Volume 8, Number 2 — November 2004
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This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Richard J. Davies and Neil P. Clain

The Convergence Of Accessible Design Standards Continues: Access Board Releases New Minimum Guidelines Merging Requirements Under The ABA And ADA

By Richard J. Davies, Esquire

INTRODUCTION

Private citizens, local and state governments, and the federal government have contributed to the effort of providing independence for persons with physical and sensory disabilities by requiring accessible spaces in structures and on sites that create our built environment. Yet, while these entities may have proceeded with uniform intent, their initial actions produced less than uniform results.

However, since their initial efforts, several of these entities have worked to coordinate their individual actions to match the uniformity of their intent. The most recent and notable effort has been the Access Board’s publication, on July 26, 2004, of new minimum guidelines for accessible design under both the Architectural Barriers Act of 1968 (the “ABA”) and the Americans with Disabilities Act of 1990 (the “ADA”). In the past, the Access Board had developed two different minimum guidelines for accessibility to address those two different pieces of legislation. The agencies responsible for enforcing those different acts then adopted different standards based upon them. While the two different guidelines, and the different standards based upon them, were more similar than dissimilar, they existed within two documents and remained two distinct sources of guidance. Additionally, these guidelines differed in format, organization, and language from accessible design standards being used by private and state governmental entities. In developing these new guidelines the Access Board not only worked to create harmony among the design standards of the ABA and ADA, but among those standards and others employedoutside of the federal government.

The common point for convergence has been standard A117.1 of the American National Standards Institute (“ANSI”), the first nationally recognized accessible design standard. A look back at the history of the development of accessibility standards leading to this convergence, and a brief overview of the new guidelines from the Access Board follows.

ANSI A117.1

In 1961 ANSI released a standard for the design of accessible buildings and facilities based upon research per-formed by the University of Illinois and funded by the Easter Seals Research Foundation. That standard, known as A117.1, became a source for guidance in the creation of accessible facilities for private entities and for local and state governments. Indeed, its various editions have been adopted or referenced by municipalities and state governments as a part of local and state building codes. The standard received federal input in 1974 when the Department of Housing and Urban Development (“HUD”) joined the Secretariat of the committee in charge of the standard, resulting in a 1980 edition of the standard (it had been previously revised in 1971). In 1986 it was once again revised, and a year later CABO (now the ICC) became the Secretariat of the committee. It has since been twice revised, in 1998, and most recently in 2003 (the 2003 version has just been published).

THE ABA AND THE UFAS

In 1968, the federal government took a step toward developing its own standard with the enactment of the ABA to address the accessibility of facilities designed and constructed, altered, or leased with federal funds. The ABA left it to each federal agency responsible for its enforcement to establish the particular standards each would apply to the facilities within that agency’s jurisdiction. As many of you know, those agencies are: HUD, the General Services Administration (“GSA”), the Department of Defense (“DOD”), and the United States Postal Ser vice (“USPS”).

However, enforcement by those agencies was less than robust. This problem was addressed, in part, when the federal government enacted the Rehabilitation Act of 1973. In addition to prohibiting discrimination against those with physical disabilities in the enjoyment of programs and activities of federal executive agencies, that Act created the Architectural Transportation Barriers Compliance Board (now known as the “Access Board”), with the role of ensuring federal agency compliance with the ABA. Over the years its tasks and authority were changed through legislation, particularly the Rehabilitation Act Amendments of 1978, which empowered the Board to establish minimum guidelines for accessible design which would have to be met by the standards adopted by the various federal agencies enforcing the ABA.

Approximately four years after being granted this power, the Access Board created its first set of guidelines published as the “Minimum Guidelines and Requirements for Accessible Design.” By August of 1984 the four relevant agencies, through regulations adopted by each, established a single standard for accessible design which met the requirements of the minimum guidelines published by the Access Board. Those standards came to be known as the Uniform Federal Accessibility Standards (“UFAS”). UFAS consists of two basic parts addressing accessible design: (1) scoping requirements (what spaces/element must be accessible); and (2) technical requirements (how to make the spaces/elements accessible). By establishing a single standard, these four agencies sought to promote uniformity not only in intent, but in action. These federal agencies also sought to promote uniformity not only among themselves, but among those private and governmental entities seeking to promote accessible designs for the physically handicapped. They did so by basing the technical provisions for accessible design upon the requirements of A117.1. However, UFAS did not incorporate verbatim those provisions or use ANSI’s formatting and organization, making cross-referencing difficult.

THE ADA AND THE ADAAG

On July 26, 1990, President Bush signed into law the ADA which, through Title III, expanded the federal government’s demand for accessible design to private entities which operate places of public accommodation and/or commercial facilities. Once again, the Access Board was empowered to develop minimum guidelines to be used by the agency responsible for enforcing Title III, the Department of Justice (“DOJ”). One year later, on July 26, 1991, the Access Board issued its minimum guidelines for the enforcement of Title III. That same day the DOJ promulgated a regulation adopting, as its standard for accessible design, those minimum guidelines issued by the Access Board, and which are now known as the Americans With Disabilities Act Accessibility Guidelines (the “ADAAG”).

Like UFAS, the ADAAG was developed to promote harmony with existing standards. In this case, that harmony was promoted by relying largely upon the UFAS. The ADAAG and UFAS are remarkably alike in format, organization, and content. Indeed, like the UFAS, the ADAAG bases its technical requirements upon those of standard A117.1, but with a different formatting and organization, making coordination with that standard challenging.

THE LATEST CONVERGENCE: NEW ABA AND ADA MINIMUM GUIDELINES

In recognition of this challenge, the Access Board has produced a new set of guidelines to promote greater uniformity. These new minimum guidelines address in a single document the accessibility requirements of both the ADA and the ABA. They have accomplished this by creating a document with three parts. Part one contains the application and scoping requirements for facilities covered by the ADA (places of public accommodation and commercial facilities operated by private entities). Part two contains the application and scoping requirements for facilities covered by the ABA (facilities designed and constructed, altered, or leased with federal funds). Part three contains a single set of technical specifications for both ABA and ADA facilities.

Yet, the most significant unifying change is that the Board has reformatted and reorganized these three parts to match the formatting and organization of A117.1. Obviously, this change makes easier the process of cross-referencing.

In its web-based announcement of these new guidelines, the Access Board has particularly emphasized the “historic level of harmonization” that has been achieved “through its coordination” with “model code groups and standard-setting bodies throughout the process”.

However, it remains that these guidelines establish only the minimum requirements of the standards to be adopted and enforced by the relevant federal agencies. We must wait for the various federal agencies to enact regulations which adopt as their standards these guidelines as they stand, or in a modified form. Thus, for now, the UFAS and the ADAAG still apply in their respective spheres.

The rule-making process can be time-consuming. For example, if the standard-setting agency adopts those guidelines with modifications affecting the cost of their implementation, then that regulation will have to be reviewed once again by OMB (just as OMB reviewed the minimum guidelines).

Yet, the new guidelines create a potential basis for greater uniformity and offer the hope of making your job a bit easier. As the regulatory process moves forward, we shall let you know.