2.10_ADA_Plan_Wheat_Ridge_Parks_and_Recreation.pdf

June 7, 2012 Page 1

Americans with Disabilities Act

Title II Facility Survey and Transition Plan Wheat Ridge, Colorado

June 7, 2012

Introduction & Background Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any public entity.” (§35.130 (a))1 With the adoption of the 2010 ADA Standards for Accessible

Design (2010 ADA Standards) on September 15, 2010, the U.S. Department of Justice (DOJ) began the transition to new standards for accessible facilities that will be fully enforceable effective March

15, 2012. “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)” will be protected by safe harbor. However, the 2010 ADA Standards include new elements for technical and scoping specifications that did not previously exist. Such elements – listed in the regulations – will not have safe harbor protections. (§ 35.150(b)(2)(i)) Among the elements listed that will not have safe harbor are the following:

• Play areas

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

Government Services; Final Rule, July 26, 1991.

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

Government Services; Final Rule, September 15, 2010.

June 7, 2012 Page 2

• Exercise machines and equipment

• Fishing piers and platforms

• Swimming pools, wading pools, and spas (including therapy pools)

• Team or player seating

• Accessible route in court sports

Wheat Ridge Parks and Recreation Department has retained the services of Meeting the

Challenge, Inc. (MTC) of Colorado Springs, Colorado, to conduct a facilities survey on behalf of

Wheat Ridge and report their findings and recommendations in the form of a transition plan. It is understood that Wheat Ridge Parks and Recreation Department is a public entity covered by title II of the Americans with Disabilities Act. The transition plan (a list of structural conditions that are not in compliance with the 2010 Standards for Accessible Design) will also provide milestones for removal of barriers factored on the relative priority of the existing condition and the rough order of magnitude for mitigation difficulty and cost associated with the recommended action to achieve barrier removal. The scope of services covered by this project, as defined by MTC’s proposal, includes non-safe harbor elements and accessible route to those elements found in parks, the greenbelt, and recreation buildings. Play areas, swimming pools, exercise equipment, fishing piers, and routes to team/player and spectator seating at sports fields and sidewalks/walkways connecting elements and amenities in parks were surveyed.

The following locations were visited and surveyed:

• Anderson Park

• Apel-Bacher Park

• Bonnie’s Park

• Boyd’s Crossing Park

• Creekside Park

• Discovery Park

• Founder’s Park

• Fruitdale Park

• Hayward Park

• Johnson Park Trailhead

• Lewis Meadows Park

• Louise Turner Park

• Panorama Park

• Paramount Park

• Prospect Park

• Randall Park

• Stites Park

• Wheat Ridge Greenbelt

• Wheat Ridge Recreation Center

This project does not address structural barriers or deficiencies of facilities or public rights-of-way in the City of Wheat Ridge, outside of the specified scope. The fact that MTC is not surveying other facilities of City of Wheat Ridge, at this time, should not be construed as an opinion or assertion that all other facilities are in total compliance. Barriers in facilities preventing access to

June 7, 2012 Page 3 programs should have been identified, listed, and scheduled for removal in an earlier transition plan.

It should be noted that Parks and Recreation Department management has been extremely proactive in requesting an assessment of potential risk of discrimination on the basis of disability as the new standards for accessible facilities become enforceable. By comparison, many public entities have not yet initiated any effort to quantify the risk associated with having barriers in their facilities that effectively constitute discrimination on the basis of disability.

The impression given by the transition plan of the multitude of barriers to access for people with disabilities is inevitably exaggerated because the nature and intention of the audit and this report is to find and list those elements not in exact compliance with current or previous standards whether or not specific technical deficiencies actually prevent access to Parks and

Recreation Department services, programs, or activities. This project did not survey, and this report does not present an inventory, of all those elements of the City of Wheat Ridge’s facilities or Parks and Recreation Department facilities that are and have been in compliance with ADA Standards.

Those findings for conditions not in compliance with the 2010 ADA Standards, but in compliance with the 1991 ADA Standards or the Uniform Federal Accessibility Standards, have safe harbor protection and have been identified accordingly in the recommendations column of the transition plan.

Kent Kelley, Consulting Services Director, has served as the project’s manager. Geoff Ames coordinated the data collection, findings analysis, and reporting. Glenn Staton and Bill Layton completed site surveys and collected data.

