Public Input Can Affect Revision to ADA Design Standards
by Jennifer K. Skulski, National Center on Accessibility
Editor's note: On January 19, 2005, the U.S. Department of Justice extended the period of public comment on the proposed
revision of the current ADA design standards to May 31, 2005. Commenters now have through May 2005 to submit input to DOJ on
the Advance Notice of Proposed Rulemaking.
It isn’t often that the federal government asks for your opinion
or actively seeks your input. But along comes a chance every once
in a while for your input to make a difference. Through January 28,
2005, people with disabilities and practitioners affected by the Americans
with Disabilities Act can provide input to the U.S. Department of
Justice on the proposed revision of the current ADA design standards.
For park and recreation professionals this is another opportunity
to comment on design standards and policy issues related to accessing
recreation facilities like swimming pools, golf courses, playgrounds,
amusement rides, fitness facilities and sports complexes.
On September 30, 2004, the U.S. Department of Justice, the federal
agency with enforcement authority over Title II and Title III of the
ADA, issued an Advance Notice of Proposed Rulemaking (ANPRM) to begin
the process of revising the ADA Accessibility Guidelines (ADAAG).
The ANPRM requested public comment on specific questions for revising
the current ADAAG and comes as a result of rulemaking from the U.S.
Access Board. Earlier in the summer, on July 23, 2004, the U.S. Access
Board issued a final rule on new accessibility guidelines for the
Americans with Disabilities Act and the Architectural Barriers Act.
The Access Board’s new guidelines are a culmination of several
years of work to update the accessibility guidelines and harmonize
them with other model building codes. In order for the newly revised
accessibility guidelines to be enforceable under the ADA, the Department
of Justice must issue the guidelines as a federal rule, but first
must embark on a similar rulemaking process which includes participation
by the public. The period of public comment is open through the end
of January 2005. The complete text of the ANPRM is available on the
DOJ web site and through the Federal Register.
Advanced Notice of Proposed Rulemaking to amend 28 CFR Part 35: Nondiscrimination
on the Basis of Disability in State and Local Government Services
and 28 CFR Part 36: Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities
According to DOJ, “The ANPRM is the first of three steps in
the regulatory process. The ANPRM will be followed by notice of proposed
rulemaking (NPRM) and a final rule. The Department published the ANPRM
to solicit public comment on several issues relating to the potential
application of the revised guidelines and to obtain background information
needed for the regulatory impact analysis ( a report analyzing the
economic costs and benefits of a regulatory action) that will accompany
the proposed and final rules.”
To review the Access Board’s final rule, http://www.access-board.gov/ada-aba.htm
More than 2,500 comments were received when the U.S. Access Board
requested public comment through its Notice of Proposed Rulemaking
(NPRM) on the revision of the ADA and ABA accessibility guidelines
in November 1999. But participation during rulemaking specific to
recreation facilities has been significantly less. Only 300 comments
were received during the Access Board’s NPRM on recreation facilities.
And only 100 comments were received on the NPRM for play areas. As
few as one or two comments, if presented appropriately and argued
clearly, can sway the outcome of the rule in one direction or the
other. While several dozen or hundreds of comments on one particular
issue can force the agency to review the provision and look to a more
effective solution. For example, note how the issue of allowing a
platform lift in team or player seating areas evolved during the Access
Board’s rulemaking process for recreation facilities as explained
in the final rule for ADA Accessibility Guidelines for Buildings and
Facilities--Recreation Facilities (September 2002):
4.1.3(5) Exception 4 (f) Platform Lifts for Team or Player Seating
An exception is added to this section permitting the use of a platform
lift in new construction as a means of providing access to team or
player seating areas serving areas of sport activity.
Comment. The proposed rule did not include an option to use a platform
lift in new construction to provide access to team or player seating
areas. The AIA and several architects representing a firm that specializes
in sports facilities commented that platform lifts should be an option.
They were particularly concerned about providing access to dugouts
and other recessed team player seating areas in major league stadiums.
They believed that providing a ramp parallel to the playing field
presents a dangerous tripping and falling hazard for players attempting
to field foul balls. Other groups representing persons with disabilities
commended the Board for not allowing platform lifts in this environment
in new construction. Among other issues, they cited the problems associated
with relying on a mechanical device to provide access in newly constructed
buildings and facilities.
