Attorney General Sessions’ withdrawal of various ADA guidances is good news for business, but only in the mildest way. Yesterday we looked at the withdrawal of two old guidances regarding service animals. Both were slightly out of date and their withdrawal did not make any substantive change in the requirements for businesses. Today we look at withdrawn guidances concerning accessible facilities and reach the same conclusion. Tomorrow we’ll look at the last of the ADA materials withdrawn, a guidance from the closing days of the Obama administration whose withdrawal may indeed have real consequences for state and local government.
The withdrawn guidances that include accessible facilities are:
- Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
- Title III Highlights (last updated 2008).
- Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
- Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
- Americans with Disabilities Act Questions and Answers (May 2002).
Not withdrawn are a number of other construction related technical assistance documents and guidances, including the 2010 Standards Guidance, the commentary in the Federal Register, and the Title III Technical Assistance Manual.
Looking at the individual withdrawn documents reveals that they are, like the materials on service dogs, mostly just out of date. Here’s a summary:
- “Common ADA Problems at Newly Constructed Lodgings” refers to the original ADA Standards for Accessible Design, so although the substantive requirements are almost identical the section numbers used are not.
- “Title III Highlights” is a broad overview of the ADA’s requirements that includes a reference to the now outdated original ADA Standards for Accessible Design and is for that reason only out of date.
- “Common ADA Errors and Omissions” refers to the original ADA Standards for Accessible Design and is, therefore, out of date with respect to section numbers.
- “Common Questions: Readily Achievable Barrier Removal” is another document from the era before the current 2010 Standards went into effect that includes some misleading references to the older standards, including, for example, a statement that van accessible spaces must always have a 96 inch access aisle. The old standards required a 96 inch wide parking space next to a 96 inch wide aisle. The 2010 Standards permit a 60″ access aisle but require that the van accessible parking space be 132 inches wide. (2010 Standards 502.2, 502.3). The total required width, 192 inches, has not changed.
- “ADA Questions and Answers” is another broad overview of the ADA’s requirements that includes Titles I (employment) and II (state and local government). It contains some possibly misleading statements about the ADA’s application to private apartments, which can be treated in some circumstances as transient lodging. It doesn’t contain anything whose elimination might be called a change in the law or the DOJ’s interpretation of the law and regulations.
Withdrawing these out-of-date guidances will help clean up DOJ’s confusing mass of material on ADA compliance, but is really only a first step. The list of technical assistance materials at ada.gov (https://www.ada.gov/ta-pubs-pg2.htm) still includes a mix of general and specific materials that could leave a small business owner confused about just what he or she needs to read, and the very fact that the 2010 Standards are still accompanied by both a 1993 Technical Assistance Manual and a 2010 Guidance indicates just how difficult it would be for anyone but an expert to figure out what is really required in many cases. The regulations, standards, guidances and other documents were written by lawyers and architects, but they are implemented by the operators of dry cleaners, sandwich shops and strip mall owners. DOJ is still a long way from providing a single clear resource for the people whose actions most affect the disabled on a day-to-day basis.