Design for all persons: the Architectural Barriers Act and public transit.

Design for all Persons: The Architectural Barriers Act and Public Transit

The recent decision by the Third Circuit Court of Appeals in ADAPT v. Burnly [No. 88-1139,88-1177,88-1178 (3rd Cir. Feb. 13, 1989)] has refocused attention on public transportation for persons with disabilities. Over the last several years, public transit providers have become increasingly aware of services they must provide to persons with disabilities under section 504 of the Rehabilitation Act of 1973 (P.L. 93-112) and section 16 of the Urban Mass Transportation (UMT) Act of 1964 [49 U.S.C. 1601, et seq.]. Many, however, remain confused about the requirements and applicability of an older statue on accessibility: the Architectural Barriers Act (ABA) of 1968 (P.L. 90-480).

The ABA requires that certain buildings and facilities designed, constructed, altered or leased with federal funds be accessible to, and usable by, persons with physical disabilities. Rarely is this act given more than a passing reference when discussing transportation for persons with disabilities, and some transit agencies have incorrectly assuemd that compliance with the Department of Transportation (DOT) 504 regulation automatically satisfies the requirements of the ABA. This confusion has been further heightened by the various changes in the DOT 504 rule since 1976 when regulations were first promulgated by DOT. The ABA, on the other hand, has been consistent in its approach since it was first implemented in 1969.

In addition, the confusion often arises because of misunderstanding of the difference between access to programs and access to facilities receiving federal funds. Transportation program access is covered by the DOT 504 regulation but most transportation facilities designed, altered, constructed, or leased with federal funds are covered by the ABA.

To understand the difference between program access and facility access, consider an educational institution which receives federal funds. Its programs, that is the courses, degrees, educational opportunities it offers, must be available to persons with disabilities in a nondiscriminatory manner. If the institution has both accessible and inaccessible buildings, it may be able to make its program accessible by scheduling a section of any class a student with a disability might wish to take in one of its accessible buildings. On the other hand, if it uses federal funds to build a new building or facility or remodel an old one, the new or remodeled portion probably must comply with the requirements of the ABA, independent of whether the institution has satisfied the program-accessibility requirements of the funding agency's 504 regulation. In addition, an entity which decided to make its program accessible by alterations to its physical facilities may trigger the ABA for those alterations. Through this gradual, incremental process Congress intended that fixed facilities which the federal government helped build would be eventually readily accessible to, and usable by, persons with disabilities.

The specific design or construction standards for the ABA are promulgated by four federal standard-setting agencies: Department of Defense, Department of Housing and Urban Development, General Services Administration (GSA), and U.S. Postal Service. The GSA standard applies to facilities funded by the Urban Mass Transportation Administration (UMTA), a division of DOT. In August 1984, the four agencies adopted a single standard for facilities covered by the ABA: the Uniform Federal Accessibility Standards (UFAS).

To ensure compliance with the standards promulgated under the ABA, Congress created the Architectural and Transportation Barriers Compliance Board (ATBCB), under Section 502 of the Rehabilitation Act, as an independent regulatory agency. The ATBCB also has the authority to set the minimum requirements for the standards promulgated by the standard-setting agencies.

In 1981, when the DOT replaced its 1979 regulation implementing section 504 with the "Interim Final Rule", specific requirements for facilities were eliminated or glossed over, so many transit agencies assumed that all transportation requirements for persons with disabilities were covered by the new rule and that facility accessibility was no longer required. The ATBCB Office of Technical and Information Services began to receive a series of calls from confused transit agencies, state and local governments, contractors, and consumers because some facilities which would have been required to be accessible under the old DOT 504 regulation were now planned to be inaccessible.

Actually, the Interim Final Rule did make an oblique reference to the ABA under its discussion of countable costs toward the cost limitation: "...costs incurred by complying with the GSA regulation..." are not eligible. However, there is no mention of the statutory basis for the "GSA regulation" so most agencies did not understand that the reference was to the standards under the ABA. Similarly, the current DOT mass transportation 504 regulation refers only to bus systems and does not even mention new subways or lightrail systems, apparently under the assumption that they are already adequately covered by the ABA. While this is true in part (the ABA does not cover the vehicles), transit agencies are generally unfamiliar with ABA requirements.

Moreover, while the general thrust of the ABA, to require gradual accessibility of the built environment, has not changed since it was adopted, the specific standards have. Transit agencies and designers may have difficulty determining which standards apply, and on what date. Thus, in addition to compliance and enforcement, Congress charged the ATBCB with providing technical assistance to all affected parties, much of which involves explaining the various requirements to designers and builders. In fact, the ATBCB is charged with providing technical assistance on all aspects of Title V of the Rehabilitation Act, including section 504, even though the Board does not actually enforce the program access requirements of section 504. To reduce confusion between ABA and 504 coverage, the Department of Justice, which coordinates all section 504 regulations, has issued a notice that the UFAS should be used for all renovation required to provide program access.

