Comment on Safe Harbor Proposals in the NPRM for Titles II and III of the ADA

Summary

• We object to the automatic “grandfathering” exemption for facilities that allegedly comply with the 1991 ADAAG. The reference point should be the proposed 2004 ADAAG. There is no statutory basis for adding such a grandfathering exemption for facilities that allegedly comply with the 1991 Standards. In order to recognize the burden on facilities that have worked to comply between 1991 and the present, we propose that a previous record of barrier removal be one of the factors to be considered in determining what constitutes, going forward, readily achievable barrier removal (under Title III) and what (under Title II) renders a facility, when viewed in its entirety, readily accessible to and useable by individuals with disabilities .

• The exception excusing covered entities from providing an accessible path of travel to an altered area of primary function should be removed. There is no statutory basis for such a carve-out. If a public entity is already in the process of altering its facility, the law should require that people with disabilities receive any increased accessibility that would be provided by using the proposed 2004 ADAAG for path-of-travel work.

• The presumption that providing access to just one of any type of facility that provides a program constitutes “program access” should be removed. If only one of several facilities must be made accessible, then persons with disabilities will be forced to use that one facility. This would result in the segregation of people with disabilities from the rest of the population. This would directly contravene the stated purpose of the ADA, and would be directly contrary to our civil rights tradition.

Discussion of Recommendations

A. A Facility That Complies with the 1991 Standards Should Also Be Required to Meet the Proposed 2004 ADAAG Where it is Readily Achievable (under Title III) or required to ensure program access (under Title II).

The Department of Justice (“Department”) has proposed that elements in existing facilities that are in compliance with the 1991 Standards not be required to meet the proposed 2004 ADAAG. There is no statutory basis for adding such an automatic grandfathering exemption for facilities that allegedly comply with the 1991 Standards. Indeed, nothing of this sort has been proposed with previous federal design standards, such as the Minimum Guidelines on Accessible Design (MGRAD), nor was there safe harbor in the 1991 Standards for compliance with MGRAD or other earlier standards.

In addition, of course, the so-called incremental differences between the 1991 Standard and the 2004 ADAAG represent important advances in access for people with disabilities, ones that should not be lightly excused, particularly where compliance with the 2004 ADAAG would not be burdensome. The 1991 Standards are outdated in many respects. For example, the 2004 ADAAG requires vanity counter top space in lodging toilet rooms, a forward approach at service counters, and increased accessible parking for vans. Thus, choosing proposed 2004 ADDAG as the new guideline for the presence of barriers in existing facilities would be more protective of people with disabilities. It would also be more consistent with our evolving understanding of the specific design dimensions that actually make the built environment “readily accessible to and usable by” persons with disabilities.

At the same time, we recognize the burden inherent in requiring full compliance with the 2004 ADAAG when a business or public entity has already worked to comply – either in new construction or through barrier removal – with the 1991 Standards. Indeed, it could be seen as imposing on precisely those businesses or entities that should be praised for proactive efforts to comply with the 1991 standards, while providing a free pass to those who ignored their compliance obligations until this late date.

To address these competing interests, instead of automatically permitting elements that are in compliance with the 1991 Standards to remain out of compliance with the 2004 ADAAG, we propose that previous compliance and/or barrier removal be recognized as a factor in the readily achievable analysis (for places of public accommodation) and the program access analysis (for public entities). Under Title III, any building built before the effective date of the new regulations will be considered an existing facility for purposes of the 2004 ADAAG, and thus will only be required to remove barriers (in the absence of an alteration) where it is readily achievable to do so. 42 U.S.C. § 12182(b)(2)(A)(iv). Under Title II, such buildings must comply with the program access standard of 28 C.F.R. § 35.150(a). We urge the Department – in lieu of the absolute safe harbor now proposed – to adopt an the 2004 ADAAG as the benchmark for the presence of barriers, but adopt the interpretation that previous barrier removal and compliance efforts may be considered as one factor in the analysis of what constitutes readily achievable barrier removal or program access

As an example, a hotel has installed a lift in its swimming pool. At the time of installation, the US Access Board had not developed its Recreation Facilities guideline, and the hotel pool lift has no footrests, as the guideline today specifies. Yet the fact that the hotel provided the lift should be duly considered in the analysis of what its obligation will be, once the Department adopts these proposals. Under the barrier removal requirement, the hotel should buy and add footrests to the pool lift, if that is possible. But it should not necessarily need to purchase a new, fully compliant pool lift. If the pool lift has outlived its useful life, and fully depreciated, then it should be replaced. But if it was bought recently, perhaps it should not need to be replaced. However, the hotel should not be permitted, under the ADA, to assert that, because it purchased a pool lift, it never needs to be replaced, regardless of its condition.