Project Methodology

The project was initiated at a meeting on April 5, 2012, between Wheat Ridge Parks and

Recreation Department and MTC. Julie Brisson, Recreation Manger and several members of her staff met with Kent Kelley and Geoff Ames at the Wheat Ridge Recreation Center. MTC’s Glenn

Staton and Bill Layton surveyed buildings, sites, and trail corridors between the May 17, and May

21, 2012. Along with measurement of elements within the scope of the project, pictures were taken to document as-is conditions discovered at each location.

Field data are compared to 2010 ADA Standards to find deficiencies; specified requirements and citations are referenced for each finding. Recommendations are made as practical guidance for barrier removal that can achieve compliance with the least amount of difficulty and expense.

Milestones setting the schedule for barrier removal are based on a matrix that factors estimated priority by anticipated rough order of magnitude of mitigation difficulty. Actual dollar costs of barrier removal are not within the scope of this project.

Other modification of milestones considers program “viewed in its entirety” and whether services, programs, or activities at a facility are public-supervised in nature or whether spaces are restricted to employee only access. Barrier removal may not be necessary, in all instances, to the provision of non-discriminatory access to every public program. Ultimately, whether specific barriers must be removed and potential options for barrier removal will require discussion between

MTC and Parks and Recreation staff.

Report Organization A brief description of the overall impression gained from the observations and findings used to develop this limited-scope transition plan is presented below. A discussion of the primary ADA

Title II requirement of program access follows that summary. Then we address the survey of

June 7, 2012 Page 4 physical access to the facilities covered by the scope of this project. This section will include a short synopsis of the observed conditions and deficiencies in each facility. Finally, we will explain the regulatory requirements for and the development of the transition plan and discuss the priority/mitigation-difficulty matrix used to determine milestones.

Summary of Findings

After reviewing and analyzing collected data for compliance with accessibility requirements of the 2010 ADA Standards, several items are worthy of note. These include:

� Exterior walkways (i.e., sidewalks/unpaved walkways) accounted for 80 of 173 findings, typically changes in level and unstable surfaces generated findings.

� 65 findings were related to play areas; of 20 play areas, at the Recreation Center and

15 parks surveyed, only two provided an accessible route to the minimum number of ground level play components required.

� 15 findings were related to pools; none of the pools surveyed provided minimum, fully compliant accessible means of entry.

� 5 findings were related to exercise rooms/equipment.

� 4 findings were made at the fishing pier at Prospect Lake.

The attached transition plan will provide a detailed list of the findings, requirements, recommendations, and milestones by element per location. The transition plan is presented in a data table offering a variety of filtering and sorting options with pictures associated with observed conditions. However, the fact that play areas are found at 16 locations, many of which offer

“neighborhood” play opportunities (i.e., within walking/stroller distance of homes of users), while others are at “destinations” (e.g., the Recreation Center) will require consideration of applicability of the viewed in entirety principal.

Programs, Services, and Activities

The first principle of Title II of the ADA is a requirement to make all programs offered by a public entity, when viewed in their entirety, accessible to qualified individuals with disabilities. This may require modification of policies and procedures to eliminate inadvertent discrimination.

Removal of architectural barriers to provide program access will be, in many cases, the final option.

With respect to the viewed in their entirety language of the regulation, identification of services, programs or activities that are unique to a specific building/facility will be critical to determining compliance with program access requirements. In the event that a service, program, or activity is available to the public only by being present in a specific facility, that facility must be accessible to, and usable by, people with disabilities.

The scope of work here did not include an evaluation of all Parks and Recreation Department services, programs, and activities. However, it is reasonable to presume that certain recreation facilities and elements are specifically designed and offered to provide unique recreational activities. Swimming pools typically provide opportunities for swimming lessons, water aerobics, lap swimming, etc. Picnic tables in parks similarly offer the opportunity for picnicking. While there are no technical specifications in the 2010 ADA Standards for picnic tables, it is reasonable to provide a means of access to picnic tables found in public parks. For those elements for which there are new scoping and technical provisions, such as play areas and swimming pools, specific

June 7, 2012 Page 5 objective provisions define accessibility thereby eliminating some degree of misunderstanding of what is meant by program access. In simple terms, if a program requires being in a swimming pool in order to participate, the rules now specify what must be done to make a swimming pool – and hence, programs offered therein – accessible.

