ADA Update - A Primer for State and Local Governments (Title II Primer)

MAKING THE BUILT ENVIRONMENT ACCESSIBLE

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The ADA's regulations and the ADA Standards for Accessible Design, originally published in 1991, set the minimum standard for what makes a facility accessible. Only elements that are built-in (fixed in place) are addressed in the Standards. While the updated 2010 Standards, which became effective on March 15, 2012, retain many of the original provisions in the 1991 Standards, there are some significant differences. The Standards are used when determining if a public entity's programs or services are accessible under the ADA. However, they apply differently depending on whether the entity is providing access to programs or services in existing facilities or is altering an existing facility or building a new facility.

Access to Programs and Services in Existing Facilities

Public entities have an ongoing obligation to ensure that individuals with disabilities are not excluded from programs and services because facilities are unusable or inaccessible to them. There is no “grandfather clause” in the ADA that exempts older facilities. However, the law strikes a careful balance between increasing access for people with disabilities and recognizing the constraints many public entities face. It allows entities confronted with limited financial resources to improve accessibility without excessive expense.

In the years since the ADA took effect, public facilities have become increasingly accessible. In the event that changes still need to be made, there is flexibility in deciding how to meet this obligation -- structural changes can be made to provide access, the program or service can be relocated to an accessible facility, or the program or service can be provided in an alternate manner. For example:

• In an elementary school without an elevator, a teacher can be assigned to a first floor classroom if the class includes a student with a mobility disability.
• A social service agency located in an inaccessible facility can make arrangements to meet with an applicant or client with a mobility disability at an alternate location that is accessible.
• If an application for a particular city program must be made in person at an inaccessible office, the city could allow a person with a mobility disability to complete and submit the application by mail or email.
• If a public library is inaccessible, staff can provide curb-side service for a patron with a mobility disability to check out and return books
• Structural changes are not required where other solutions are feasible. However, where other solutions are not feasible, structural changes are required. When structural change is the method chosen to make a program or service accessible, the changes must meet the requirements of the 2010 ADA Standards, unless it is technically infeasible to do so. When full compliance is not technically feasible, the changes must follow the Standards to the maximum extent feasible. For example, if there is not enough space to install a ramp with a slope that complies with the Standards, a public entity may install a ramp with a slightly steeper slope. However, deviations from the Standards must not pose a significant safety risk. In addition, public entities are not required to take any action that would threaten or destroy the historic significance of an historic property.

Whatever method is chosen, the public entity must ensure that people with disabilities have access to programs and services under the same terms and conditions as other people. For example:

• If a social service agency meets with clients in a private office on the second floor of a building without an elevator, a public area on the first floor is not an acceptable alternate location to meet with a client who has a mobility disability. The alternate location must provide the same degree of privacy as the regular location.
• If a court has ordered a person with a mobility disability to participate in a group anger-management program, and the program is located in an inaccessible facility, it is not acceptable to offer the program to him individually in an accessible location, because the group interaction is a critical component of the program.

There are limits to a public entity's program access obligations. Entities are not required to take any action that would result in undue financial and administrative burdens. The decision that an action would result in an undue burden must be made by a high level official, no lower than a Department head, having budgetary authority and responsibility for making spending decisions, after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in an undue burden, a public entity must take any other action that would not result in an undue burden but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

A key concept is that public programs and services, when viewed in their entirety, must be accessible to people with disabilities, but not all facilities must necessarily be made accessible. For example, if a city has multiple public swimming pools and limited resources, it can decide which pools to make accessible based on factors such as the geographic distribution of the sites, the availability of public transportation, the hours of operation, and the particular programs offered at each site so that the swimming program as a whole is accessible to and usable by people with disabilities.

Another key concept is that public entities have an ongoing obligation to make programs and services accessible to people with disabilities. This means that if many access improvements are needed, and there are insufficient resources to accomplish them in a single year, they can be spread out over time. It also means that rising or falling revenues can affect whether or not an access improvement can be completed in a given year. What might have been seen as an undue burden during an economic downturn could become possible when the economy improves and revenues increase. Thus, public entities should periodically reassess what steps they can take to make their programs and services accessible. Public entities should also consult with people with disabilities in setting priorities for achieving program access. (See Planning for Success.)

Temporary access interruptions for maintenance, repair, or operational activities are permitted, but must be remedied as soon as possible and may not extend beyond a reasonable period of time. Staff must be prepared to assist individuals with disabilities during these interruptions. For example, if the accessible route to a biology lab is temporarily blocked by chairs from a classroom that is being cleaned, staff must be available to move the chairs so a student who uses a wheelchair can get to the lab. In addition, if an accessible feature such as an elevator breaks down, public entities must ensure that repairs are made promptly and that improper or inadequate maintenance does not cause repeated failures. Entities must also ensure that no new barriers are created that impede access by people with disabilities. For example, routinely storing a garbage bin or piling snow in accessible parking spaces makes them unusable and inaccessible to people with mobility disabilities.

