5. Updates to the Regulatory Impact Analysis

This chapter discusses changes made to the Final RIA (as compared to the Initial RIA) to reflect: public comments concerning the methodology underlying the Initial RIA; substantive revisions to the Final Rules; revisions made to the RIA model and data elements; and further research and analysis. Over 4,400 comments were received during the 60-day comment period on the Department’s proposed revisions to the regulations implementing Titles II and III of the ADA. Comments were received from a wide spectrum of individuals and entities, including persons with disabilities (and other individuals), industry/trade associations, businesses of various sizes, model code organizations, advocacy groups, local and state governmental entities, non-profit groups, and architecture firms. The preambles to these final rules and the accompanying appendix entitled “Analysis and Commentary on the 2010 Standards for Accessible Design” provide the primary forum for substantive responses to these comments. This section only discusses comments to the extent they implicate RIA-related estimates, assumptions, or methodologies.

Facility-Specific Revisions and Comments

Updated Facility Data (All Facilities)
The Final RIA reflects updated data with respect to facility counts, sales receipts, and total visits based on data from the U.S. Census Bureau, 2007 Economic Census, and the February 2010 Dodge Construction Potentials Bulletin. Facility counts were updated based on the 2007 Economic Census data and then projected to 2009 estimates using the construction growth rates per facility type in the Dodge Construction Potentials Bulletin.

The total sales receipts per facility type used to estimate the number of visits has also been updated based on the 2007 Economic Census. These 2007 estimates were also projected forward to 2009 estimates based on the change in the Consumer Price Index (CPI).

The number of visits was further refined by new estimates of the percentage of the population with disabilities from a 2005 U.S. Census report and updated U.S. Census Bureau population estimates for the entire U.S. population.

The Value of time during a facility visit was also re-estimated based on new data for 2008, the May 2008 National Occupational Employment and Wage Estimates. This provides a new estimate for the basis of the value of time, $20.32, the Average Hourly Earnings of Production Workers for 2008 of the total private sector.

Lodging Facilities
Alteration Rates: A trade association representing the lodging industry asserted in its comments that its members alter their respective lodging facilities more frequently than the general (historically-derived) alteration rate applicable to all facilities in the Initial RIA. The trade association submitted data from an informal survey (of eight unnamed hotel companies) showing that, at these companies’ lodging facilities, the toilets and vanities in guest room bathrooms were replaced, on average, every 13.75 and 12.75 years respectively. In light of this survey data, the alteration rates for lodging-related facility groups in the Final RIA (i.e., Inns –Facility Group #A, Hotels – Facility Group #B, and Motels – Facility Group #C)  was revised to every 15 years. (While this 15-year alteration schedule is slightly higher than the rounded alteration rate values provided in the lodging industry comment, this revised rate used in the Final RIA nonetheless still represents a conservative figure since (a) alterations in this analysis are assumed to affect all elements in a facility, and (b) it is highly unlikely that structural and other elements in lodging facilities are altered as frequently as bathroom fixtures in guest rooms.)

Unit Costs for Modifications to Bathrooms in Existing Accessible Guest Rooms: Several lodging industry commenters claimed that the cost figures for altering bathrooms in accessible guest rooms at existing lodging facilities in the Initial RIA were too low. These comments suggested that the Initial RIA underestimated alterations costs because it separately assessed the costs for alterations affecting vanities (Requirement #45) and water closet clearances in single-user toilet rooms with out-swinging doors (Requirement #28). Instead, these commenters suggested that more realistic alterations costs would be generated by focusing on the collective impact of the Department’s revised requirements for certain features in bathrooms in accessible guest rooms (i.e., toilets, lavatories, vanities, and related clearances). Accompanying some of these comments were prototype plans for existing bathrooms in accessible guest rooms with annotations describing alterations work - without cost detail - that purportedly would need to be done to make these bathrooms compliant with the 2004 ADAAG. (One commenter did provide a general cost estimate of $20,000 to $25,000 for making bathrooms in accessible guest rooms accessible. But, without any supporting data, drawings, or description of how this estimate was derived, it could not be evaluated further.)

The review of these comments and prototype plans led to changes in the RIA model for the Final RIA in several respects. First, a new requirement for bathrooms in accessible guest rooms was created by combining the formerly separate requirements for guest room vanities and water closet clearances for single-user toilet rooms with out-swinging doors. (See Appendix 2, Requirement 45.)  (As a consequence, the element counts for single-user toilet rooms with out-swinging doors (Req. #28) for lodging facilities  were deleted and replaced with the same element counts for bathrooms in accessible guest rooms (Req. #45)). Second, based on the prototype plans submitted by lodging industry commenters, a new set of assumptions were developed by Department architects for the low, medium, and high incremental unit cost scenarios. These cost assumptions include:

  • No appreciable incremental unit cost changes in New Construction;
  • At the low end unit cost estimate for both Barrier Removal and Alterations, installation of additional shelving would be required;
  • At the medium unit cost estimate for both Barrier Removal and Alterations, relocation of two plumbing fixtures, construction of a new plumbing chase for the toilet, and installation of a vanity counter would be required but the bathroom footprint would not change; and
  • At the high end unit cost estimate for both Barrier Removal and Alterations, relocation of two plumbing fixtures and the bathroom door, installation of a vanity counter, construction of a new plumbing chase for the toilet, and expansion of the bathroom by shifting the bathing fixture wall into the guest room sleeping area just over one foot would be required, which would increase the bathroom footprint by a total of 8.125 sq ft.

Lastly, these cost assumptions were submitted to the same independent cost estimator who provided incremental unit cost data for the Initial RIA. The resulting unit costs for this new requirement for bathrooms in accessible guest rooms are reflected in Appendix 3H (Unit Costs).

