Moving at the Speed of Government: New Americans with Disabilities Act (ADA) Regulations Signed (Finally)

Originally Published 2010

By Gary L. Cole AIA, Esq.

In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADA’s first publication in 1991. On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009.

It was hoped that prior to leaving office President Bush would sign into law the much-awaited revised Americans With Disabilities Act Accessibility Guidelines (ADAAG), first issued for public comment on July 23, 2004, but, unfortunately, it didn’t happen. The ADAAG includes, among other things, the core physical specifications for accessibility under the ADA and works in concert with many state and local accessibility laws.

Upon taking office in January 2009, President Obama directed the Department of Justice to withdraw . . .  the final draft of the 2004 revised ADAAG from the Office of Management and Budget review process, pending a re-evaluation.

Now, eighteen months into the new administration, there appears to be movement.

From the Department of Justice’s website:

“On Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department’s ADA regulations, including its ADA Standards for Accessible Design. These regulations will be published in the Federal Register. The revised regulations will amend the Department’s Title II regulation, 28 C.F.R. Part 35, and the Title III regulation, 28 C.F.R. Part 36. Appendix A to each regulation includes a section by section analysis of the rule and responses to public comments on the proposed rule. Appendix B to the Title III regulation discusses major changes in the ADA Standards for Accessible Design and responds to public comments received on the proposed rules. The Department’s Final Regulatory Impact Analysis will be posted on this page as soon as it is available.

In general, these final rules will take effect 6 months after the date on which they are published in the Federal Register. Compliance with the 2010 Standards for Accessible Design is permitted after that date, but not required until 18 months after the date of publication. The Department has prepared fact sheets identifying the major changes in the rules.”

So, in late January 2011 the new rules are expected to take effect, though compliance will not be required until July 2012 – eight (8) years after first being published for public comment.

Over the upcoming months, I’ll be discussing changes to the ADA and the ADAAG here on LawArk – especially as relates to commercial real estate – with the hope of addressing the major changes by the time they’re expected to go online in January 2011.

I’ll also be discussing ways architects and other designers, contractors, developers and property managers can minimize their risk and exposure to ADA-related disputes, as well as take advantage of the ADA to generate business by not treating it as a burdensome building code deserving of only minimal compliance – a mistake made by many – but as an opportunity.

© Copyright Gary L. Cole AIA, ALA, Esq. 2010

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