(Washington, D.C, August 19, 2008) – AH&LA submitted its comments today in response to the U.S. Department of Justice’s (DOJ) proposed dramatic and far-reaching  changes  to the Americans with Disabilities Act (ADA) of 1990.

DOJ’s June 17, 2008, “ Notice of Proposed Rulemaking ” (NPRM) would substantially revise current ADA accessibility requirements that apply to places of lodging.  If enacted unchanged, the new rules will impose new requirements for nearly every aspect of the lodging industry including guest reservations practices, swimming pools, saunas/steam rooms, exercise rooms, windows, play areas, and valet parking.

AH&LA was critical about DOJ’s proposal across a wide number of areas, going on record that DOJ “seems to be giving less consideration to the real world conditions that AH&LA’s members face, as well as the enormous costs that would have to be incurred to meet the exacting” new accessibility guidelines.

AH&LA’s 91-page reply was composed with the help of AH&LA’s membership and directed by AH&LA consultant and ADA counsel Minh Vu with the firm of Epstein, Becker and Green.  Combining an industry-wide request for information and the resulting details derived from a series of conference calls and meetings, the association provided comments on the most critical issues demanded by DOJ.  These DOJ requirements will affect the $139 billion U.S. lodging industry for decades to come, so it was important to hear from major industry stakeholders about how these rules will affect their operations.

AH&LA’s formal criticism focused on a number of crucial lodging industry areas:

Underestimation of costs.  AH&LA believes that DOJ has significantly underestimated how much this proposal will cost the industry and all Americans.  For example, requiring currently compliant accessible guest room bathrooms and single user restrooms to comply with the new toilet clear floor space and comparable vanity requirements will impose an enormous cost that has been significantly underestimated by DOJ. 

Transition time is insufficient.  The regulation’s proposed six-month transition period fails to take into account industry lead times for renovation and new construction projects in lodging facilities, which sometimes takes years.  There is also no transition period at all for lodging facilities to remove barriers falling afoul of the new requirements.

Room dispersion rule is arbitrary.  DOJ’s new position that ADA-accessible rooms created in facilities covered by the 1993 rules must now be dispersed among every room type is unjust.  Facilities built to earlier 1991 specifications did not contain this kind of requirement, and AH&LA is asking that the government maintain the current rule exempting facilities built before the 1993 rules.

Too many room dispersion factors open industry to litigation.  DOJ’s accessible room dispersion requirements have been expanded to consider so many factors that they have become impossible to implement.  Lodging owners and operators will be exposed to enormous litigation risk even if they have made a good faith effort to comply. AH&LA is demanding these rules be clarified so industry members are not told after the fact by litigants and the government that they should have dispersed their accessible rooms differently within a property.

New reservation requirements will add significant cost.  The rule’s new demand to make reservations via ADA-compliant procedures will add additional costs and complexity to the reservation system.  It will also not necessarily ensure that disabled guests will be more likely to get accessible rooms.  AH&LA asked DOJ for more flexibility in the requirements.  The association is also asking that lodging owners and operators not be held accountable for ADA compliance of third-party reservation services over which they have no control.

New definition of a “barrier” increases compliance costs for hoteliers.  The Department’s new definition of what is a “barrier,” when combined with its recent position on what is “readily achievable” barrier removal, results in the imposition of the more rigorous accessibility standards reserved for alterations and new construction, contrary to the ADA’s mandate.

Lack of approved mobility device definition creates a safety hazard.   AH&LA also raised concern with a requirement that lodging operators allow persons with disabilities to use a limitless array of power-driven mobility devices.  Allowing these devices without regard to their size, engine type, and speed capability, subject only to very limited defenses, is unreasonable and creates a serious public safety hazard.

The NPRM raises many issues of concern for AH&LA’s members, some of which cannot be adequately addressed in the 60 day comment period.  For example, the association noted that this comment period is not adequate for AH&LA’s economist to conduct a full review of the Regulatory Impact Analysis and prepare a cost benefit analysis using more realistic assumptions. 

AH&LA’s members have spent billions of dollars in the last 16 years making their facilities accessible to individuals with disabilities in compliance with the ADA.  They have done so — not only because it is the law — but because their mission is to make every guest feel comfortable and welcome.  These ADA compliance efforts have, at times, been challenging, particularly in lodging facilities that were constructed for first occupancy before January 26, 1993.

“The work Minh Vu did over the past year strengthens our industry’s argument and allows us to tell the larger story about this regulation’s onerous impact on our members.  This issue is of utmost importance to the U.S. lodging industry and will have serious repercussions for many businesses over the next decade,” said AH&LA President and CEO Joe McInerney.

To read AH&LA’s August 18, 2008 comments on DOJ’s June 17, 2008 “Notice of Proposed Rulemaking,”  click here .
To read AH&LA Exhibits 1 through 7,  click here .
To read AH&LA Exhibits 8 and 9,  click here .
To read AH&LA Exhibit 10, click here.
To read AH&LA Exhibit 11 first part, click here.
To read AH&LA Exhibit 11 second part, click here.
To read AH&LA Exhibits 12 and 13,   click here .

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