The ADA, Structural Accessibility, and Existing Buildings
The ADA includes some unique provisions that affect businesses and agencies that operate in older buildings and facilities. Our office continues to receive a lot of questions about structural accessibility issues, including:
the distinctions between the two parts of the ADA – Title II and Title III – that require the use of the ADA Standards for Accessible Design;
the “safe harbor” provisions for spaces and elements that comply with the original 1991 ADA Standards, but which may not comply with the updated 2010 Standards;
the distinction between “alterations” and activities undertaken with the sole purpose of improving accessibility in existing buildings;
the application of ADA requirements to historic places;
the distinctions between ADA requirements and local or state building codes; and
how to ensure accessibility when there are no specific standards for particular facilities, furnishings, or equipment that are used to offer goods, services, or activities to the public.
Title II and Title III
Both Title II, which covers all state and local government agencies, and Title III, which covers a variety of private businesses, require that the ADA Standards for Accessible Design be followed when buildings and facilities are newly constructed or altered.
The U.S. Department of Justice (DOJ) sets facility standards for entities covered by Title II and Title III, other than transportation facilities, which are subject to standards set by the U.S. Department of Transportation (DOT). DOJ updated their ADA Standards for Accessible Design in 2010, but carved out a “safe harbor” for facilities, spaces, and elements that already comply with the older (1991) ADA Standards. Changes that may be needed to comply with the new Standards are not required until these compliant facilities undergo planned alterations.
Alterations are typically planned in order to renovate or rehabilitate facilities, or to change the configuration of spaces by building, removing, or rearranging walls, partitions, and other structural elements. Any alteration that affects usability must comply with accessibility standards to the maximum extent technically feasible, given the physical constraints of the existing structure and site.
While certain routine repair and maintenance activities (such as repairing roofs or mechanical systems) are not usually considered “alterations,” some activities that are often viewed as maintenance may be alterations because of the way they affect usability. Replacing stained, worn carpet may feel like simple building upkeep, but the features of floor surfaces are related to usability in important ways. Thick, spongy carpets are difficult to navigate for many people with disabilities, particularly those who use manual wheelchairs, while some highly polished floor surfaces can be hazardous because they are too slippery. Accessible surfaces are firm, stable, and slip resistant.
The scope of alterations can be large or small. For example, replacing door hardware is an alteration, since such hardware affects the usability of doors. If round door knobs are being replaced on doors that are required to be accessible, hardware of a more accessible type (for example, lever handles) must be installed.
When an alteration affects the usability of a “primary function” area, an obligation is triggered to expand the scope of work and address accessibility beyond the space or element being altered. Primary function areas are the spaces where the main activities of the facility take place, including employee work areas and spaces used by the public. For example, in a restaurant, both the dining room and the kitchen are primary function areas. Spaces like mechanical rooms, storage or janitorial closets, employee lounges and locker rooms, entrances, corridors, and restrooms are generally not primary function areas.
When a primary function area is altered, the entity must determine if there are barriers on the “path of travel” to the area, and spend up to 20% of the cost of the alteration on improving that path of travel. This can involve features such as parking, exterior sidewalks and routes, curb ramps and ramps, entrances and doors, corridors, elevators, and other features, as well as restrooms, public telephones, or drinking fountains (if any are provided) that serve the altered area.
Not New, Not Altered: What Now?
The ADA Standards outline very specific requirements for new construction and planned alterations, but what about older buildings or spaces that aren’t due for renovation, where no alterations are planned? The ADA addresses those situations, as well.
Title II requires that state and local government agencies ensure that programs and activities conducted in existing buildings are available and accessible to people with disabilities who are eligible to participate in them. This may require that structural improvements be made to older buildings, or that other methods are used to ensure equal opportunities for participation.
Alternatives to structural modifications might include relocating activities to more accessible facilities, providing assistance to individuals with disabilities, or other measures. Alternatives should facilitate integrated participation whenever possible. For example, if an individual with a disability registers for a class that is scheduled to be held in an inaccessible building, it would be preferable to relocate the class to an accessible building rather than offer home instruction to the individual, because home instruction segregates the individual and eliminates the opportunity for class interaction.
