Comment on Eight Specific Elements in the 2004 ADAAG

Summary

With respect to the eight items addressed in Questions 1 and 2 in both the Title II and Title III, we believe that the benefits of the standards in the 2004 ADAAG justify the costs, and we firmly oppose raising those items with the Access Board for further consideration. In each case, the standard currently set forth in the 2004 ADAAG is consistent with that of model building codes that have been widely adopted by state and local building departments. This both decreases the likely cost of such measures and increases the prospects for compliance by providing more uniform standards for owners, architects and builders to follow. In addition, each of the eight measures significantly increases access for people with disabilities.

Further, we are opposed, as a general matter, to the Department sending any provisions of the 2004 ADAAG back to the Access Board for revisions, for the same reasons.

Extended Comments

The Department’s proposal noted, with respect to eight miscellaneous elements, that the incremental cost of each will exceed the monetized benefits by more than $100 million using the 1991 Standards as the baseline. It went on to note that this figure did not take into account that, since the 1991 Standards, many model and local codes have been adopted that are harmonized with these standards, though many local jurisdictions carve out exceptions. The DOJ asks two questions relating to these eight elements: (1) what the actual costs and benefits would be; and (2) whether they should raise these elements with the Access Board for further consideration.

As a general matter, we urge the Department to adopt the 2004 ADAAG with respect to these eight elements without further consideration by the Access Board. The 2004 ADAAG will promote compliance through harmonization with the model International Building Code (IBC), the accessibility standards developed by the American National Standards Institute (ANSI), and the many state and local codes that have adopted these models. Architects and builders are familiar with these codes and because many jurisdictions have adopted them, in many cases, it gives architects and builders a single coordinated set of standards to comply with, rather than two disparately numbered, often-inconsistent standards. Diverging from the IBC and ANSI standards makes no sense in new construction or alterations and will undermine compliance as architects juggle multiple standards.

The fact that the 2004 ADAAG track recent model codes thus provides two good reasons to adopt them without further consideration as to these eight elements: the cost will in fact be far lower than projected because compliance is already required by state and local codes; and the overall degree of compliance -- and thus access -- will be greater as designers and builders follow a uniform set of standards.

There is, in addition, no need for a safe harbor for any of these eight elements in the barrier removal context. The balancing of factors in the definition of “readily achievable” already addresses any and all cost concerns.

Further, we are opposed, as a general matter, to the Department sending any provisions of the 2004 ADAAG back to the Access Board for revisions, for the same reasons. The 2004 ADAAG provisions are already carefully crafted to take the needs of covered entities into account.

Side Reach

The 2004 ADAAG limit side reach to 48 inches, the same as the limitation on front reach. 2004 ADAAG § 308.3. This is a change from the 1991 Standards that permitted side reaches of up to 54 inches.

There is no reason to change side reach in the 2004 ADAAG as applied to new construction or alterations. It is no more expensive to place controls and operating mechanisms at 48 inches than at 54 inches.

More importantly, harmonizing side and front reach ranges eliminates a good deal of confusion over what constitutes a permissible side approach. This is a crucial point. In our experience with the enforcement of the ADAAG in public accommodations, it is very common for the owner/operator of a restaurant or store to assert that a side approach is possible -- and thus place an item or control at 54 inches -- when in fact only a front approach is possible. In addition, the fixed and moveable elements that govern whether a side or front approach is possible are often added to the design or even to the building itself, long after the height of the item in question is determined or the item installed. With a uniform height for both side and front approach, both design and compliance will be simpler.

Furthermore, the Access Board’s decision to require 48-inch reach ranges for both side and front approaches was supported by extensive testimony that this height limitation was necessary to permit use by people of short stature and many wheelchair-users with limited upper arm strength, as well as people with other types of disabilities and chronic illnesses.

Finally, the 48-inch limitation has been included in the ANSI standard for the past ten years, which will probably reduce the likelihood that adjustment will be required and, accordingly, reduce the overall cost of this measure. In the barrier removal context, the balancing of factors in the definition of “readily achievable” already addresses any and all cost concerns.

Water closets

The key change in the water closet clearances is the requirement of an unobstructed 56 by 60 inch space clear of obstructions. (2004 ADAAG § 604.3.2). The in-swinging door exception (Id. § 603.2.3 Exception 2) mitigates the effect by permitting the door swing to overlap the 56 x 60 clear floor space provided that a space of 30 x 48 remains clear of the door when it’s open.

The proposed new standard will increase the number of restrooms that are useable by individuals with wheelchairs and scooters, an important benefit but one that does not appear to have been “monetized” in the RIA. As an initial matter, the Regulatory Impact Assessment itself notes that the cost in the new construction context is minimal. RIA at 54. Although costs in alterations are projected to be higher, it is our view that they were not compared with the proper benefits. The RIA explains the potential benefit as “[t]ime increase in navigating smaller dimensions of bathroom, going in and turning around to close door.” RIA at 264. In actuality, the significant increase in access and independence for many people with disabilities has not been considered.

As with all of the standards harmonized with IBC and ANSI, the new standard will increase compliance overall by eliminating conflicting standards.

We urge the Department not to revisit this standard but to adopt it as proposed by the Access Board in the 2004 ADAAG.

Stairs

The 2004 ADAAG require for the first time that all stairs that are part of a means of egress (exit) from a building must comply with the requirements for accessible stairs. Previously, any stairs to levels already served by an accessible route -- for example, a lift or elevator -- were exempted from compliance. The RIA concludes that there will be no impact on new construction from this new requirement. See RIA at 57.

In alterations, the only new requirement is that compliant handrails will have to be installed when the stairs are altered. While the RIA assigns a high cost to this measure, it lists the benefit as “[t]ime saving in using stairs with technical requirements including treads and risers rather than going more slowly or waiting for assistance.” RIA at 262. This overlooks the

significant safety benefits from ensuring that each means of egress that may be used in an emergency is accessible to individuals with disabilities who are ambulatory, that is, do not need to wait in areas of rescue assistance.

For this important reason, we urge the DOJ not to revisit this standard in the context of alterations.

Elevators

The 2004 ADAAG require that when an element in an existing elevator is altered, the same element must be altered in any other elevators programmed to respond to the same call button. 2004 ADAAG § 206.6.1. The Access Board noted that this requirement “addresses [a] . . . unique circumstance. Elevator users typically do not control which elevator will respond to a call. If one car is altered and as a result made accessible, it would make continuous access on that elevator a game of chance, with the odds higher for each additional car responding to the call that is not similarly altered.” In essence, this requirement is necessary to ensure that the general alterations requirement -- that when an elevator element is altered it must be brought into compliance -- is effective for people with disabilities. Not only is it a “game of chance” for a person with a disability to end up with a compliant elevator, in many cases, it may be impossible to accomplish, as inaccessible elevators come and go.

In addition, it would appear that building owners could comply with this requirement by adjusting the call system to permit users to independently summon the accessible elevator, much as users can often independently summon a service elevator. This would minimize costs, maximize convenience and comply with the rule as currently formulated, with no need to revisit it with the Access Board.