guidance-2010-_ADA_standards.pdf

Guidance on the 2010 ADA Standards for Accessible Design

Department of Justice September 15, 2010

Reproduction of this document is encouraged.

This publication may be viewed or downloaded from the ADA website (www.ADA.gov).

Additional copies may be obtained by calling the ADA Information Line:

800-514-0301 (voice)

800-514-0383 (TTY)

September 15, 2010 i http://www.ADA.gov

Contents

1 Introduction 1

State and Local Government Facilities:

Guidance on the Revisions to 28 CFR 35.151 3

Public Accommodations and Commercial Facilities: Guidance on the Revisions to 28 CFR part 36, subpart D 39

Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible Design 69 ii iii

1 Introduction

The Department of Justice published its revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 “ADA” in the Federal Register on September 15, 2010, which include the 2010 Standards for Accessible Design “2010 Standards” or “Standards”. In the revised regulations, the Department included detailed guidance with a section-by-section analysis of the revisions.

The following includes guidance from the revised regulations related to 28 CFR 35.151; 28 CFR part 36, subpart D; and the 2004 ADAAG. It addresses changes to the Standards, the reasoning behind those changes, and responses to public comments received on these topics

For More Information

For information about the ADA, including the revised 2010 ADA regulations, please visit the Department’s website www.ADA.

gov; or, for answers to specific questions, call the toll-free ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY).

2 State and Local Government Facilities

- Guidance on 2010 Standards: Title II Department of Justice4

State and Local Government Facilities: Guidance on the Revisions to 28 CFR Section 35.151

Section 35.151(a), which provided that those facilities that are constructed or altered by, on behalf of, or for the use of a public entity shall be designed, constructed, or altered to be readily accessible to and usable by individuals with disabilities, is unchanged in the final rule, but has been redesignated as Sec. 35.151(a)(1). The Department has added a new section, designated as Sec.

35.151(a)(2), to provide that full compliance with the requirements of this section is not required where an 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 incorpo-ration of accessibility features. This excep-tion was contained in the title III regulation and in the 1991 Standards (applicable to both public accommodations and facilities used by public entities), so it has applied to any covered facility that was constructed under the 1991 Standards since the effective date of the ADA. The Department added it to the text of Sec. 35.151 to maintain con-sistency between the design requirements that apply under title II and those that apply under title III. The Department received no significant comments about this section.

Section 35.151(b) Alterations

The 1991 title II regulation does not con-tain any specific regulatory language com-parable to the 1991 title III regulation relating to alterations and path of travel for cov-ered entities, although the 1991 Standards describe standards for path of travel during alterations to a primary function. See 28 CFR part 36, app A., section 4.1.6(a) (2009).

The path of travel requirements con-tained in the title III regulation are based on section 303(a)(2) of the ADA, 42 U.S.C.

12183(a)(2), which provides that when an entity undertakes an alteration to a place of public accommodation or commercial facil-ity that affects or could affect the usabil-ity of or access to an area that contains a primary function, the entity shall ensure that, to the maximum extent feasible, the path of travel to the altered area--and the restrooms, telephones, and drinking foun-tains serving it--is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

The NPRM proposed amending Sec. 35.151 to add both the path of travel requirements and the exemption relating to barrier removal (as modified to apply to the program accessibility standard in title II) that are contained in the title III regula-tion to the title II regulation. Proposed Sec. 35.151(b)(4) contained the require-ments for path of travel. Proposed

Section 35.151 -- Title II Regulation

Guidance on 2010 Standards: Title II - 5Department of Justice

Sec. 35.151(b)(2) stated that the path of travel requirements of Sec. 35.151(b)(4) shall not apply to measures taken solely to comply with program accessibility requirements.

Where the specific requirements for path of travel apply under title III, they are lim-ited to the extent that the cost and scope of alterations to the path of travel are dis-proportionate to the cost of the overall alteration, as determined under criteria established by the Attorney General.

The Access Board included the path of travel requirement for alterations to facilities covered by the standards (other than those subject to the residential facilities standards) in section 202.4 of 2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes the criteria for determining when the cost of alterations to the path of travel is “dispropor-tionate’’ to the cost of the overall alteration.

The NPRM also provided that areas such as supply storage rooms, employee lounges and locker rooms, janitorial closets, entrances, and corridors are not areas con-taining a primary function. Nor are restroom areas considered to contain a primary func-tion unless the provision of restrooms is a primary purpose of the facility, such as at a highway rest stop. In that situation, a rest-room would be considered to be an “area containing a primary function’’ of the facility.

The Department is not changing the requirements for program accessibility. As provided in Sec. 35.151(b)(2) of the regula-tion, the path of travel requirements of Sec.

