Construction Specifier, May 2004, Horizons

A Fresh Look at (for?) ADA Accessibility Guidelines

I am a registered architect, licensed to practice in Minnesota and Wisconsin and a Certified Construction Specifier. I am not an attorney, nor am I employed by any national committee or government organization that writes, distributes, or enforces accessibility regulations. I am, however, a disabled person ardently advocating accessible architecture.

Remember, the essence of the Americans with Disabilities Act (ADA) is that it is a civil rights law–not a building code. The design standards issued under the act define the “right of access” people with disabilities are guaranteed under the law; they do not necessarily define the building standards (minimum or otherwise) to which an owner may be held liable.

Current case law suggests when we, as building professionals, apply ADA’s design standards to a project, we are supporting (read interpreting) our client’s obligation to their clientele. This means there is a significant legal (i.e. muddy) distinction made between a public accommodation’s (i.e. owner’s) obligation to operate without discrimination on the basis of disability, and our obligation to provide a client with a property complying with applicable laws, rules, and regulations.

Standards v guidelines
In September 1991, the Architectural and Transportation Barriers Compliance Board (the Access Board) and U.S. Dept of Justice (DoJ) jointly published a document now known as ADA Accessibility Guidelines (ADAAG). The Access Board had authored the document as proposed rules and published them as ‘recommendations’ to DoJ. The latter simultaneously adopted these guidelines as its “Standards for Accessible Design” under Title III of the ADA.

DoJ has made it clear in recent years it enforces the standards it adopted and published as Appendix A to the Title III regulations. Although the department did not change the cover page, it states emphatically that it does not enforce the guidelines authored by the Access Board, but rather the standards as adopted in 1991 and amended by its own Notices of Final Rulemaking.

To date, DoJ has only made one real change to its standards: it has expanded and refined the definition of an accessible ATM machine (Article 4.34, et sequelae, of the standards).

For the record, the departments of justice and transportation had ceased enforcing the “truncated dome texture” as the detectable (tactile) warning surface for curb ramps. After exhaustive study, however, the departments have allowed their “moratorium on enforcement of Truncated Domes” to lapse. So truncated domes are back, and the temporary change is now–and in perpetuity–void.

The Access Board, on the other hand, has continued to modernize its minimum accessibility guidelines. The board has researched, and held public hearings on proposed rules relating to judicial, detention, and recreational facilities, and developed accessibility requirements for spaces primarily serving young children.

Times of change
In 1991, and up to around 1996, the Access Board’s Guidelines and DoJ’s Standards for Accessible Design were, in fact, the same document. Today however, the differences between them are vast. The Access Board now publishes its guidelines only in their revised edition. DoJ does not and cannot, in fact, enforce the revised guidelines against owners or operators of public accommodations because it has not adopted them.

This is about to change. On February 23, 2004, the Access Board submitted its revised Minimum Guidelines for Accessibility to the Office of Management and Budget (OMB) for a review of its economic impact (not content). When approved by OMB, these guidelines replace in their entirety those previously published.

This does not just cover the guidelines for Title III of the ADA, but also the guidelines for the Architectural Barriers Act of 1968, and Section 504 of the Rehabilitation Act of 1973, which (by default) also changes the rules under Title II of the ADA.

In other words, these guidelines are designed to replace not only ADAAG as we know them, but also the Minimum Guidelines for Accessible Design under Section 504, as well as the Uniform Federal Accessibility Standards written for the Architectural Barriers Act.

DoJ and the other standards-setting agencies are required by law to adopt rules “consistent with the Minimum Guidelines issued by the Architectural and Transportation Barriers Compliance Board.” When the official, OMB-endorsed guidelines are published later this year, they will be presented in a form requiring a response from standards-setting agencies. As such, we can expect to see Notices of Proposed Rulemaking from the departments of justice, transportation, interior, education, and defense, as well as the U.S. General Services Administration (GSA), U.S. Postal Service, U.S. Forest Service, and Health and Human Services.

In the interim
The Access Board’s proposed guidelines are a peer-reviewed, public-document, which may raise the bar for the standard of care applicable to some projects.

In contests between an owner and DoJ, the latter will hold the owner accountable for complying with the Americans with Disabilities Act and, to the extent the case involves physical access, to its Standards for Accessible Design.

In contests between an owner and designer, however, the owner cannot contest a designer/contractor’s compliance with the act, but rather will press a claim of negligence or breach of contract (for an alleged failure to design/construct in compliance with applicable laws, regulations and rules). The owner will hold the project team to the standard of care expected of construction professionals. Which begs the question: Which standard of care?

Now that we have new guidelines from the Access Board, the base-line for standard of care as it relates to accessible design has changed regardless of DoJ’s position (or the position of any other standards-setting agency). We will be expected to know how the board’s new guidelines contribute to a best practices body of knowledge applicable to our client’s issues. The failure to apply such knowledge is the definition of negligence.

Harold Dean Kiewel, AIA, CSI, CCS,
Mr. Kiewel is a senior architectural specifier with Ellerbe Becket, Inc., possessing almost 30 years’ experience in the field of design for people with disabilities. He wrote the 1997 and 1998 Annual Supplements for John Wiley & Sons ADA Compliance Handbook and earned a Presidential Citation from the AIA for his work with their Diversity Task Force on access to the profession for people with disabilities.

Mr. Kiewel has been a member of Construction Specifications Institute (CSI) Minneapolis-St. Paul Chapter since 1988 and can be reached at harold_kiewel@ellerbebebecket.com.

Reprinted with permission of The Construction Specifications Institute, 99 Canal Center Plaza, Suite 300, Alexandria, VA 22314, from The Construction Specifier.

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