U.S. Attorney General Jeff Sessions recently announced that the Department of Justice (DOJ) rescinded 25 guidance documents that the department deemed unnecessary, inconsistent with existing law, or otherwise improper.
This rescission comes in response to President Donald J. Trump's Executive Order 13777 in March 2017 calling for federal agencies to form task forces dedicated to identifying regulations and guidance documents that could be repealed, replaced, or modified. The DOJ is the enforcement agency for the Americans with Disabilities Act (ADA), and this recent rescission affected several guidance documents related to enforcing the Act.
The following rescinded guidance documents pertain to the ADA: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)
As indicated by the publication dates, nearly all of these documents are well over a decade old. Guidance documents—unlike federal regulations or statutes—do not carry the force of law, but are intended to provide informal guidance to allow the public to better understand how an agency intends to implement its regulatory authority.
Because the rescinded documents are only guidance, the rescissions in no way affect the rights of individuals protected by the ADA. Those rights can only be modified by Congressional legislation or agency regulations, and the ADA's implementing regulations can only be modified by the DOJ following a public notice and comment process. For these reasons, the numerous rescissions may not have as large an impact as it seems at first glance.
For example, one of the guidance documents at issue is the Commonly Asked Questions About Service Animals in Places of Business, published in 1996. This addresses instances in which places of public accommodation cannot prohibit a disabled individual with a service dog from entering. The DOJ, however, published similar, but more expansive, guidance on these same topics in July 2011 and in July 2015, making the 1996 guidance unnecessary.
The informal guidance documents provide useful and instructive advice for many common questions that may arise for businesses regarding ADA compliance. The dated nature of several of the rescinded documents provides an important reminder that, when researching informal guidance, one should always look for the most up-to-date items. Consulting an attorney is always a best recommended practice for handling ADA compliance issues.
Attorneys in Ballard Spahr's Accessibility Group regularly advise clients on accessibility matters under the ADA. They have experience helping clients across the country assess their rights and responsibilities under the law, designing programs to keep clients in compliance, and defending against claims of discrimination.
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