ADA Best Practices
Editorial paper not for legal precedence

One of the new confusions in understanding the ADA is the concept of Best Practices.

Caveat
The ADA is a civil rights law and these articles are about citizens’ rights-of-access to the built environment and how those rights may affect our practice. Current case law suggests that when we interpret the ADA’s application to a project we are supporting our client’s obligation to their clientele. This opinion just received another bolster, when on 6 August 2001 the US Court of Appeals for the Ninth District (TX) held that Architects are not within the class of entities that can be sued under the ADA.

Today’s Feature: Standards v. Guidelines aka Justice v. the Access Board

In Sept of 1991 the Architectural and Transportation Barriers Compliance Board (the Access Board) and US Dept of Justice jointly published a document now known as the ADA Accessibility Guidelines or ADAAG. The Access Board had authored the rules and was publishing them as recommendations to the Dept of Justice. The Dept of Justice was simultaneously adopting those “Guidelines” as its “Standards for Accessible Design” under Title III of the ADA. In recent years the Dept of Justice has made it clear that it enforces the “Standards” it adopted and published as Appendix A to the Title III. Although the Dept did not change the cover page, it has, especially in recent years, noted that it does not enforce the “Guidelines” authored by the Access Board; it enforces the Standards adopted in 1991 as amended by its own Notices of Rulemaking.

DOJ had only made two changes to its Standards, both of these were made by 1994. It had discontinued enforcement of the “truncated dome” texture as the detectable (tactile) warning surface for curb-ramps and expanded and refined the definition of an accessible ATM machine (article 4.34 et sequelae [et.seq] of the Standards). In 2001, after a 10-year enforcement moratorium, the requirements for truncated domes were restored. In effect, there has only been one change to the DOJ’s Standards - that is the expanded language regarding ATMs.

The Access Board, on the other hand, has continued its development of recommendations to Justice regarding minimum accessibility requirements. The Board has researched, held public hearings on and adopted proposed rules relating to judicial facilities, detention facilities, recreational facilities, and public rights of way and has developed accessibility requirements for small children.

The Access Board has also, in response to the uniform-standard (ie ICC) movement, made a serious attempt to completely rewrite its guidelines in a model code format. Separating all scoping provisions into a frontend chapter, and organizing the technical requirements into a building-block structure that is more readily applied to a diverse set of designs. This proposed revision was published in 30 Sept 1996.

If you call the Access Board and ask for a copy the ADA Guidelines, you will receive a document published in 1998 that includes all these changes. The cover bears the seal of U.S. Architectural and Transportation Barriers Compliance Board. The document looks like an official government publication (which it is) but, it is not Justice’s Standard.

Justice has not adopted any of these proposals.

While in 1991 the Board’s Guidelines and DOJ’s Standards were in fact the same document, the differences between them are now vast. One very likely outcome from this is that we, as designers, may be held to a higher standard than our clients. The Access Board’s new and improved Guidelines set a standard that is above the minimum requirements. DOJ can not enforce these rules upon Owners or Operators of Public Accommodations because it has not adopted them. The new Guidelines are, however, published, peer reviewed documents that are part of the public record on accessibility. As a public document they can raise the bar for design quality.

When a Owner is sued for alleged ADA non-compliance, the appropriateness of their operations and facilities will be measured against DOJ’s published regulations. If an Owner, who lost its battle on an ADA claim sues us, we will be sued for negligence. The test we must pass is not whether our work met the ADA Standards; we will be reviewed against the “Standard of Care” for our industry. Now that there are newer “Guidelines,“ the definition of the Standard of Care, as it relates to accessible design, is subject to change regardless of DOJ’s position. We could be held accountable to know or have known of the “Best Practices“ applicable to our client’s issues. It is our motto, “the right knowledge at the right time;” we may be held to it.

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