That said, it should be noted here that the U.S. Department of Justice, based on requests from the hospitality industry, has postponed enforcement of the new swimming pool standards until

January 31, 2013.

In the meanwhile, it would be prudent to regard the pool standards as best practices toward making swimming related services, programs, and activities accessible to people with disabilities. These standards were developed over a long period of time beginning in the mid

1990s, and during that time comments and input were solicited and received from all stakeholders, including groups and individuals representing the hospitality and recreation industries. DOJ released updated guidance to pool requirements on May 24, 2012, including how delayed enforcement of pool standards relates to the requirement for program accessibility, see Attachment

A, for an excerpt from the DOJ guidance.

Program Accessibility

While a complete review of program accessibility is outside the scope of this project, program access must be considered, with regard to specific elements of all Parks and Recreation Department facilities. Certainly, when thinking of the “services, programs, or activities” offered at a swimming pool, it is difficult to envision providing access to programs without removing barriers to facilitate physical access to the pool. Independent access “in the most integrated setting appropriate to the needs of qualified individuals with disabilities” (§ 35.130(d)) is a fundamental requirement of the

ADA. For example, with regard to swimming pool lifts, the 2010 ADA Standards specify:

Operation. The lift shall be capable of unassisted operation from both the deck and water levels.

Program access continues to be the primary requirement for public facilities, however, if physical barriers prevent program access the scoping and technical provisions must be considered – to the maximum extent feasible – to achieve program access. Program access, when programs, services, and activities are provided in more than one location, can be considered in light of the

“viewed in its entirety” provision.

Requirement

A public entity must operate each of its services, programs, and activities so that the service, program, or activity, when viewed in its entirety, is accessible to and usable by people with disabilities. This does not mean that every existing facility must be accessible. (§35.150(a)) Rather, physical barriers should be removed if that removal is the only means to ensure program access. All

U.S. Department of Justice, 28 CFR Parts 35 and 36, CRT Docket No. 123; A.G. Order No. 3332-2012, RIN 1190-

AA69, Amendment of Americans with Disabilities Act Title II and Title III Regulations to Extend Compliance Date for

Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public

Accommodations.

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

Government Services; Final Rule, September 15, 2010.

U.S. Department of Justice, 2010 ADA Standards for Accessible Design, September 15, 2010, 1009.2.7, p. 245.

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

June 7, 2012 Page 6 newly constructed facilities and alterations to existing facilities should comply with accessibility standards.

An Overview of Physical Access

As noted above, physical access must be provided only when necessary to ensure program access. To some extent, the identification of barriers and recommended methods of removal of those barriers must be understood in the greater context of Title II ADA requirements. Eventually, as new facilities are built and existing facilities are altered, conformance with the 2010 ADA

Standards will ensure that all facilities will eventually be accessible to and usable by people with disabilities. There is not an absolute expectation that every deficiency discovered by this survey must be eliminated immediately or by some absolute future date.

Findings by Location

Eighty-eight (88) of 173 findings were identified at 5 locations in Whet Ridge. These locations, with the respective number of findings were as follows:

� Prospect Park – 20

� Wheat Ridge Recreation Center – 18

� Anderson Park – 17

� Randall Park – 17

� Panorama Park – 16

The concentration of over 50 percent of findings in five locations suggests that, to some degree at least, barrier removal efforts can be somewhat limited geographically. Conversely, this means that of the non-safe harbor elements most sites have a relatively small number of barriers requiring mitigation. Of the 20 sites surveyed, 13 sites have 8 or fewer findings.

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Accessible Routes

There were 80 findings related specifically to walkways (sidewalks, and paths of travel to elements and amenities). These barriers include inaccessible surfaces on walkways to elements and amenities including, but not limited to, fishing piers, baseball and soccer fields, play areas, the skate park, team/player and spectator seating, and tennis and basketball courts. It should be noted that for purposes of defining accessible surfaces in outdoor areas, there are no enforceable, objective standards. Where there are no enforceable standards, we base our findings and recommendations on technical provisions in U.S. Access Board guidelines, such as the Proposed Guidelines for Public

Rights-of-Way and the Draft Final Accessibility Guidelines for Outdoor Developed Areas.

