Proceedings of: Workshop on Improving Building Design for Persons with Low Vision

Architectural Barriers Act (ABA) and the Americans with Disabilities Act (ADA)

The Architectural Barriers Act requires federal buildings to comply with accessibility standards. The U.S. Access Board, my agency and their Office of Gen. Counsel, enforces the [ABA], which functions like a building code. We will not enforce new standards on any existing building, unless that existing building is altered or added to. Our other authorities are under the Americans with Disabilities Act of 1990 are our architectural piece – our guidelines under the ADA – are a very small piece of the ADA.

The ADA, of course, applies to everybody that the ABA doesn’t apply to. And in fact, there can be some overlap, because the Barriers Act will reach into the private sector where federal construction dollars are used. As an example, almost all the stimulus work that’s being done is covered by the Architectural Barriers Act.

So many people really don’t really realize [how] much housing is also covered by the Architectural Barriers Act. There are a number of HUD programs that trigger not only HUD’s agency regulations, but also trigger Architectural Barriers Act requirements.

Under the ADA, there are a number of requirements to remediate existing buildings, both with and panel 2 and panel 3 of the ADA, that does – are unique to the ADA. So as we publish guidelines, and our guidelines become ADA standards, there’s always the potential for those guidelines or standards to be applied to the private sector and state-and-local-government sector in a retroactive way.

We’re also responsible – and I have to look here, under the rehabilitation act – for promulgating standards that cover the accessibility of electronic and information technology, as well as telecommunications. As I said earlier, we do technical assistance and training on all these regulations. We have a very small research program. And it’s fair to say that our research coordinator’s primary job is to convince other federal agencies to do work that we would like to see done, which is why, you know, I was able to con my friend, Vijay, into funding this meeting. 

ABA Enforcement

So what we do, in terms of ABA, and of course with barriers act enforcement, is essentially done by complaint (slide 4). If we receive a complaint in our office, we notify the federal agency that is the funding agency, and we work with that agency to resolve the complaint. There really isn’t a lot of interaction between the complainant and the federal agency because we protect the identity of the complainant, and that is because, under the ABA, this is a fact-based investigation: Does the building comply with the enforceable standards or does it not?

The fact that someone brought that complaint is irrelevant, because we don’t – that person doesn’t need to really have standing under the law to bring that complaint. So it’s, again, a very fact-based investigation. Often we find that we do not have jurisdiction because the building predates even the architectural barriers act, and the element that the person has complained about has not been, in any way, altered since prior to 1968 or prior to the effective standards. 

Rulemaking Authority

I want to talk about our rulemaking authority. Again, what we’re concerned here primarily is new construction and alterations. And I’m not accustomed to having to look at the screen, by the way. I usually sit my computer right in front of me, so bear with me as I check that out. Our guidelines are not enforceable until they are adopted by a standard-setting agency under the architectural barriers act or under the Americans with Disabilities Act. GSA is a standard-setting agency, and, quite frankly, GSA sets the standard for almost all federal construction. 

They’re going to set the standard for everything but military installations, housing and postal service – and post offices. So GSA is really your go-to agency on this.

Under the ADA and the ABA, our guidelines, as I said earlier, extend only to the built environment. We do not generally regulate things that get put into the environment that are not attached in some way to the building – so we’re not going to regulate this furniture (slide 6). But under the Americans With Disabilities Act and under other federal civil rights regulations, a federal entity may use our guidelines to benchmark accessibility, particularly where there is an individual complaint – someone with, who uses a wheelchair and says I can’t get up onto this table. They’re going to look at the knee and toe clearances that our guidelines establish in order to determine whether or not the table is generally useable to individuals who use wheelchairs.

Let’s see, I think it’s important just to mention the technology side of our office, because I think that, as time goes on, all of this is converging (slides 7 and 8). The built environment, technology, how we communicate, particularly within a building – a lot of this is sort of becoming one thing. So our technology guidelines, our technology standards, our information communication technology standards apply at this moment only to technology that is procured by the federal government itself.

Naturally, that was a really brilliant thing for Congress to do, because essentially what the federal government is saying is, we’re willing to buy it; you produce it. And, as a matter of fact, if there’s an accessible piece of technology out there, we are going to say that we have to buy the accessible piece of technology and not the inaccessible piece of technology. So the federal government is saying not only are they demanding accessibility to technology procured by the government, but “we’re willing to pay for it.”

By and large, we produce guidelines except under the section 508 regulations, in which case we produce standards, which are endorsed by the FCC. The difference being that our guidelines have to be adopted by other agencies before they are enforceable.