The incremental unit costs for this new requirement, however, do not include any calculations of lost revenue. A lodging trade association’s comments suggested that the Initial RIA should have accounted for loss of revenue due to longer renovation periods from extensive work that allegedly would be required to comply with the water closet clearance and vanity requirements in the 2004 ADAAG. Alterations, however, are frequently performed on a large scale and are scheduled to occur when occupancy is low. It is thus expected that the minimal additional time to move plumbing fixtures (medium cost assumption scenario) will not significantly impact facility revenues.

Exercise Facilities: Comments by a lodging trade association criticized the Initial RIA for assuming that exercise facilities would be located only at Hotels, and not smaller lodging facilities (such as Motels). This commenter submitted the results of an industry survey indicating that 85% to 90% of lodging facilities comparable in size to the Motel facility group (in terms of guest room count) have exercise facilities. The Final RIA thus includes estimates for exercise facilities at Motels (as well as Hotels) and assumes the exercise rooms are of similar size in each respective type of lodging facility. (See Appendix 3E1.)  Additionally, the likelihood values for exercise facilities (i.e., the likelihood that an exercise facility exists and is likely to require change to become compliant) are increased to 55%, which represents the average of the percent of Hotels and Motels with exercise facilities (90%) based on the industry’s survey data and the likelihood of Hotels having exercise facilities that would need to change (20%) as estimated in the Initial RIA. (See Appendix 3G in Initial and Final RIAs.) 

Comments from the lodging industry also suggested that the Initial RIA should have accounted for the “social costs” of increased wait times for exercise equipment since, according to these comments, compliance with the 2004 ADAAG would necessitate removal of some pieces of exercise equipment from each exercise facility. No survey data or other supporting information accompanied this comment. In the Department’s view, increased wait times at hotel exercise rooms are highly unlikely to result from the supplemental requirements applicable to exercise facilities both because well-planned modifications to the configuration of equipment in exercise rooms will not invariably dictate the removal of pieces of equipment and because experience suggests that exercise facilities at places of lodging are not generally used by hotel guests with sufficient frequency to create lines at exercise equipment. Thus, given the lack of the information to support this comment, such “social costs” are not included in the Final RIA.

Saunas and Steam Rooms: A lodging industry trade association claimed that, contrary to the Initial RIA’s assumptions, both Hotels and Motels are likely to have saunas and that these saunas would be larger than two-person saunas (since saunas for two-persons are exempt from barrier removal under the Final Rules). No survey data or other supplementary information accompanied this comment.  The issue raised by these comments was mooted, however, by the elimination of the barrier removal exemption for small (2-person) saunas and steam rooms in the Final Rules for both public and private facilities.  Now, all saunas and steam rooms of all sizes must comply with the 2010 Standards.  In the Final RIA, Requirement #111, Accessible Saunas and Steam Rooms (Alt/BR) applies to Hotels, with an assumed 5% likelihood of occurrence. 

State and Local Judicial Facilities (courthouses)
Number of Facilities: Based on further research, the estimated number of existing courthouses in the United States was revised significantly downward in the Final RIA. The number of courthouses was estimated by researching (via contacting individual states) the actual number of courthouses in the five most populous states, the five least populous states, and six others, generating an average number of courthouses per 100,000 persons, and applying that figure to the  United States as a whole. The result was an estimate of approximately 9,458 courthouses in the country.

State and Local Detention Facilities (Jails)
Number of Facilities: Based on revised sources, the number of existing jails in the United States was revised in the Final RIA. According to the Sourcebook of Criminal Justice Statistics 2003, there were 3,365 state and local detention (jail) facilities in the United States as of 1999. This figure was then adjusted, using growth rates from the February 2010 McGraw Hill Dodge Construction Potentials Bulletin, in order to estimate the number of existing jail facilities as of 2007. (See Final RIA, Appendix 3A.)

State and Local Correction Facilities (Prisons)
Number of Facilities: Based on revised sources, the number of existing prisons in the United States was revised in the Final RIA. According to statistics published by the Bureau of Justice Statistics, there were 1,190 state and local correctional (prison) facilities in the United States (excluding community-based facilities) as of 2005. This figure was then adjusted, using growth rates from the February 2010 McGraw Hill Dodge Construction Potentials Bulletin, in order to estimate the number of existing prison facilities as of 2007. (See Final RIA, Appendix 3A.)

Assumptions Regarding Typical Facility Size: Based on further research, the estimated size and characteristics of the “typical” prison facility was modified in the Final RIA. In summary, the number of inmates, cells, and buildings is increased as compared to the facility assumptions in the Initial RIA. (See Appendix 3C in Initial and Final RIAs.)  In addition, based on these revised prison facility characteristics, Department architects also adjusted the “counts” for other elements assumed to be located in prison facilities. (See Final RIA, Appendix2E Table 3E2 (Number of Elements Per Typical Public Facility).)

Homeless Shelters
Likelihood of Element in Typical Facility: In the Initial RIA, a typographical error in Appendix 3-E2 reported element counts for Requirement #107 Social Service Establishment (UFAS), and for Social Service Establishment (ADAAG), at public exercise facilities (Facility Group # BG). This error has been corrected in the Final RIA.  The corrected element counts now properly appear under the renamed (and renumbered) Requirement # 109 Social Service Establishments – Elevator Access (NC) and Requirement #110 Social Service Establishments – Clear Floor Space around Bed) at public homeless shelters (Facility Group # BF).

Requirement-Specific Revisions and Comments

Updated Unit Costs (All Requirements)
The unit costs for each requirement have been updated to reflect changes in prices since 2007 when unit costs were originally estimated in conjunction with the Initial RIA.  Unit cost estimates were adjusted to 2009 dollars by increasing these costs 3.6% based on the RSMeans 30-city national average construction cost index.

