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    Guidance 2010 ada_standards_prt Guidance 2010 ada_standards_prt Document Transcript

    • Guidance on the2010 ADA Standardsfor 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, 2010i
    • Contents1 Introduction........…………………....….………......12 State and Local Government Facilities: Guidance on the Revisions to 28 CFR 35.151....33 Public Accommodations and Commercial Facilities: Guidance on the Revisions to 28 CFR part 36, subpart D.............…….……..394 Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible Design…......................................69 ii
    • iii
    • 1 IntroductionThe Department of Justice published its revised regulations forTitles II and III of the Americans with Disabilities Act of 1990 “ADA”in the Federal Register on September 15, 2010, which includethe 2010 Standards for Accessible Design “2010 Standards” or“Standards”. In the revised regulations, the Department includeddetailed guidance with a section-by-section analysis of therevisions.The following includes guidance from the revised regulationsrelated to 28 CFR 35.151; 28 CFR part 36, subpart D; andthe 2004 ADAAG. It addresses changes to the Standards,the reasoning behind those changes, and responses to publiccomments received on these topicsFor More InformationFor information about the ADA, including the revised 2010 ADAregulations, please visit the Department’s website www.ADA.gov; or, for answers to specific questions, call the toll-free ADAInformation Line at 800-514-0301 (voice) or 800-514-0383 (TTY). 1
    • 2
    • 2 State and Local Government Facilities 3
    • 4 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II RegulationState and Local Government Section 35.151(b) AlterationsFacilities: Guidance on the The 1991 title II regulation does not con-Revisions to 28 CFR Section tain any specific regulatory language com-35.151 parable to the 1991 title III regulation relating to alterations and path of travel for cov- Section 35.151(a), which provided that ered entities, although the 1991 Standardsthose facilities that are constructed or altered describe standards for path of travel duringby, on behalf of, or for the use of a public alterations to a primary function. See 28 CFRentity shall be designed, constructed, or part 36, app A., section 4.1.6(a) (2009).altered to be readily accessible to and usableby individuals with disabilities, is unchanged The path of travel requirements con-in the final rule, but has been redesignated tained in the title III regulation are basedas Sec. 35.151(a)(1). The Department has on section 303(a)(2) of the ADA, 42 U.S.C.added a new section, designated as Sec. 12183(a)(2), which provides that when an35.151(a)(2), to provide that full compliance entity undertakes an alteration to a place ofwith the requirements of this section is not public accommodation or commercial facil-required where an entity can demonstrate ity that affects or could affect the usabil-that it is structurally impracticable to meet ity of or access to an area that containsthe requirements. Full compliance will be a primary function, the entity shall ensureconsidered structurally impracticable only in that, to the maximum extent feasible, thethose rare circumstances when the unique path of travel to the altered area--and thecharacteristics of terrain prevent the incorpo- restrooms, telephones, and drinking foun-ration of accessibility features. This excep- tains serving it--is readily accessible totion was contained in the title III regulation and usable by individuals with disabilities,and in the 1991 Standards (applicable to including individuals who use wheelchairs.both public accommodations and facilitiesused by public entities), so it has applied The NPRM proposed amendingto any covered facility that was constructed Sec. 35.151 to add both the path of travelunder the 1991 Standards since the effective requirements and the exemption relatingdate of the ADA. The Department added it to barrier removal (as modified to apply toto the text of Sec. 35.151 to maintain con- the program accessibility standard in titlesistency between the design requirements II) that are contained in the title III regula-that apply under title II and those that apply tion to the title II regulation. Proposedunder title III. The Department received no Sec. 35.151(b)(4) contained the require-significant comments about this section. ments for path of travel. ProposedDepartment of Justice Guidance on 2010 Standards: Title II - 5
    • Section 35.151 -- Title II RegulationSec. 35.151(b)(2) stated that the path of The Department is not changing thetravel requirements of Sec. 35.151(b)(4) shall requirements for program accessibility. Asnot apply to measures taken solely to comply provided in Sec. 35.151(b)(2) of the regula-with program accessibility requirements. tion, the path of travel requirements of Sec. 35.151(b)(4) only apply to alterations under- Where the specific requirements for path taken solely for purposes other than to meetof travel apply under title III, they are lim- the program accessibility requirements.ited to the extent that the cost and scope The exemption for the specific path of travelof alterations to the path of travel are dis- requirement was included in the regula-proportionate to the cost of the overall tion to ensure that the specific requirementsalteration, as determined under criteria and disproportionality exceptions for path ofestablished by the Attorney General. travel are not applied when areas are being altered to meet the title II program accessibil- The Access Board included the path of ity requirements in Sec. 35.150. In contrast,travel requirement for alterations to facilities when areas are being altered to meet pro-covered by the standards (other than those gram accessibility requirements, they mustsubject to the residential facilities standards) comply with all of the applicable require-in section 202.4 of 2004 ADAAG. Section ments referenced in section 202 of the 201035.151(b)(4)(iii) of the final rule establishes Standards. A covered title II entity must pro-the criteria for determining when the cost of vide accessibility to meet the requirementsalterations to the path of travel is “dispropor- of Sec. 35.150 unless doing so is an unduetionate’’ to the cost of the overall alteration. financial and administrative burden in accor- dance with Sec. 35.150(a)(3). A covered title The NPRM also provided that areas II entity may not use the disproportionalitysuch as supply storage rooms, employee exception contained in the path of travel pro-lounges and locker rooms, janitorial closets, visions as a defense to providing an acces-entrances, and corridors are not areas con- sible route as part of its obligation to providetaining a primary function. Nor are restroom program accessibility. The undue financialareas considered to contain a primary func- and administrative burden standard doestion unless the provision of restrooms is a not contain any bright line financial tests.primary purpose of the facility, such as at ahighway rest stop. In that situation, a rest- The Department’s proposedroom would be considered to be an “area Sec. 35.151(b)(4) adopted the languagecontaining a primary function’’ of the facility. now contained in Sec. 36.403 of the title III regulation, including the disproportion- ality limitation (i.e., alterations made to6 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationprovide an accessible path of travel to the ensure that persons with disabilities can getaltered area would be deemed dispropor- to the physical location in which programstionate to the overall alteration when the are held. Otherwise, they will not be able tocost exceeds 20 percent of the cost of the access the public entity’s service, program,alteration to the primary function area). or activity. Such access is a cornerstone ofProposed Sec. 35.151(b)(2) provided that the protections provided by the ADA. Anotherthe path of travel requirements do not apply commenter argued that it would be a waste ofto alterations undertaken solely to comply money to create an accessible facility withoutwith program accessibility requirements. having a way to get to the primary area. This commenter also stated that the International The Department received a substan- Building Code (IBC) requires the path of trav-tial number of comments objecting to the el to a primary function area, up to 20 percentDepartment’s adoption of the exemption for of the cost of the project. Another commenterthe path of travel requirements when altera- opposed the exemption, stating that the trig-tions are undertaken solely to meet program ger of an alteration is frequently the onlyaccessibility requirements. These comment- time that a facility must update its facilities toers argued that the Department had no statu- comply with evolving accessibility standards.tory basis for providing this exemption nordoes it serve any purpose. In addition, these In the Department’s view, the comment-commenters argued that the path of travel ers objecting to the path of travel exemptionexemption has the effect of placing new limi- contained in Sec. 35.151(b)(2) did not under-tations on the obligations to provide program stand the intention behind the exemption.access. A number of commenters argued that The exemption was not intended to eliminatedoing away with the path of travel require- any existing requirements related to acces-ment would render meaningless the concept sibility for alterations undertaken in orderof program access. They argued that just as to meet program access obligations underthe requirement to provide an accessible path Sec. 35.149 and Sec. 35.150. Rather, it wasof travel to an altered area (regardless of the intended to ensure that covered entities didreason for the alteration), including making not apply the path of travel requirements inthe restrooms, telephones, and drinking foun- lieu of the overarching requirements in thistains that serve the altered area accessible, Subpart that apply when making a facilityis a necessary requirement in other altera- accessible in order to comply with programtions, it is equally necessary for alterations accessibility. The exemption was also intend-made to provide program access. Several ed to make it clear that the disproportionalitycommenters expressed concern that a read- test contained in the path of travel standardsily accessible path of travel be available to is not applicable in determining whetherDepartment of Justice Guidance on 2010 Standards: Title II - 7