35.151(b)(4) only apply to alterations under-taken solely for purposes other than to meet the program accessibility requirements.

The exemption for the specific path of travel requirement was included in the regula-tion to ensure that the specific requirements and disproportionality exceptions for path of travel are not applied when areas are being altered to meet the title II program accessibil-ity requirements in Sec. 35.150. In contrast, when areas are being altered to meet pro-gram accessibility requirements, they must comply with all of the applicable require-ments referenced in section 202 of the 2010 Standards. A covered title II entity must pro-vide accessibility to meet the requirements of Sec. 35.150 unless doing so is an undue financial and administrative burden in accor-dance with Sec. 35.150(a)(3). A covered title II entity may not use the disproportionality exception contained in the path of travel pro-visions as a defense to providing an acces-sible route as part of its obligation to provide program accessibility. The undue financial and administrative burden standard does not contain any bright line financial tests.

The Department’s proposed Sec. 35.151(b)(4) adopted the language now contained in Sec. 36.403 of the title III regulation, including the disproportion-ality limitation (i.e., alterations made to

6 - Guidance on 2010 Standards: Title II provide an accessible path of travel to the altered area would be deemed dispropor-tionate to the overall alteration when the cost exceeds 20 percent of the cost of the alteration to the primary function area).

Proposed Sec. 35.151(b)(2) provided that the path of travel requirements do not apply to alterations undertaken solely to comply with program accessibility requirements.

The Department received a substan-tial number of comments objecting to the Department’s adoption of the exemption for the path of travel requirements when altera-tions are undertaken solely to meet program accessibility requirements. These comment-ers argued that the Department had no statu-tory basis for providing this exemption nor does it serve any purpose. In addition, these commenters argued that the path of travel exemption has the effect of placing new limi-tations on the obligations to provide program access. A number of commenters argued that doing away with the path of travel require-ment would render meaningless the concept of program access. They argued that just as the requirement to provide an accessible path of travel to an altered area (regardless of the reason for the alteration), including making the restrooms, telephones, and drinking foun-tains that serve the altered area accessible, is a necessary requirement in other altera-tions, it is equally necessary for alterations made to provide program access. Several commenters expressed concern that a read-ily accessible path of travel be available to ensure that persons with disabilities can get to the physical location in which programs are held. Otherwise, they will not be able to access the public entity’s service, program, or activity. Such access is a cornerstone of the protections provided by the ADA. Another commenter argued that it would be a waste of money to create an accessible facility without having a way to get to the primary area. This commenter also stated that the International Building Code (IBC) requires the path of trav-el to a primary function area, up to 20 percent of the cost of the project. Another commenter opposed the exemption, stating that the trig-ger of an alteration is frequently the only time that a facility must update its facilities to comply with evolving accessibility standards.

In the Department’s view, the comment-ers objecting to the path of travel exemption contained in Sec. 35.151(b)(2) did not under-stand the intention behind the exemption.

The exemption was not intended to eliminate any existing requirements related to acces-sibility for alterations undertaken in order to meet program access obligations under Sec. 35.149 and Sec. 35.150. Rather, it was intended to ensure that covered entities did not apply the path of travel requirements in lieu of the overarching requirements in this Subpart that apply when making a facility accessible in order to comply with program accessibility. The exemption was also intend-ed to make it clear that the disproportionality test contained in the path of travel standards is not applicable in determining whether

Guidance on 2010 Standards: Title II - 7Department of Justice providing program access results in an undue financial and administration burden within the meaning of Sec. 35.150(a)(3). The exemp-tion was also provided to maintain consis-tency with the title III path of travel exemption for barrier removal, see Sec. 36.304(d), in keeping with the Department’s regulatory authority under title II of the ADA. See 42 U.S.C. 12134(b); see also H. R Rep. No.

101B485, pt. 2, at 84 (1990) (“The committee intends, however, that the forms of discrimi-nation prohibited by section 202 be identi-cal to those set out in the applicable provi-sions of titles I and III of this legislation.’’).

For title II entities, the path of travel requirements are of significance in those cases where an alteration is being made solely for reasons other than program acces-sibility. For example, a public entity might have six courtrooms in two existing buildings and might determine that only three of those courtrooms and the public use and common use areas serving those courtrooms in one building are needed to be made accessible in order to satisfy its program access obliga-tions. When the public entity makes those courtrooms and the public use and common use areas serving them accessible in order to meet its program access obligations, it will have to comply with the 2010 Standards unless the public entity can demonstrate that full compliance would result in undue finan-cial and administrative burdens as described in Sec. 35.150(a)(3). If such action would result in an undue financial or administrative burden, the public entity would nevertheless be required to take some other action that would not result in such an alteration or such burdens but would ensure that the benefits and services provided by the public entity are readily accessible to persons with disabilities.