Alterations to Existing Elevators (RIA Req. #16)
Unit Costs: Several disability rights advocacy groups commented that costs to alter existing elevators in compliance with this revised requirement would be lower if it were assumed that building owners or operators adjusted the call system to permit users to independently summon accessible elevators, as opposed to altering all elevators programmed to respond to the same call button (as was done when estimating unit costs in the Initial RIA). An independent cost estimator evaluated this comment by discussing this suggestion with two well-known elevator companies. Based on these discussions, the cost estimator determined that it would be significantly more expensive, on a per facility basis, to make the suggested adjustment, particularly due to the reprogramming that would be required. Thus, no change was made to the unit costs for this requirement in the Final RIA.

Valet Parking (RIA Req. #20)
Loss of Productive Space: Upon further review and analysis, it was determined that two inputs related to the “loss of productive space” calculation for this requirement had been overestimated in the Initial RIA.  Specifically, these overestimates were: (i) rather than representing the incremental impact of the Valet Parking requirement, the square footage listed in Appendix 3-K (Changes in Productive Space Per Requirement) instead reflected the absolute space requirements for an accessible parking space (and requisite aisle space); and (ii) the value of the change in productive space within the business establishment associated with the valet parking service (e.g., in a restaurant dining room) rather than the value of lost valet parking space.  The net effect of these two assumptions was a significant overestimation of the monetized value of the change in productive space for the Valet Parking requirement.  Thus, to better reflect the actual incremental impact of this requirement, these two inputs were revised.  First, the square footage estimate for the amount of space loss to add accessible parking spots was divided in half to reflect the fact that an accessible parking space takes up the same amount of space as two non-accessible spaces.  Second, the value of this loss of space was adjusted to approximately one-fifth of the average value of the space inside the facility with which the valet parking service is assumed to be associated. These new values for the loss of productive space are parallel to a customer who spends $50 for restaurant meal also paying $5 for related valet parking.

Water Closet Clearances for Single-User Toilet Rooms (RIA Req. ##28 & 32)
Unit Costs:  Several commenters representing the restaurant industry expressed concern that, particularly as applied to smaller facilities, the revised requirements for water closet clearances in single-user toilet rooms will require more space and have higher reconstructive costs for existing restaurants than estimated in the Initial RIA. No architectural drawings or other supporting data accompanied these comments. With respect to Barrier Removal, the Final Rules provide safe harbor protection for existing single-user toilet rooms that are in compliance with the 1991 Standards as of the effective date of the rules. Moreover, to the extent existing single-user toilet rooms are not covered by the safe harbor provision because they do not comply with the 1991 Standards, any barrier removal costs are not properly attributed to the Final Rules. Lastly, with respect to costs related to planned alterations, the low, medium, and high scenarios for unit costs in the Initial RIA already encompassed a range of cost assumptions (including relocating fixtures, reworking plumbing, repairing finishes, and requiring larger toilet room footprints). (See Initial RIA, Appendix 3H.)  Consequently, no changes were made to unit costs for Barrier Removal or Alterations in the Final RIA for these two requirements.

Side Reach (RIA Req. #37)
Unit Costs: A commenter representing the retail industry suggested that the medium unit cost of a side reach element under Alterations and Barrier Removal ($150) in the Initial RIA was too low given the variety of side reach elements located in the retail stores. Several of the elements listed in this comment (e.g., vending machines, information/information transfer machines, and point of sale devices) typically are non-fixed “furniture” or “equipment” for which the 2004 Standards do not establish specific scoping or technical requirements. Additionally, while this comment identifies wall outlets as a side reach element, such outlets are not commonly located more than 48” above the finished floor and thus are not likely to be affected by the revised requirement. Lastly, the commenter identifies light or temperature control switches as the side reach elements affected by the revised side reach requirement at retail stores. While neither of these elements was specifically “costed” in the Initial RIA, the high unit costs for both Alterations and Barrier Removal ($1,500) assume that an electrical side reach element (bathroom hand-dryer) would need to be relocated and rewired. It is not anticipated that the rewiring of a light switch or temperature control would differ appreciably from these high cost scenarios. Thus, in light of these considerations, as well as the fact that this commenter submitted no cost data (or other details) in support of its contention that side reach unit costs in the Initial RIA were “unrealistically low,” the unit costs for the side reach requirement have not been modified in the Final RIA.    

Sales and Service Counters (RIA Req. ##38 & 39)
Loss of Counter and Sales Space: A commenter in the retail industry stated that there will be a sizeable impact from the “new” requirement for clearance at sales and service counters in terms of losses from loss of merchandise capacity and display space and criticized the Initial RIA for failing to account for the loss of space at sales and service counters resulting from this requirement. However, the requirement for sales and service counters under the proposed requirements (as well as the Final Rules) are not new requirements, but, instead, are less stringent requirements, thereby necessitating less space for either New Construction or Alterations and avoiding this commenter’s concerns about the potential negative impact on sales space. (Additional responses to comments concerning this requirement are provided in the Appendix to the Final Rules entitled “Analysis and Commentary on the 2010 Standards for Accessible Design.”) 

Location of Accessible Route to Stages (RIA Req. #51)
Likelihood of Element in a Typical Facility: Several commenters provided different estimates or personal anecdotes of the likelihood that existing stages in schools, governmental facilities, theaters, convention Centers, or other assembly areas did (or did not) have direct access for persons with disabilities via a lift or ramp. These estimates were too general to be used in the Final RIA. However, a national educational association did provide a survey regarding direct access to stages at private schools. The results from this survey are incorporated into the Final RIA. Based on this survey data, the likelihood that school assembly areas with stages would need to be modified in order to bring them into compliance with the 2004 ADAAG was revised upwards from 50% (Initial RIA) to 77% (Final RIA).