We have applied the general definition of “stable, firm, and slip resistant” to determine whether a given surface is possibly or probably accessible. Based on this method of evaluation we generally identify grass/dirt surfaces as inaccessible, however, there is no definitive rule on the subject. We choose to err on the side of caution. Not every walkway to a picnic table or play area needs to be concrete, however, the surface of such walkways connecting to elements required to be on accessible routes must at a given time provide a route that is sufficiently stable, firm, and slip resistant to reasonably allow an individual using a wheelchair to travel the route.

Access to services, programs, and activities in the parks may be relatively easy to accomplish through minimal barrier removal. In many instances, short sections of concrete sidewalk that connect to various play fields, courts, and seating at those locations can make these opportunities accessible to and usable by people with disabilities, including those who use wheelchairs. In some instances, where elements such as picnic tables and benches are installed or fixed to the ground, 5% or at least one at each such location ought to be accessible. Benches should comply with standards for seat height, back support height, seat depth, seat width, and clear floor/ground space at the end.

Similarly an accessible picnic table provides minimum knee and toe clearance as well as clear ground/floor space.

United States Access Board, http://www.access-board.gov/prowac/nprm.htm.

United States Access Board, http://www.access-board.gov/outdoor/draft-final.htm.

June 7, 2012 Page 8

Play Areas

Of 20 play areas surveyed at 16 locations, only 2 had the minimum number of accessible ground level play components. And the play area at Founder’s Park provided an accessible route to ground level play components but the accessible surface is probably not safe. However, typically, the reason that ground level play components are not accessible is as a result of surface material that is not stable. Play areas are required to have three types of surfaces:

� Safe surfaces (ASTM F 1292) in Use Zones;

� Accessible surfaces (ASTM F 1951: stable, firm, and slip resistant) connecting the perimeter of the play area to the entry point(s) of elevated composite play structures and those ground level play components required to be accessible;

� And surfaces that are both safe and accessible where accessible routes coincide with Use

Zones.

Sand, pea gravel (squeegee), or wood chips (aka, engineered wood fiber) are not typically stable enough to be accessible. Appropriate and effective design of play areas does not require all of the surface within a play area to be accessible. Effective designs seldom require more than 25-30 percent of play area surfaces to be both safe and accessible. At minimum, one of each type of ground level play component must be accessible, with additional accessible ground level play components required depending on the total number of elevated play components.

Pools

The U.S. Department of Justice has postponed enforcement of the swimming pool standards until January 31, 2013. Nonetheless, as noted above, it would be prudent to regard the pool standards as best practices toward making swimming related services, programs, and activities accessible to people with disabilities. None of the pools surveyed had an accessible means of entry and exit compliant with the pending 2010 ADA Standards. Whether all of Wheat Ridge’s pools need to be made accessible, in considering “program viewed in its entirety” is debatable. In evaluating whether both Recreation Center and Anderson Park pools must meet the requirements, several factors must be assessed regarding program accessibility.

June 7, 2012 Page 9

Access to the same services and activities at each pool must be equal. Whether a given pool is intended or does in fact serve the entire community rather than a local area must be taken into account. If one pool offers outdoor sunbathing and the other is open all-year-round, then the program viewed in its entirety requirement may not be met by providing an accessible pool at an alternate location. Consider also whether amenities and services, such as daycare are available at both locations. Different types of pools, such as lap pools, wading pools, and spas offer different services, programs, and activities.

Exercise Rooms

There were few findings regarding exercise equipment/rooms. As these are among the supplemental standards in the 2010 ADA Standards and have no safe harbor protection, though minor they are significant findings. Regarding exercise equipment, first, the equipment itself is not required to be accessible. Second, while typically this equipment is not “fixed” or “built-in” and therefore would previously have been considered to be “furniture” (i.e., not covered by architectural standards), there are now requirements to provide access to at least one of each type of equipment or machine.

Exercise equipment or machines required to be accessible must be on accessible route (36 inches wide minimum) with clear floor space (48 inches by 30 inches) positioned to allow access or transfer. At the time of our survey, 5 machines were identified that lacked the minimum required cleared floor space. The recommendation for these machines is to rearrange them to provide the necessary access and monitor the locations sufficiently to verify that they have not been moved by patrons to inaccessible positions.

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Fishing Pier

There were few findings regarding the fishing pier that was surveyed. As these are among the supplemental standards in the 2010 ADA Standards and have no safe harbor protection, though minor they are significant findings. The intent of the standards is to provide equal opportunity to participate in fishing for people with disabilities including those who use wheelchairs. Lowered (34 inches maximum) sections of railing dispersed around the pier is required. An accessible route and turning space on the pier and gangway to the pier is also required.