Title III requires that private businesses serving the general public (e.g., stores, restaurants, theaters, hotels, amusement parks, fitness facilities, day care centers, banks, offices of health care providers and other professionals, and many others) remove barriers in existing buildings to the extent that is “readily achievable.” To determine what is readily achievable, a business will take into account the existing site and structural constraints, the resources available to the business, potential disruption to operations, and other factors. Obligations and outcomes will vary from one business to another.
Activities and projects that are done with the sole purpose of improving accessibility are different from “alterations” which have other principal purposes. Barrier removal activities and structural modifications to achieve program access don’t trigger the “path of travel” obligation. However, the requirements to ensure access to programs and to engage in readily achievable barrier removal are ongoing obligations. Covered entities need to continue to address barriers until they are eliminated (in the case of Title III), programs are accessible and integrated when viewed as a whole (under Title II), or certain limitations are reached.
There are a variety of factors that can delay or limit the improvement of existing facilities, including site or structural conditions, cost, disruption, and the historic significance of certain places or elements. Some of these factors may change over time (e.g., financial resources available) or can be addressed with good planning. Other factors (e.g., site or structural conditions, historic significance) are unlikely to change and will need to be addressed in other ways, such as using alternate facilities and relocating activities, offering assistance, providing curb-side service or home delivery, or creating audio-visual media, educational materials, or exhibits to depict historic preservation programs where access is limited.
Historic places are more than just old. Historic buildings and facilities are defined in the ADA Standards as those which are “listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate State or local law.” The designation of historic facilities, spaces, or elements may be based on a number of considerations. The design, materials, or workmanship may be meaningful, unique, or representative of a period or style. Some sites or facilities may be historic because of the people who designed them, built them, or lived in them; some places are significant because of the events that took place there.
Historic facilities are not exempt from ADA requirements, but historic significance should not be threatened or destroyed. Additionally, although large sites or entire districts can be historic, there are some places where historic significance is limited to very specific spaces or elements.
State and Local Building Codes
Most states, as well as some local governments, have building codes which include accessibility requirements. There are often similarities between such codes and ADA requirements, but there are also differences. Compliance with local or state codes does not necessarily guarantee compliance with the ADA (or vice versa).
It is not uncommon for state or local codes to have requirements that are more stringent or more specific than the ADA’s. For example, some states require wider accessible parking spaces, a greater proportion of van-accessible spaces, or accessible parking spaces marked with pavement striping of specific colors.
There may also be fundamental distinctions in the way codes are triggered and applied. Many codes, for example, apply to the construction or alteration of buildings the ADA does not cover, such as religious organizations’ buildings.
There’s No Standard for That
The ADA Standards for Accessible Design don’t address every type of facility, space, or element that a covered entity might construct; nor do the Standards technically apply to free-standing equipment, furnishings, or other elements that are not built-in or structurally “fixed” (attached to a building or facility). Nevertheless, the ADA Standards are just a part of the ADA; the law applies much more broadly – to the operation of businesses and how they offer goods and services to the public, to the services and programs provided by state and local government agencies, to how these entities communicate and interact with the public, to their policies and practices.
If activities are conducted in facilities not specifically addressed in the Standards, or using equipment or furniture, entities need to consider how people with disabilities can access goods, services, and programs.
Some elements or equipment are very similar to things that are included in the ADA Standards, and covered entities can often apply the fundamental criteria. For example, there are specifications in the Standards for accessible fixed or built-in ATMs, vending machines, seating in assembly areas, dining surfaces, lockers, and other elements that are often provided as free-standing equipment or furniture. It is relatively easy to consider the Standards when purchasing, renting, or placing these items.
Additionally, there are guidelines that are either under development or have been finalized by the U.S. Access Board, but have not yet been adopted by DOJ or DOT as standards under the ADA. Some have been set as standards under other laws. These materials can provide some excellent guidance for designers and operators. Check out the Board’s guidelines and standards for information on these facilities, vehicles, technologies, and more:
public rights-of-way, including sidewalks, intersections, street crossings, and on-street parking;
medical diagnostic equipment such as examination tables and chairs, weight scales, radiological equipment, and other equipment used for diagnostic purposes;
outdoor developed areas, including trails, picnic and camping sites, and beach access routes;
emergency transportable housing units, which are designed and manufactured for transport over roadways and often provided by government agencies following emergencies and natural disasters; and
passenger vessels such as ferries, cruise ships, and excursion boats.
As always, call us with your quandaries and questions!