DOJ Proposes New Accessibility Rules

In July, the U.S. Department of Justice (DOJ) announced proposed regulations to expand the obligations of owners of commercial facilities, including those found at assisted housing and other residential multifamily sites, regarding accessibility for persons with disabilities.

In particular, the DOJ proposes adopting accessibility guidelines previously issued by the Architectural and Transportation Barriers Compliance Board to reflect the accessibility standards under the Americans with Disabilities Act (ADA).

In addition to new accessibility rules that will impose design standards on buildings, the DOJ's proposal identifies numerous changes in the way it would apply the rules. In some respects, application of the new rules may have an even bigger impact on owners than the changes themselves, says attorney Harry Kelly III, a partner in the Washington office of Nixon Peabody LLP.

Many of the proposed changes are the subjects of current disagreements between site owners and advocates for the disabled. We'll review the four proposed changes that may affect site owners the most: mobility devices, service animals, effective dates, and safe harbors. Keep in mind that these changes are proposals only, at this stage; what the final regulations will be remains to be seen.

Mobility Devices

Many of the accessibility rules contained in the guidelines issued by DOJ and HUD, and in new accessible-building codes, are intended to assure access for persons with disabilities who use wheelchairs. The DOJ's proposed rules state that “places of public accommodation” must permit the use of wheelchairs and scooters, and make modifications and develop rules for the use of power-driven mobility devices. These rules are to take into consideration the size, weight, and speed of power-driven mobility devices, as well as the risk to others from the use of these devices. For example, the DOJ says that a site owner or manager may prohibit a resident with a disability from using a gasoline-powered golf cart in an enclosed space.

‘Service Animals’

Under ADA rules, owners of public accommodations must let persons with disabilities make use of “service animals.” The DOJ indicates that in recent years a variety of animals, including those that have not been trained to perform specific tasks or are wild, feral, and nondomesticated, have been considered service animals in terms of complying with ADA rules.

The DOJ's new rules make clear that certain animals, such as reptiles, rodents, farm animals, and others whose sole purpose is to provide emotional support, will not meet the definition of “service animals.” The DOJ also indicates that the term “service animal” may be different from the term “assistance animal,” which HUD uses in the housing context.

Effective Dates

Will buildings in the development or construction phase have to comply with the new rules? The DOJ proposes that existing rules—not its proposed regulations—will apply to any building for which physical construction begins within six months of the effective date of the newly adopted regulations. The new rules will apply to any building for which construction is set to begin on—or six months after—the effective date of the new regulations.

Safe Harbors

In addition to imposing design requirements on new construction, the ADA requires places of public accommodation to remove barriers to accessibility wherever possible. This requirement has been a burden to owners because it forces them to renovate—often at considerable expense—existing structures not designed to be accessible, Kelly says.

In proposing new design standards, the DOJ offers to codify a safe harbor for all elements that are in compliance with its existing accessible design standards, so that elements not altered after the effective date of the new standards and that are in compliance with existing standards will not be subject to the new standards.

EDITOR'S NOTE: You may obtain a copy of the proposed rule by going to the Federal Register's Web site at http://www.federalregister.gov, and accessing the June 17, 2008, edition.

Insider Source

Harry Kelly III: Partner, Nixon Peabody LLP, 401 9th St. NW, Ste. 900, Washington, DC 20004; (202) 585-8000; hkelly@nixonpeabody.com.