Eighteen years after former President George H.W. Bush signed the Americans with Disabilities Act into law, the U.S. Department of Justice has released a sweeping proposal that would update, clarify, and rewrite the Act’s existing regulations on physical access for disabled people. The Justice Department argues that these updates are necessary, due to the country’s aging population and its ever-increasing number of disabled veterans.

According to the U.S. Census Bureau, more than 51 million Americans report some sort of disability and nearly two-thirds of those report severe impairments. Furthermore, the Justice Department estimates that by 2010, two percent of the adult population will use wheelchairs and four percent will use crutches, canes, walkers or other mobility devices.

The highly-detailed 1,000 page, 215,000 word proposal will cost $23 billion, according to the Justice Department, and is the result of a multiyear effort. The Justice Department estimates, however, that the public benefit of the rules will be $54 billion; although these benefits largely are intangible to business owners.

Covering everything from what percentage of the railings at fishing piers have to be shorter than 34 inches high to how much of a miniature golf course must be accessible to people using wheelchairs, the proposed rule would affect approximately seven million businesses and all state and local government agencies. While the proposal contains some exemptions for parts of existing buildings, new construction and renovations would have to comply. Currently, businesses are required to remove barriers to people with disabilities if the changes are “readily achievable,” meaning they can be achieved “without much difficulty or expense.”

Small-Business “Safe Harbor”
The new proposal purports attempting to carve out something of a “safe harbor” for small businesses. Certain small firms in “existing title II- or title III-covered buildings or facilities that are compliant with the current 1991 Standards” need not be modified. The rule also attempts to provide, for the first time, a “specific annual monetary ‘cost cap.’” The cost cap would allow small businesses to meet their obligations under the proposed rule if, in the prior year, they spent at least 1 percent of their gross revenue to remove barriers. The proposed rule also exempts some small recreational facilities and reduces the scope for certain other existing recreational facilities.

Defending the creation of this “safe harbor,” the Justice Department wrote that it wished to “promulgate a rule that will benefit a broad class of small businesses by providing a level of certainty in short-term and long-term planning with respect to barrier removal. An effective rule would also provide some protection, through diminished litigation risks, to small businesses that undertake significant barrier removal projects.”

The executive director of the National Disability Rights Network, Curtis Decker, had this to say about the rule’s small-business “safe harbor”: “Safe harbors make us very nervous. A small business could spend the requisite amount of money and still not be accessible.”

The “safe harbor” partially was the result of the comments the Department of Justice received from small businesses and small-business advocates, following its 2005 attempt to update the Act. NSBA was among the organizations filling comments at that time.

The proposed rule can be viewed by clicking here. The public will have 60 days—or until August 18, 2008—to comment on it.

H.R. 3195, the ADA Amendments Act of 2008
The Committees on the Judiciary and Education and Labor of the U.S. House of Representatives also recently approved legislation that would update the Americans with Disabilities Act. The timing of the bill’s passage was a complete coincidence, according to both the Department of Justice and the bill’s Congressional supporters.

Sponsored by House Majority Leader Steny Hoyer (D-Md.) and Rep. James Sensenbrenner (R-Wis.) and more than 250 bipartisan co-sponsors, H.R. 3195, the ADA Amendments Act of 2008passed the Education and Labor Committee 43 to 1, with Rep. Tom Price (R-Ga.) casting the lone dissenting vote. The bill defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”

A substitute amendment, offered by Education and Labor Chairman George Miller (D-Calif.) and approved by voice vote, prohibits measures taken to mitigate the effects of a disability—such as medication or prosthetics—from being considered when determining if a person has a disability.

The legislation is aimed at reversing a series of recent U.S. Supreme Court decisions that had narrowed the population covered by the Americans with Disabilities Act to such a degree that even the U.S. Chamber of Commerce conceded that “there was some sense that the court had interpreted the [law] too restrictively.” For instance, the court had excluded people afflicted with epilepsy or diabetes because they were functioning well with medication.

The House is expected to pass H.R. 3195 this week.