Unit Costs: A national trade association for assembly areas, as well as several individual venue operators of convention Centers and sports stadiums, gave significantly higher estimates of the cost to add a direct accessible route to stages based on the high cost of constructing a ramp in an existing facility, as well as the anticipated seat loss from placement of the ramp in a former seating area. The Final Rules, however, do not mandate ramps as the sole means of providing direct access to stages. Particularly in existing assembly areas, lifts may well provide a lower-cost accessibility solution. In addition, since the requirement for a direct accessible route to stages is subject to safe harbor, existing assembly areas need only make stages accessible as part of a planned alteration. The design phase of an alteration to a stage would provide ample opportunity to incorporate accessibility while also minimizing (or eliminating) seat loss. In light of these considerations, the unit costs for this requirement remain unchanged in the Final RIA. It should be noted, however, that the low, medium, and high cost scenarios are nonetheless based on a range of accessibility solutions, including adding a lift (low end) and construction of a ramp (high end).

ATMs and Fare Machines (RIA Req. #61)
Revised vs. Supplemental Requirement: In the preambles to both the Title II and Title III Final Rules, the Department emphasizes its view that the revised requirements addressing communication-related aspects of ATMs represent auxiliary aids and services to which safe harbor does not apply. This requirement which specifies technical specifications ensuring that ATMs and fare machines are independently usable by persons with vision or hearing impairments (e.g., speech output, tactilely discernible input controls, display screen visibility) is thus recharacterized as a supplemental requirement in the Final RIA that is ineligible for safe harbor protection from barrier removal.

Assistive Listening Systems (Technical) (RIA Req. #62)
Unit Costs: Several advocacy groups representing persons who are deaf or hearing impaired, as well as numerous individuals with hearing impairments, suggested that the Final RIA had overestimated unit costs for hearing aid-compliant assisted listening device (HAC-ALS). These commenters pointed out that HAC-ALS receivers using either FM radio broadcast technology (FM) or Infrared technology (IR) receivers were relatively inexpensive and typically ranged in price from $150.00 to $250.00, while neckloops were generally even less expensive at a cost of no more than $50.00 each. (Induction Loop systems, as noted by these commenters, are already HAC-compliant without additional receivers or other accessories.) 

Based on these comments, a comprehensive database of the costs of HAC-ALS receivers and neckloops currently available on the retail market was created by reviewing online documents. This database demonstrated that HAC-ALC costs needed to be revised in the Final RIA. As a result, the Final RIA reflects lower incremental unit costs for this requirement (i.e., the cost differential between non-compliant ALS FM/IR receiver setups and compliant HAC-ALS receivers including any necessary accessories) for New Construction and Alterations. In summary, these unit costs for HAC-ALS were changed to $29.50 (low end), $72.00 (medium end), and $114.50 (high end). (See Appendix 3H, Requirement #62.)  The medium unit cost represents the average incremental cost of all FM/IR receivers in the Department database, while the low and high ends respectively reflect the low and high incremental retail costs for complaint FM/IR receiver setups.

Element Counts and Likelihoods: In the Initial RIA, the element count for HAC-ALS receivers for most facilities with assembly areas reflected the total of all ALS receivers located at the facility, rather than only 25% of the total number of required ALS receivers (but not less than two) that must be hearing-aid compliant. (See 2004 ADAAG § 219.3.)  The fact that 25% of receivers would need to be hearing aid compliant was incorporated via the likelihood that an element exists and would be subject to change, estimated at 20% to also reflect the fact that some systems would already be compliant with the 2004 ADAAG regarding HAC-ALS requirements. (See Initial RIA, Appendix 3F) While this set of assumptions resulted in the appropriate number of units that would need to become compliant and their associated costs (given the unit costs assumed at the time) several commenters nonetheless expressed confusion and thought the Initial RIA had improperly over-counted the requisite number of HAC-ALS receivers. Thus, in the Final RIA, both the element counts and likelihood for HAC-ALS receivers were modified. First, the element counts for HAC-ALS were decreased (as necessary) to reflect only those receivers required to be hearing-aid compliant by the Final Rules and 2004 ADAAG. (Compare Final RIA, Appendices 3E1 & E2, Req. #62 with Initial RIA, Appendices 3E1 & E2, Req. #62.)  Next, the estimated likelihood value for this requirement was increased to 80%. (A relatively high likelihood value – but less than 100% –  in order to reflect the fact that some existing ALS are already hearing-aid compatible (either because they are Induction Loops systems or because they use FM/IR receivers with HAC-ALS features already built into the receivers).                

Maintenance costs:  Question 5 in the NPRMs sought comment from assembly area operators with respect to their experiences managing ALS, particularly maintenance costs and replacement cycles for ALS. While comments were received from operators of various types of assembly areas (e.g., stadiums, arenas, convention Centers), as well as several organizations with experience related to ALS lifecycle costs, the information submitted on this issue was too general in nature to be incorporated into the Final RIA. Nor did any of these comments call into question the Initial RIA’s estimates of the incremental annual operation and maintenance costs for HAC-ALS. (See Initial RIA, Sections 4.1.4 & Appendices 3I; and Initial Supplemental Results, pp. 277-78.)  The Final RIA thus retains these same incremental annual maintenance cost assumptions for HAC-ALS equipment.

Accessible Saunas & Steam Rooms and Saunas (Req. ## 72 & 111)
The Final Rules eliminate the barrier removal exemptions proposed in the NPRMs for small (2-person) saunas and steam rooms in public and private facilities. To incorporate this regulatory change, in the Final RIA, adjustments were made to element counts for applicable facilities, as well as to estimates of whether these facilities would have a sauna or steam room subject to the Final Rules.  (See Final RIA, Appendices 3-E & 3-F).  

