Final Rules Amending ADA Adopted

Final Rules Amending ADA Adopted

Sept 20, 2010

Two years after the notice of proposed rulemaking and twenty years after former President George H.W. Bush signed the act into law, the Americans with Disabilities Act (ADA) recently was updated. The two final rules amend Title II and Title III of the ADA.

When the U.S. Department of Justice (DOJ) issued a notice of proposed rulemaking in 2008, it argued that the updates were necessary due to the country’s aging population and its ever-increasing number of disabled veterans. The original rule mainly applied to a variety of  recreational facilities, including: “swimming pools, playgrounds, golf courses, amusement rides, recreational boating facilities, exercise machines and equipment, miniature golf courses and fishing piers; as well as for such public facilities as courthouses, jails and prisons.”

In addition to these provisions, the new rules also include the adoption of the 2010 ADA Standards for Accessible Design, a comprehensive set of accessibility requirements for all public accommodations, essentially every business in the country that is open to the public.

The new rules also address ticket sales; the definition of “service animal;” wheelchair and mobility device requirements; and lodging reservation services.

Small-Business “Safe Harbor”

The new rules also purports something of a “safe harbor” for small businesses. Elements in covered facilities that were built or altered in compliance with the 1991 Standards would not be required to be brought into compliance with the 2010 Standards until the elements were subject to a planned alteration.

The “safe harbor” partially was the result of the comments the DOJ received from small businesses and small-business advocates following its 2005 attempt to update the ADA. NSBA was among the organizations filling comments at that time.

The original proposed rule would have provided, for the first time, a “specific annual monetary ‘cost cap.’” The cost cap would have allowed small businesses to meet their obligations under the proposed rule if, in the prior year, they spent at least one percent of their gross revenue to remove barriers. This provision was removed from the final rule, however, as it was met mostly with opposition. NSBA expressed considerable concern with the provision during the rulemaking process.

During the rulemaking process, NSBA also urged DOJ—and the entire federal regulatory apparatus—to consider the indirect costs of the proposed rule in the course of its Small Business Regulatory Enforcement Fairness Act, Regulatory Flexibility Act, and Executive Order review process. NSBA has long argued that the continued failure of federal agencies to consider the indirect impacts of proposed regulations is the largest loophole in the federal regulatory framework.

NSBA requested a full and complete Small Business Compliance Guide, which the DOJ “expects to publish.” The guide will be “specifically tailored to small businesses” and will include “technical assistance materials of general interest to all covered entities following promulgation of the final rule.”

The final rules will take effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design are not required until March 15, 2012.

Please click here for more detailed information on the final rules.

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