After more than a decade in effect, the enforcement mechanism for compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) is being reviewed and updated. On Sept. 30, the Department of Justice announced that it is beginning the process of adopting the revised guidelines that implement the Americans with Disabilities Act of 1990, as well as the Architectural Barriers Act of 1968. The recent adoption of the new guidelines by the Architectural and Transportation Barriers Compliance Board (ATBCB or “Access Board”), and, more importantly, the enforcement of them, have significant consequences for building owners and managers.
The Access Board has issued final guidelines for facilities and elements not addressed in the original guidelines four times since 1998. The final new guidelines published on July 23, 2004, incorporate these previous changes, but also include a comprehensive update and revision to the original base guidelines. The guidelines represent a 10-year process of reviews, hearings, and meetings among the various parties with interest in the ADA. The foundation for the new guidelines was the 1996 final report of the ADAAG Review Advisory Committee (a federal advisory committee on which the Building Owners and Managers Association [BOMA] International served), which included recommendations in an entirely revised, more “code-like” format. The guidelines also reflect technological advances that have been made in the industry and in building design. “This new version of the guidelines will not only improve access, but will also enhance compliance by making it easier to achieve,” notes Jan Tuck, vice chair of the Board.
As part of this recent revision, the Access Board has made its guidelines more consistent with model building codes, such as the International Building Code (IBC) and other well-recognized and accepted industry standards. The Access Board also coordinated extensively with model code groups and standard-setting bodies throughout the process so that differences could be reconciled. As a result, a high level of compatibility has been achieved, which has brought about improvements to the guidelines as well as to counterpart provisions in the IBC and other key industry standards, including the technical requirements for accessible elements contained in the International Code Council (ICC)/American National Standards Institute (ANSI) A117.1 standard, which is widely used at the state and local levels. According to BOMA International Codes Consultant Larry Perry, “The latest editions of both the International Building Code (IBC) and the A117.1 standard are substantially consistent with the newly published federal guidelines.”
Again, the Access Board’s guidelines are not mandatory, but instead serve as the baseline for enforceable standards, which are maintained by the Department of Justice and, in the case of transit facilities, the Department of Transportation.
Before publishing a proposed rule, the Justice Department is seeking public comment on issues related to the potential application of the Access Board’s revisions to the Justice Department’s standards. The department is also seeking background information for the regulatory assessment that the Justice Department must prepare in the process of adopting the revisions to the enforcement standards.
Although the Justice Department is inviting comments in four broad categories, there are several specific aspects of direct interest to building owners on which the department is seeking input. One is the effective date for enforcing the new standards for new design and construction, as well as for those buildings that have had alterations. Some ideas that the department has put forth for the effective date of the standards have ranged from 6 to 18 months following the publication of the standards as a final rule.
The most critical issue for building owners will be how the Justice Department incorporates the new guidelines into the ongoing obligation to remove barriers from existing places of public accommodation. Approaches that the department has indicated it is considering are: a blanket exemption from certain new requirements for specific elements, and establishing a lower level of required compliance with new technical provisions for certain elements. The department is seeking specific examples of the benefits and/or problems that each of these approaches would create.
Comments are due to the Justice Department by Jan. 28, 2005, and BOMA will present building owners’ concerns prior to that date.
For more information, contact BOMA International at (202) 408-2662 or visit (www.boma.org).