    • Section 35.151 -- Title II Regulationproviding program access results in an undue burden, the public entity would neverthelessfinancial and administration burden within the be required to take some other action thatmeaning of Sec. 35.150(a)(3). The exemp- would not result in such an alteration or suchtion was also provided to maintain consis- burdens but would ensure that the benefitstency with the title III path of travel exemption and services provided by the public entity arefor barrier removal, see Sec. 36.304(d), in readily accessible to persons with disabilities.keeping with the Department’s regulatory When the public entity is making modifica-authority under title II of the ADA. See 42 tions to meet its program access obligation,U.S.C. 12134(b); see also H. R Rep. No. it may not rely on the path of travel excep-101B485, pt. 2, at 84 (1990) (“The committee tion under Sec. 35.151(b)(4), which limitsintends, however, that the forms of discrimi- the requirement to those alterations wherenation prohibited by section 202 be identi- the cost and scope of the alterations arecal to those set out in the applicable provi- not disproportionate to the cost and scopesions of titles I and III of this legislation.’’). of the overall alterations. If the public entity later decides to alter courtrooms in the other For title II entities, the path of travel building, for purposes of updating the facilityrequirements are of significance in those (and, as previously stated, has met its pro-cases where an alteration is being made gram access obligations) then in that case,solely for reasons other than program acces- the public entity would have to comply withsibility. For example, a public entity might the path of travel requirements in the 2010have six courtrooms in two existing buildings Standards subject to the disproportionalityand might determine that only three of those exception set forth in Sec. 35.151(b)(4).courtrooms and the public use and commonuse areas serving those courtrooms in one The Department has slightly revised pro-building are needed to be made accessible posed Sec. 35.151(b)(2) to make it clearerin order to satisfy its program access obliga- that the path of travel requirements onlytions. When the public entity makes those apply when alterations are undertaken solelycourtrooms and the public use and common for purposes other than program accessibility.use areas serving them accessible in orderto meet its program access obligations, it Section 35.151(b)(4)(ii)(C)will have to comply with the 2010 Standards Path of travel--safe harborunless the public entity can demonstrate thatfull compliance would result in undue finan- In Sec. 35.151(b)(4)(ii)(C) of the NPRM, thecial and administrative burdens as described Department included a provision that statedin Sec. 35.150(a)(3). If such action would that public entities that have brought requiredresult in an undue financial or administrative elements of path of travel into compliance8 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationwith the 1991 Standards are not required implements that delegation of authority.to retrofit those elements in order to reflect One commenter proposed that a previ-incremental changes in the 2010 Standards ous record of barrier removal be one ofsolely because of an alteration to a primary the factors in determining, prospectively,function area that is served by that path what renders a facility, when viewed inof travel. In these circumstances, the pub- its entirety, usable and accessible tolic entity is entitled to a safe harbor and is persons with disabilities. Another com-only required to modify elements to comply menter asked the Department to clarify,with the 2010 Standards if the public entity at a minimum, that to the extent compli-is planning an alteration to the element. ance with the 1991 Standards does not provide program access, particularly with A substantial number of commenters regard to areas not specifically addressedobjected to the Department’s imposition of in the 1991 Standards, the safe harbora safe harbor for alterations to facilities of will not operate to relieve an entity of itspublic entities that comply with the 1991 obligations to provide program access.Standards. These commenters arguedthat if a public entity is already in the pro- One commenter supported the proposalcess of altering its facility, there should be to add a safe harbor for path of travel.a legal requirement that individuals withdisabilities be entitled to increased acces- The final rule retains the safe harborsibility by using the 2010 Standards for for required elements of a path of travel topath of travel work. They also stated that altered primary function areas for public enti-they did not believe there was a statu- ties that have already complied with the 1991tory basis for “grandfathering’’ facilities Standards with respect to those requiredthat comply with the 1991 Standards. elements. The Department believes that this safe harbor strikes an appropriate balance The ADA is silent on the issue of “grand- between ensuring that individuals with dis-fathering’’ or establishing a safe harbor for abilities are provided access to buildings andmeasuring compliance in situations where facilities and potential financial burdens onthe covered entity is not undertaking a existing public entities that are undertakingplanned alteration to specific building ele- alterations subject to the 2010 Standards.ments. The ADA delegates to the Attorney This safe harbor is not a blanket exemptionGeneral the responsibility for issuing regula- for facilities. If a public entity undertakes antions that define the parameters of covered alteration to a primary function area, onlyentities’ obligations when the statute does the required elements of a path of travel tonot directly address an issue. This regulation that area that already comply with the 1991Department of Justice Guidance on 2010 Standards: Title II - 9
    • Section 35.151 -- Title II RegulationStandards are subject to the safe harbor. If Section 35.151(c) Accessibilitya public entity undertakes an alteration to a standards for new construction andprimary function area and the required ele- alterationsments of a path of travel to the altered areado not comply with the 1991 Standards, then Section 35.151(c) of the NPRM proposedthe public entity must bring those elements to adopt ADA Chapter 1, ADA Chapter 2, andinto compliance with the 2010 Standards. Chapters 3 through 10 of the Americans with Disabilities Act and Architectural BarriersSection 35.151(b)(3) Act Guidelines (2004 ADAAG) into the ADAAlterations to historic facilities Standards for Accessible Design (2010 Standards). As the Department has noted, The final rule renumbers the requirements the development of these standards repre-for alterations to historic facilities enumer- sents the culmination of a lengthy effort byated in current Sec. 35.151(d)(1) and (2) as the Access Board to update its guidelines,Sec. 35.151(b)(3)(i) and (ii). Currently, the to make the Federal guidelines consistent toregulation provides that alterations to his- the extent permitted by law, and to harmonizetoric facilities shall comply to the maximum the Federal requirements with the privateextent feasible with section 4.1.7 of UFAS sector model codes that form the basis ofor section 4.1.7 of the 1991 Standards. See many State and local building code require-28 CFR 35.151(d)(1). Section 35.151(b)(3) ments. The full text of the 2010 Standards(i) of the final rule eliminates the option of is available for public review on the ADAusing UFAS for alterations that commence Home Page (http://www.ada.gov) and on theon or after March 15, 2012. The substan- Access Board’s Web site (http://www.access-tive requirement in current Sec. 35.151(d) board.gov/gs.htm) (last visited June 24,(2)--that alternative methods of access shall 2010). The Access Board site also includesbe provided pursuant to the requirements an extensive discussion of the develop-of Sec. 35.150 if it is not feasible to provide ment of the 2004 ADA/ABA Guidelines,physical access to an historic property in and a detailed comparison of the 1991a manner that will not threaten or destroy Standards, the 2004 ADA/ABA Guidelines,the historic significance of the building or and the 2003 International Building Code.facility--is contained in Sec. 35.151(b)(3)(ii). 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 by10 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationthe Access Board. The Attorney General Section 35.151(c) of the 1991 title II(or his designee) is a statutory member of regulation establishes two standards forthe Access Board (see 29 U.S.C. 792(a) accessible new construction and alteration.(1)(B(vii)) and was involved in the develop- Under paragraph (c), design, construction,ment of the 2004 ADAAG. Nevertheless, or alteration of facilities in conformance withduring the process of drafting the NPRM, UFAS or with the 1991 Standards (which,the Department reviewed the 2004 ADAAG at the time of the publication of the ruleto determine if additional regulatory provi- were also referred to as the Americans withsions were necessary. As a result of this Disabilities Act Accessibility Guidelines forreview, the Department decided to propose Buildings and Facilities (1991 ADAAG)) isnew sections, which were contained in deemed to comply with the requirementsSec. 