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New ADA Requirements Affect Most Facilities

ADA Compliance articleAs of March 15, 2012 the “new” 2010 Americans with Disabilities Act (ADA) is in effect for new construction, alterations, program accessibility, and barrier removal at privately-owned “Places of Public Accommodation.”

The ADA is not a building code, it is a civil rights legislation that was enacted by the United States Congress in 1990. The United States Department of Justice (DOJ) adopted revised accessibility standards called the 2010 ADA Standards for Accessible Design that replaced the 1991 Americans with Disabilities Act Accessibility Guidelines (ADAAG).

After March 15, 2012, newly constructed or altered facilities must comply with all of the requirements in the 2010 Standards. There are some significant differences between the two standards and some of the changes will likely affect most facilities. The 2010 ADA standards provide more detail on accessible features. Accurate technical guidance in applying the standard can save money and reduce liability.

What standards apply to a specific facility?
It is important for facility owners and operators to understand which ADA standard applies to their facility. Four classes of facilities now exist because of the 2010 ADA that are determined by date of construction or alteration and/or degree of current compliance with the ADA:

  • Facilities that as of March 15, 2012 were fully ADA-Compliant with the 1991 Standard are not required to make further modifications to conform to the 2010 ADA, except in areas that are altered after March 15, 2012.
  • Facilities that were constructed or altered between Sept. 15, 2010 and March 15, 2012 have the option to be made fully ADA-Compliant using either the 1991 Standard or the 2010 ADA Standard.
  • Facilities constructed or altered on or after March 15, 2012 shall be made accessible using the 2010 ADA Standard.
  • Existing facilities (regardless of when constructed) that were not ADA-Compliant as of March 15, 2012 shall be made accessible using the 2010 ADA Standards. There is no grandfather clause for older buildings. However, there are accommodations for Historic Buildings.

Significantly, the “trigger” compelling ADA compliance in non-compliant existing facilities has been relaxed:

  • The 1991 ADAAG required owner/operators to immediately make reasonable efforts to remove barriers, “when it was readily achievable to do so, unless the modification would create an undue burden.” This trigger was highly subjective.
  • The 2010 ADA “does NOT address existing facilities unless altered at the discretion of a covered entity.” The 2010 ADA defines alteration as “remodeling, renovation, structural changes, wall changes, reconstruction, historic restoration.” Alterations made on or after March 15, 2012 in buildings that were constructed before March 15, 2012 are required to be made compliant to the“maximum extent feasible. Said determination is solely at the discretion of the DOJ. This is a much more objective trigger that also defines “disproportionate” accessibility alterations as exceeding 20 percent of the cost to alter a “primary function area.”

State accessibility laws, state building codes, and local building codes may contain accessibility provisions that might be more restrictive than the ADA and that must also be complied with. Facility ownership, sources of funding, and uses determine which Federal Accessibility regulations apply to a particular facility:

  • ADA Title III applies to privately-owned Public Accommodations and Commercial Facilities.
  • ADA Title II applies to facilities owned by State or Local Governments.
  • If Federal Government funds assisted in acquisition or development, or provide rental subsidies, or if the US-General Services Administration is a Lessee of a facility, then Uniform Federal Accessibility Standards (UFAS), and not the ADA, applies.
  • The Fair Housing Act Amendments (FHAA) still applies to “covered” multi-family dwelling units in buildings containing more than three units that were built for “first occupancy” after March 13, 1991. The FHAA is NOT retroactive. However, areas of multi-family facilities intended for use by OTHER than residents and their guests must comply with the ADA, regardless of the date of construction.

What are some of the changes that might affect your facility?

  • Provide one van-accessible space per each sixaccessible spaces (previously per eight spaces).
  • ALL parking garages required to have a “direct” accessible route to the buildings they serve.
  • Detectable warnings no longer required on private property.
  • Valet parking to have an accessible loading zone.
  • Handrail extensions at the top and bottom of ramps must extend “in-line” (i.e. can no longer turn corners).
  • New details and allowable cross sections for handrails.
  • If an element of an existing elevator is altered, ALL elevators served by the same call button shall be similarly altered.
  • Swimming pools, wading pools, and spas must have at least one of the following accessible means of entry: pool lifts, sloped entries, transfer walls, transfer systems, or pool stairs. (Note: Enforcement of this requirement has been postponed until December 2012 in order to allow additional time to address misunderstandings regarding compliance.)

For help with compliance, Terracon’s Facilities group can provide assistance to facility owners or operators looking to get it right the first time. We can represent clients in resolving issues with sellers and local building officials, conduct detailed Accessibility Compliance Surveys as part of client’s acquisition due diligence work, conduct pre-construction plan reviews to identify non-compliant design elements, and work with project design professionals to develop compliant alternatives.

Determination of applicability and methods to achieve compliance with all the appropriate accessibility regulations remains a complicated matter. Potential significant costs to correct, legal fees, and a finding of a civil rights’ violation loom for those that don’t include ADA compliance in management or construction of their facilities. Contact Terracon today to see how we can help.