Primary Accessible Means of Entry to Pools (Req. ## 79 & 112)
The Final Rules eliminate the barrier removal exemption proposed in the Title III NPRM for small swimming pools (i.e., under 300 linear feet of pool wall) in private facilities.  Under the Final Rules, small pools are no longer BR exempt in public or private facilities.  To incorporate this regulatory change into the Final RIA, adjustments were made to element counts for applicable facilities, as well as to estimates of whether these facilities would have a small swimming pool subject to the Final Rules.  (See Final RIA, Appendices 3-E & 3-F).  The Primary Accessible Means of Entry to Pools requirements now examine the costs and benefits for all pools, regardless of size or facility type.  These requirements include the incremental costs of adding one accessible means of entry to pools and the total time savings and new visits estimation as previously estimated.

Secondary Accessible Means of Entry to Pools (Req. ## 115 & 116)
For modeling purposes, unit costs for accessible means of entry to pools in the Final RIA were broken down into “primary” and “secondary” means of entry.  The costs and benefits of a second accessible means of entry are modeled for swimming pools at Facility Groups assumed to have one or more pools with over 300 linear feet of pool wall.   These Facility Groups are: Secondary schools (public and private) (Facility Group ## (W & AO), Undergraduate and Postgraduate schools (public and private) (Facility Group ## (X & AP), and Swimming pools / Aquatic Center facilities (Facility Group ## (AD & BI).  In the Final RIA, unit costs for this requirement are based on the estimated cost of a secondary accessible means of entry to a pool (i.e., accessible stairs or transfer system).  On the benefits side, benefits are assumed to be half the time saving benefits of the Primary Accessible Means of Entry to Pools requirements.

Unit Costs:  In the Initial RIA, unit costs for larger newly constructed and altered swimming pools (i.e., pools with 300 or more linear feet of pool wall) assumed that both the requisite primary and secondary accessible means of entry were pool lifts. (See Initial RIA, Appendix 3H.) (In its NPRMs, the Department proposed an exemption permitting larger existing (and unaltered) swimming pools to provide only one accessible means of entry; secondary means of entry for these pools was not included in the cost analysis.)  However, because the 2004 ADAAG only requires the primary accessible means of entry to be a pool lift (or sloped entry), and because other compliant secondary means of entry are generally less expensive (e.g., pool stairs), the Initial RIA likely overestimated the costs for this requirement. (See 2004 ADAAG § 242.2.)

Unit costs for the secondary accessible means of entry requirement are thus revised in the Final RIA in order to permit a more refined approach to likely costs.  In addition, because the Final Rules delete the proposed exemption allowing larger, unaltered existing pools to forgo a secondary means of accessible entry, unit costs were further updated to reflect the deletion of this former exemption. For all larger swimming pools – whether newly constructed, altered, or existing and subject to Barrier Removal, unit costs in the Final RIA are based on the assumption that the secondary means of entry is a (less costly) set of pool stairs, rather than a pool lift.  (See Final RIA, Appendix 3H). 

Several commenters – including disability rights organizations and a pool lift manufacturer – noted their respective concerns that the unit costs for pool lifts in the Initial RIA were too high, suggesting that pool lifts could be purchased for as little as $5,000. The Initial RIA’s low end cost for a pool lift is in line with this estimate, including not only the cost of the pool lift itself, but also other necessary costs such as installation or clear space costs (if the pool lift is being installed in an existing pool at which deck space beside the pool is assumed to be limited or constrained by other features or equipment). Therefore, the unit costs for pool lifts were not modified in the Final RIA.

Accessible Golf Courses – Accessible Routes & Golf Elements (RIA Req. #89-92)
Element Count: Several commenters – including several disability rights organizations, operators of public golf courses, and golfers with disabilities – urged the Department to revisit its cost assumptions for the requirement mandating accessible golf course elements (teeing grounds, putting greens, and weather shelter). (See Appendix 2, Req. ##90 + 91.)  By assuming that both tees and greens on every hole of the typical existing 18-hole golf course would need to be regraded, these commenters believed that the Initial RIA significantly overestimated the actual costs of this requirement as applied to existing golf courses.   

In light of these comments, the Department conducted further research on golf courses and reassessed the application of various exceptions, including the exception permitting “golf car passages” to substitute for full compliance with accessible route specifications. (See 2004 ADAAG §§ 206.2.15, 238.2.1, 1006.2.)  This review leads to the downward revision of the element count for this requirement from 40 (Initial RIA) to 6 (Final RIA) to properly account for expected existing golf course conditions and the “golf car passage” exception. (See Appendix 3E1, Req. ##90+91 & Appendix 3E2, Req. ##90+91.) 

Unit Costs: Additionally, the unit cost assumptions for this requirement regarding the length and width of the required accessible path to be regraded were modified (from 200’ length x 5’ width to 70’ length x 4’ width) to more closely reflect expected course conditions at the typical existing golf course. (See Final RIA, Appendix 3H, Req. ##90+91 (describing unit cost assumptions criteria).) These revised assumptions were then submitted to an independent professional cost estimator for recosting of unit costs for this requirement. The resulting revised unit costs are contained in Appendix 3H of the Final RIA.

Likelihoods and Program Access: In the Initial RIA, program access requirements under Title II of the ADA were taken into account with respect to other public recreational facilities (i.e., swimming pools, saunas and play areas), but not public golf courses. To address this anomaly, the Final RIA now incorporates program access into its analysis of the costs (and benefits) for public golf facilities. The Final RIA takes program access into account at public golf facilities by decreasing the likelihood value for golf-specific requirements at Title II-covered public golf facilities by one-half in comparison to their private (Title III) golf facility counterparts. (See Final RIA, Appendix 3G, Req. ##89-92.)

