DOJ to Enact Vast Changes to the ADA: NCIL Files Comments

The Department of Justice recently issued major proposed revisions to its regulations implementing Titles II and III of the Americans with Disabilities Act (ADA).

Some of DOJ's changes are excellent, and urgently needed. It is important that the disability community laud these, to support DOJ against industry attack. Good proposals include adoption of the new 2004 ADAAG, stronger hotel reservation and ticketing provisions, recognition of psychiatric service animals, additional companion seating in theaters and stadiums, and stronger provisions for effective communication for people with hearing, visual, and speech disabilities.

However, there are also many draconian changes that would radically reduce the rights of people with disabilities. For example, DOJ proposes:

• A significant weakening of the readily achievable barrier removal requirement for public accommodations;
  
  
• A significant reduction of elements required to be accessible in state and local government facilities;
  
  
• An exemption for all existing facilities from the new recreation and playground rules;
  
  
• The Department has declined to issue regulations on accessible medical equipment.

To see draft comments, visit www.ncil.org & www.dredf.org/DOJ_NPRM. To submit comments go to www.ada.gov (comment period ended August 18, 2008). NCIL will update progress as information becomes available.

NCIL Comments on DOJ Proposed Rules:

Thank you for this opportunity to comment on the Proposed Rules.  We write to you today on behalf of the Governing Board of the National Council on Independent Living (NCIL), and in particular the ADA/Civil Rights Subcommittee for the organization. 

The National Council on Independent Living is the oldest national cross-disability, grassroots organization run by and for people with disabilities. Founded in 1982, NCIL is the association representing Centers for Independent Living (CILs) and Statewide Independent Living Councils (SILCs), which provide independent living services and advocate for the civil rights of people with disabilities throughout the United States.

Centers for Independent Living serve our nation in all but five Congressional Districts.  These Centers are non-residential, cross-disability advocacy organizations. CILs serve people with disabilities of all ages and income; including people with physical, cognitive and sensory disabilities, as well as the growing population of people with mental illnesses and returning veterans with PTSD.  Many Centers offer additional services such as community advocacy projects, home modification programs, and technical assistance in their communities on compliance with the ADA.

Many NCIL members were advocates who worked tirelessly to make the ADA a reality in 1990.  Since then those same members have provided technical assistance, information, and referrals to resources like the Department of Justice Technical Assistance Line to help make their communities accessible to all.  NCIL has provided National ADA Trainings to the public as well as its members since the law went into effect, and we have gained much experience in not only pointing out barriers, but providing solutions that can benefit everyone. 

Many of our member Centers, as well as Individual Members, have provided both volunteer and fee-for-service consulting on the ADA for years.  We have relied on both the ADA as our civil rights law, as well as building codes where appropriate,  to guide us.  While building codes have been revised over the years, we have waited for a long time for this proposed rule to finally adopt a revised ADAAG - to provide continuity and less confusion with regard to the Standards for Accessible Design.  While this rulemaking gets the job done in that regard, we have some serious concerns about some aspects of the proposed rules. 

The Department has set a short time frame for comments on this portion of the rulemaking, despite many requests for extensions at the Public Hearing held by the Department, even though it took years to get to this point.  The Proposed Rule has offered many more questions than answers so far, and in attempting to submit comments per the Department’s request in such a short period of time, the NCIL ADA/Civil Rights Subcommittee has concentrated their efforts on addressing the issue that is sure to have a huge impact in our members advocacy for better accessibility in our communities. 

NCIL continues to strongly object to exemptions, reduced scoping, and the extent to which the ruling offers “safe harbors” to entities that already had enough flexibility in making their facilities accessible through the readily achievable standard in the current language of the regulation.  The 2004 ADAAG has also already done a good job of providing changes and enhancements to the 1991 standard that make it easier for buildings to comply.  Adding ranges to numbers that were absolute, for instance, like toilet centerlines, interior signage heights, and strobe mounting heights, will make applying solutions for readily achievable barrier removal easier for building owners, and give contractors the flexibility to construct projects in compliance with the standards and International Building Code. 

A safe harbor with regard to facilities built or altered under the 1991 Standards was expected by many when the revision was contemplated, but NCIL has grave concerns about the 1% safe harbor for qualified small businesses regarding what is readily achievable:   

Question 46:  Should the Department adopt a presumption whereby qualifying small businesses are presumed to have done what is readily achievable for a given year if, during the previous tax year, the entity spent at least one percent (1%) of its gross revenues on barrier removal?  Why or why not?  Is one percent (1%) an appropriate amount?  Are gross revenues the appropriate measure?  Why or why not?