Response. The final rule includes an option to use a platform lift
as part of an accessible route connecting team or player seating areas.
While the Board includes this as an option in new construction, it
is recommended that where possible, ramps be utilized. This will reduce
reliance for persons with disabilities on a mechanical device when
providing access. Several minor league stadiums have incorporated
a ramp into their design in recent years. It is the Board’s
understanding that there have been no reported incidents of accidents
related to the ramps. Information on major league stadiums is not
available since ramps have not been incorporated into their designs.
General Questions for Public Comment
Approximately 54 questions are put to the public in the DOJ ANPRM.
DOJ has requested input on several issues in terms of the application
of the revised ADA design standards. For example:
Question 3: Should the Department provide any type of safe harbor
so that elements of facilities already in compliance with the current
ADA Standards need not comply with the revised ADA Standards?
Question 4: Should the Department adopt an option for reduced scoping
for specified requirements?
The example DOJ gives in Question 4 cites the current ADAAG requirement
for swimming pools over 300 feet in perimeter to have two accessible
means of entry into the pool. In the DOJ ANPRM, DOJ suggests that
“the Department is considering whether it might be appropriate
to state that providing only one accessible means of entry to an existing
pool satisfies the obligation for readily achievable barrier removal.”
These types of questions and the issue of minimizing access for people
with disabilities or improving access to promote full inclusion of
people with disabilities is a reoccurring theme throughout the ANPRM.
Public comment will eventually determine if greater or lesser access
to public spaces is provided for people with disabilities. In terms
of the question of reducing access at swimming pools, it should be
noted that the National Center on Accessibility conducted the research
and provided recommendations for accessibility guidelines to swimming
pools for the U.S. Access Board. NCA found that the majority of swimming
pool standards and codes required two means of entry into the pool
for all pool users. If DOJ reduces the requirement for existing pools
as it has suggested in the ANPRM, it will disproportionately reduce
access for people with disabilities, while access for people without
disabilities will go unchanged. This is an ironic position for DOJ
to take considering the current ADAAG states that “No alteration
shall be undertaken which decreases or has the effect of decreasing
accessibility or usability of a building or facility below the requirements
for new construction at the time of alteration (ADAAG 4.1.6(1)(a).”
DOJ has requested input on several recreation related issues in the
ANPRM. Public comment to DOJ can provide further explanation on some
of the design, policy and procedure issues and evoke further guidance
from DOJ on issues that most challenge park and recreation professionals
in the provision of accessible facilities, programs, services and
In large assembly areas with seats for more than 500 patrons, the
new design guidelines will reduce the number of wheelchair spaces
and companion seats. There is question as to whether existing facilities
should follow the new design guidelines or the current ADAAG in regards
to this requirement. Access to assembly areas is a good example of
a facility where both the design standard and the policy and procedure
issues need to be considered simultaneously and complimentary so as
to promote full access for people with disabilities. Unfortunately
in the areas of sports arenas and performing arts venues there are
several policy and procedure issues that do not have clear guidance
from the Department of Justice, namely the issue of hold and release
of wheelchair accessible seating. Can a venue release the wheelchair
accessible seating for sale to the general public two weeks prior
to the event? Two days? Two hours? For example, the new Gillette Stadium,
home of the Super Bowl champion New England Patriots sells season
tickets and individual games prior to the start of the football season.
The wheelchair accessible seating locations are on platforms that
stand on top of the general seats and can be removed for conversion
to general seating, but require two days of labor and at least four
staff to remove them. According to the accessibility coordinator for
the venue, based on the demand for tickets, 1-2 months prior to the
start of the football season, the sale of wheelchair accessible seats
and companion seats are evaluated. If there are sections of wheelchair
accessible seats that have gone unsold, then the seats are converted
to general seats and released for sale to the general public. An unspecified
number of wheelchair seats and companion seats are reserved throughout
the season for last minute sales to patrons that require wheelchair
accessible seating. While Gillette Stadium has a clear procedure and
policy in place for the release of wheelchair seats for general sale,
other venues are not as clear in their policy. The reduction of wheelchair
seating in the new design standards coupled with a lack of DOJ guidance
on ticket release policies has the potential of eliminating access
to sporting events and entertainment venues for large numbers of people
who use wheelchairs.