The total length of the railing on the pier is 117 feet. As 25 percent of this is required to be 34 inches high maximum, 29 feet, 3 inches of the railing dispersed around the pier to offer a comparable variety of fishing opportunities for people with disabilities. Currently, 14 feet of railing is provided at the lower height and all of that is provided at one end of the pier. We recommended lowering sections of railing 36 inches long at five locations dispersed around the pier.

June 7, 2012 Page 11

Transition Plan Development

The attached transition plan was developed by comparing the observed conditions found in the field survey with the 2010 ADA Standards. The transition plan’s findings identify physical barriers that may limit access to the associated programs offered by Wheat Ridge in its recreation facilities, parks, and open spaces. MTC has articulated recommendations that we believe offer practical solutions for barrier removal. The actual methods that the Parks and Recreation Department chooses to accomplish barrier removal may differ from these recommendations so long as the end result provides program access. When barrier removal is chosen as the means by which programs will be made accessible, the use of other means that achieve equivalent facilitation is allowed by the 2010

ADA Standards.

Equivalent Facilitation. Nothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.

Bear in mind that “the responsibility for demonstrating equivalent facilitation in the event of a challenge” would belong to Wheat Ridge. New and altered facilities must at a minimum comply with these standards. For existing facilities, in the event of questions of program access, physical barrier removal to the maximum extent feasible may be required to prevent discrimination on the basis of disability. Equivalent facilitation or best practices – that is, means other than alteration of an existing structural element to bring it into compliance with the 2010 ADA Standards – can only be utilized in so far as they achieve a level of access comparable to or greater than the level that would be provided by exact compliance with the 2010 ADA Standards.

Further, in the event that a facility or part of a facility cannot be, due to structural impracticability, brought into complete compliance with the 2010 ADA Standards all aspects and elements that can be brought into compliance must be (§ 35.151(a)(2)).

(2) Exception for structural impracticability.

• (i) Full compliance with the requirements of this section is not required where a public entity can demonstrate that it is structurally impracticable to meet the requirements.

Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.

• (ii) If full compliance with this section would be structurally impracticable, compliance with this section is required to the extent that it is not structurally impracticable. In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.

• (iii) If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would be structurally impracticable, accessibility shall nonetheless be ensured to persons with other types of

U.S. Department of Justice, 2010 ADA Standards for Accessible Design, September 15, 2010, 103, p. 37.

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

June 7, 2012 Page 12 disabilities, (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with this section.

Requirement:

A transition plan, including the following, is required when structural changes to facilities are required (§ 35.150(d)(3)):

• Identification of physical barriers in a public entity’s facilities that limit the accessibility of its programs or activities to individuals with disabilities

• Description in detail of the methods that will be used to remove barriers

• Specify the schedule for taking the steps necessary to achieve compliance and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period

• Indicate the official responsible for implementation of the plan.

Observations:

The attached transition plan was developed based on the accessibility survey of only the facilities, parks, and open spaces specified in the scope of this project. The collection of field data consisting of measurements and observed conditions has been used to identify physical barriers that may limit accessibility to Wheat Ridge Parks and Recreation Department programs provided at these locations. We have made an effort to articulate detailed description of practical methods of mitigating those barriers. The process used to recommend a specific schedule that establishes proposed milestones for removal of barriers is in the following section. The attached transition plan lists all of the components required by the U.S. Department of Justice (DOJ) Part 35 regulations that enforce Title II of the Americans with Disabilities Act.

MTC has not identified the official responsible for implementation of this plan. We highly recommend the immediate assignment of that duty when the final transition plan is adopted by the

Wheat Ridge Parks and Recreation Department.

Setting Milestones for Barrier Removal

The process of setting milestones for the removal of physical barriers identified by the facility survey phase of this project rates the relative priority of the deficiency associated with a barrier and the level of effort/cost necessary to removal of that barrier. To assess these factors we use a matrix that categorizes priority at four levels – high, moderate, low, or very low – and difficulty at three levels – high, moderate, or low – and factors those indexes to place each barrier and its mitigation in a range that is calibrated with milestones. Milestones range, for our initial recommendations, from six months (highest priority for mitigation) to 36 months (lowest priority for mitigation). We assign the closest milestone to those barriers that are rated high priority and low difficulty. We assign the farthest milestone to those barriers that are rated low priority and high difficulty. Modification of milestones (i.e., extension of scheduled dates for barrier removal) also considers circumstances such as whether programs at a given facility are supervised/supported by Parks and Recreation

Department staff (e.g., service staff, instructors, coaches, etc.) and whether facility spaces are restricted to access and use by City of Wheat Ridge employees.