This formulaic approach to barrier removal presents several problems

While the Department is obligated to consider the potential impact of its regulations on small entities, the "1% of gross revenue" scheme, as applied to "qualified small businesses" seems arbitrary and misguided.  The Department notes that another scheme, to use "5% of net revenue" was suggested by a business group. The Department is proposing "gross" rather than "net" based on its "experience in enforcing the ADA"; with no further explanation of how this scheme was arrived at!

If a "percentage" scheme made sense, why would it only make sense for "small" businesses? If it were a workable idea, wouldn't it work equally well for larger businesses? And if the current approach is effective for larger businesses, why is it any less effective for smaller ones? How would someone who has a disability know that the business has expended 1%?  They will only know they can’t access the same goods and services as everyone else.  Do they now have to prove that the entity hasn’t removed enough barriers to meet the 1% safe harbor?  If this is the only solution, NCIL feels there is no need for a departure from the Department’s current position on barrier removal.  The current approach already allows for the implementation of individualized, customized solutions. 

Reliance on the Small Business Administration's regulations would have the effect of classifying a vast array of entities as "qualifying small businesses" for the purposes of enforcing a civil rights statute. These SBA regulations were not intended for such a purpose, and are ill-suited to the task. Some of the businesses which would be considered "small" have annual receipts upwards of $20,000,000!  Businesses in industries where membership in the "small" business community is determined by number of employees (there are hundreds of industry categories so classified) may have up to 100 employees, in many cases up to 500 employees, and in some cases up to 1,500!  While such businesses may not look "small" to the outside observer, these "revenue" and "number of employees" factors, in and of themselves, are not necessarily an indication of the resources that a business has available to support barrier removal activities.  And that's the point!   Whether the formula uses 1% of gross revenue, or 5% of net revenue, it is merely an attempt to quantify something that, by nature, can not be quantified.

The concept of "readily achievable" is a double-edged sword. It is at the heart of the challenge and the beauty of the ADA. Those who prefer neat, definite, formulaic approaches will be challenged and frustrated. Those who seek to solve real problems in the real world appreciate the flexibility that the current approach offers.

A formulaic approach is not warranted, nor can it be effective. It is merely an attempt to placate those who lack the willingness or creativity to overcome barriers in a meaningful way. Barrier removal can not be achieved by numbers. Barrier removal must involve the human factor. Priorities must be established based on more than an attempt to spend enough money to sail into the "safe harbor."

"Barrier removal by the numbers" may also lead businesses to neglect barriers which they could, in fact, remove without undue burden, merely because those projects would require a more long term (multi-year) approach. A business may be able to afford to install an elevator or emergency visual alarm system in their old building, but they might have to spend five years worth of "formula funds" in one year, and then spend no more on barrier removal for four subsequent years. Under the "annual formula" plan, they would be leaving themselves open to a lawsuit following those "non-spending" years. Who could blame them if they took the "safe" route? They would remove other barriers, but never install the elevator or the visual alarm system. While it is not the intention to dismiss or minimize the progress that would be represented by the removal of other barriers, which might be "smaller" but no less significant to certain individuals, the individual who needs the elevator or the visual alarm would never realize the benefit of full inclusion in that building.  

The proposed language also opens the door to confusion about the application of the barrier removal standard to new businesses – those which have only been in operation less than a year. Hundreds, probably thousands, of entities open for business every year, many of them in existing facilities (littered with barriers). These businesses have every right to do that, but they also have the obligation to begin removing barriers from the day they open their doors to the public. How will we know if they are meeting their obligations before we have data from the "previous tax year" to guide us?
Civil rights can not be effectively protected by applying a mathematical formula to something as complex as barrier removal. Any attempt to do so is doomed to failure!

The NCIL ADA/Civil Rights Subcommittee believes the 1% safe harbor can be manipulated too easily, and gives businesses who have been avoiding compliance with the ADA another way of keeping their barrier removal efforts at a minimum or non-existent.  The readily achievable barrier removal requirement has been an ongoing obligation for years, with free technical assistance available to entities through several resources during all that time.  Most businesses should have already accomplished most of the work necessary over the years if they were intent on serving people with disabilities, and taken advantage of the tax incentives available all along in the process!

NCIL continues to have concerns with other sections of the Proposed Rule like the definition for service animals, access to existing swimming pools, requiring individuals to attest in writing that they actually use a wheelchair to reserve wheelchair spaces at events, and access to existing play areas.   We would again ask that the Department extend the comment period so that additional comments can be sought from more of our members - the individuals whom this rule making will effect the most – people with disabilities.    

Thank you for the opportunity to present our comments.

Mark Eastlake Derry
NCIL ADA/Civil Rights Subcommittee