In 1990, the disability community,
Congress, state officials and businesses made numerous compromises
to pass the ADA. Despite compromises, then-President George H.W.
Bush, disability leaders and Congress trumpeted eventual full accessibility
of public and private facilities. Sometime in the future, people
with disabilities would achieve equal opportunity with non-disabled
and full accessibility would be achieved.
Since 1990, we have
seen some progress—curb cuts
are now more the norm; ramps provide access to some stores and businesses
(definitely not in every one), some public swimming pools, playgrounds,
and governmental buildings provide a degree of accessibility (often
begrudgingly); sports venues are more accessible.
However, by and large,
neither the governmental entities (Title II of the ADA), nor private
business entities (aka, public accommodations) (Title III) have
taken the initiative on their own and said “oh,
Congress has made disability a civil right, and we will do the right
thing and make our facilities and programs accessible.”
Rather, progress has been slow, often requiring disability advocates
to take the initiative and demand governmental and business entities
to comply with the 1990 law and not make more compromises. The process
is slow because disability advocates may not exist in a community,
or they get frustrated that change is so difficult.
On June 17 the federal
Department of Justice (DOJ) issued proposed rules to the ADA’s
federal regulations which, if adopted, will significantly undercut
the original 1990 compromises and will impose numerous regressive
restrictions. Many of the proposed rules will ensure that full
accessibility will be, at best, postponed indefinitely.
The proposal rules,
together with all the background information, cost estimates, commentaries
etc., total about 1000 pages. Here, we will address only the Title
II requirement of “program accessibility
... when viewed in entirety” and the Title III requirement for
removal of “readily achievable” barriers from existing
facilities.
Here are two proposed changes:
Title
II. The current “program accessibility” regulation
requires a public entity’s programs and services be accessible,
when they are “viewed in their entirety.”
Re: the proposed rule “Existing play areas and recreation facilities.” If
a public entity has “multiple play areas as part of its program,” for
program accessibility “only a reasonable number but at least
one of such play areas would be required to undertake structural modifications
to provide access for individuals [i.e., children] with disabilities.” The “reasonable
number but at least one” rule applies also to swimming pools
and state parks.
Did the DOJ forget that “program access” for the past
18 years already implicitly required “at least one” accessible
facility, or the program in its entirely would not be accessible? With
the proposed rule, wouldn’t public entities shoot for the minimum—one,
regardless of the changes that might make many or all of the play
areas accessible?
DOJ asks if the “reasonable number, but at least one” is
workable, or should DOJ provide a list of factors that a public could
use to determine how many of the existing play areas or swimming pools
to make accessible? Folks—these are our children with disabilities!
DOJ asks if play areas
should have a “safe harbor” from
compliance with the applicable requirements in the 2004 Americans
with Disability-Accessible Guidelines (ADA-AG). This means that some
play areas that might be in compliance with local standards could
be exempt from ADA-AG standards that presumably require greater accessibility.
Does anyone think DOJ
would have proposed a “safe harbor” to
end discrimination based on race or gender?
Related to the problem
of a “safe harbor” is the DOJ question “what
is the tipping point” at which the costs of compliance “...
would be so burdensome that the entity would simply shut down the playground?” The
ADA is a civil rights statute that is supposed to ensure for disabled
folks the equal opportunity and the same benefits as non-disabled people.
But let’s get real! Does anyone know of any public entity in
the entire country that has closed down any public playground or
swimming pool because of inaccessibility?
DOJ wants to hear if “existing play areas less than 1,000 square
feet should be exempt” from accessibility requirements. This
size was chosen because of an assumption that such small areas represented
20% of the play areas located in public schools. Great! Disabled children
in those schools could be effectively kept off the play areas, presumably
like they are being kept out of mainstream classrooms. Every small
neighborhood tot lot would be exempted. The rulemaking asks if 50%
of monkey bars, sliding boards, and other “elevated play components” in
playgrounds should be exempt from accessibility. DOJ asks if “additional
ground level play components” should be substituted for the “elevated
play” components.
Title III - Section
36.304. The current regulation requires removal of barriers in
public accommodations when it is “readily achievable” to
do so.
It is important to remember
that the existing federal regulations require removal of barriers
only when it is “readily achievable”—which
on a case by case basis ensures that only reasonable modifications
will occur. “Safe harbors” will exempt from barrier removal
even those situations that are “readily achievable” to
be made accessible.
A small business will
receive a “safe harbor” if it spends
in a given year one percent of its gross revenues on barrier removals.
Advocates who have been frustrated since 1990 asking businesses to “remove
barriers” by building a ramp or making a bathroom accessible,
now will have the fun of arguing about a business’s “gross
revenues” in a given year and the costs of any alleged barrier
removal the business claims it has made. Should advocates ask if
the business took a tax deduction or received a tax credit for the
barrier removal? If it claims it did, should the advocate take their
word or request to read their 1040s? Then, the advocates come back
the next year and start the entire process again on another inaccessible
element? And we thought it was difficult to get a ramp with the existing
regulations.
The proposed regulations
also question whether to fully enforce the Access Board’s
guidelines for stages, auditoriums, witness stands, assistive listening
systems, golf courses, service animals, golf cars, mobility devices,
auxiliary aids, captioning, video interpreting services and other
areas.
You have 60 days to submit
comments. All comments must be sent by 8/18/2008. Refer to Documents
ID DOJ_FRDOC 0001-0025 (Title III, Public Accommodations) and DOJ_
FRDOC-0001-0026 (Title II, Governmental Programs). You can find these
documents at the following web address, as well as submit your comments
on-line by going to www.regulations.gov ![end of story]()
Back issues of other Information Bulletins are available online at
www.stevegold ada.com with a searchable archive at this site divided
into different subjects. To contact Steve Gold directly, write to stevegoldada@cs.com or call 215-627-7100.
