It’s the $64,000 question — or for some facility executives the $6.4 million question — when it comes to the Americans with Disabilities Act: Will the Justice Department’s upcoming revision to ADA Accessibility Guidelines exempt existing buildings?
The ADAAG revisions harmonize the guidelines with model building codes and update technical specifications within the guidelines. The proposed changes mark the first major revision to ADAAG since its inception in 1991. The goal was to make ADAAG easier to use, says Dave Yanchulis, accessibility specialist with the Access Board.
“ It seems to me that they make a whole lot more sense, are more consistent with model building codes and read more like model building codes,” says Jean Batchelder, owner, Access By Design. “I don’t think they will negatively impact most construction projects.”
How the revisions will affect existing buildings is unknown. While the Access Board is responsible for drafting the guidelines, the Department of Justice has authority over implementation and enforcement. The process is underway, with the Justice Department seeking public comment on how it should treat existing buildings.
The proposed guidelines include a variety of new technical specifications. For example, the side reach range is 54 inches in the current rules. The distance measures a parallel approach so that someone with a disability can pull up beside an object to reach it. That distance will be lowered to 48 inches in the proposed guidelines. Another important change includes the distance from the toilet centerline to the sidewall. Under the current ADAAG, the distance must be exactly 18 inches. The proposed ADAAG will allow a range of 16 inches to 18 inches.
For new construction, many of the changes will be easy to accommodate. But for facility executives who have already been required to bring buildings into compliance with the current ADAAG, retrofitting facilities to meet the proposed rule changes could be expensive. Cost is one reason why many believe the rules will include an exemption for existing buildings.
“There absolutely has to be a very broad exemption clause for facilities in compliance with the current guidelines,” says Larry Perry, codes consultant for BOMA International. What’s more, applying the rules retroactively means facility executives could face the prospect of spending significantly more to update buildings every time ADAAG is updated.
The Access Board is required by law to develop an estimate on how much the new ADAAG will cost as part of the revision process. The Access Board confined its estimate to new construction, signaling that it is unlikely existing buildings will be forced into updating to new ADAAG.
“The sense I get is that they are more than likely to give safe harbor to those people who made an effort to remove barriers from their buildings,” says Joan Stein, president of Accessibility Development Associates.
Exempting existing buildings, however, could create complications for facility executives. In the future, a large office building undergoing renovations on one floor could be governed by two sets of ADAAG — the proposed rules would cover the renovated floor, while the current rules would cover the remaining floors.
“Facility managers are going to need to do really good record keeping,” says Stein. “They will need to make sure the renovation was done according to the ADAAG that was in place at the time and make sure that they have the documentation and date on file.”
By most accounts, it could be as long as two years before the Justice Department is ready to adopt the new ADAAG. The Justice Department has to unveil its own version of the rules and allow the public time to comment on them. In the meantime, facility executives planning large projects are left to either plan a building under the current rules or take a gamble and plan a building under the proposed rules, even though they are not yet the law.
For some facilities, the decision could have a significant economic impact. Stadiums and arenas, for example, will not be required to have as much wheelchair-accessible seating because the sections were often empty.
If the proposed ADAAG is adopted, the Justice Department says that stadium owners can reduce the size of wheelchair-accessible sections and change part of the larger sections into standard seating. But any new facilities that are built now according to the proposed standard, which is less restrictive, could become the target of a lawsuit.
One reason facility executives should avoid using the proposed rules is the fluid nature of the approval process. The Justice Department is still reviewing the ADAAG changes and is seeking public comment on a variety of questions, including issues such as timing, existing buildings and the application of ADAAG for specific buildings. How the department answers its own questions on the issues will shape the rules. What’s more, the proposed ADAAG has no legal authority until it is adopted, which means any facility built under the proposed ADAAG does not comply with the currently enforceable ADAAG.
“I would not recommend people try to scale-down a facility to a standard that is less stringent than the current standards that are in effect,” says Yanchulis.
Ideally, Perry says the Justice Department would issue a ruling that would allow facilities to build to the proposed standards without being targeted for violating the existing ADAAG. That ruling will likely be difficult to obtain.
“You design under the currently enforceable standard,” Stein says. “They are not going to expect you to go back and change all your plans.”