Existing Play Areas – Accessible Routes and Play Components/Accessible Play Components (RIA Req. ##99 & 100) 
Unit Costs
In the Final Rules, the proposed Barrier Removal exemption permitting substitution of ground play components whenever an existing play area may otherwise have been required to add additional elevated play components was deleted. Unit costs for play area requirements were thus revised in the Final RIA, reflecting the removal of this Barrier Removal exemption. (See Final RIA, Appendix 3H, Req. ##99+100 (describing cost assumptions underlying revised unit costs).)

Deletion of BR Exemption: The Final Rules eliminate the barrier removal exemption proposed in the NPRM for small play areas in private (Title III) facilities. To incorporate this regulatory change, in the Final RIA, adjustments were made to element counts for applicable Facility Groups, as well as to estimates of whether the average facility in these groups would have a small play area subject to the Final Rules.  (See Final RIA, Appendices 3E & 3F).  These Facility Groups are: Motels, Restaurants, Shopping Malls, and Nursery Schools – Daycare facilities. The estimation includes costs and benefits for accessible small play areas at these facilities, but at a low likelihood of occurrence (3-5%). The likelihood of benefitting at Restaurants is 2%, whereas for all other facilities it is 5%. This change was made to refine the benefits estimated for persons with disabilities visiting restaurants that would use a playground there. That is, this likelihood refined was based on an assumption that using a play area at a restaurant is less likely than at other facilities where a playground is more often the specific reason for the visit.

Open Captioning in Sports Stadium (RIA Req. #105)
Requirement Deleted from Final RIA: In the Initial RIA, the Department’s proposed requirement for open captioning of safety and emergency announcements at sports stadiums with seating capacities over 25,000 was included in the benefit-cost analysis. (See Initial RIA Appendix 2, Requirement #105.)  However, since this requirement has been removed from the Final Rules, it has also been deleted from the Final RIA.

Mobility Accessible Prison Cells (Req. #107)
Element Count: While the proposed rules contained a 3% scoping requirement for mobility accessible prison cells (which is less stringent  than the 5% scoping requirement in UFAS), the Initial RIA did not estimate the impact of this requirement since no element counts were assigned to any facilities. (See Initial RIA, Appendix 3E2, Requirement #107.)  The Final RIA includes an element count for mobility accessible prison cells at detention and correction facilities and, therefore, includes an estimate of the likely economic impact of this less stringent requirement.

Communication Accessible Prison Cells (Req. #108)
Element Count: While the proposed rules contained a 2% scoping requirement for communication accessible prison cells (a stringent than UFAS, which establishes no specific scoping standard), the Initial RIA did not estimate the impact of this requirement since no element counts were assigned to any prison facilities. (See Initial RIA, Appendix 3E2, Requirement #108.)  The Final RIA includes an element count for mobility accessible prison cells at detention and correction facilities and, therefore, includes an estimate of the likely economic impact of this more stringent requirement.

Housing at Places of Education – Kitchen Turning Space (RIA Req. #113)
The Final Rules add a requirement that ADA-covered housing at places of education must comply with the transient lodging standards in 2004 ADAAG, as well as several additional regulatory requirements, to provide greater accessibility for students with disabilities.  One of these additional requirements relates to enlarged turning spaces in certain kitchens in such facilities.  This requirement for larger turning spaces is incorporated into the Final RIA.  Unit costs were estimated (by a professional cost estimator) using an average of the incremental change required for galley kitchens and U-shaped kitchens.  Benefits for this requirement are assumed to be the same as Requirement #49, Galley Kitchen Clearances.

Housing at Places of Education – Kitchen Work Surface (RIA Req. #114)
The Final Rules contain a regulatory provision requiring certain kitchens in covered housing at places of education to provide more accessible kitchen work surfaces. This requirement for accessible kitchen work surfaces is incorporated into the Final RIA.  Unit costs were estimated (by a professional cost estimator) using the incremental cost of a lowered kitchen work surface.  Benefits are assumed to be equivalent to the absolute value of the benefits from Requirement #38, Sales and Service Counters.

Social Service Establishments – Roll-in Shower (RIA Req. #117)
The Final Rules add a regulatory requirement that homeless shelters or other social service establishments that have more than 50 beds and bathing facilities must provide at least 1 roll-in shower (or 1 roll-in shower for each gender if the genders are served by separate bathing facilities).  This requirement for roll-in showers at social service establishments is incorporated into the Final RIA.  Unit costs were estimated (by a professional cost estimator) based on the average of three (low, medium, high) cost scenarios.  Benefits are assumed to be equal to the time savings of Requirement #50, Shower Compartments in Hotel Guest Rooms with Mobility Features.

Other Cost-Related Revisions and Comments

Barrier Removal Safe Harbor for Qualified Small Businesses
Commenters representing both business and disability rights perspectives were uniformly critical of the Department’s proposed exemption permitting qualified small business that expended at least 1% of gross revenue on barrier removal in any given year to receive an exemption from barrier removal in the subsequent year. The Department removed this exemption from the Final Rules. However, the deletion of this qualified small business exemption had no effect on the Final RIA since this exemption had not been incorporated into the model in the Initial RIA.

Existing Buildings Constructed Before 1992
Further research was conducted into the actual age of buildings. Year built estimates by available building type (available from the Energy Information Administration 2003 Commercial Buildings Energy Consumption Survey) are used to more precisely estimate the year built and therefore the year in which alterations would occur. In the Initial RIA, buildings had been assumed to be built uniformly in the years before and after 1992. This affects one of the independent variables, buildings constructed before 1992, which has been changed from 20 percent to 67.62 percent (See Appendix 3B).