When the public entity is making modifica-tions to meet its program access obligation, it may not rely on the path of travel excep-tion under Sec. 35.151(b)(4), which limits the requirement to those alterations where the cost and scope of the alterations are not disproportionate to the cost and scope of the overall alterations. If the public entity later decides to alter courtrooms in the other building, for purposes of updating the facility (and, as previously stated, has met its pro-gram access obligations) then in that case, the public entity would have to comply with the path of travel requirements in the 2010 Standards subject to the disproportionality exception set forth in Sec. 35.151(b)(4).

The Department has slightly revised pro-posed Sec. 35.151(b)(2) to make it clearer that the path of travel requirements only apply when alterations are undertaken solely for purposes other than program accessibility.

Section 35.151(b)(4)(ii)(C) Path of travel--safe harbor

In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the Department included a provision that stated that public entities that have brought required elements of path of travel into compliance

8 - Guidance on 2010 Standards: Title II with the 1991 Standards are not required to retrofit those elements in order to reflect incremental changes in the 2010 Standards solely because of an alteration to a primary function area that is served by that path of travel. In these circumstances, the pub-lic entity is entitled to a safe harbor and is only required to modify elements to comply with the 2010 Standards if the public entity is planning an alteration to the element.

A substantial number of commenters objected to the Department’s imposition of a safe harbor for alterations to facilities of public entities that comply with the 1991 Standards. These commenters argued that if a public entity is already in the pro-cess of altering its facility, there should be a legal requirement that individuals with disabilities be entitled to increased acces-sibility by using the 2010 Standards for path of travel work. They also stated that they did not believe there was a statu-tory basis for “grandfathering’’ facilities that comply with the 1991 Standards.

The ADA is silent on the issue of “grand-fathering’’ or establishing a safe harbor for measuring compliance in situations where the covered entity is not undertaking a planned alteration to specific building ele-ments. The ADA delegates to the Attorney General the responsibility for issuing regula-tions that define the parameters of covered entities’ obligations when the statute does not directly address an issue. This regulation implements that delegation of authority.

One commenter proposed that a previ-ous record of barrier removal be one of the factors in determining, prospectively, what renders a facility, when viewed in its entirety, usable and accessible to persons with disabilities. Another com-menter asked the Department to clarify, at a minimum, that to the extent compli-ance with the 1991 Standards does not provide program access, particularly with regard to areas not specifically addressed in the 1991 Standards, the safe harbor will not operate to relieve an entity of its obligations to provide program access.

One commenter supported the proposal to add a safe harbor for path of travel.

The final rule retains the safe harbor for required elements of a path of travel to altered primary function areas for public enti-ties that have already complied with the 1991 Standards with respect to those required elements. The Department believes that this safe harbor strikes an appropriate balance between ensuring that individuals with dis-abilities are provided access to buildings and facilities and potential financial burdens on existing public entities that are undertaking alterations subject to the 2010 Standards.

This safe harbor is not a blanket exemption for facilities. If a public entity undertakes an alteration to a primary function area, only the required elements of a path of travel to that area that already comply with the 1991

Guidance on 2010 Standards: Title II - 9Department of Justice

Standards are subject to the safe harbor. If a public entity undertakes an alteration to a primary function area and the required ele-ments of a path of travel to the altered area do not comply with the 1991 Standards, then the public entity must bring those elements into compliance with the 2010 Standards.

Section 35.151(b)(3) Alterations to historic facilities

The final rule renumbers the requirements for alterations to historic facilities enumer-ated in current Sec. 35.151(d)(1) and (2) as Sec. 35.151(b)(3)(i) and (ii). Currently, the regulation provides that alterations to his-toric facilities shall comply to the maximum extent feasible with section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards. See 28 CFR 35.151(d)(1). Section 35.151(b)(3)

(i) of the final rule eliminates the option of using UFAS for alterations that commence on or after March 15, 2012. The substan-tive requirement in current Sec. 35.151(d) (2)--that alternative methods of access shall be provided pursuant to the requirements of Sec. 35.150 if it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility--is contained in Sec. 35.151(b)(3)(ii).

Section 35.151(c) Accessibility standards for new construction and alterations

Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and Architectural Barriers Act Guidelines (2004 ADAAG) into the ADA Standards for Accessible Design (2010 Standards). As the Department has noted, the development of these standards repre-sents the culmination of a lengthy effort by the Access Board to update its guidelines, to make the Federal guidelines consistent to the extent permitted by law, and to harmonize the Federal requirements with the private sector model codes that form the basis of many State and local building code require-ments. The full text of the 2010 Standards is available for public review on the ADA Home Page (http://www.ada.gov) and on the Access Board’s Web site (http://www.access-board.gov/gs.htm) (last visited June 24, 2010). The Access Board site also includes an extensive discussion of the develop-ment of the 2004 ADA/ABA Guidelines, and a detailed comparison of the 1991 Standards, the 2004 ADA/ABA Guidelines, and the 2003 International Building Code.

Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney General to issue regula-tions to implement title II that are consistent with the minimum guidelines published by

10 - Guidance on 2010 Standards: Title II

Section 35.151 -- Title II Regulation

Department of Justice http://www.ADA.gov http://www.access-board.gov/gs.htm http://www.access-board.gov/gs.htm the Access Board. The Attorney General (or his designee) is a statutory member of the Access Board (see 29 U.S.C. 792(a) (1)(B(vii)) and was involved in the develop-ment of the 2004 ADAAG. Nevertheless, during the process of drafting the NPRM, the Department reviewed the 2004 ADAAG to determine if additional regulatory provi-sions were necessary. As a result of this review, the Department decided to propose new sections, which were contained in Sec. 35.151(e)(h) of the NPRM, to clarify how the Department will apply the proposed standards to social service center estab-lishments, housing at places of education, assembly areas, and medical care facilities.

Each of these provisions is discussed below.

Congress anticipated that there would be a need for close coordination of the ADA building requirements with State and local building code requirements. Therefore, the ADA authorized the Attorney General to establish an ADA code certification process under title III of the ADA. That process is addressed in 28 CFR part 36, subpart F.

Revisions to that process are addressed in the regulation amending the title III regula-tion published elsewhere in the Federal Register today. In addition, the Department operates an extensive technical assistance program. The Department anticipates that once this rule is final, revised technical assistance material will be issued to pro-vide guidance about its implementation.

Section 35.151(c) of the 1991 title II regulation establishes two standards for accessible new construction and alteration.

Under paragraph (c), design, construction, or alteration of facilities in conformance with UFAS or with the 1991 Standards (which, at the time of the publication of the rule were also referred to as the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (1991 ADAAG)) is deemed to comply with the requirements of this section with respect to those facili-ties (except that if the 1991 Standards are chosen, the elevator exemption does not apply). The 1991 Standards were based on the 1991 ADAAG, which was initially devel-oped by the Access Board as guidelines for the accessibility of buildings and facilities that are subject to title III. The Department adopted the 1991 ADAAG as the standards for places of public accommodation and commercial facilities under title III of the ADA and it was published as Appendix A to the Department’s regulation implement-ing title III, 56 FR 35592 (July 26, 1991) as amended, 58 FR 17522 (April 5, 1993), and as further amended, 59 FR 2675 (Jan. 18, 1994), codified at 28 CFR part 36 (2009).

Section 35.151(c) of the final rule adopts the 2010 Standards and establishes the compliance date and triggering events for the application of those standards to both new construction and alterations. Appendix B of the final title III rule (Analysis and

Guidance on 2010 Standards: Title II - 11Department of Justice

Commentary on the 2010 ADA Standards for Accessible Design) (which will be published today elsewhere in this volume and codified as Appendix B to 28 CFR part 36) provides a description of the major changes in the 2010 Standards (as compared to the 1991 ADAAG) and a discussion of the public comments that the Department received on specific sections of the 2004 ADAAG. A number of comment-ers asked the Department to revise certain provisions in the 2004 ADAAG in a manner that would reduce either the required scop-ing or specific technical accessibility require-ments. As previously stated, although the ADA requires the enforceable standards issued by the Department under title II and title III to be consistent with the minimum guidelines published by the Access Board, it is the sole responsibility of the Attorney General to promulgate standards and to interpret and enforce those standards. The guidelines adopted by the Access Board are “minimum guidelines.’’ 42 U.S.C. 12186(c).

Compliance date. When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for covered entities to become familiar with their new obligations. Titles II and III of the ADA generally became effective on January 26, 1992, six months after the regulations were published. See 42 U.S.C.

12131 note; 42 U.S.C. 12181 note. New construction under title II and alterations under either title II or title III had to comply with the design standards on that date. See

42 U.S.C. 12183(a)(1). For new construction under title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993-- 18 months after the 1991 Standards were published by the Department. In the NPRM, the Department proposed to amend Sec. 35.151(c)(1) by revising the current language to limit the application of the 1991 standards to facilities on which construction commences within six months of the final rule adopting revised standards. The NPRM also proposed adding paragraph (c)(2) to Sec. 35.151, which states that facilities on which construction commences on or after the date six months following the effective date of the final rule shall comply with the proposed standards adopted by that rule.