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

June 7, 2012 Page 13

Findings that have very low priority, or that have safe harbor are assigned a milestone of “N/A”.

In some instances, it may make sense to address mitigation of these findings because minimal mitigation difficulty is associated with them.

To illustrate this process, please consider the typical access issues in sidewalks and walkways in many of Wheat Ridge’s parks. Observed conditions that present barriers in accessible routes to play areas, court sports, and team/player seating include changes in level, slopes that are too steep, and surface materials that are not stable. Because these barriers are found in the primary access to spaces and elements required to be accessible (in order to provide program accessibility) they have a high priority for removal. In most cases the mitigation difficulty is moderates – the level of effort exceeds minor maintenance but generally will not require major design or construction. Findings within the high priority and moderate difficulty ranges are assigned a 12 month schedule for mitigation.

Another example, toward the other end of the scale, would be to redesign and rebuild sloped entries to the wading pools at the Recreation Center and Anderson Park. As a pool’s access deficiencies are not as obvious to the casual observer as primary access to a facility, we rate the requirement for pool access as a moderate priority. As mitigating these barriers will require, at minimum, designing and building accessible sloped surfaces with level bottom landings for each of the wading pools, we rate the mitigation difficulty as high. The combination of moderate priority and high mitigation difficulty generates a 24 month milestone. In our experience of reviewing

DOJ’s settlement agreements, barrier removal time frames are most likely to fall in the 18 to 24 month range, and seldom go beyond 36 months. MTC’s milestones are based on this knowledge along with the regulatory priorities referenced above.

DIFFICULTY

PRIORITY HIGH MODERATE LOW

HIGH 18 months 12 months 6 months

June 7, 2012 Page 14

MODERATE 24 months 18 months 12 months

LOW 36 months 30 months 24 months

VERY LOW N/A N/A N/A

Modifying factors may be added to these milestones predicated on whether facilities are leased or owned, public/supervised or public/unsupervised, employee common use, or employee work area.

Calculating Priority

MTC has years of experience in providing technical assistance on the Americans with

Disabilities Act and has observed and considered the many court rulings and enforcement actions, settlement agreements and consent decrees that have resulted from complaints and DOJ investigations. We draw on this experience in our efforts to calculate the priority factor associated with degrees and varieties of barriers encountered by people with disabilities. We also must consider DOJ’s regulatory language when interpreting the particular physical barriers that will be given more emphasis in DOJ’s enforcement efforts. Regardless of the adoption of the new 2010

ADA Standards, there have been program access requirements for these facilities that have existed for over twenty years. Safe harbor protections will apply only for those elements in these facilities in compliance with the 1991 ADA Standards (ADAAG) or the Uniform Federal Accessibility

Standards (UFAS).

Based on our method of calculating priority, barriers that significantly impact program access have typically been rated as high priority. Barriers that are obvious and apparent to the casual observer (i.e., someone without a tape measure and smart level) also have been rated as high priority. For example, those aspects of a facility which are obvious when passing on the street are generally regarded as high priority. Parking (not within the scope of this project) and paths of travel to facilities typically fall into this priority. Interior features of facilities that are not so obvious and are less likely to draw attention, have been rated as moderate or low priority.

DOJ’s regulatory language regarding priority is not clear cut. With regard to priority, three regulatory sections standout:

§ 35.150(b)(1) …In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

§ 35.150(d)(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

§ 35.151(b)(4)(iv)(B) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order—

U.S. Department of Justice, 28 CFR Part 35, Nondiscrimination on the Basis of Disability in State and Local

June 7, 2012 Page 15

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as parking, storage, and alarms.

The first cited section above refers to methods of providing program access. The second section above refers to public rights-of-way and pedestrian access. The third section above refers to requirements when facility alterations are “undertaken solely for purposes other than to meet the program accessibility requirements” and when the cost of accessibility improvements to path of travel elements is disproportional (i.e., exceeds 20 percent).