As another example about an element that is addressed by the 1991 ADAAG, if an older theater has come into full compliance with the 1991 ADAAG, but finds it is not readily achievable to upgrade to the 2004 ADAAG, that theater’s compliance with the 1991 Standards should be taken into account when assessing whether it is necessary or not to make changes that would be necessitated by the 2004 ADAAG under the readily achievable barrier removal requirement. The theater’s conscientious record should legitimately play a role, and doing so by adding our recommended factor to the readily achievable barrier removal requirement obviates any need for the draconian safe harbor proposed by the Department.

In order to avoid confusion, the Department should make it very clear that, as with the rest of the factors in the barrier removal analysis, the business has the burden of proof to demonstrate any previous barrier removal or other compliance that it believes is relevant to the readily achievable calculus.

• There Should Be No Exception For The Path of Travel Leading to an Altered Area of Primary Function

Under the current version of the NPRM, if alterations are made to a public accommodation’s or public entity’s area of primary function, it does not have to bring the path of travel to that area into compliance with the proposed 2004 ADAAG. Essentially, this is a 1991 ADAAG carve-out under which new work would not be required to meet new standards.

There is no statutory basis for such a carve-out. If a public entity is already in the process of altering its facility, the law should require that people with disabilities receive any increased accessibility from using the proposed 2004 ADAAG for path-of-travel work. (However, the provision authorizing the use of the 1991 ADAAG as a benchmark for facilities currently in design is acceptable.)

In the Title III context, public accommodations are only required to spend up to 20% of the alteration costs on path-of-travel construction; there is no need for a further limitation.

Further, the current version of the NPRM states that the requirements for path-of-travel work will not apply to measures taken solely to comply with program access requirements. There is no authority for such a recommendation, nor is any purpose served by such a restriction. A readily accessible path of travel is necessary for people with disabilities to get to the physical location in which programs are held. To do away with the path-of-travel requirement in this instance would render meaningless the concept of “program access.” Just as the requirement to provide an accessible path of travel to an altered area (regardless of the reason for the alteration), plus making the restrooms, telephones, and drinking fountains that serve the altered area accessible, is a necessary requirement in other alterations, it is equally necessary for alterations made to provide program access.

Providing Just One of Any Type of Facility Does Not Constitute “Program Access”

The Department seeks comments regarding whether a ‘reasonable number, but at least one’ of a feature would be a workable standard to determine program access. (Question 24, p.24486; Question 30, p.34487.) This standard is neither workable nor reasonable. This proposed new standard would be discriminatory because it would result in unequal access for persons with disabilities, and it would also have the effect of segregating disabled and nondisabled persons.

Consider the following examples:

• A city could install one curb cut ramp per block, and then claim it had met the standard for accessible sidewalks.
  
• A school district could claim that, because it had made one elementary school in the district out of thirty accessible to people with disabilities, none of the other elementary schools would need to be brought up to accessibility standards.
  
• A state could bring one out of twenty courthouses up to accessibility standards and claim to have met the accessibility standard.
  
• A city could claim that it complied by making only one public park accessible out of the seven parks that serve different neighborhoods in that city.

In all four examples, the end result would be the same: the segregation of people with disabilities from the rest of the population. This would directly contravene the stated purpose of the ADA. Where a public entity provides multiple facilities (such as libraries, parks, pools, schools, courthouses, etc.) to serve different neighborhoods or geographic locations, it is necessary for people with disabilities to be able to access the benefits of such programs when they are provided on a local or neighborhood basis to the general population. Further, if persons with disabilities are only able to use one of seven public parks (for example), by definition persons with disabilities have been provided with access that is inherently unequal to that provided to nondisabled persons. Not only is their choice among parks effectively eliminated, but most likely, they must face the burden of leaving their neighborhood to travel to an accessible park, which is a burden that is not imposed on nondisabled persons. All these factors, and others, must be considered when establishing what is required to comply with the program access standard. For example, does the city have effective accessible transportation? If not, one park or playground in one corner of the city does not provide program access.

IV.Triggering Date

The Department’s proposal that covered entities comply with the proposed 2004 ADAAG for construction that begins six months after the publication of the final rule is reasonable. Additionally, the provision regarding the triggering event for alterations and new construction (specifically, that coverage would be triggered by the start of alterations or new construction) is reasonable. (Section 36.406(a)(2) – Applicable Standards, p.34541-34543; Question 50, p.34543.) Both of these proposals should be maintained in the final rule.