As a result, under the NPRM, for the first six months after the effective date, public entities would have the option to use either UFAS or the 1991 Standards and be in compliance with title II. Six months after the effective date of the rule, the new standards would take effect. At that time, construction in accordance with UFAS would no longer satisfy ADA requirements. The Department stated that in order to avoid placing the bur-den of complying with both standards on public entities, the Department would coor-dinate a government-wide effort to revise Federal agencies’ section 504 regulations to adopt the 2004 ADAAG as the standard for new construction and alterations.

12 - Guidance on 2010 Standards: Title II

The purpose of the proposed six-month delay in requiring compliance with the 2010 Standards was to allow covered entities a reasonable grace period to transition between the existing and the proposed standards. For that reason, if a title II entity preferred to use the 2010 Standards as the standard for new construction or alterations commenced within the six-month period after the effective date of the final rule, such entity would be consid-ered in compliance with title II of the ADA.

The Department received a number of comments about the proposed six-month effective date for the title II regulation that were similar in content to those received on this issue for the proposed title III regula-tion. Several commenters supported the six-month effective date. One commenter stated that any revisions to its State building code becomes effective six months after adop-tion and that this has worked well. In addi-tion, this commenter stated that since 2004 ADAAG is similar to IBC 2006 and ICC/ANSI A117.1-2003, the transition should be easy.

By contrast, another commenter advocated for a minimum 12-month effective date, argu-ing that a shorter effective date could cause substantial economic hardships to many cit-ies and towns because of the lengthy lead time necessary for construction projects.

This commenter was concerned that a six-month effective date could lead to projects having to be completely redrawn, rebid, and rescheduled to ensure compliance with the new standards. Other commenters advocated that the effective date be extended to at least 18 months after the publication of the rule.

One of these commenters expressed con-cern that the kinds of bureaucratic organiza-tions subject to the title II regulations lack the internal resources to quickly evaluate the regulatory changes, determine whether they are currently compliant with the 1991 stan-dards, and determine what they have to do to comply with the new standards. The other commenter argued that 18 months is the minimum amount of time necessary to ensure that projects that have already been designed and approved do not have to undergo costly design revisions at taxpayer expense.

The Department is persuaded by the con-cerns raised by commenters for both the title II and III regulations that the six-month compliance date proposed in the NPRM for application of the 2010 Standards may be too short for certain projects that are already in the midst of the design and permitting process. The Department has determined that for new construction and alterations, compliance with the 2010 Standards will not be required until 18 months from the date the final rule is published. Until the time compliance with the 2010 Standards is required, public entities will have the option of complying with the 2010 Standards, the UFAS, or the 1991 Standards. However, public entities that choose to comply with the 2010 Standards in lieu of the 1991 Standards or UFAS prior to the compliance date described in this rule must choose

Guidance on 2010 Standards: Title II - 13Department of Justice one of the three standards, and may not rely on some of the requirements contained in one standard and some of the require-ments contained in the other standards.

Triggering event. In Sec. 35.151(c)(2) of the NPRM, the Department proposed that the commencement of construction serve as the triggering event for applying the proposed standards to new construction and alterations under title II. This language is consistent with the triggering event set forth in Sec. 35.151(a) of the 1991 title II regula-tion. The Department received only four comments on this section of the title II rule. Three commenters supported the use of “start of construction’’ as the trig-gering event. One commenter argued that the Department should use the “last build-ing permit or start of physical construction, whichever comes first,’’ stating that “alter-ing a design after a building permit has been issued can be an undue burden.’’

After considering these comments, the Department has decided to continue to use the commencement of physical construc-tion as the triggering event for application of the 2010 Standards for entities covered by title II. The Department has also added clarifying language at Sec. 35.151(c)

(4) to the regulation to make it clear that the date of ceremonial groundbreaking or the date a structure is razed to make it possible for construction of a facility to take place does not qualify as the com-mencement of physical construction.

Section 234 of the 2010 Standards pro-vides accessibility guidelines for newly designed and constructed amusement rides.

The amusement ride provisions do not pro-vide a “triggering event’’ for new construc-tion or alteration of an amusement ride. An industry commenter requested that the trig-gering event of “first use,’’ as noted in the Advisory note to section 234.1 of the 2004 ADAAG, be included in the final rule. The Advisory note provides that “[a] custom designed and constructed ride is new upon its first use, which is the first time amusement park patrons take the ride.’’ The Department declines to treat amusement rides differ-ently than other types of new construction and alterations. Under the final rule, they are subject to Sec. 35.151(c). Thus, newly con-structed and altered amusement rides shall comply with the 2010 Standards if the start of physical construction or the alteration is on or after 18 months from the publication date of this rule. The Department also notes that section 234.4.2 of the 2010 Standards only applies where the structural or opera-tional characteristics of an amusement ride are altered. It does not apply in cases where the only change to a ride is the theme.

