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By Rebecca Adams Almost from the moment it was signed into law by President George Bush in 1990, the Americans With Disabilities Act (ADA) has been a source of tension between activists for disability groups, who view it as the most important anti-discrimination measure in a generation, and business organizations, who characterize it as a thicket of details that impose huge costs in the name of equal opportunity. This isn’t the sort of dispute a lame-duck president would typically wade into. But President Bush is preparing to take a position on this subject later this year, when the Justice Department issues the first comprehensive revision to rules that have governed the law’s enforcement of public access since enactment. There is no looming deadline or particularly strong political pressure to revise existing regulations. Persons familiar with the administration’s thinking say Bush views this as an opportunity to fortify a piece of his father’s legacy. However, business groups fear that proposed new requirements for buildings and other structures will impose substantial costs. Industry lobbyists are mounting an aggressive campaign to stall the new design rules and give businesses less-expensive options for complying with them. More Access: Proposed changes in rules under the Americans with Disabilities Act that govern access to buildings and public areas are intended to bring the 1990 law up to date. (GETTY IMAGES / JOE RAEDLE) The rules are based on 304 pages of recommendations from the U.S. Access Board, a 25-member, congressionally chartered agency that has solicited input from disability activists and companies for almost a decade. The board’s recommendations spare few details, defining such criteria as the thickness of lettering on interior signs, the location of handrails in public restrooms and even under what circumstances golf putting greens must be accessible to motorized carts. One central issue is how closely the administration should follow the recommendations. Business groups, particularly those representing the hotel industry, say the Justice Department should proceed carefully. They say the Access Board’s proposed rule changes are too far-reaching and won’t significantly improve the lives of the handicapped. The groups also want the administration to grandfather buildings that were modified under current ADA guidelines. “Businesses welcome the disabled as customers and want to serve them, but as we think about these changes, are the benefits really justifying the costs?” said Karen R. Harned, executive director of the National Federation of Independent Business’ Legal Foundation. In one pre-emptory strike, lobbyists and lawyers representing InterContinental Hotels Group, Wyndham Worldwide, and the American Hotel and Lodging Association met July 24 with officials from the White House Office of Information and Regulatory Affairs (OIRA) to persuade the administration to reject any rules that don’t address their concerns about costly new mandates. OIRA must approve rules before they are published in the Federal Register and can take effect. “We’re really hoping that when OIRA conducts its economic review, it’ll take a hard look at the issues and price tag and say, ‘Is this worth it, or is there a better way of getting to comparable results?’ ” said Minh Vu, a Washington attorney representing the industry. Reasonable Requirements? Advocates for people with disabilities say business groups are exaggerating the scope of the problem and note that the law requires accommodations for individuals who cannot see, hear, walk or function at a high cognitive level. Many activists for the disabled have been chagrined by a series of federal court rulings, including Supreme Court decisions, that have scaled back the reach of the ADA by limiting the definition of “disabled.” Those arguments resonate with some lawmakers. House Majority Leader Steny H. Hoyer of Maryland, Wisconsin Republican Rep. F. James Sensenbrenner Jr. and others are pushing legislation that would make it easier to prove a disability. More than 51 million people, equal to about 18 percent of the population, have some level of disability, according to the Census Bureau. Almost 33 million have serious conditions that require specialized care. The ADA’s original design requirements focused on new construction but required existing buildings to be retrofitted if the task was “readily achievable,” which the law defines as “easily accomplishable and able to be carried out without much difficulty or expense.” Regulators wrote the regulations quickly, leaving questions about the meaning of some criteria. The anticipated Justice Department rules are seen as an attempt both to clarify how the law is administered and to address technical concerns. Spokeswoman Cynthia Magnuson said the department has analyzed more than 900 comments since it gave notice three years ago that it would propose changes. The Access Board estimated in 2004 that it would cost about $88 million a year to make new office buildings, hotels, sports stadiums and other structures comply with its recommendations. The board didn’t estimate the cost of renovating existing structures. “The requirements are so reasonable and industry positions are taken so seriously” by regulators that “it’s hard for me to understand what the problem could possibly be,” said Marilyn Golden, a policy analyst at the Disability Rights Education and Defense Fund and a former member of the Access Board who helped write the recommendations. Who Makes the Rules? Business groups complain to the White House that Justice appears unwilling to test its statutory authority and reject some of the Access Board’s recommendations. A 27-page letter that hotel industry lobbyists submitted to OIRA officials at the meeting last month says Justice might be unwilling to reject recommendations “because of a mistaken belief that it has no discretion to adopt standards that are less stringent than the minimum guidelines set by the access board.” The law itself says agency standards for new and renovated construction “shall be consistent with the minimum guidelines and requirements” set by the board. However, Vu argues that the Access Board doesn’t have rule-making authority and that Justice “is required to exercise its own judgment” about how to write regulations. Read the article Getting More Specific With the ADA Rules. An accessibility specialist with the Access Board, Jim Pecht, said Justice has a representative on the board and participated fully in its discussions. Pecht said board officials believe the law requires Justice to use the recommendations as a baseline for new construction and renovations, but it gives the department more leeway for existing buildings. The scope and potential cost of the proposed rules ensure that they will receive considerable interest, no matter what the final version says. For this reason, observers expect legal challenges. Business lobbyists contend that small design changes can entail significant cost. They argue that the recommendations don’t strike an adequate balance and might inconvenience the public. For example, retailers say handicapped-accessible dressing rooms in their stores currently have to be large enough to allow a person in a wheelchair to make a single turn inside the door. The retailers say the Access Board recommendations would force changes that give the individuals more room to maneuver. The executives say that will leave fewer changing rooms for people who don’t have special needs, although Access Board staff predict that there shouldn’t be a net change in space. “Is the advantage of turning left as well as right enough to cause everyone to wait twice as long?” said Mallory Duncan, general counsel and senior vice president for the National Retail Federation. Another concern involves the number of hotel rooms that must be accessible to the 2.9 million Americans in wheelchairs. Access Board guidelines suggest that when a hotel renovates 100 hotel rooms, it should include five wheelchair-accessible rooms, including at least one with a roll-in shower, according to industry officials. The current regulations require four rooms. “That looks like a small increase, but it’s a significant investment,” said Kevin Maher, senior vice president for government affairs for the American Hotel and Lodging Association. Disability rights advocates counter that the government should consider the costs to disabled individuals who need improved access to services. “I think that if the public knew what industry was trying to get out of, the industry would be embarrassed because these changes are so modest and so appropriate,” Golden said. Peter Blanck, an expert on disability law at Syracuse University, said the discussion about accommodating the disabled has become so polarized that Bush has a rare chance to steer a new course. “There’s an opportunity for the Justice Department to provide greater guidance to industry” and clarify the law in a way that gives certainty to business, he said. But, Blanck added, it remains to be seen whether the administration can find consensus. “Will this president continue his father’s legacy in that regard?” he said. For Further Reading: ADA enactment (PL 101-336), 1990 Almanac, p. 447. Source: CQ Weekly
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