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significantly increase liability for a profession already beset by liability burdens. Given the increasing tendency of the Supreme Court to discount report language and legislative history, it is not sufficient to leave so many of the legislation's policy specifics to the regulatory process. By merely directing the legislation in a couple of crucial areas, which I mention below, it will contribute to more clear and successful legislation and regulations.

Because we expect that the Senate-passed bill, rather than the House bill as introduced, will form the basis for House deliberations, our remarks pertain to the provisions of S. 933 as approved by the Senate.

The AIA is concerned principally with certain provisions of Title II, which applies to public services, and of Title III which covers public accommodations and privately provided services. While we appreciate that this subcommittee's jurisdiction connects most directly with Title II, the ADA's impact on structures and facilities covered by both titles, such as office buildings and recreational facilities, has relevance for many of the subcommittee's interests. For example, the subcommittee has a primary jurisdiction over railroads but would have an interest in office buildings covered by the ADA. Within these two titles, we focus on those provisions that apply to architects and their practices. Let me review the AIA's specific concerns with this measure and suggest revisions to improve the bill's chances of accomplishing its purpose.

The AIA is concerned that the sections of Title II covering alterations for existing facilities and for rail stations are confusing, leaving in doubt what is required. It appears that separate requirements are set forth for existing facilities and for stations. Neither is defined in the legislative language, and so the distinction is unclear. To compound the confusion, the Senate report in Title III defines facilities to encompass stations.

It appears that alterations and major structural alterations, as in Title III, are not required upon enactment, but if undertaken, then the altered area must be made readily accessible and usable. In the case of major structural alterations, the path of travel to the altered area must be made accessible, too. The AIA supports the distinction between the two alteration forms as necessary to encourage renovations by preventing small projects from burgeoning into costly, complex ones solely due to the need to provide an accessible route to the altered area. The legislation, however, provides no way of determining when an alteration becomes a major structural alieration, leaving the decision to the Attorney General. We also believe that the ADA's use of the term "structural" is inconsistent with the legislation's intent as described in the report. Major structural alteration implies major building support functions such as posts, columns, and load-bearing walls, yet the report makes it clear that alteration which are much more minor in nature are also within the scope of the legislation's intent. Dropped ceilings, doorways, and floors are not deemed major structural elements by the architectural and engineering community. The inconsistency can be eliminated by referring only to major alterations or by changing the word "structural" to "architectural".

Later on, the legislation demands that all intercity rail stations and key stations for other rail types be made readily accessible and usable by disabled people, as soon as practicable. The Secretary of Transportation may delay the requirement for up to three years in some cases, and for up to 20 others, with extraordinary cost of compliance a factor in the length of delay for key stations. Is the legislation providing that alterations for facilities other than stations and key stations are voluntary, but that rail stations must be made readily accessible and usable following enactment? It is unclear. If that is the requirement, then the legislation ought to say so, with proper definitions of the terms "facilities” and “key stations”, and logical structuring of the sections.

Title III also suffers from problems with clarity.

The legislation requires that public accommodations remove architectural barriers, effective upon enactment, if the removal is "readily achievable". "Readily achievable" is described as "easily accomplishable and able to be achieved without much difficulty or expense". Additional criteria for determining whether the removal is readily achievable includes the size and type of the operation and the number of its employees and facilities. The provision fails to distinguish clearly between the cost and difficulty of removing a single barrier, and many barriers of the same type in a single facility. For example, the Senate report concludes that the installation of grab bars fits the readily achievable standard. The absence of a grab bar in a bathroom is evidently a barrier. The installation of a grab bar in a single bathroom is not much of a problem, but the installation of many grab bars in many bathrooms in a large office or hotel is a different matter entirely. The legislation should pro vide that if a facility has many architectural barriers that singly aren't difficult or costly to remove, the removal of all these barriers should either be phased in or occur when the facility is renovated.

