Seyfarth Synopsis: The Department of Energy recently issued a fast-track proposed rule that would eliminate accessibility standards for facilities of recipients of federal funding under Section 504 of the Rehabilitation Act. Are the ADA Title III regulations next?
On May 16, 2026, the United States Department of Energy ("DOE") published a Notice of a Direct Final Rule entitled, "Rescinding New Construction Requirements Related to Nondiscrimination in Federally Assisted Programs or Activities." Through this Notice, the DOE announced its intention to eliminate 10 C.F.R. § 1040.73, a federal regulation that requires recipients of federal financial assistance ("Recipients") to design and construct new and altered facilities in compliance with the Uniform Federal Accessibility Standards ("UFAS"). UFAS contains detailed accessibility design standards, much like the 2010 ADA Standards for Accessible Design ("2010 Standards") which apply to public accommodations and commercial facilities.
DOE's stated rationale is that the regulation to be rescinded is "unnecessary and unduly burdensome" because there is already a "general prohibition on discriminatory activities and related penalties" in Section 504 of the Rehabilitation Act and its implementing regulations. The Notice further states that it is "DOE's policy to give private entities flexibility to comply with the law in the manner they deem most efficient" and "one-size-fits-all rules are rarely the best option." The Notice indicates that the recission is consistent with Trump Administration policies and directives outlined in Executive Order 14154 ("Unleashing American Energy"), Executive Order 14192 ("Unleashing Prosperity Through Deregulation"), and the Presidential Memorandum entitled, "Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis."
Under the expedited Direct Final Rule process which is typically reserved for non-controversial regulatory actions, this proposed rule will be become final and effective on July 16, 2025 unless "significant adverse comments" were received by June 16, 2025. If significant adverse comments were received, then the recission must go through full notice and comment rulemaking. Over 20,000 comments have been submitted to the DOE in response to the Notice which would certainly suggest that there are significant adverse comments, but the website is not allowing visitors to view any of the comments.
Based on our practical experience in counseling clients on how to comply with the ADA's accessibility requirements for facilities set forth in the 2010 Standards, we believe eliminating UFAS as a legal standard will actually be harmful for Recipients for a number of reasons, including but not limited to the following:
- Less Accessible Facilities and More Litigation Risk. Design and construction professionals engaged by Recipients would be without guidance on how to construct facilities in an accessible manner as required by Section 504's non-discrimination mandate. This will likely result in more facilities that are not useable to people with disabilities which, in turn, will create additional liability for Recipients. Recipients will likely have to spend more money to make reasonable accommodations and physical modifications for employees with disabilities, and will face more lawsuits brought by members of the public with disabilities who are unable to access Recipients' programs and services.
- Less Accountability for Design and Construction Professionals. Without an objective, enforceable standard for accessible design, Recipients will have difficulty holding design and construction professionals accountable for constructing and renovating facilities that are not accessible.
- Eliminating a Safe Harbor for Lawsuits. Presently, a Recipient that is sued for having an allegedly inaccessible facility can prevail by demonstrating that its facility complies with UFAS, even if that compliance still presents barriers for the specific plaintiff who brought suit. UFAS is, in essence, a safe harbor for Recipients. Without any accessibility design standard, Recipients will likely spend more money and resources litigating the issue of whether a property element or condition is accessible to people with disabilities generally — or worse, whether an element or condition was accessible to a specific, individual plaintiff.
UFAS has been an enforceable standard for decades. Like the ADA Standards, it is the product of a well-established process in which committees consisting of advocates, representatives of covered businesses and organizations, and government representatives meet, evaluate, and reach consensus. The purpose of this system is to facilitate the development of technical design standards that balance considerations of cost and impact on covered entities with the accessibility needs of a diverse population of individuals with varying ability levels. These enforceable standards establish clear rules which businesses can use to plan, design, and price their projects.
In sum, while the idea of dispensing with hundreds of very specific design requirements may seem appealing at first blush to those who favor deregulation, the void it would leave will actually result in chaos and risk for Recipients – while producing a less accessible built environment for people with disabilities. Courts will step in to fill the void, most likely with conflicting directives as we have seen in the digital accessibility arena where there is no legally enforceable accessibility standard for public accommodations.
Update:
On July 14, 2025, DOE issued a notice stating that
"Because DOE ...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." While this is a temporary reprieve for the disability rights community, the DOE may still adopt the proposed rule with no further revisions. The DOE went out of its way to say that "[t]o the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A) and for which no notice or hearing is required by statute." The DOE continues to maintain that its proposed action to rescind all accessibility design standards under Section 504 for its Recipients is "not a 'substantive rule' for which a 30-day delay in effective date is required under 5 U.S.C. 553(d)."
Edited by: Kristina M. Launey
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