Safe Harbor
The 2010 ADA Standards are, for most building elements, the same as the 1991 ADA Standards and the Uniform Federal Accessibility Standards. But requirements for some elements have changed.
Examples
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The 1991 Standards required one van-accessible space for every eight accessible spaces. The 2010 Standards require one van-accessible space for every six accessible spaces.
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The 2010 Standards for assembly areas contain revised requirements for dispersion of accessible seating, sightlines over standing spectators, and companion seating.
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The 2010 Standards reduced scoping requirements for accessible seating in large assembly areas.
If a facility was in compliance with the 1991 Standards or UFAS as of March 15, 2012, the facility is not required to be altered to meet the 2010 Standards. This provision is referred to as “safe harbor.”
Examples
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A public university library built in 1998 has light switches at 53 inches above the floor. The 1991 Standards permitted controls to be 54 inches maximum above the floor. The 2010 Standards specify controls to be 48 inches maximum above the floor. The university does not have to lower the light switches. Safe harbor status applies. If the university alters or replaces the light switches they will need to be 48 inches maximum above the floor.
The safe harbor status does not apply to elements that are new in the 2010 ADA Standards and did not exist in the 1991 ADA Standards. Those include the following:
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Residential facilities dwelling units
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Amusement rides
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Recreational boating facilities
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Exercise machines and equipment
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Fishing piers and platforms
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Golf facilities
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Miniature golf facilities
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Play areas
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Saunas and steam rooms
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Swimming pools, wading pools, and spas
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Shooting facilities with firing positions
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Miscellaneous.
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Team or player seating
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Accessible route to bowling lanes, section
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Accessible route in court sports facilities
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Public entities need to make structural changes to these recreational elements and to their residential dwelling units to ensure that people with disabilities can participate in those programs, services and activities. Not all recreation areas must necessarily be made accessible. If a county has multiple play areas and limited resources, it can decide which play areas to make accessible based on factors such as the geographic distribution of the sites, public transportation, the hours of operation and the types of activities at each site so that the play program as a whole is accessible to people with disabilities.
Examples
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A municipal recreation department has one swimming pool. The 2010 ADA Standards require that pools have either a sloped entry or an independently operable lift. The municipality needs to provide either a sloped entry or an independently operable lift to make sure that its swimming program is accessible.
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A state Department of Parks has twenty fishing piers scattered around the state. Fishing piers in various locations must be made accessible to ensure program accessibility.
Title II Regulations 28 § 35.150
Existing facilities:
(b) (2) (i) Safe harbor. Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101–19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards. (ii) The safe harbor provided in § 35.150(b)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows––(lists the recreation elements and residential facilities.)
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