Major changes proposed – Goodbye Full Accessibility

In 1990, the disability community, Congress, state officials and businesses made numerous compromises to pass the ADA. Despite compromises, then-President […]

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In 1990, the disability community, Congress, state officials and businesses made numerous compromises to pass the ADA. Despite compromises, then-President George H.W. Bush, disability leaders and Congress trumpeted eventual full accessibility of public and private facilities. Sometime in the future, people with disabilities would achieve equal opportunity with non-disabled and full accessibility would be achieved.

Since 1990, we have seen some progress—curb cuts are now more the norm; ramps provide access to some stores and businesses (definitely not in every one), some public swimming pools, playgrounds, and governmental buildings provide a degree of accessibility (often begrudgingly); sports venues are more accessible.

However, by and large, neither the governmental entities (Title II of the ADA), nor private business entities (aka, public accommodations) (Title III) have taken the initiative on their own and said “oh, Congress has made disability a civil right, and we will do the right thing and make our facilities and programs accessible.”

Rather, progress has been slow, often requiring disability advocates to take the initiative and demand governmental and business entities to comply with the 1990 law and not make more compromises. The process is slow because disability advocates may not exist in a community, or they get frustrated that change is so difficult.

On June 17 the federal Department of Justice (DOJ) issued proposed rules to the ADA’s federal regulations which, if adopted, will significantly undercut the original 1990 compromises and will impose numerous regressive restrictions. Many of the proposed rules will ensure that full accessibility will be, at best, postponed indefinitely.

The proposal rules, together with all the background information, cost estimates, commentaries etc., total about 1000 pages. Here, we will address only the Title II requirement of “program accessibility … when viewed in entirety” and the Title III requirement for removal of “readily achievable” barriers from existing facilities.

Here are two proposed changes:

Title II. The current “program accessibility” regulation requires a public entity’s programs and services be accessible, when they are “viewed in their entirety.”

Re: the proposed rule “Existing play areas and recreation facilities.” If a public entity has “multiple play areas as part of its program,” for program accessibility “only a reasonable number but at least one of such play areas would be required to undertake structural modifications to provide access for individuals [i.e., children] with disabilities.” The “reasonable number but at least one” rule applies also to swimming pools and state parks.

Did the DOJ forget that “program access” for the past 18 years already implicitly required “at least one” accessible facility, or the program in its entirely would not be accessible? With the proposed rule, wouldn’t public entities shoot for the minimum—one, regardless of the changes that might make many or all of the play areas accessible?

DOJ asks if the “reasonable number, but at least one” is workable, or should DOJ provide a list of factors that a public could use to determine how many of the existing play areas or swimming pools to make accessible? Folks—these are our children with disabilities!

DOJ asks if play areas should have a “safe harbor” from compliance with the applicable requirements in the 2004 Americans with Disability-Accessible Guidelines (ADA-AG). This means that some play areas that might be in compliance with local standards could be exempt from ADA-AG standards that presumably require greater accessibility.

Does anyone think DOJ would have proposed a “safe harbor” to end discrimination based on race or gender?

Related to the problem of a “safe harbor” is the DOJ question “what is the tipping point” at which the costs of compliance “… would be so burdensome that the entity would simply shut down the playground?” The ADA is a civil rights statute that is supposed to ensure for disabled folks the equal opportunity and the same benefits as non-disabled people. But let’s get real! Does anyone know of any public entity in the entire country that has closed down any public playground or swimming pool because of inaccessibility?

DOJ wants to hear if “existing play areas less than 1,000 square feet should be exempt” from accessibility requirements. This size was chosen because of an assumption that such small areas represented 20% of the play areas located in public schools. Great! Disabled children in those schools could be effectively kept off the play areas, presumably like they are being kept out of mainstream classrooms. Every small neighborhood tot lot would be exempted. The rulemaking asks if 50% of monkey bars, sliding boards, and other “elevated play components” in playgrounds should be exempt from accessibility. DOJ asks if “additional ground level play components” should be substituted for the “elevated play” components.

Title III – Section 36.304. The current regulation requires removal of barriers in public accommodations when it is “readily achievable” to do so.

It is important to remember that the existing federal regulations require removal of barriers only when it is “readily achievable”—which on a case by case basis ensures that only reasonable modifications will occur. “Safe harbors” will exempt from barrier removal even those situations that are “readily achievable” to be made accessible.

A small business will receive a “safe harbor” if it spends in a given year one percent of its gross revenues on barrier removals. Advocates who have been frustrated since 1990 asking businesses to “remove barriers” by building a ramp or making a bathroom accessible, now will have the fun of arguing about a business’s “gross revenues” in a given year and the costs of any alleged barrier removal the business claims it has made. Should advocates ask if the business took a tax deduction or received a tax credit for the barrier removal? If it claims it did, should the advocate take their word or request to read their 1040s? Then, the advocates come back the next year and start the entire process again on another inaccessible element? And we thought it was difficult to get a ramp with the existing regulations.

The proposed regulations also question whether to fully enforce the Access Board’s guidelines for stages, auditoriums, witness stands, assistive listening systems, golf courses, service animals, golf cars, mobility devices, auxiliary aids, captioning, video interpreting services and other areas.

You have 60 days to submit comments. All comments must be sent by 8/18/2008. Refer to Documents ID DOJ_FRDOC 0001-0025 (Title III, Public Accommodations) and DOJ_ FRDOC-0001-0026 (Title II, Governmental Programs). You can find these documents at the following web address, as well as submit your comments on-line by going to

Back issues of other Information Bulletins are available online at www.stevegold with a searchable archive at this site divided into different subjects. To contact Steve Gold directly, write to [email protected] or call 215-627-7100.

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