35.151(e)(h) of the NPRM, to clarify of this section with respect to those facili-how the Department will apply the proposed ties (except that if the 1991 Standards arestandards to social service center estab- chosen, the elevator exemption does notlishments, housing at places of education, apply). The 1991 Standards were based onassembly areas, and medical care facilities. the 1991 ADAAG, which was initially devel-Each of these provisions is discussed below. oped by the Access Board as guidelines for the accessibility of buildings and facilities Congress anticipated that there would that are subject to title III. The Departmentbe a need for close coordination of the ADA adopted the 1991 ADAAG as the standardsbuilding requirements with State and local for places of public accommodation andbuilding code requirements. Therefore, the commercial facilities under title III of theADA authorized the Attorney General to ADA and it was published as Appendix Aestablish an ADA code certification process to the Department’s regulation implement-under title III of the ADA. That process is ing title III, 56 FR 35592 (July 26, 1991) asaddressed in 28 CFR part 36, subpart F. amended, 58 FR 17522 (April 5, 1993), andRevisions to that process are addressed in as further amended, 59 FR 2675 (Jan. 18,the regulation amending the title III regula- 1994), codified at 28 CFR part 36 (2009).tion published elsewhere in the FederalRegister today. In addition, the Department Section 35.151(c) of the final rule adoptsoperates an extensive technical assistance the 2010 Standards and establishes theprogram. The Department anticipates that compliance date and triggering events foronce this rule is final, revised technical the application of those standards to bothassistance material will be issued to pro- new construction and alterations. Appendixvide guidance about its implementation. B of the final title III rule (Analysis andDepartment of Justice Guidance on 2010 Standards: Title II - 11
    • Section 35.151 -- Title II RegulationCommentary on the 2010 ADA Standards for 42 U.S.C. 12183(a)(1). For new constructionAccessible Design) (which will be published under title III, the requirements appliedtoday elsewhere in this volume and codified to facilities designed and constructed foras Appendix B to 28 CFR part 36) provides a first occupancy after January 26, 1993--description of the major changes in the 2010 18 months after the 1991 Standards wereStandards (as compared to the 1991 ADAAG) published by the Department. In the NPRM,and a discussion of the public comments that the Department proposed to amendthe Department received on specific sections Sec. 35.151(c)(1) by revising the currentof the 2004 ADAAG. A number of comment- language to limit the application of the 1991ers asked the Department to revise certain standards to facilities on which constructionprovisions in the 2004 ADAAG in a manner commences within six months of the finalthat would reduce either the required scop- rule adopting revised standards. The NPRMing or specific technical accessibility require- also proposed adding paragraph (c)(2) toments. As previously stated, although the Sec. 35.151, which states that facilities onADA requires the enforceable standards which construction commences on or afterissued by the Department under title II and the date six months following the effectivetitle III to be consistent with the minimum date of the final rule shall comply with theguidelines published by the Access Board, proposed standards adopted by that rule.it is the sole responsibility of the AttorneyGeneral to promulgate standards and to As a result, under the NPRM, for the firstinterpret and enforce those standards. The six months after the effective date, publicguidelines adopted by the Access Board are entities would have the option to use either“minimum guidelines.’’ 42 U.S.C. 12186(c). UFAS or the 1991 Standards and be in compliance with title II. Six months after theCompliance date. When the ADA was effective date of the rule, the new standardsenacted, the effective dates for various would take effect. At that time, constructionprovisions were delayed in order to provide in accordance with UFAS would no longertime for covered entities to become familiar satisfy ADA requirements. The Departmentwith their new obligations. Titles II and III stated that in order to avoid placing the bur-of the ADA generally became effective on den of complying with both standards onJanuary 26, 1992, six months after the public entities, the Department would coor-regulations were published. See 42 U.S.C. dinate a government-wide effort to revise12131 note; 42 U.S.C. 12181 note. New Federal agencies’ section 504 regulationsconstruction under title II and alterations to adopt the 2004 ADAAG as the standardunder either title II or title III had to comply for new construction and alterations.with the design standards on that date. See12 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulation The purpose of the proposed six-month that the effective date be extended to at leastdelay in requiring compliance with the 2010 18 months after the publication of the rule.Standards was to allow covered entities a One of these commenters expressed con-reasonable grace period to transition between cern that the kinds of bureaucratic organiza-the existing and the proposed standards. For tions subject to the title II regulations lackthat reason, if a title II entity preferred to use the internal resources to quickly evaluate thethe 2010 Standards as the standard for new regulatory changes, determine whether theyconstruction or alterations commenced within are currently compliant with the 1991 stan-the six-month period after the effective date dards, and determine what they have to doof the final rule, such entity would be consid- to comply with the new standards. The otherered in compliance with title II of the ADA. commenter argued that 18 months is the minimum amount of time necessary to ensure The Department received a number of that projects that have already been designedcomments about the proposed six-month and approved do not have to undergo costlyeffective date for the title II regulation that design revisions at taxpayer expense.were similar in content to those received onthis issue for the proposed title III regula- The Department is persuaded by the con-tion. Several commenters supported the six- cerns raised by commenters for both themonth effective date. One commenter stated title II and III regulations that the six-monththat any revisions to its State building code compliance date proposed in the NPRM forbecomes effective six months after adop- application of the 2010 Standards may betion and that this has worked well. In addi- too short for certain projects that are alreadytion, this commenter stated that since 2004 in the midst of the design and permittingADAAG is similar to IBC 2006 and ICC/ANSI process. The Department has determinedA117.1-2003, the transition should be easy. that for new construction and alterations,By contrast, another commenter advocated compliance with the 2010 Standards willfor a minimum 12-month effective date, argu- not be required until 18 months from theing that a shorter effective date could cause date the final rule is published. Until thesubstantial economic hardships to many cit- time compliance with the 2010 Standards isies and towns because of the lengthy lead required, public entities will have the optiontime necessary for construction projects. of complying with the 2010 Standards, theThis commenter was concerned that a six- UFAS, or the 1991 Standards. However,month effective date could lead to projects public entities that choose to comply withhaving to be completely redrawn, rebid, and the 2010 Standards in lieu of the 1991rescheduled to ensure compliance with the Standards or UFAS prior to the compliancenew standards. Other commenters advocated date described in this rule must chooseDepartment of Justice Guidance on 2010 Standards: Title II - 13
    • Section 35.151 -- Title II Regulationone of the three standards, and may not Section 234 of the 2010 Standards pro-rely on some of the requirements contained vides accessibility guidelines for newlyin one standard and some of the require- designed and constructed amusement rides.ments contained in the other standards. The amusement ride provisions do not pro- vide a “triggering event’’ for new construc-Triggering event. In Sec. 35.151(c)(2) of the tion or alteration of an amusement ride. AnNPRM, the Department proposed that the industry commenter requested that the trig-commencement of construction serve as the gering event of “first use,’’ as noted in thetriggering event for applying the proposed Advisory note to section 234.1 of the 2004standards to new construction and alterations ADAAG, be included in the final rule. Theunder title II. This language is consistent with Advisory note provides that “[a] customthe triggering event set forth in designed and constructed ride is new uponSec. 35.151(a) of the 1991 title II regula- its first use, which is the first time amusementtion. The Department received only four park patrons take the ride.’’ The Departmentcomments on this section of the title II declines to treat amusement rides differ-rule. Three commenters supported the ently than other types of new constructionuse of “start of construction’’ as the trig- and alterations. Under the final rule, they aregering event. One commenter argued that subject to Sec. 35.151(c). Thus, newly con-the Department should use the “last build- structed and altered amusement rides shalling permit or start of physical construction, comply with the 2010 Standards if the startwhichever comes first,’’ stating that “alter- of physical construction or the alteration ising a design after a building permit has on or after 18 months from the publicationbeen issued can be an undue burden.’’ date of this rule. The Department also notes that section 234.4.2 of the 2010 Standards After considering these comments, the only applies where the structural or opera-Department has decided to continue to use tional characteristics of an amusement ridethe commencement of physical construc- are altered. It does not apply in cases wheretion as the triggering event for application of the only change to a ride is the theme.the 2010 Standards for entities covered bytitle II. The Department has also added Noncomplying new construction andclarifying language at Sec. 35.151(c) alterations. The element-by-element safe(4) to the regulation to make it clear that harbor referenced in Sec. 35.150(b)(2)the date of ceremonial groundbreaking has no effect on new or altered elementsor the date a structure is razed to make in existing facilities that were subject toit possible for construction of a facility to the 1991 Standards or UFAS on the datetake place does not qualify as the com- that they were constructed or altered,mencement of physical construction.14 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationbut do not comply with the technical and to the operational requirements established inscoping specifications for those elements this final rule. Although the Department mayin the 1991 Standards or UFAS. Section use the requirements of the 2010 Standards35.151(c)(5) of the final rule sets forth the as a guide to determining when and howrules for noncompliant new construction or to make equipment and furnishings acces-alterations in facilities that were subject to sible, those determinations fall within thethe requirements of this part. Under those discretionary authority of the Department.provisions, noncomplying new constructionand alterations constructed or altered The Department also wishes to clarifyafter the effective date of the applicable that the advisory notes, appendix notes,ADA requirements and before March 15, and figures that accompany the 1991 and2012 shall, before March 15, 2012, be 2010 Standards do not establish separatelymade accessible in accordance with either enforceable requirements unless specificallythe 1991 Standards, UFAS, or the 2010 stated otherwise in the text of the standards.Standards. Noncomplying new construction This clarification has been made to addressand alterations constructed or altered after concerns expressed by ANPRM comment-the effective date of the applicable ADA ers who mistakenly believed that the advi-requirements and before March 15, 2012, sory notes in the 2004 ADAAG establishedshall, on or after March 15, 2012 be made requirements beyond those established in theaccessible in accordance with the 2010 text of the guidelines (e.g., Advisory 504.4Standards. suggests, but does not require, that cov- ered entities provide visual contrast on stairSection 35.151(d) Scope of coverage tread nosing to make them more visible to individuals with low vision). The Department In the NPRM, the Department proposed received no significant comments on thisa new provision, Sec. 35.151(d), to clarify section and it is unchanged in the final rule.that the requirements established bySec. 35.151, including those contained in Definitions of residential facilities andthe 2004 ADAAG, prescribe what is neces- transient lodging. The 2010 Standards addsary to ensure that buildings and facilities, a definition of “residential dwelling unit’’ andincluding fixed or built-in elements in new or modify the current definition of “transientaltered facilities, are accessible to individu- lodging.’’ Under section 106.5 of the 2010als with disabilities. Once the construction or Standards, “residential dwelling unit’’ isalteration of a facility has been completed, defined as “[a] unit intended to be usedall other aspects of programs, services, and as a residence, that is primarily long-termactivities conducted in that facility are subject in nature’’ and does not include transientDepartment of Justice Guidance on 2010 Standards: Title II - 15
    • Section 35.151 -- Title II Regulationlodging, inpatient medical care, licensed serving those crew quarters to meet thelong-term care, and detention or correctional 2004 ADAAG. In addition, the commenterfacilities. Additionally, section 106.5 of the argued that applying the transient lodging2010 Standards changes the definition of standards would impose significant costs“transient lodging’’ to a building or facility and create living space that is less usable“containing one or more guest room(s) for for most emergency response personnel.sleeping that provides accommodations thatare primarily short-term in nature.’’ “Transient The ADA does not exempt spaces becauselodging’’ does not include residential dwelling of a belief or policy that excludes personsunits intended to be used as a residence. with disabilities from certain work. However,The references to “dwelling units’’ and the Department believes that crew quarters“dormitories’’ that are in the definition of the that are used exclusively as a residence1991 Standards are omitted from the 2010 by emergency response personnel and theStandards. kitchens and bathrooms exclusively serv- ing those quarters are more like residential The comments about the application of dwelling units and are therefore coveredtransient lodging or residential standards by the residential dwelling standards in theto social service center establishments, 2010 Standards, not the transient lodgingand housing at a place of education are standards. The residential dwelling stan-addressed separately below. The Department dards address most of the concerns of thereceived one additional comment on this commenter. For example, the commenterissue from an organization representing was concerned that sinks in kitchens andemergency response personnel seeking lavatories in bathrooms that are accessiblean exemption from the transient lodging under the transient lodging standards wouldaccessibility requirements for crew quar- be too low to be comfortably used by emer-ters and common use areas serving those gency response personnel. The residentialcrew quarters (e.g., locker rooms, exercise dwelling standards allow such features torooms, day room) that are used exclusively be adaptable so that they would not have toby on-duty emergency response person- be lowered until accessibility was needed.nel and that are not used for any public Similarly, grab bars and shower seats wouldpurpose. The commenter argued that since not have to be installed at the time of con-emergency response personnel must meet struction provided that reinforcement hascertain physical qualifications that have been installed in walls and located so asthe effect of exempting persons with mobil- to permit their installation at a later date.ity disabilities, there is no need to buildcrew quarters and common use areas16 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II RegulationSection 35.151(e) substantial percentage of social service cen-Social service center establishments ter establishments are recipients of Federal financial assistance from the Department of In the NPRM, the Department proposed a Housing and Urban Development (HUD). Thenew Sec. 35.151(e) requiring group homes, Department of Health and Human Serviceshalfway houses, shelters, or similar social (HHS) also provides financial assistanceservice center establishments that provide for the operation of shelters through thetemporary sleeping accommodations or Administration for Children and Families pro-residential dwelling units to comply with the grams. As such, these establishments areprovisions of the 2004 ADAAG that apply to covered both by the ADA and section 504residential facilities, including, but not limited of the Rehabilitation Act. UFAS is currentlyto, the provisions in sections 233 and 809. the design standard for new construction and alterations for entities subject to section The NPRM explained that this proposal 504. The two design standards for accessi-was based on two important changes in bility--the 1991 Standards and UFAS--havethe 2004 ADAAG. First, for the first time, confronted many social service providersresidential dwelling units are explicitly cov- with separate, and sometimes conflicting,ered in the 2004 ADAAG in section 233. requirements for design and constructionSecond, the 2004 ADAAG eliminates the of facilities. To resolve these conflicts, thelanguage contained in the 1991 Standards residential facilities standards in the 2004addressing scoping and technical require- ADAAG have been coordinated with the sec-ments for homeless shelters, group homes, tion 504 requirements. The transient lodgingand similar social service center establish- standards, however, are not similarly coordi-ments. Currently, such establishments are nated. The deletion of section 9.5 of the 1991covered in section 9.5 of the transient lodg- Standards from the 2004 ADAAG presenteding section of the 1991 Standards. The two options: (1) Require coverage under thedeletion of section 9.5 creates an ambigu- transient lodging standards, and subject suchity of coverage that must be addressed. facilities to separate, conflicting requirements for design and construction; or (2) require The NPRM explained the Department’s coverage under the residential facilities stan-belief that transferring coverage of social dards, which would harmonize the regulatoryservice center establishments from the tran- requirements under the ADA and section 504.sient lodging standards to the residential The Department chose the option that harmo-facilities standards would alleviate conflict- nizes the regulatory requirements: coverageing requirements for social service center under the residential facilities standards.providers. The Department believes that aDepartment of Justice Guidance on 2010 Standards: Title II - 17