Noncomplying new construction and alterations. The element-by-element safe harbor referenced in Sec. 35.150(b)(2) has no effect on new or altered elements in existing facilities that were subject to the 1991 Standards or UFAS on the date that they were constructed or altered, 14 - Guidance on 2010 Standards: Title II but do not comply with the technical and scoping specifications for those elements in the 1991 Standards or UFAS. Section 35.151(c)(5) of the final rule sets forth the rules for noncompliant new construction or alterations in facilities that were subject to the requirements of this part. Under those provisions, noncomplying new construction and alterations constructed or altered after the effective date of the applicable ADA requirements and before March 15, 2012 shall, before March 15, 2012, be made accessible in accordance with either the 1991 Standards, UFAS, or the 2010 Standards. Noncomplying new construction and alterations constructed or altered after the effective date of the applicable ADA requirements and before March 15, 2012, shall, on or after March 15, 2012 be made accessible in accordance with the 2010 Standards.

Section 35.151(d) Scope of coverage

In the NPRM, the Department proposed a new provision, Sec. 35.151(d), to clarify that the requirements established by Sec. 35.151, including those contained in the 2004 ADAAG, prescribe what is neces-sary to ensure that buildings and facilities, including fixed or built-in elements in new or altered facilities, are accessible to individu-als with disabilities. Once the construction or alteration of a facility has been completed, all other aspects of programs, services, and activities conducted in that facility are subject to the operational requirements established in this final rule. Although the Department may use the requirements of the 2010 Standards as a guide to determining when and how to make equipment and furnishings acces-sible, those determinations fall within the discretionary authority of the Department.

The Department also wishes to clarify that the advisory notes, appendix notes, and figures that accompany the 1991 and 2010 Standards do not establish separately enforceable requirements unless specifically stated otherwise in the text of the standards.

This clarification has been made to address concerns expressed by ANPRM comment-ers who mistakenly believed that the advi-sory notes in the 2004 ADAAG established requirements beyond those established in the text of the guidelines (e.g., Advisory 504.4 suggests, but does not require, that cov-ered entities provide visual contrast on stair tread nosing to make them more visible to individuals with low vision). The Department received no significant comments on this section and it is unchanged in the final rule.

Definitions of residential facilities and transient lodging. The 2010 Standards add a definition of “residential dwelling unit’’ and modify the current definition of “transient lodging.’’ Under section 106.5 of the 2010 Standards, “residential dwelling unit’’ is defined as “[a] unit intended to be used as a residence, that is primarily long-term in nature’’ and does not include transient

Guidance on 2010 Standards: Title II - 15Department of Justice lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities. Additionally, section 106.5 of the 2010 Standards changes the definition of “transient lodging’’ to a building or facility “containing one or more guest room(s) for sleeping that provides accommodations that are primarily short-term in nature.’’ “Transient lodging’’ does not include residential dwelling units intended to be used as a residence.

The references to “dwelling units’’ and “dormitories’’ that are in the definition of the 1991 Standards are omitted from the 2010 Standards.

The comments about the application of transient lodging or residential standards to social service center establishments, and housing at a place of education are addressed separately below. The Department received one additional comment on this issue from an organization representing emergency response personnel seeking an exemption from the transient lodging accessibility requirements for crew quar-ters and common use areas serving those crew quarters (e.g., locker rooms, exercise rooms, day room) that are used exclusively by on-duty emergency response person-nel and that are not used for any public purpose. The commenter argued that since emergency response personnel must meet certain physical qualifications that have the effect of exempting persons with mobil-ity disabilities, there is no need to build crew quarters and common use areas serving those crew quarters to meet the 2004 ADAAG. In addition, the commenter argued that applying the transient lodging standards would impose significant costs and create living space that is less usable for most emergency response personnel.

The ADA does not exempt spaces because of a belief or policy that excludes persons with disabilities from certain work. However, the Department believes that crew quarters that are used exclusively as a residence by emergency response personnel and the kitchens and bathrooms exclusively serv-ing those quarters are more like residential dwelling units and are therefore covered by the residential dwelling standards in the 2010 Standards, not the transient lodging standards. The residential dwelling stan-dards address most of the concerns of the commenter. For example, the commenter was concerned that sinks in kitchens and lavatories in bathrooms that are accessible under the transient lodging standards would be too low to be comfortably used by emer-gency response personnel. The residential dwelling standards allow such features to be adaptable so that they would not have to be lowered until accessibility was needed.

Similarly, grab bars and shower seats would not have to be installed at the time of con-struction provided that reinforcement has been installed in walls and located so as to permit their installation at a later date.