Title III then contemplates "alteration" of a facility, which is more expensive and complex than the readily achievable removal of an architectural barrier. The legis lation indicates that an alteration occurs at the choice of the facility owner. Title III does a better job than Title II in handling the distinction between handicapped access improvements required upon enactment in existing facilities, and those that take place only when owners choose to initiate them. The legislation still suffers from the recurring problem of no clear distinction between a readily achievable re moval of an architectural barrier and an alteration of a facility. Also, as in Title II, the legislation gives no clue as to what differentiates a major structural alteration from an alteration. State laws already in existence provide better guidance. Pennsylvania law, adopted in December 1988, provides that alterations worth less than 30 percent of the value of a building must make only the altered area readily acces sible and usable. Alterations valued at 30 to 50 percent of the building's value must also include an accessible route to the altered area. Alterations worth more than 50 percent of the value of the building must make the entire facility readily accessible and usable. The alterations section of Title III also establishes a "maximum extent feasible” test. This phrase is too vague, although the Senate report attempts a definition. Also, the legislation should take into account the potential for conflict be tween its provisions and federal requirements for historic preservation.

Distinctions between one term and another are very important. For example, if the threshold for a major structural alteration is set too low, then many owners may simply delay or even refuse renovations in situations where building values are low.

The legislation imposes requirements for new construction, which apply to facilities open for first occupancy more than 30 months after the date of enactment. It makes a distinction between public accommodations, which are defined in a list of facilities and establishments, and potential places of employment” which appear to be everything not considered public accommodations. The AIA generally agrees with the premise that accessibility features can be more easily and less expensively incorporated into the original design.

"Potential places of employment”, however, is a new term. It is unclear in the legislation whether all spaces within potential places of employment must be made readily accessible and usable, such as a storeroom rarely visited by anybody. The legislation's requirements should cover only those spaces within an establishment or facility that would be generally used by the public, permitting the accessibility of other spaces to be handled in the operations policies of the employer.

Although the legislation attempts to accommodate projects already in the design process by delaying their effective date of compliance (a year after enactment for alterations, 30 months for new construction), there will be serious transition prob lems for some projects that are or will be under contract for design prior to enactment of the bill. These projects must comply by the effective dates. They will there fore be subjected to costly, often complicated redesign, yet architects will not know with any certainty what they must do to comply. In its section estimating the bill's cost for state and local government, the Senate report acknowledges the significant added costs of redesign. One way to handle this problem is to retain the effective dates in the legislation for alteration and new construction, but have the law apply only to those projects that receive a contract for design after the date of enactment. Projects currently under design would not be covered. New or altered buildings thus escaping early compliance would eventually come under the alteration require ments. Our suggestion is also similar to, but we believe more effective than, the ap proach instituted in the Fair Housing Act Amendments regulations which exempt from compliance those projects whose final building permits are issued on or after January 14, 1990.

To provide a "safe harbor" for architects, particularly necessary during the transition from enactment to final regulations, the legislation should provide in the stat. ute language that compliance with the requirements of the American National Standards Institute ANSI standard 117.1 1986 or an equivalent standard would be sufficient, though not necessary, for compliance with the legislation. ANSI 117.1 is a national model handicapped access standard adopted throughout the country, and well understood by architects and others. Given the uncertainty of the ADA's re quirements, and of the nature of the regulations, architects need a readily accepted standard to which they can refer with confidence. Since ANSI no longer prescribes the scope of the standard, such as how many accessible bathrooms should be placed in a new office project as opposed to what a handicapped accessible bathroom looks like, the legislation as an alternative could instead refer to the Uniform Federal Accessibility Standard (UFAS), which contains a scoping element. In the new fair housing law enacted last year, ANSI is deemed a sufficient standard to follow in complying with accessibility requirements for housing.

Because the report makes it clear that the Architectural and Transportation Barriers Compliance Board shall extend and make necessary revisions to the federal Minimum Guidelines and Requirements for Accessible Design (MGRAD), a question is raised about the relationship of this provision to current ANSI standards. Is the revised MGRAD supposed to supplant ANSI as the standard for the details of handicapped accessibility design? MGRAD now relies on the ANSI standard. The legislation should specify this continued reliance, except, to the extent that a scoping element is required.