    • Section 35.151 -- Title II Regulation In the NPRM, the Department expressed confusion and inaction that are sometimesconcern that the residential facilities stan- caused by the current existence of mul-dards do not include a requirement for clear tiple requirements. One commenter alsofloor space next to beds similar to the require- stated that “it makes sense to treat socialment in the transient lodging standards and service center establishments like resi-as a result, the Department proposed adding dential facilities because this is how thesea provision that would require certain social establishments function in practice.’’service center establishments that providesleeping rooms with more than 25 beds to Two commenters agreed with apply-ensure that a minimum of 5 percent of the ing the residential facilities requirementsbeds have clear floor space in accordance to social service center establishmentswith section 806.2.3 or 2004 ADAAG. but recommended adding a require- ment for various bathing options, such In the NPRM, the Department requested as a roll-in shower (which is not requiredinformation from providers who oper- under the residential standards).ate homeless shelters, transient grouphomes, halfway houses, and other social One commenter objected to the changeservice center establishments, and from and asked the Department to require thatthe clients of these facilities who would be social service center establishments con-affected by this proposed change, asking, tinue to comply with the transient lodg-“[t]o what extent have conflicts between the ing standards. One commenter statedADA and section 504 affected these facili- that it did not agree that the standards forties? What would be the effect of applying residential coverage would serve personsthe residential dwelling unit requirements with disabilities as well as the 1991 tran-to these facilities, rather than the require- sient lodging standards. This commenterments for transient lodging guest rooms?’’ expressed concern that the Department73 FR 34466, 34491 (June 17, 2008). had eliminated guidance for social service agencies and that the rule should be put on Many of the commenters supported apply- hold until those safeguards are restored.ing the residential facilities requirements to Another commenter argued that the rulesocial service center establishments, stat- that would provide the greatest access foring that even though the residential facili- persons with disabilities should prevail.ties requirements are less demanding insome instances, the existence of one clear Several commenters argued for the appli-standard will result in an overall increased cation of the transient lodging standards to alllevel of accessibility by eliminating the social service center establishments except18 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationthose that were “intended as a person’s place relevant provisions of section 608 of the 2010of abode,’’ referencing the Department’s Standards. Transfer-type showers are notquestion related to the definition of “place permitted in lieu of a roll-in shower with a seatof lodging’’ in the title III NPRM. One com- and the exceptions in sections 608.3 andmenter stated that the International Building 608.4 for residential dwelling units are notCode requires accessible units in all tran- permitted. When separate shower facilitiessient facilities. The commenter expressed are provided for men and for women, at leastconcern that group homes should be built one roll-in shower shall be provided for eachto be accessible, rather than adaptable. group. This supplemental requirement to the residential facilities standards is in addition The Department continues to be con- to the supplemental requirement that wascerned about alleviating the challenges for proposed in the NPRM for clear floor spacesocial service providers that are also subject in sleeping rooms with more than 25 beds.to section 504 and would likely be subjectto conflicting requirements if the transient The Department also notes that whilelodging standards were applied. Thus, the dwelling units at some social service centerDepartment has retained the requirement that establishments are also subject to the Fairsocial service center establishments comply Housing Act (FHAct) design and construc-with the residential dwelling standards. The tion requirements that require certain fea-Department believes, however, that social tures of adaptable and accessible design,service center establishments that provide FHAct units do not provide the same levelemergency shelter to large transient popu- of accessibility that is required for residen-lations should be able to provide bathing tial facilities under the 2010 Standards.facilities that are accessible to persons with The FHAct requirements, where also appli-mobility disabilities who need roll-in show- cable, should not be considered a sub-ers. Because of the transient nature of the stitute for the 2010 Standards. Rather,population of these large shelters, it will not the 2010 Standards must be followed inbe feasible to modify bathing facilities in a addition to the FHAct requirements.timely manner when faced with a need toprovide a roll-in shower with a seat when The Department also notes that where-requested by an overnight visitor. As a result, as the NPRM used the term “social ser-the Department has added a requirement vice establishment,’’ the final rule usesthat social service center establishments with the term “social service center establish-sleeping accommodations for more than 50 ment.’’ The Department has made thisindividuals must provide at least one roll-in editorial change so that the final rule isshower with a seat that complies with the consistent with the terminology used in the ADA. See 42 U.S.C. 12181(7)(k).Department of Justice Guidance on 2010 Standards: Title II - 19
    • Section 35.151 -- Title II RegulationSection 35.151(f) facilities, allowing covered entities to electHousing at a place of education to follow the residential standards contained in UFAS. Although the 2004 ADAAG con- The Department of Justice and the tains provisions for both residential facili-Department of Education share responsi- ties and transient lodging, the guidelines dobility for regulation and enforcement of the not indicate which requirements apply toADA in postsecondary educational settings, housing provided in an educational setting,including its requirements for architectural leaving it to the adopting agencies to makefeatures. In addition, the Department of that choice. After evaluating both sets ofHousing and Urban Development (HUD) has standards, the Department concluded thatenforcement responsibility for housing sub- the benefits of applying the transient lodg-ject to title II of the ADA. Housing facilities in ing standards outweighed the benefits ofeducational settings range from traditional applying the residential facilities standards.residence halls and dormitories to apartment Consequently, in the NPRM, the Departmentor townhouse-style residences. In addition proposed a new Sec. 35.151(f) that providedto title II of the ADA, public universities and that residence halls or dormitories operatedschools that receive Federal financial assis- by or on behalf of places of education shalltance are also subject to section 504, which comply with the provisions of the proposedcontains its own accessibility requirements standards for transient lodging, including,through the application of UFAS. Residential but not limited to, the provisions in sec-housing in an educational setting is also tions 224 and 806 of the 2004 ADAAG.covered by the FHAct, which requires newlyconstructed multifamily housing to include Both public and private school housingcertain features of accessible and adaptable facilities have varied characteristics. Collegedesign. Covered entities subject to the ADA and university housing facilities typically pro-must always be aware of, and comply with, vide housing for up to one academic year,any other Federal statutes or regulations that but may be closed during school vacationgovern the operation of residential properties. periods. In the summer, they are often used for short-term stays of one to three days, Although the 1991 Standards mention a week, or several months. Graduate anddormitories as a form of transient lodging, faculty housing is often provided year-roundthey do not specifically address how the ADA in the form of apartments, which may serveapplies to dormitories or other types of resi- individuals or families with children. Thesedential housing provided in an educational housing facilities are diverse in their layout.setting. The 1991 Standards also do not Some are double-occupancy rooms with acontain any specific provisions for residential shared toilet and bathing room, which may be20 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationinside or outside the unit. Others may contain Elevators are not generally required undercluster, suite, or group arrangements where the 2004 ADAAG residential facilities stan-several rooms are located inside a defined dards unless they are needed to provideunit with bathing, kitchen, and similar com- an accessible route from accessible unitsmon facilities. In some cases, these suites to public use and common use areas, whileare indistinguishable in features from tradi- under the 2004 ADAAG as it applies to othertional apartments. Universities may build their types of facilities, multistory public facilitiesown housing facilities or enter into agree- must have elevators unless they meet veryments with private developers to build, own, specific exceptions. In addition, the residen-or lease housing to the educational institution tial facilities standards do not require acces-or to its students. Academic