Free Standing Equipment and Non-fixed Elements
Over the years, the U.S. Access Board has made it clear that it does
not have jurisdiction over the development of accessibility standards
for free standing equipment or non-fixed elements. The illustration
that is used is one in which you would figuratively take a building,
turn it upside down, shake it, and turn it back right side up. All
of the elements that fell out of the building would not be covered
by the Access Board’s design guidelines. All of the elements
that remain in tack to the building would be covered under the design
guidelines. For example, under the Access Board’s rulemaking,
fixed (secured) elements like tables and benches would be covered
if they were secured to the floor or the building in some manner.
However, if a cafeteria table is not fixed, then it would not be covered
under the Access Board’s rule. While this approach has been
clear cut for the Access Board’s domain, it still leaves the
accessibility requirement for free standing equipment and non-fixed
elements open for interpretation. Should non-fixed benches and other
free standing elements be accessible? Does DOJ need to provide clarification
on this requirement as it relates to Title II and Title III? DOJ asks
for public comment on this issue in Question 7.
As stated previously, DOJ is seeking input on whether or not the number
of accessible means of pool entry should be reduced from two to one
in pools over 300 linear feet in Question 45. This is yet another
example of where the design requirement and procedure need to be considered
at the same time. If one of the means of access is a swimming pool
lift, should the lift be permanently installed or can it be temporarily
installed? NCA has received numerous anecdotal accounts of instances
where temporary pool lifts are not available to people with disabilities
because the lifts are not installed or there are not experienced staff
available to install the lift upon request. As a result, swimmers
with disabilities requiring pool lifts for access are not able to
easily enter and exit the pool without the device installed. Additional
input from people with disabilities and pool operators to DOJ on this
issue can urge the Department to provide additional guidance on the
issue of temporary vs. permanent installation. And if temporary installation
is permissible, how much advance notice should be requested so that
the pool lift can be installed and operable in time for use by a pool
user with a disability?
Interestingly enough, while DOJ has not addressed policy and procedure
issues in swimming pools and large assembly areas, it has taken on
the issue for golf courses. Under Title III, “A public accommodation
is required to provide auxiliary aids and services that are necessary
to ensure equal access to the goods, services, facilities, privileges,
or accommodations that it offers, unless an undue burden or a fundamental
alteration would result (TAM-III).” Is an accessible golf car
an auxiliary aid? Should all public golf courses be required to have
accessible golf cars? Or can golf courses require advance reservation
for accessible golf cars and draw from a pool of accessible golf cars
available in the area? DOJ has asked for public comment on the issue:
Question 6. To what extent should golf courses be required to make
accessible golf cars available to people with disabilities? Please
provide as much detail as possible in support of your view. The Department
also requests specific information concerning the extent to which
the one-person machines on the market are, in fact, stable, lightweight,
and moderately priced. The Department also requests information about
whether golf cars are being manufactured that are readily adaptable
for the addition of hand controls and swivel seats and whether such
cars are otherwise suitable for driving on fairways and greens.
Input from golfers with disabilities who use accessible golf cars,
golf course operators, and other interested organizations and individuals
will assist DOJ to develop further guidance in this area. Additionally,
DOJ has requested comment on the provision of an accessible route
for the golf course.
Question 44. An exception to the new requirement at ADAAG 206.2.15
permits the accessible route requirements (which must connect all
greens, weather shelters, rental areas, and the like) for golf courses
to be satisfied by golf car passages, defined at ADAAG 1006.3 as a
48-inch wide passage, providing 60-inch wide openings in curbs or
other constructed barriers every 75 yards. The Department wishes to
collect data about the effect of this requirement if it is applied
to existing golf courses under the readily achievable barrier removal
requirement of Title III. What would you have to do to your existing
golf course to make it comply with the requirements for golf car passages?
During the U.S. Access Board’s regulatory negotiation on play
areas, the reg neg committee agreed to change the number of elevated
play components triggering ramp access to elevated structures from
12 to 20 activities as suggested in the ANPRM. The change in the triggering
number was not based on any statistical data on the average size of
playgrounds, but instead based on negotiation between the committee
members representing the playground equipment manufacturers and disability
advocacy organizations. As a concession, committee members agreed
that where ramp access was not available to elevated play activities
additional accessible ground level activities should be provided.