For activities that take place infrequently, such as voting, temporary measures can be used to achieve access for individuals who have mobility disabilities. For more information, see Solutions for Five Common ADA Access Problems at Polling Places (PDF)

Element-by-Element Safe Harbor for Existing Facilities

The requirements in the 2010 ADA Standards are, for many building elements, identical to the 1991 Standards and the earlier Uniform Federal Accessibility Standards (UFAS). For some elements, however, the requirements in the 2010 Standards have changed. For example:

• The 1991 Standards allowed light switches, thermostats, and other controls to be installed at a maximum height of 54 inches. Under the 2010 Standards, the maximum height is 48 inches.
• 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.
• The 2010 Standards for assembly areas contain revised requirements for dispersion of accessible seating, sightlines over standing spectators, and companion seating.

If a facility was in compliance with the 1991 Standards or UFAS as of March 15, 2012, a public entity is not required to make changes to meet the 2010 Standards. This provision is referred to as the “safe harbor.” It applies on an element-by-element basis and remains in effect until a public entity decides to alter a facility for reasons other than the ADA. For example, if a public entity decides to restripe its parking lot (which is considered an alteration), it must then meet the ratio of van accessible spaces in the 2010 Standards. The ADA’s definition of the term “alteration” is discussed below.

The 2010 Standards also contain requirements for recreational facilities that were not addressed in the 1991 Standards or UFAS. These include swimming pools, play areas, exercise machines, court sport facilities, and boating and fishing piers. Because there were no previous accessibility standards for these types of facilities, the safe harbor does not apply. The program access rules apply, and the 2010 Standards must be followed when structural change is needed to achieve program access.

Alterations

When a public entity chooses to alter any of its facilities, the elements and spaces being altered must comply with the 2010 Standards. An alteration is defined as remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural parts or elements, changing or rearranging plan configuration of walls and full-height or other fixed partitions, or making other changes that affect (or could affect) the usability of the facility. Examples include restriping a parking lot, moving walls, moving a fixed ATM to another location, installing a new service counter or display shelves, changing a doorway entrance, or replacing fixtures, flooring or carpeting. Normal maintenance, reroofing, painting, wallpapering, or other changes that do not affect the usability of a facility are not considered alterations. The 2010 Standards set minimum accessibility requirements for alterations. In situations where strict compliance with the Standards is technically infeasible, the entity must comply to the maximum extent feasible. “Technically infeasible” is defined as something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modifications or additions that comply fully with the Standards. The 2010 Standards also contain an exemption for certain alterations that would threaten or destroy the historic significance of an historic property.

New Construction

The ADA requires that all new facilities built by public entities must be accessible to and usable by people with disabilities. The 2010 Standards set out the minimum accessibility requirements for newly constructed facilities.

Highlights of the 2010 Standards

Parking

The chart below indicates the number of accessible spaces required by the 2010 Standards. One out of every six accessible spaces must be van-accessible.

Public entities with very limited parking (four or fewer spaces) must have one accessible van-accessible parking space. However, no signage is required.

An accessible parking space must have an access aisle, which allows a person using a wheelchair or other mobility device to get in and out of the car or van. Accessible parking spaces (including access aisles) must be level (maximum slope 1:48 in all directions) and each access aisle must adjoin an accessible route.

Accessible Entrances

One small step at an entrance can make it impossible for individuals using wheelchairs, walkers, canes, or other mobility devices to enter a public facility. Removing this barrier may be accomplished in a number of ways, such as installing a ramp or a lift or regrading the walkway to provide an accessible route. If the main entrance cannot be made accessible, an alternate accessible entrance can be used. If there are several entrances and only one is accessible, a sign should be posted at the inaccessible entrances directing individuals to the accessible entrance. This entrance must be open whenever other public entrances are open.

Accessible Routes to Programs and Services

The path a person with a disability takes to enter and move through a facility is called an "accessible route." This route, which must be at least three feet wide, must remain accessible and not be blocked by items such as vending or ice machines, newspaper dispensers, furniture, filing cabinets, display racks, or potted plants. Similarly, accessible toilet stalls and accessible service counters must not be cluttered with materials or supplies. The accessible route should be the same, or be located in the same area as, the general route used by people without mobility disabilities.

Shelves, Sales and Service Counters, and Check-Out Aisles

The obligation to provide program access also applies to merchandise shelves, sales and service counters, and check-out aisles. Shelves used by the public must be on an accessible route with enough space to allow individuals using mobility devices to access merchandise or materials. However, shelves may be of any height since they are not subject to the ADA's reach range requirements. A portion of sales and service counters must be accessible to people who use mobility devices. If a facility has check-out aisles, at least one must be usable by people with mobility disabilities, though more are required in larger venues.