housing may be sible roll-in showers in bathrooms, while thelocated on the campus of the university or transient lodging requirements require somemay be located in nearby neighborhoods. of the accessible units to be served by bath- rooms with roll-in showers. The transient Throughout the school year and the sum- lodging standards also require that a greatermer, academic housing can become pro- number of units have accessible featuresgram areas in which small groups meet, for persons with communication disabilities.receptions and educational sessions are The transient lodging standards provide forheld, and social activities occur. The abil- installation of the required accessible fea-ity to move between rooms--both acces- tures so that they are available immediately,sible rooms and standard rooms--in order but the residential facilities standards allowto socialize, to study, and to use all public for certain features of the unit to be adapt-use and common use areas is an essential able. For example, only reinforcements forpart of having access to these educational grab bars need to be provided in residentialprograms and activities. Academic housing dwellings, but the actual grab bars must beis also used for short-term transient educa- installed under the transient lodging stan-tional programs during the time students are dards. By contrast, the residential facilitiesnot in regular residence and may be rented standards do require certain features thatout to transient visitors in a manner similar provide greater accessibility within units, suchto a hotel for special university functions. as more usable kitchens, and an accessible route throughout the dwelling. The residen- The Department was concerned that tial facilities standards also require 5 percentapplying the new construction requirements of the units to be accessible to persons withfor residential facilities to educational hous- mobility disabilities, which is a continuationing facilities could hinder access to educa- of the same scoping that is currently requiredtional programs for students with disabilities. under UFAS, and is therefore applicable toDepartment of Justice Guidance on 2010 Standards: Title II - 21
    • Section 35.151 -- Title II Regulationany educational institution that is covered by fact homes for the students who live in them.section 504. The transient lodging standards These commenters argued, however, thatrequire a lower percentage of accessible the Department should impose a requirementsleeping rooms for facilities with large num- for a variety of options for accessible bathingbers of rooms than is required by UFAS. For and should ensure that all floors of dormito-example, if a dormitory had 150 rooms, the ries be accessible so that students with dis-transient lodging standards would require abilities have the same opportunities to par-seven accessible rooms while the residen- ticipate in the life of the dormitory communitytial standards would require eight. In a large that are provided to students without disabili-dormitory with 500 rooms, the transient lodg- ties. Commenters representing persons withing standards would require 13 accessible disabilities and several individuals arguedrooms and the residential facilities standards that, although the transient lodging standardswould require 25. There are other differences may provide a few more accessible featuresbetween the two sets of standards as well (such as roll-in showers), the residential facili-with respect to requirements for accessible ties standards would ensure that studentswindows, alterations, kitchens, accessible with disabilities have access to all rooms inroute throughout a unit, and clear floor space their assigned unit, not just to the sleepingin bathrooms allowing for a side transfer. room, kitchenette, and wet bar. One com- menter stated that, in its view, the residen- In the NPRM, the Department requested tial facilities standards were congruent withpublic comment on how to scope educa- overlapping requirements from HUD, andtional housing facilities, asking, “[w]ould that access provided by the residential facili-the residential facility requirements or the ties requirements within alterations wouldtransient lodging requirements in the 2004 ensure dispersion of accessible featuresADAAG be more appropriate for housing at more effectively. This commenter also arguedplaces of education? How would the different that while the increased number of requiredrequirements affect the cost when building accessible units for residential facilities asnew dormitories and other student hous- compared to transient lodging may increaseing?’’ 73 FR 34466, 34492 (June 17, 2008). the cost of construction or alteration, this cost would be offset by a reduced need to adapt The vast majority of the comments rooms later if the demand for accessiblereceived by the Department advocated using rooms exceeds the supply. The commenterthe residential facilities standards for hous- also encouraged the Department to imposeing at a place of education instead of the a visitability (accessible doorways and nec-transient lodging standards, arguing that essary clear floor space for turning radius)housing at places of public education are in requirement for both the residential facilities22 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationand transient lodging requirements to allow The Department has determined that thestudents with mobility impairments to interact best approach to this type of housing is toand socialize in a fully integrated fashion. continue to require the application of tran- sient lodging standards, but at the same Two commenters supported the time to add several requirements drawn fromDepartment’s proposed approach. One the residential facilities standards relatedcommenter argued that the transient lodg- to accessible turning spaces and work sur-ing requirements in the 2004 ADAAG would faces in kitchens, and the accessible routeprovide greater accessibility and increase throughout the unit. This will ensure the main-the opportunity of students with disabilities tenance of the transient lodging standardto participate fully in campus life. A sec- requirements related to access to all floorsond commenter generally supported the of the facility, roll-in showers in facilities withprovision of accessible dwelling units at more than 50 sleeping rooms, and otherplaces of education, and pointed out that important accessibility features not found inthe relevant scoping in the International the residential facilities standards, but willBuilding Code requires accessible units also ensure usable kitchens and access“consistent with hotel accommodations.’’ to all the rooms in a suite or apartment. The Department has considered the com- The Department has added a new defini-ments recommending the use of the residen- tion to Sec. 35.104, “Housing at a Place oftial facilities standards and acknowledges Education,’’ and has revised Sec. 35.151(f)that they require certain features that are not to reflect the accessible features that nowincluded in the transient lodging standards will be required in addition to the require-and that should be required for housing pro- ments set forth under the transient lodgingvided at a place of education. In addition, standards. The Department also recognizesthe Department notes that since educational that some educational institutions provideinstitutions often use their academic hous- some residential housing on a year-rounding facilities as short-term transient lodging basis to graduate students and staff whichin the summers, it is important that acces- is comparable to private rental housing, andsible features be installed at the outset. It is which contains no facilities for educationalnot realistic to expect that the educational programming. Section 35.151(f)(3) exemptsinstitution will be able to adapt a unit in a from the transient lodging standards apart-timely manner in order to provide acces- ments or townhouse facilities provided bysible accommodations to someone attending or on behalf of a place of education that area one-week program during the summer. leased on a year-round basis exclusively to graduate students or faculty, and do notDepartment of Justice Guidance on 2010 Standards: Title II - 23
    • Section 35.151 -- Title II Regulationcontain any public use or common use areas this section in the final rule but has clarifiedavailable for educational programming; that the requirement applies to stadiums,instead, such housing shall comply with the arenas, and grandstands. In addition, therequirements for residential facilities in sec- Department has revised the phrase “wheel-tions 233 and 809 of the 2010 Standards. chair and companion seating locations’’ to “wheelchair spaces and companion seats.’’ Section 35.151(f) uses the term “sleep-ing room’’ in lieu of the term “guest room,’’ Section 35.151(g)(1) ensures that therewhich is the term used in the transient lodg- is greater dispersion of wheelchair spacesing standards. The Department is using and companion seats throughout stadi-this term because it believes that, for the ums, arenas, and grandstands than wouldmost part, it provides a better description otherwise be required by sections 221 andof the sleeping facilities used in a place 802 of the 2004 ADAAG. In some cases,of education than “guest room.’’ The final the accessible route may not be the samerule states that the Department intends the route that other individuals use to reachterms to be used interchangeably in the their seats. For example, if other patronsapplication of the transient lodging stan- reach their seats on the field by an inac-dards to housing at a place of education. cessible route (e.g., by stairs), but there is an accessible route that complies withSection 35.151(g) section 206.3 of the 2010 Standards thatAssembly areas could be connected to seats on the field, wheelchair spaces and companion seats In the NPRM, the Department pro- must be placed on the field even if that routeposed Sec. 35.151(g) to supplement the is not generally available to the public.assembly area requirements of the 2004ADAAG, which the Department is adopting Regulatory language that was included inas part of the 2010 Standards. The NPRM the 2004 ADAAG advisory, but that did notproposed at Sec. 35.151(g)(1) to require appear in the NPRM, has been added by thewheelchair spaces and companion seat- Department in Sec. 35.151(g)(2). Sectioning locations to be dispersed to all levels 35.151(g)(2) now requires an assemblyof the facility and are served by an acces- area that has seating encircling, in wholesible route. The Department received no or in part, a field of play or performancesignificant comments on this paragraph area such as an arena or stadium, to placeand has decided to adopt the proposed wheelchair spaces and companion seatslanguage with minor modifications. The around the entire facility. This rule, whichDepartment has retained the substance of is designed to prevent a public entity from24 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationplacing wheelchair spaces and compan- Department believes that permitting the useion seats on one side of the facility only, is of movable platforms that seat four or moreconsistent with the Department’s enforce- wheelchair users and their companions havement practices and reflects its interpretation the potential to reduce the number of avail-of section 4.33.3 of the 1991 Standards. able wheelchair seating spaces below the level required, thus reducing the opportuni- In the NPRM, the Department proposed ties for persons who need accessible seatingSec. 35.151(g)(2) which prohibits wheel- to have the same choice of ticket prices andchair spaces and companion seating loca- amenities that are available to other patronstions from being “located on, (or obstructed in the facility. In addition, use of removableby) temporary platforms or other move- platforms may result in instances whereable structures.’’ Through its enforcement last minute requests for wheelchair andactions, the Department discovered that companion seating cannot be met becausesome venues place wheelchair spaces and entire sections of accessible seating will becompanion seats on temporary platforms lost when a platform is removed. See 73that, when removed, reveal conventional FR 34466, 34493 (June 17, 2008). Further,seating underneath, or cover the wheel- use of temporary platforms allows facilitieschair spaces and companion seats with to limit persons who need accessible seat-temporary platforms on top of which they ing to certain seating areas, and to relegateplace risers of conventional seating. These accessible seating to less desirable loca-platforms cover groups of conventional tions. The use of temporary platforms hasseats and are used to provide groups of the effect of neutralizing dispersion and otherwheelchair seats and companion seats. seating requirements (e.g., line of sight) for wheelchair spaces and companion seats. Several commenters requested an excep- Cf. Independent Living Resources v. Oregontion to the prohibition of the use of temporary Arena Corp., 1 F. Supp. 2d 1159, 1171 (D.platforms for public entities that sell most Or. 1998) (holding that while a public accom-of their tickets on a season-ticket or other modation may “infill’’ wheelchair spaces withmulti-event basis. Such commenters argued removable seats when the wheelchair spacesthat they should be able to use temporary are not needed to accommodate individualsplatforms because they know, in advance, with disabilities, under certain circumstancesthat the patrons sitting in certain areas “[s]uch a practice might well violate the rulefor the whole season do not need wheel- that wheelchair spaces must be dispersedchair spaces and companion seats. The throughout the arena in a manner that isDepartment declines to adopt such an excep- roughly proportionate to the overall distribu-tion. As it explained in detail in the NPRM, the tion of seating’’). In addition, using temporaryDepartment of Justice Guidance on 2010 Standards: Title II - 25
    • Section 35.151 -- Title II Regulationplatforms to convert unsold wheelchair removable temporary individual seats appro-spaces to conventional seating undermines priately balances their economic concernsthe flexibility facilities need to accommodate with the rights of individuals with disabilities.secondary ticket markets exchanges as See section 221.2 of the 2010 Standards.required by Sec. 35.138(g) of the final rule. For stadium-style movie theaters, in As the Department explained in the NPRM, Sec. 35.151(g)(4) of the NPRM thehowever, this provision was not designed Department proposed requiring placement ofto prohibit temporary seating that increases wheelchair seating spaces and companionseating for events (e.g., placing temporary seats on a riser or cross-aisle in the stadiumseating on the floor of a basketball court section of the theater and placement of suchfor a concert). Consequently, the final rule, seating so that it satisfies at least one ofat Sec. 35.151(g)(3), has been amended the following criteria: (1) It is located withinto clarify that if an entire seating section the rear 60 percent of the seats providedis on a temporary platform for a particular in the auditorium; or (2) it is located withinevent, then wheelchair spaces and com- the area of the auditorium where the verti-panion seats may be in that seating section. cal viewing angles are between the 40th toHowever, adding a temporary platform to 100th percentile of vertical viewing anglescreate wheelchair spaces and companion for all seats in that theater as ranked fromseats that are otherwise dissimilar from the first row (1st percentile) to the backnearby fixed seating and then simply add- row (100th percentile). The vertical view-ing a small number of additional seats to ing angle is the angle between a horizontalthe platform would not qualify as an “entire line perpendicular to the seated viewer’sseating section’’ on the platform. In addi- eye to the screen and a line from the seatedtion, Sec. 35.151(g)(3) clarifies that facilities viewer’s eye to the top of the screen.may fill in wheelchair spaces with removableseats when the wheelchair spaces are not The Department proposed this bright-lineneeded by persons who use wheelchairs. rule for two reasons: (1) The movie theater industry petitioned for such a rule; and (2) the The Department has been responsive to Department has acquired expertise on theassembly areas’ concerns about reduced design of stadium style theaters from litigationrevenues due to unused accessible seating. against several major movie theater chains.Accordingly, the Department has reduced See U.S. v. AMC Entertainment, 232 F.scoping requirements significantly--by Supp. 2d 1092 (C.D. Ca. 2002), rev’d inalmost half in large assembly areas--and part, 549 F. 3d 760 (9th Cir. 2008); U.S. v.determined that allowing assembly areas to Cinemark USA, Inc., 348 F. 3d 569 (6th Cir.infill unsold wheelchair spaces with readily 2003), cert. denied, 542 U.S. 937 (2004).26 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II RegulationTwo industry commenters--at least one of fewer seats; stadium-style theaters of all siz-whom otherwise supported this rule--re- es must comply with this rule. So, for exam-quested that the Department explicitly state ple, stadium-style theaters that must verticallythat this rule does not apply retroactively to disperse wheelchair and companion seatsexisting theaters. Although this rule on its must do so within the parameters of this rule.face applies to new construction and altera-tions, these commenters were concerned The NPRM included a provision thatthat the rule could be interpreted to apply required assembly areas with more thanretroactively because of the Department’s 5,000 seats to provide at least five wheel-statement in the ANPRM that this bright- chair spaces with at least three compan-line rule, although newly-articulated, does ion seats for each of those five wheelchairnot represent a “substantive change from spaces. The Department agrees with com-the existing line-of-sight requirements’’ of menters who asserted that group seating issection 4.33.3 of the 1991 Standards. See better addressed through ticketing policies69 FR 58768, 58776 (Sept. 30, 2004). rather than design and has deleted that pro- vision from this section of the final rule. Although the Department intends forSec. 35.151(g)(4) of this rule to apply pro- Section 35.151(h)spectively to new construction and altera- Medical care facilitiestions, this rule is not a departure from, and isconsistent with, the line-of-sight requirements In the 1991 title II regulation, there wasin the 1991 Standards. The Department has no provision addressing the dispersion ofalways interpreted the line-of-sight require- accessible sleeping rooms in medical carements in the 1991 Standards to require facilities. The Department is aware, however,viewing angles provided to patrons who use of problems that individuals with disabilitieswheelchairs to be comparable to those afford- face in receiving full and equal medical careed to other spectators. Section 35.151(g)(4) when accessible sleeping rooms are not ade-merely represents the application of these quately dispersed. When accessible roomsrequirements to stadium-style movie theaters. are not fully dispersed, a person with a dis- ability is often placed in an accessible room One commenter from a trade association in an area that is not medically appropriatesought clarification whether Sec. 35.151(g)(4) for his or her condition, and is thus deniedapplies to stadium-style theaters with more quick access to staff with expertise in thatthan 300 seats, and argued that it should not medical specialty and specialized equipment.since dispersion requirements apply in those While the Access Board did not establishtheaters. The Department declines to limit specific design requirements for dispersionthis rule to stadium-style theaters with 300 orDepartment of Justice Guidance on 2010 Standards: Title II - 27