In Question 39, DOJ seeks information on the new requirement for ground
level play components on playgrounds and the effect of the new requirement
The Access Board’s rulemaking on recreation facilities generated
the most public comment in the area of amusement rides. The majority
of comments were from the amusement ride industry. Note the Access
Board’s commentary in the preamble of the final rule on recreation
facilities (September 2002):
Significant comment on amusement ride accessibility was received
on the proposed rule. The proposed rule would have required that one
wheelchair space and one transfer seat be provided for each 100 seats
on new amusement rides and proposed technical provisions for the wheelchair
spaces and transfer seats. The majority of comments were from amusement
park operators, and amusement ride manufacturers and designers. The
Board also received comments from groups representing persons with
disabilities. Overall, commenters did not support the provisions in
the proposed rule for access to amusement rides. The commenters stated
that the proposed rule lacked flexibility, making it impossible for
most rides to comply with the guidelines given the uniqueness of this
industry. They also raised concern about the lack of available manufactured
rides that would meet the proposed provisions. Most rides are manufactured
outside the United States where there is an absence of accessibility
requirements. The ride manufacturers in the United States indicated
significant hardship on their businesses to retool to meet some of
the proposed technical provisions. Amusement park operators interpreted
the proposed rule to require operators to modify manufactured rides.
Most indicated that they were either unwilling or unable to modify
a ride in a way that would differ from the manufacturer’s specifications
because they were not willing to accept the liability associated with
modifying the ride or did not have sufficient engineering expertise
to do so. Additionally, several groups representing persons with disabilities
expressed concern that some rides, such as walk through attractions
and fun houses, would be exempt along with rides in traveling carnivals.
They wanted the accessibility guidelines to encourage ride manufacturers
to make all rides accessible. The Eastern Paralyzed Veterans Association
(EPVA) wanted the number of accessible amusement rides to be doubled
from the proposed rule.
As a result of the large number of comments from the industry, and
some argue, pressure from the industry, the accessibility requirements
for amusement rides were minimized. However, the Access Board defends
its decision in the preamble stating, “Since this is the first
time national accessibility guidelines have been established for amusement
rides, the Board intends to monitor the implementation of these guidelines.
As with other accessibility guidelines developed by the Board, future
updates and revisions are planned to ensure that the guidelines reflect
new designs and technology.”
In Question 42, DOJ seeks information on the use of transfer devices
for amusement rides.
In Question 43, DOJ seeks information on the effect of requiring
accessible boat slips that are 60 inches wide.
Technical Assistance & Deadline to Comment
Public input from people with disabilities, facility managers, operators
and practitioners and other interested organizations and individuals
on the proposed ADA design standards will provide the Department of
Justice with further guidance on the major issues affecting these
facilities. The National Center on Accessibility professional staff
are available to provide technical assistance on the ANPRM and the
major issues related to accessing recreation facilities to individuals
and organizations preparing public comment.
National Center on Accessibility
(812) 856-4422 (voice)
(812) 856-4421 (tty)
NCA encourages all parties affected by the developing regulations
to participate in the rulemaking process. The deadline to submit public
comment to DOJ is January 28, 2005.
Mail comments to:
U.S. Department of Justice
Comments on ANPRM for Revised ADA Design Standards
P.O. Box 1032
Merrifield, VA 22116-1032
Or submit comments may be submitted electronically online to:
www.adaanprm.org or www.regulations.gov
All comments will be available to the public online at www.adaanprm.org
and, by appointment, at the offices of the Disability Rights Section.
About this Monograph
These materials were developed by the National Center on Accessibility
for the National Center on Physical Activity and Disability under
sponsorship of the Centers for Disease Control and Prevention.
About the Author
Jennifer K. Skulski is the Director of Marketing and Special Projects
for the National Center on Accessibility. She has more than 13 years
experience in the application of the ADA to park and recreation facilities.
U.S. Access Board. (September 3, 2002). Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities: Recreation
Facilities. Washington, DC: U.S. Access Board. Retrieved from http://www.access-board.gov/recreation/final.htm
U.S. Department of Justice. (October 1, 2004). Proposal to issue
revised ADA design standards. Washington, DC: U.S. Department of Justice.
Retrieved from http://www.ada.gov/proposal.htm.