Impact of Rescission of Guidance Documents on ADA Protections and Enforcement

On February 24, 2017, President Trump signed Executive Order 13777, entitled “Enforcing the Regulatory Reform Agenda”, which required federal agencies to review all existing regulations issued by regulatory agencies and for those that met the specific review criteria, make recommendations to either leave the regulations as they are or recommend their repeal, replacement, or modification. The various agencies were to identify regulations that:

(i) eliminate jobs or inhibit job creation;
(ii) are outdated, unnecessary or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.CC. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

As part of this regulatory reform, each federal agency was required to review the guidance documents issued by that agency. Guidance documents, as opposed to regulations, do not have the force of law. Rather, guidance documents are issued to provide informal guidance explaining how the agency intends to implement its regulations.

The Department of Justice (“DOJ”) is the enforcement agency for the Americans with Disabilities Act (“ADA”) and the DOJ was tasked with review of the ADA’s regulations and guidance documents.

In December, 2017, Attorney General Jeff Sessions announced that the DOJ rescinded twenty-five guidance documents. Attorney General Sessions stated that “any guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in the statutes or regulation should not be given effect.” Attorney General Jeff Sessions Rescinds 25 Guidance Documents, https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-rescinds-25-guidance-documents. Attorney General Sessions identified twenty-five examples of “improper or unnecessary guidance documents” that were to be rescinded. Id. Ten of the rescinded guidance documents related to the ADA:

ADA Myths and Facts (1995)
Common ADA Problems at Newly Constructed Lodging Facilities (November 1999)
Title II Highlights (last updated 2008)
Title III Highlights (last updated 2008)
Commonly Asked Questions About Service Animals in Places of Business (July 1996)
ADA Business Brief: Service Animals (April 2002)
Common ADA Errors and Omissions in New Construction and Alterations (June 1997)
Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996)
Americans with Disabilities Act Questions and Answers (May 2002)
Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities (October 31, 2016)

The question then becomes, what, if any, impact does the rescission of these guidance documents have on the interpretation and enforcement of ADA regulations?

While at first glance, the number of guidance documents rescinded by the DOJ may appear alarming, the actual impact of the rescissions is likely less concerning. Importantly, the DOJ did not revoke any of the actual regulations that provide protection for individuals with disabilities. The only way to revise the rights afforded by the current regulations would be through Congressional legislation or formal agency rulemaking. Accordingly, the protections afforded by the regulations remain unchanged.

Indeed, the DOJ issued a statement on the withdrawn guidance documents, further explaining why they were chosen for rescission. The ADA website (ADA.gov) has the following statement:

“The Department of Justice has withdrawn and, where applicable, removed from ADA.gov the below-listed technical assistance documents. Each document is outdated and does not fully reflect current law or has been replaced by a more up-to-date document. Withdrawal of a guidance document does not change covered entities’ legal responsibilities, as reflected in the ADA, its implementing regulations, and other binding legal requirements and judicial precedent. The Department will continue to fully and fairly enforce all laws within its jurisdiction, including the ADA.”

https://www.ada.gov/withdrawn_docs_list.html.

Certainly, rescission of outdated and preempted documents should have little impact on implementation of the regulations. As is apparent from the dates of the rescinded documents, most are over ten years old. While the age of the guidance documents themselves does not render them unreliable, the age of a guidance document is a factor one should look at when relying on the document. For example, one of the rescinded guidance documents, Commonly Asked Questions About Service Animals in Places of Business (July 1996), addresses frequently asked questions about a businesses’ obligations and requirements with respect to service animals. However, the ADA has issued two subsequent guidance documents regarding service animals in July, 2011 (https://www.ada.gov/service_animals_2010.htm) and July, 2015 (https://www.ada.gov/regs2010/service_animal_qa.html). Interestingly, while the DOJ rescinded this document as “outdated and superseded,” the ADA left this document on its website “because it is relied upon in ADA rulemaking documents.” See https://www.ada.gov/archive/qasrvc.htm. So, for this example, the document is still available for review but it is clearly marked as rescinded so a person looking for answers would know to look for more recent publications.

However, not all of the revoked guidance documents have this disclaimer, making it unclear whether the information provided in those documents is outdated or superseded, or the exact basis for rescission. For example, the document Common ADA Errors and Omissions in New Construction and Alterations (June 1997), addresses frequent errors and omissions relating to ADA compliance in new construction and provides the requirements in the regulations. Rescission of this document, and others like it, raises three potential problems. First, if the common errors and omissions identified in this document are not addressed in a new guidance document, the question becomes – will these errors begin to manifest themselves more frequently without this document as guidance? This could result in less ADA accessibility and more liability for owners and developers who fail to meet the ADA’s requirements. Second, if an owner or developer relied upon this document prior to its rescission, is that owner or developer now at risk for non-compliance with the ADA regulations? Third, if the information provided in this document is no longer current or has been superseded, by simply revoking the document without explanation of the changes or reference to new documents, a person searching online for assistance might come across this document and mistakenly rely on information that is now deemed outdated. Likely, the impact of these rescissions and the answers to these questions will only be addressed with the passage of time.

Certainly, the rescission of these guidance documents by the DOJ should serve as a reminder to individuals looking for information – it is always critical to confirm you are looking at the most up-to-date information. If in doubt, contact an attorney to ensure you know the current requirements and regulations.

Impact of Rescission of Guidance Documents on ADA Protections and Enforcement

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