff, said the complaint alleges that the Board failed to conduct a regulatory flexibility analysis as required by the Regulatory Flexibility Act, 5 U.S.C. Sect. 601-612.

The Act requires the Board to consider alternatives to regulation that would have a lesser impact on small businesses, she explained. The Board must consider those alternatives and make a determination about why they are not acceptable and why additional regulations are required instead.

The lawsuit seeks to rescind the guidelines as currently proposed and force the Board to conduct a RFA analysis.

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