New Appendix Added to Illustrate Step-by-Step Cost Calculations
A trade association commenter requested that step-by-step cost calculations be included for each requirement and at each facility. Since all data used in the model is provided in detailed appendices and the methodology is described in detail, the several hundred additional pages that would be required to write out each individual cost calculation were not included in the Final RIA. Instead, a set of exemplar step-by-step cost calculations (in similar detail to the step-by-step benefit calculations in Appendix 4Q), are included in the Final RIA as Appendix 3N.

Indirect/Managerial Costs
Many commenters representing various business interests expressed concern that businesses would incur substantial costs under the Final Rules for accessibility consultants, legal counsel, training, and the development of new policies and related documentation (such as manuals). Such “indirect costs,” even assuming they would occur as described by these commenters, are not properly attributed to the Department’s revised regulations implementing the ADA for the reasons discussed below.

Several businesses and trade associations stated that substantial costs would be required for consultants to help determine if facilities were in compliance or needed to undertake barrier removal. The Department has determined that such costs are unlikely. The vast majority of the requirements are revised requirements subject to Safe Harbor. All buildings currently in compliance with the 1991 Standards will not need to undertake further retrofits nor will they require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are not currently in compliance with the 1991 Standards, then the costs of making such a determination and bringing these elements into compliance are not properly attributed to the Final Rules. Such costs would, instead, be due to lack of compliance with the 1991 Standards. For the limited number of requirements that are supplemental (i.e., relating to accessibility at courthouses, play areas, and recreational facilities ), the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (i.e., a swimming pool) and then conduct any necessary barrier removal work either in-house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, in Section 6.3 , the Final RIA has a high-end estimate of the additional management costs of such evaluation (from 1 to 8 hours of staff time).

Business-related commenters also suggested that the Final Rules would require them to hire accessibility consultants to counsel them on how to ensure compliance with the New Construction and/or Alterations requirements in the Final Rules. The Department anticipates that such costs will be minimal since both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into designs and plans by architects and builders. Moreover, because one of the goals when adopting the Final Rules was to harmonize ADA standards with model codes (which, in turn, have been adopted on a widespread basis by state and local jurisdictions across the country) to the greatest extent possible, many of the requirements in the Final Rules are already incorporated into building codes nationwide. Further, it is assumed to be part of the regular course of business – and, thereby, incorporated into standard professional services or construction contracts – for architects and contractors to keep abreast of changes in applicable federal, state, and local laws and building codes. Given these considerations, it was determined that the additional costs (if any) for architectural or contractor services that arises out of the Final Rules is expected to be minimal.

Several businesses and organizations representing business interests expressed the view that the Final Rules would cause them to incur significant legal costs in order to defend businesses against ADA lawsuits. Regulatory impact analyses, including the Final RIA, are not an appropriate forum for assessing the costs covered entities may bear, or the repercussions they may face, from failing to comply (or allegedly failing to comply) with current law.

Some commenters stated that the Final Rules would require them to develop new policies or manuals and to retrain employees on the revised ADA standards. For the requirements modeled in the Final RIA, it has been determined that these requirements would require minimal if any changes to covered entities’ overall policies and procedures. These revised and supplemental requirements address architectural issues and features, and therefore these requirements are unlikely candidates for inclusion in policy manuals. 

Global Competitiveness
A commenter expressed concern that the Final RIA may have overlooked the cost of competitiveness to American businesses in the global market due to the Final Rules. Since these revised and supplemental requirements only regulate facilities physically located in the United States or its territories, and the provision of goods and services within the same jurisdictional parameters, the Final Rules have no impact on the competitiveness of American businesses on a global basis. As well, the increased accessibility afforded by the Final Rules may also have the effect of increasing patronage of American businesses and facilities by foreign tourists and business travelers with disabilities.

Alterations Period
Several business associations suggested in their comments that the general 40-year alteration period applicable to all facility groups in the Initial RIA underestimated the frequency of renovations by most facilities, though these commenters did not provide survey or other data to support a substitute alteration schedule. Nevertheless, the Final RIA includes a new sensitivity analysis assessing the economic impact of a shorter (30-year) alteration period. (See Final RIA, Appendix 3N.) 

Widespread Adoption of Model Codes by State and Local Jurisdictions
Many commenters representing disability rights organizations, as well as a model code council, noted that both IBC and ANSI model codes have been widely incorporated in whole or in part into state and local building codes nationwide. Many of these model code standards go beyond the accessibility requirements in the 1991 ADAAG Standards, and, indeed, overlap significantly with the Final Rules. Use of the 1991 Standards as the primary baseline in the Initial RIA, they suggested, made the costs of the proposed regulations appear higher than they would be in actual application. As the Initial RIA acknowledges, the 1991 Standards likely overestimate the costs (and benefits) due to this consideration. However, it is not feasible to construct alternate IBC baselines for each requirement and facility nationwide that take into account the actual IBC/ANSI adoption rates by state or local jurisdiction. (See Initial RIA, Section 5.2.3.)  Yet, both the Initial RIA and Final RIA do incorporate IBC/ANSI into the analyses. In the initial RIA, the overall results from several alternate IBC baselines (IBC 2000, IBC 2003, and IBC 2006) were presented, and a more limited analysis, using a requirement-specific alternate IBC/ANSI baseline is used for several illustrative requirements. (See Initial RIA, Section 5.2.3.)  In the Final RIA, the “rolled up” results from these same three general alternate IBC baselines are presented, as well as an expanded requirement-specific alternate IBC/ANSI baseline analysis that calculates NPVs for every requirement with an IBC/ANSI counterpart using this requirement-specific alternate baseline. (See Final RIA, Section 6.2.2 & Table 10.)