The ADA's new construction provisions also exempt from compliance those new projects where it is "structurally impractical” to do so. The Senate report makes it clear that structural impracticability does not pertain to conditions involving the steep grade of a site but only to those conditions that would prevent accessibility or destroy the physical integrity of a structure. It is meant to be a very limited exemption involving such buildings as those built on stilts in marshland or in a floodplain. The issue of economic feasibility should not be overlooked, especially since such feasibility is inherent in the idea of structural impracticability. The sections of the ADA dealing with readily achievable removal of architectural barriers and with alterations already acknowledge the cost of compliance and seek to ensure that the legislation's costs are not unreasonable. The new construction requirements should do the same. The AIA supports the legislation's intent to require the incorporation of accessibility features which are not prevented by structural impracticability or economic infeasibility. The ADA should also incorporate the term "equivalent facilitation" to allow alternative access means where conventional accessibility is impracticable.

The Senate bill also provides that courts should consider a good faith effort to comply when hearing complaints brought against a covered entity or individual. We support a stronger provision. First, the ADA should give administering authority for ADA to local building officials, and the certification of such officials that an architect has complied should constitute a strong defense against complaints of discrimination.

Finally, the Senate bill establishes a program of technical assistance for affected segments of the public to inform them about the act and its details. This is a worth. while provision aimed at encouraging compliance through better understanding and information, rather than through the heavy hand of the courts.

The American with Disabilities Act is far-reaching legislation aimed at opening doors for a segment of our society shut out of the mainstream for too long. The legislation's significance demands that its crafting advance rather than impede achievement of its objectives. We hope that our suggestions will make this the bill it deserves to be.

Mr. LUKEN. Ms. Lavoritano.

STATEMENT OF CAROL LAVORITANO Ms. LAVORITANO. Thank you, Mr. Chairman. If I might, I would like to briefly summarize my statement and have the whole incorporated.

Mr. LUKEN. Please do. Your testimony is received.
Ms. LAVORITANO. Thank you.

METRA is the fourth largest-we operate commuter rail, light and rapid rail, bus and track and also trolley, metropolitan Philadelphia. Last year we provided approximately 1.2 million passenger trips for disabled persons by accessible bus, rail and paratransit. We have had an elderly and handicapped advisory committee since 1974. We have a variety of different types of accessible services, and we recently entered into an agreement to guarantee the purchase of only accessible buses, and to expand the number of key rail stations.

As a result of our own experience, I would like to provide the following specific comments on the Senate bill. First, section 20e(b)(3) should specifically state that structural modifications to existing rail vehicles are not required. While we agree that only accessible buses and rail cars should be obtained in the future, we have a number of concerns about making structural modifications to existing vehicles if they would have to specifically comply with requirements similar to the uniform Federal accessibility standards regarding doorway width and aisle width. That might compromise the structural integrity of a number of our vehicles.

We have an additional concern relating to rail accessibility for streetcar operations in mixed traffic, and this goes to a comment professionally made by Mr. Cook. Philadelphia is an old city, and we have an extensive network of surface streetcar operations. These are trollies, old fashioned trollies that operate in the middle of the street. In mixed traffic, trucks, automobiles and trollies, in many cases we have a narrow cartway and as it poses a serious safety consideration, perhaps new technology will be developed, but we have yet to come up with anything that would permit safe boarding and alighting of wheelchairs via a lift.

In most cases in mixed traffic operations the cartway is too narrow to effectively put up an aisle under some sort of loading platform in the middle of the street without compromising the rest of traffic.

Another major concern that we have relates to section 203(c), which creates a requirement for full bus and key rail station accessibility, plus extensive paratransit service. This will be very expensive to provide and no funding is available for additional services.

The Senate Labor and Human Resources Committee report interprets this provision of the act to require supplemental paratransit services to meet extensive service criteria. The Senate committee report effectively provides the public transportation operators are responsible for overcoming many mobility barriers faced by the disabled, including lack of adequate municipal facilities, such a suburb cuts and sidewalks and ineffective or unfunded human service agency transportation programs.

Eligibility for supplemental paratransit services is not well defined. The phrase "unable to use mainline transportation" can be broadly or narrowly interpreted. Our experience has been that people often prefer to use paratransit because it is difficult but not impossible for them to use accessible fixed route service.