16 - Guidance on 2010 Standards: Title II

Section 35.151(e) Social service center establishments

In the NPRM, the Department proposed a new Sec. 35.151(e) requiring group homes, halfway houses, shelters, or similar social service center establishments that provide temporary sleeping accommodations or residential dwelling units to comply with the provisions of the 2004 ADAAG that apply to residential facilities, including, but not limited to, the provisions in sections 233 and 809.

The NPRM explained that this proposal was based on two important changes in the 2004 ADAAG. First, for the first time, residential dwelling units are explicitly cov-ered in the 2004 ADAAG in section 233.

Second, the 2004 ADAAG eliminates the language contained in the 1991 Standards addressing scoping and technical require-ments for homeless shelters, group homes, and similar social service center establish-ments. Currently, such establishments are covered in section 9.5 of the transient lodg-ing section of the 1991 Standards. The deletion of section 9.5 creates an ambigu-ity of coverage that must be addressed.

The NPRM explained the Department’s belief that transferring coverage of social service center establishments from the tran-sient lodging standards to the residential facilities standards would alleviate conflict-ing requirements for social service center providers. The Department believes that a substantial percentage of social service cen-ter establishments are recipients of Federal financial assistance from the Department of Housing and Urban Development (HUD). The Department of Health and Human Services (HHS) also provides financial assistance for the operation of shelters through the Administration for Children and Families pro-grams. As such, these establishments are covered both by the ADA and section 504 of the Rehabilitation Act. UFAS is currently the design standard for new construction and alterations for entities subject to section

504. The two design standards for accessi-bility--the 1991 Standards and UFAS--have confronted many social service providers with separate, and sometimes conflicting, requirements for design and construction of facilities. To resolve these conflicts, the residential facilities standards in the 2004 ADAAG have been coordinated with the sec-tion 504 requirements. The transient lodging standards, however, are not similarly coordi-nated. The deletion of section 9.5 of the 1991 Standards from the 2004 ADAAG presented two options: (1) Require coverage under the transient lodging standards, and subject such facilities to separate, conflicting requirements for design and construction; or (2) require coverage under the residential facilities stan-dards, which would harmonize the regulatory requirements under the ADA and section 504.

The Department chose the option that harmo-nizes the regulatory requirements: coverage under the residential facilities standards.

Guidance on 2010 Standards: Title II - 17Department of Justice

In the NPRM, the Department expressed concern that the residential facilities stan-dards do not include a requirement for clear floor space next to beds similar to the require-ment in the transient lodging standards and as a result, the Department proposed adding a provision that would require certain social service center establishments that provide sleeping rooms with more than 25 beds to ensure that a minimum of 5 percent of the beds have clear floor space in accordance with section 806.2.3 or 2004 ADAAG.

In the NPRM, the Department requested information from providers who oper-ate homeless shelters, transient group homes, halfway houses, and other social service center establishments, and from the clients of these facilities who would be affected by this proposed change, asking, “[t]o what extent have conflicts between the ADA and section 504 affected these facili-ties? What would be the effect of applying the residential dwelling unit requirements to these facilities, rather than the require-ments for transient lodging guest rooms?’’ 73 FR 34466, 34491 (June 17, 2008).

Many of the commenters supported apply-ing the residential facilities requirements to social service center establishments, stat-ing that even though the residential facili-ties requirements are less demanding in some instances, the existence of one clear standard will result in an overall increased level of accessibility by eliminating the confusion and inaction that are sometimes caused by the current existence of mul-tiple requirements. One commenter also stated that “it makes sense to treat social service center establishments like resi-dential facilities because this is how these establishments function in practice.’’

Two commenters agreed with apply-ing the residential facilities requirements to social service center establishments but recommended adding a require-ment for various bathing options, such as a roll-in shower (which is not required under the residential standards).

One commenter objected to the change and asked the Department to require that social service center establishments con-tinue to comply with the transient lodg-ing standards. One commenter stated that it did not agree that the standards for residential coverage would serve persons with disabilities as well as the 1991 tran-sient lodging standards. This commenter expressed concern that the Department had eliminated guidance for social service agencies and that the rule should be put on hold until those safeguards are restored.

Another commenter argued that the rule that would provide the greatest access for persons with disabilities should prevail.

Several commenters argued for the appli-cation of the transient lodging standards to all social service center establishments except

18 - Guidance on 2010 Standards: Title II those that were “intended as a person’s place of abode,’’ referencing the Department’s question related to the definition of “place of lodging’’ in the title III NPRM. One com-menter stated that the International Building Code requires accessible units in all tran-sient facilities. The commenter expressed concern that group homes should be built to be accessible, rather than adaptable.