Effective Dates of Final Rules
Several commenters stated that a 6-month grace period before the New Constructions and Alterations requirements become effective would be more costly than originally estimated. They stated that altering design plans for projects already in process would be a major source of these costs. In the Final Rules, the period before the compliance date has been increased from 6 months to 18 months for all New Construction and Alterations requirements.  Barrier Removal obligations, in the Final Rule, remain at a 6-month grace period following publication of the Final Rules. However, for the period of time between six months post-publication and eighteen months post-publication of the Final Rules, Title III entities are given the choice of either the 1991 Standards or the 2010 Standards as their guide for barrier removal. The Final RIA calculates costs and benefits annually and assumes that changes to New Construction, Alterations, and Barrier Removal begin on average after the first year. Note that this is not a change to the RIA assumptions, although there are some changes to the Final Rules and their implementation.

Benefits-Related Revisions and Comments

Revised Population Data for Expected Beneficiaries of the Side Reach Requirement
Advocates of persons with disabilities expressed concern that an assumption in the Initial RIA -- that lowering the side reach requirement to a maximum of 48 inches will only help persons in wheelchairs-- had the effect of underestimating the full benefits of the side reach requirement. Commenters stated that a significantly larger portion of the population would benefit from the lowered maximum side reach, including persons of small stature and persons with limited upper body mobility. The Final RIA includes in its analysis of benefits those who have difficulty reaching overhead, measured at 6.9% of the population, according to the U.S. Census Bureau (see Appendix 4E), the best proxy found in the Federal data, as well as those in wheelchairs. (No separate statistics are maintained by the Census Bureau concerning the number of persons of short stature in the United States.)

Revised Population Data for Expected Beneficiaries of the ALS (Technical) Requirements
Further research was conducted into the percentage of the American population benefiting from the new technical requirements for ALS. The Final RIA now includes in its analysis of benefits for this technical requirement only persons with hearing aids since these are the individuals most likely to benefit from HAC-ALS. According to the U.S. Census Bureau, 1.8% of the population wears hearing aids. (Persons with cochlear implants may, depending on their particular device, also benefit from HAC-ALS. However, since the Census Bureau does not maintain statistics concerning the number of individuals with cochlear implants, and since cochlear implant devices vary in terms of compatibility with HAC-ALS, no figures with respect to the percentage of the population with cochlear implants are included in the benefits calculations for this requirement.)

Benefits Not Included in the Main Estimation of the Final Rule
Many citizens and advocacy groups strongly criticized the Initial RIA for failing to take into account (by monetizing) many – if not most – of the important benefits arising from the proposed regulations. It is understood that many significant benefits from this rulemaking can neither be quantified nor monetized. These benefits include:

  • Improved sense of personal dignity;
  • Emotional and psychological value of value per se of independence;
  • The social values of improved integration and nondiscrimination;
  • Decreased sense of isolation and humiliation, when access is provided  to events like graduations, lectures, and concerts;
  • The potential for improved grades as students feel better integrated;
  • Potential increases over time in income for persons with disabilities; and
  • Greater justice in courtroom proceedings due to a decrease in the possibility that some juror’s opinions of a witness or an attorney with a disability may be negatively affected seeing that person requiring assistance and thus seeming less independent.

Both the Initial and Final RIAs acknowledge that, for a civil rights issue such as access for persons with disabilities, there are many benefits that cannot be adequately measured, let alone monetized. The Office of Management and Budget’s guidance on Regulatory Impact Assessments acknowledges such difficulty and emphasizes the importance of considering identified qualitative benefits when evaluating regulations. The Final RIA includes such a discussion of benefits not estimated in the primary analysis and notes that many persons consider these benefits just as valuable as those that can be monetized. (See Final RIA, Section 6.5.)  It bears emphasis that the benefits quantified and monetized in the Final RIA are the minimum benefits that are likely to result from promulgation of the Final Rules. In the larger sense, full societal benefits from the Final Rules must be considered as including both these monetized benefits and the benefits described in qualitative terms in this analysis.

Several commenters also noted that the Initial RIA did not attempt to account for the safety or health benefits from the proposed regulations. The Department acknowledges that there are additional safety and health benefits to persons with disabilities from many of the requirements in the Final Rules. But, as with other unquantified benefits, such benefits cannot be adequately captured or monetized in this Final RIA.

Value of Time - Persons With Disabilities
Several commenters criticized the Initial RIA for using a value of time for persons with disabilities ($10 per hour; half the hourly wage) that was, they believed, discriminatory and promoted exclusion because it was lower than the standard hourly wage rate. A value of time based on the wage rate in order to monetize time saved or lost is a standard economic methodology for evaluating the relative value of time in the marketplace. Persons with disabilities overall have an observed lower wage rate than persons without disabilities. The wage rate reflects a standard measure of the value of a person’s time in the marketplace and is frequently used in economics to measure the opportunity cost of time.

Transportation Costs
Some commenters suggested that the Initial RIA should have included the decrease in transportation costs for persons with disabilities when they can access an accessible facility closer to their location. Since the change in access time measures the  affect of the requirements on the time required to access a facility before versus after becoming compliant, an average access time to the facility was used which thereby assumes that the person with a disability is accessing the facility of choice, independent of accessibility.

Estimation of Benefits and Inclusion of Risk Analysis
One association commented that, since there was a lack of independent data for many estimated values, the Initial RIA may have overstated some benefits. The incorporation of risk analysis and low and high end estimates into both the Initial and Final RIAs is intended to adjust for possible over- and under- estimation in terms of costs and benefits. (See Section 4.3 of the Initial and Final RIAs for a more comprehensive discussion of the role of Risk Analysis in these analyses.)  The risk analysis process thus addresses the concerns raised.

 

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March 10, 2011

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