Federal officials say they will hold off on a plan to fast-track changes to a key disability rights law amid substantial pushback.
The U.S. Department of Energy is pumping the brakes on an effort to rescind requirements under Section 504 of the Rehabilitation Act that outline what standards newly constructed and altered buildings must meet in order to be considered accessible.
The agency had quietly announced its intention to make the change in May, issuing what’s known as a “direct final rule.” At the time, the Energy Department said that the update would take effect July 15 unless “significant adverse comments” were received within weeks.
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Now, after being inundated with more than 20,000 comments, the Trump administration is delaying the rule change until Sept. 12.
“Because DOE subsequently received significant adverse comments on that direct final rule, DOE is extending the effective date to consider comments submitted in response to the direct final rule,” the Energy Department said in a notice issued just before the change was set to take effect.
Disability advocates have taken issue with the Energy Department plan both because it would eliminate a mandate that’s existed for decades and also because of the way in which the agency went about it.
To update regulations, federal agencies typically go through a process known as “notice and comment,” which can take years. The public is given notice, offered a period of time to comment and then the agency considers any comments before issuing a final rule.
The more expedited approach that the Energy Department sought to deploy is unusual and generally reserved for routine or noncontroversial updates, like changing the name of a department, according to Claudia Center, legal director at the Disability Rights Education & Defense Fund.
Center worries that if the Trump administration is successful, this hasty approach may be used to modify more of the 80-plus sets of Section 504 regulations across the federal government.
More immediately, if adopted, the Energy Department change could affect thousands of buildings that are part of state and local government, universities and elsewhere that receive funding from the agency, advocates say.
Existing regulations require facilities constructed or altered after June 13, 1980 that receive federal financial assistance to be “readily accessible to and useable by handicapped persons.” To meet that standard, buildings must comply with Uniform Federal Accessibility Standards.
In its original notice, however, the Energy Department said this requirement is “unnecessary and unduly burdensome.”
“It is DOE’s policy to give private entities flexibility to comply with the law in the manner they deem most efficient. One-size-fits-all rules are rarely the best option. Accordingly, DOE finds good reason to eliminate this regulatory provision,” the agency said.
Amy Robertson, a civil rights attorney who specializes in disability rights litigation, said removing the building requirement would lead to less accessible structures and would prove problematic since covered entities would still face liability under general non-discrimination requirements.
In announcing the delay, the Energy Department called the changes a “rule of procedure” and said the “action is not a ‘substantive rule,’” making it exempt from notice and comment and free of any requirement for a 30-day delay in effective date.
For now, advocates are left to wait and see since the agency did not open a new comment period.
“The Section 504 regulations that DOE seeks to rescind are the key rules for the built environment to become more accessible over time,” Center said. “We hope that DOE will abandon the rescissions because the regulatory standards are important to disability access and represent a shared understanding among all stakeholders — including recipients — of the ground rules for the built environment. The proposed rescissions would create conflict and confusion.”