The Department continues to be con-cerned about alleviating the challenges for social service providers that are also subject to section 504 and would likely be subject to conflicting requirements if the transient lodging standards were applied. Thus, the Department has retained the requirement that social service center establishments comply with the residential dwelling standards. The Department believes, however, that social service center establishments that provide emergency shelter to large transient popu-lations should be able to provide bathing facilities that are accessible to persons with mobility disabilities who need roll-in show-ers. Because of the transient nature of the population of these large shelters, it will not be feasible to modify bathing facilities in a timely manner when faced with a need to provide a roll-in shower with a seat when requested by an overnight visitor. As a result, the Department has added a requirement that social service center establishments with sleeping accommodations for more than 50 individuals must provide at least one roll-in shower with a seat that complies with the relevant provisions of section 608 of the 2010 Standards. Transfer-type showers are not permitted in lieu of a roll-in shower with a seat and the exceptions in sections 608.3 and

608.4 for residential dwelling units are not permitted. When separate shower facilities are provided for men and for women, at least one roll-in shower shall be provided for each group. This supplemental requirement to the residential facilities standards is in addition to the supplemental requirement that was proposed in the NPRM for clear floor space in sleeping rooms with more than 25 beds.

The Department also notes that while dwelling units at some social service center establishments are also subject to the Fair Housing Act (FHAct) design and construc-tion requirements that require certain fea-tures of adaptable and accessible design, FHAct units do not provide the same level of accessibility that is required for residen-tial facilities under the 2010 Standards.

The FHAct requirements, where also appli-cable, should not be considered a sub-stitute for the 2010 Standards. Rather, the 2010 Standards must be followed in addition to the FHAct requirements.

The Department also notes that where-as the NPRM used the term “social ser-vice establishment,’’ the final rule uses the term “social service center establish-ment.’’ The Department has made this editorial change so that the final rule is consistent with the terminology used in the ADA. See 42 U.S.C. 12181(7)(k).

Guidance on 2010 Standards: Title II - 19Department of Justice

Section 35.151(f) Housing at a place of education

The Department of Justice and the Department of Education share responsi-bility for regulation and enforcement of the ADA in postsecondary educational settings, including its requirements for architectural features. In addition, the Department of Housing and Urban Development (HUD) has enforcement responsibility for housing sub-ject to title II of the ADA. Housing facilities in educational settings range from traditional residence halls and dormitories to apartment or townhouse-style residences. In addition to title II of the ADA, public universities and schools that receive Federal financial assis-tance are also subject to section 504, which contains its own accessibility requirements through the application of UFAS. Residential housing in an educational setting is also covered by the FHAct, which requires newly constructed multifamily housing to include certain features of accessible and adaptable design. Covered entities subject to the ADA must always be aware of, and comply with, any other Federal statutes or regulations that govern the operation of residential properties.

Although the 1991 Standards mention dormitories as a form of transient lodging, they do not specifically address how the ADA applies to dormitories or other types of resi-dential housing provided in an educational setting. The 1991 Standards also do not contain any specific provisions for residential facilities, allowing covered entities to elect to follow the residential standards contained in UFAS. Although the 2004 ADAAG con-tains provisions for both residential facili-ties and transient lodging, the guidelines do not indicate which requirements apply to housing provided in an educational setting, leaving it to the adopting agencies to make that choice. After evaluating both sets of standards, the Department concluded that the benefits of applying the transient lodg-ing standards outweighed the benefits of applying the residential facilities standards.

Consequently, in the NPRM, the Department proposed a new Sec. 35.151(f) that provided that residence halls or dormitories operated by or on behalf of places of education shall comply with the provisions of the proposed standards for transient lodging, including, but not limited to, the provisions in sec-tions 224 and 806 of the 2004 ADAAG.

Both public and private school housing facilities have varied characteristics. College and university housing facilities typically pro-vide housing for up to one academic year, but may be closed during school vacation periods. In the summer, they are often used for short-term stays of one to three days, a week, or several months. Graduate and faculty housing is often provided year-round in the form of apartments, which may serve individuals or families with children. These housing facilities are diverse in their layout.

Some are double-occupancy rooms with a shared toilet and bathing room, which may be

20 - Guidance on 2010 Standards: Title II inside or outside the unit. Others may contain cluster, suite, or group arrangements where several rooms are located inside a defined unit with bathing, kitchen, and similar com-mon facilities. In some cases, these suites are indistinguishable in features from tradi-tional apartments. Universities may build their own housing facilities or enter into agree-ments with private developers to build, own, or lease housing to the educational institution or to its students. Academic housing may be located on the campus of the university or may be located in nearby neighborhoods.

Throughout the school year and the sum-mer, academic housing can become pro-gram areas in which small groups meet, receptions and educational sessions are held, and social activities occur. The abil-ity to move between rooms--both acces-sible rooms and standard rooms--in order to socialize, to study, and to use all public use and common use areas is an essential part of having access to these educational programs and activities.