The Senate committee report also calls for developing programs to provide mobility training for people with diverse disabilities, such as visual and hearing impairments, as well as mental retardation. In response to a comment made earlier by Mr. Cook, there are degrees of mobility training. As a transit operator, we have often provided training on how to use a wheelchair lift on a bus, but we cannot provide the type of training required for blind or mentally retarded people to become completely familiar with the route to take through the transportation system, and the concept of mobility training is much more complicated than what Mr. Cook alluded to.

Another concern that we
Mr. LUKEN. Could you summarize?
Ms. LAVORITANO. Summarize, okay.

Basically our principal concern with this act relates for funding for additional services that we would be required to provide. think the transit community is in favor of improved access for the disabled, but the funding concerns must be met.

Thank you, Mr. Chairman.

Mr. LUKEN. Well, thank you. You all helped us to define these issues, and we find there is a certain amount of consensus, and other things that we have to work on. We thank you very much.

We have this major issue that I have to vote on right now, so I am going to retire post haste, and the subcommittee is adjourned, subject to the call of the Chair.

Thanks a lot. [Whereupon, at 12:15 p.m., the hearing was adjourned.] [The following material was submitted for the record:) PREPARED STATEMENT OF CAROL H. LAVORITANO, DIRECTOR, PROGRAM AND POLICY ANALYSIS DEPARTMENT, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

Good morning, Mr. Chairman and members of the Subcommittee on Transportation and Hazardous Materials, I am Carol H. Lavoritano, Director, Program and Policy Analysis Department of the Southeastern Pennsylvania Transportation Authority, or SEPTA. I am pleased to have the opportunity to present testimony before you today on the Americans with Disabilities Act of 1989. While we support the intention to provide improved services to the disabled, we do have a number of cost and operational concerns with the Senate bill.

SEPTA operates the fourth largest public transportation system in the United States. SEPTA provides over 1.1 million passenger trips each weekday by commuter, light and rapid rail, bus and trackless trolley in metropolitan Philadelphia. In addition, we contract for the provision of paratransit service in Philadelphia, primarily for disabled people.

Last year SEPTA provided approximately 1.2 million passenger trips for disabled persons by accessible bus, accessible rail and paratransit. The Authority set up an elderly and handicap advisory committee in 1974, and began working with the disabled community to improve services for them. We have been meeting many of the transportation needs of the disabled in Southeastern Pennsylvania with accessible bus and rail service since 1980. The Authority began contracting paratransit service in 1981. In 1988, accessibility was extended to all of SEPTA's Suburban Transit Division bus routes through the implementation of our Suburban On-Call service, which allows a disabled person to call one day in advance to request an accessible bus to be assigned to any route. By November of this year, 48 percent of our bus fleet will be lift equipped.

This past summer, the Eastern Paralyzed Veterans Association, the City of Philadelphia and SEPTA entered into an agreement to guarantee the purchase of only accessible buses in the future and to expand the number of key rail stations to 45, or approximately 16 percent of the system.

As a result of our own experience and the broad impact of this legislation on SEPTA, I would like to provide the following specific comments on the Senate bill:

(1) Section 203(b/3) should specifically state that structural modifications to existing rail vehicles are not required. We agree that only accessible buses and rail cars should be obtained in the future when purchasing or leasing new vehicles. Furthermore, we concur with the idea of making rail vehicles accessible "to the maximum extent possible" for disabled persons, including wheelchair users, within three years. SEPTA has already removed seats in all its commuter rail trains to make space for wheelchairs, and our rapid rail cars are wheelchair accessible. SEPTA has on order replacement cars for its Norristown High Speed Line, which include wheelchair securements.

While our commuter rail fleet is generally accessible, these cars do not precisely meet Uniform Federal Accessibility Standards regarding doorway width and turning radius. It would be very expensive to undertake the mnajor structural modifications necessary to change these dimensions because of limited space in the car entry area; such modifications could affect the structural integrity of the cars. We also agree with the Senate Labor and Human Resources Committee report language which indicates that accessibility modifications must only be made to remanufac

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