When the purpose of alterations is to achieve program access, we believe that the primary use area, the element of a facility that provides or facilitates the program, must be addressed first.

However, the primary use area should not be taken out of context. If a primary use area is located within a facility that has inaccessible parking, or lacks an accessible path of travel from parking and/or public right-of-way, or has no accessible entrance, the higher priority for mitigation is probably the path of travel, not the primary use area.

Calculating Mitigation Difficulty

Much of MTC’s calculation of mitigation difficulty for facilities is based, in this report, on a rough order of magnitude (ROM) cost estimate. MTC typically collaborates with architects, engineers, and other construction professionals when specific designs and more precise budgets are required.

MTC has some general idea of dollar costs but typically views difficulty more from the perspective of amount of structural change, rather than simply dollar costs. It is our impression that

DOJ typically considers “undue financial or administrative burden” as a relatively high hurdle for public entities. DOJ does not provide specific mathematical formulas for calculating a dollar value that is considered “undue financial burden”. DOJ will consider all of a community’s resources, in its evaluation of mitigation difficulty.

Conclusions A survey of the buildings and sites within the scope of MTC’s proposal was completed between the middle of May 17, and May 21, 2012. The greatest concentration of the findings of deficiencies was found at sidewalks/walkways connecting to facilities and elements within sites and parks.

Those deficiencies were typically the result of non-compliant surface materials or excessive slopes, cross slopes, and changes in level that impede turning and maneuvering in a wheelchair. Please find attached the draft transition plan (compliance management table) which should become a living document used to track progress with barrier removal. This document contains all elements specified by DOJ’s regulations for transition plans except identifying the official who bears responsibility for the implementation of this plan. Content of the plan is open to discussion.

However, MTC believes, based on our experience and knowledge of the ADA, that the

June 7, 2012 Page 16 recommendations included in this transition plan represent valid and accurate interpretation of all pertaining regulations.

The content of this report and the attached transition plan are submitted as technical assistance and guidance and are not legal advice. To the best of MTC staff understanding, all elements in the buildings and sites within the scope of this project and having accessibility requirements were surveyed. However, not every room and space in these buildings was surveyed. Ultimate determination of legal compliance with and enforcement of Part 35 Regulation is the responsibility of the U.S. Department of Justice.

Attachment A

Accessible Pools Means of Entry and Exit

Individuals with disabilities cannot be excluded from or denied participation in

State and local government programs, services, or activities because a facility is inaccessible or unusable. This means that all programs, services, and activities, when viewed in their entirety, must be accessible to individuals with disabilities unless doing so results in a fundamental alteration in the nature of the program or in an undue financial and administrative burden. This requirement is known as

"program accessibility."

Program accessibility applies to all pool-related programs, services, and activities (swimming programs). Program accessibility does not typically require that every pool be made accessible. However, if a public entity has only one existing pool, it must take steps to ensure that its swimming program at that pool is accessible.

A public entity determines which method it will use for meeting its program accessibility obligations. When structural changes are made to existing pools, June 7, 2012 Page 17 including installation of a fixed pool lift, the changes must comply with the 2010

Standards. If a public entity chooses to acquire equipment (e.g., a portable lift) to provide program accessibility, the entity should select equipment that includes features required by the 2010 Standards, including independent operation by individuals with disabilities. Sharing accessible equipment between pools is not permitted, unless it would result in undue burdens to provide equipment at each one. Accessible pool features must be available whenever the facility is open to the public. When choosing to purchase equipment or to make structural changes, the public entity should factor in staff and financial resources required to maintain program accessibility.

Over time, a public entity will need to reassess its compliance with program accessibility, and it may become necessary to acquire new accessible equipment or make structural modifications. For more information about program accessibility, see the title II regulations at Section 35.150.

To determine which pools must be made accessible, public entities should consider the following factors:

� How to provide swimming programs in the most integrated setting appropriate;

� The ways in which people participate in the programs (e.g., individually, in families, in youth groups);

� Locations where the programs are offered;

� What programs are offered at each pool and to which constituencies (e.g., family swims, children's swimming lessons, older adult exercise classes, high school swim meets);

� Which pools are accessible and to what extent; and

� Level of dispersion of the accessible locations and convenience to reach them (e.g., one pool in each quadrant of the town, all on accessible mass transit).