The application of UFAS or other access standards to existing facilities often raises concerns about the efficacy of having only part of a building accessible. Actually, when the ABA was adopted in 1968, Congress had considered and rejected the idea of a staged renovation of existing federally funded buildings and facilities to make them accessible. Such a program would be too expensive, it concluded, but incorporating access in new and altered facilities was determined to be cost-effective. Moreover, incorporating access into on-going renovation, restoration, and remodeling projects was also determined to be worthwhile and relatively inexpensive. Congress explicitly acknowledged that such a program would result in some apparent incongruities, at least temporarily. For example, a transit agency building a new station on an inaccessible subway line would be required to make the new station accessible, even though there were no other stations to which a person needing the facilities could travel. But, Congress said, someday another new station may be built or an old one totally renovated, creating a usable segment; failing to make the first station accessible on the grounds that there were no others would mean that inaccessibility would be "grandfathered in" for all time. The same consideration applies to major modification of existing facilities, especially rebuilding entrances. Congress intended that, through this gradual process, the built environment would eventually become accessible.

Nevertheless, the minimum guidelines promulgated by the ATBCB, and the actual design standards, UFAS, do acknowledge the problems inherent in renovations to transit facilities, such as subway stations. In general, when an escalator, for example, is installed in place of stairs, an accessible route must be created, usually by elevator. In an existing subway, however, the cost of an elevator may be minor compared to the cost of moving the utility lines for the shaft, let alone finding space directly above (use of an inclined elevator in the escalator shaft would alleviate this problem but most such devices are foreign-made and do not meet U.S. safety standards). Therefore, there is an explicit exemption for transit facilities whereby the installation of power level-change equipment does not trigger the requirement to install an accessible route if the cost of making the route accessible is 50% greater than the cost of the non-accessible escalator. Thus, a transit system contemplating replacing stairs with escalators must also estimate the cost of installing an elevator instead. This exemption does not apply to new construction or additions.

All of the requirements of the standards can be waived, on a case-by-case basis where it can be shown that the waiver is clearly necessary. Authority to grant waivers is given to the standard-setting agency: for transit facilities the application for a waiver must be to the Administrator of GSA, not DOT or the ATBCB.

Finally, the ABA requires that standards provide "ready access" to, as well as "use" of, buildings or facilities [42 U.S.C. 4151(2)]. A facility may be accessible if it meets the literal requirements of the design standard but be unusable due to operational or other factors. One interpretation of the ABA was that, the ABA covers the design of a building or facility and then 504 "kicks in" when the facility is put into operation. The error of this interpretation is clear when one considers that the ABA was implemented in 1968 but 504 was not passed until 1973, and the first transit-related regulations were not adopted until 1976. Under the above interpretation, federal funds could have been used to build a facility in 1969 to be fully accessible, and then all the ramps could have been blocked or all the elevators turned off until 1976! Such an interpretation, says U.S. District Court Judge Jones, "...stands the Act on its ear...." [Washington Urban League. Inc.. et al v. Washington Metropolitan Transit Authority, Civil Action No. 776-72 (U.S.D.C 1976, Order on Motion to Clarify and Modify Final Decision)]. Thus, facilities must not only be designed to be accessible, but operated so as to be usable by persons with disabilities.

As mentioned earlier, the ATBCB Office of Technical and Information Services provides a broad range of technical assistance on accessibility issues including information and referral, plan review, and publication of technical papers. The staff includes architects, transportation planners, and legal experts on the application of the ABA. The ATBCB also maintains an extensive technical library. Access to this technical assistance is as close as a telephone: [phone].

In addition to its technical assistance function, the ATBCB ensures compliance with the standards under the ABA. Thus, if a building or facility is suspected of violating those standards, a complaint can be filed with the Board's Office of Compliance and Enforcement, ATBCB, 1111 18th Street, NW, Washington, DC 20036. A simple letter explaining the problem and identifying the building or facility is usually sufficient to start an investigation by the ATBCB. The name of the person filing the request for an investigation is kept confidential. Facilities under the Board's jurisdiction which are found to be in violation must generally file a plan for corrective action which the ATBCB monitors. The Board has even had good success in getting voluntary changes for more access even where the ABA does not apply.

With respect to transportation, one major gap, literally and figuratively, still exists at the edge of the subway platform: as mentioned before, the ABA does not cover vehicles. Clearly, the vehicles in a fixed-guideway system are part of the same system as the station. When Senator Biaggi introduced section 16 of the UMT Act, adopted in 1970, he expressly mentioned that the intent was to make the transportation act consistent with the ABA. Except for a brief period from 1979 to 1981, this has not happened. However, if legislation currently under discussion in Congress is passed, the ATBCB would be given the authority to set minimum guidelines for vehicles and consistency in federal law would be achieved with respect to transportation accessibility and much of the current confusion should be eliminated.

At its March 15, 1989, meeting, the Board voted to reaffirm its policy that transportation for persons with disabilities should provide an equivalent level of service as is provided to the general public. In that regard, the Board sent a letter to President Bush supporting the principle of main-line accessibility, since paratransit service alone is not sufficient, and urged him to implement that principle in federally funded public transportation. The President, the Secretary of Transportation, and the Attorney General were also asked to consider the ATBCB position in deciding further action with respect to the Third Circuit Court of Appeals decision in ADAPT v. Burnley. However slow the progress in transportation accessibility appears, the ATBCB believes significant advances will have been made before the Decade of Persons with Disabilities draws to a close.