    • Section 35.151 -- Title II Regulationin the 2004 ADAAG, in response to exten- This does not require exact mathemati-sive comments in support of dispersion it cal proportionality, which at times would beadded an advisory note, Advisory 223.1 impossible. However, it does require thatGeneral, encouraging dispersion of acces- medical care facilities disperse their acces-sible rooms within the facility so that acces- sible rooms by medical specialty so thatsible rooms are more likely to be proximate persons with disabilities can, to the extentto appropriate qualified staff and resources. practical, stay in an accessible room within the wing or ward that is appropriate for their In the NPRM, the Department sought addi- medical needs. The language used in thistional comment on the issue, asking whether rule (“in a manner that is proportionate byit should require medical care facilities, type of medical specialty’’) is more specificsuch as hospitals, to disperse their acces- than that used in the NPRM (“in a mannersible sleeping rooms, and if so, by what that enables patients with disabilities to havemethod (by specialty area, floor, or other access to appropriate specialty services’’)criteria). All of the comments the Department and adopts the concept of proportionalityreceived on this issue supported dispers- proposed by the commenters. Accessibleing accessible sleeping rooms proportionally rooms should be dispersed throughout allby specialty area. These comments, from medical specialties, such as obstetrics,individuals, organizations, and a building orthopedics, pediatrics, and cardiac care.code association, argued that it would notbe difficult for hospitals to disperse rooms Section 35.151(i) Curb rampsby specialty area, given the high level ofregulation to which hospitals are subject Section 35.151(e) on curb ramps in theand the planning that hospitals do based 1991 rule has been redesignated ason utilization trends. Further, commenters Sec. 35.151(i). In the NPRM, the Departmentsuggested that without a requirement, it is proposed making a minor editorial changeunlikely that hospitals would disperse the to this section, deleting the phrase “otherrooms. In addition, concentrating acces- sloped areas’’ from the two places in whichsible rooms in one area perpetuates seg- it appears in the 1991 title II regulation. Inregation of individuals with disabilities, the NPRM, the Department stated that thewhich is counter to the purpose of the ADA. phrase “other sloped areas’’ lacks technical precision. The Department received no sig- The Department has decided to require nificant public comments on this proposal.medical care facilities to disperse their acces- Upon further consideration, however, thesible sleeping rooms in a manner that is Department has concluded that the regula-proportionate by type of medical specialty. tion should acknowledge that there are times28 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationwhen there are transitions from sidewalk to The 2010 Standards contain scoping androad surface that do not technically qualify technical standards for residential dwell-as “curb ramps’’ (sloped surfaces that have ing units. However, section 233.3.2 of thea running slope that exceed 5 percent). 2010 Standards specifically defers to theTherefore, the Department has decided not Department and to HUD, the standard-settingto delete the phrase “other sloped areas.’’ agency under the ABA, to decide the appro- priate scoping for those residential dwellingSection 35.151(j) units built by or on behalf of public entitiesResidential housing for sale to with the intent that the finished units will beindividual owners sold to individual owners. These programs include, for example, HUD’s public housing Although public entities that operate resi- and HOME programs as well as State-fundeddential housing programs are subject to title programs to construct units for sale to indi-II of the ADA, and therefore must provide viduals. In the NPRM, the Department didaccessible residential housing, the 1991 not make a specific proposal for this scop-Standards did not contain scoping or tech- ing. Instead, the Department stated that afternical standards that specifically applied to consultation and coordination with HUD,residential housing units. As a result, under the Department would make a determina-the Department’s title II regulation, these tion in the final rule. The Department alsoagencies had the choice of complying with sought public comment on this issue stat-UFAS, which contains specific scoping and ing that “[t]he Department would welcometechnical standards for residential hous- recommendations from individuals withing units, or applying the ADAAG transient disabilities, public housing authorities, andlodging standards to their housing. Neither other interested parties that have experi-UFAS nor the 1991 Standards distinguish ence with these programs. Please commentbetween residential housing provided for on the appropriate scoping for residentialrent and those provided for sale to individual dwelling units built by or on behalf of pub-owners. Thus, under the 1991 title II regula- lic entities with the intent that the finishedtion, public entities that construct residential units will be sold to individual owners.’’housing units to be sold to individual owners 73 FR 34466, 34492 (June 17, 2008).must ensure that some of those units areaccessible. This requirement is in addition All of the public comments received byto any accessibility requirements imposed the Department in response to this questionon housing programs operated by public were supportive of the Department’s ensuringentities that receive Federal financial assis- that the residential standards apply to hous-tance from Federal agencies such as HUD. ing built on behalf of public entities with theDepartment of Justice Guidance on 2010 Standards: Title II - 29
    • Section 35.151 -- Title II Regulationintent that the finished units would be sold to disabilities. This commenter encouraged theindividual owners. The vast majority of com- Department to make sure that accessiblementers recommended that the Department for-sale units built or funded by public enti-require that projects consisting of five or more ties are placed in a separate lottery restrictedunits, whether or not the units are located to income-eligible persons with disabilities.on one or multiple locations, comply withthe 2004 ADAAG requirements for scoping Two commenters recommended that theof residential units, which require that 5 per- Department develop rules for four typescent, and no fewer than one, of the dwelling of for-sale projects: single family pre-builtunits provide mobility features, and that 2 (where buyer selects the unit after construc-percent, and no fewer than one, of the dwell- tion), single family post-built (where the buyering units provide communication features. chooses the model prior to its construction),See 2004 ADAAG Section 233.3. These multi-family pre-built, and multi-family post-commenters argued that the Department built. These commenters recommended thatshould not defer to HUD because HUD has the Department require pre-built units tonot yet adopted the 2004 ADAAG and there comply with the 2004 ADAAG 233.1 scopingis ambiguity on the scope of coverage of requirements. For post-built units, the com-pre-built for sale units under HUD’s current menters recommended that the Departmentsection 504 regulations. In addition, these require all models to have an alternatecommenters expressed concern that HUD’s design with mobility features and an alter-current regulation, 24 CFR 8.29, presumes nate design with communications featuresthat a prospective buyer is identified before in compliance with 2004 ADAAG. Accessibledesign and construction begins so that dis- models should be available at no extra costability features can be incorporated prior to the buyer. One commenter recommendedto construction. These commenters stated that, in addition to required fully accessiblethat State and Federally funded homeown- units, all ground floor units should be read-ership programs typically do not identify ily convertible for accessibility or for sensoryprospective buyers before construction has impairments technology enhancements.commenced. One commenter stated that,in its experience, when public entities build The Department believes that consistentaccessible for-sale units, they often sell with existing requirements under title II, hous-these units through a lottery system that ing programs operated by public entitiesdoes not make any effort to match persons that design and construct or alter residentialwho need the accessible features with the units for sale to individual owners shouldunits that have those features. Thus, acces- comply with the 2010 Standards, includingsible units are often sold to persons without the requirements for residential facilities in30 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationsections 233 and 809. These requirements adapt them at their own expense for buyerswill ensure that a minimum of 5 percent of with mobility disabilities who need acces-the units, but no fewer than one unit, of the sible units. For example, features suchtotal number of residential dwelling units will as grab bars are not required but may bebe designed and constructed to be acces- added by the public entity if needed by thesible for persons with mobility disabilities. At buyer at the time of purchase and cabi-least 2 percent, but no fewer than one unit, nets under sinks may be designed to beof the total number of residential dwelling removable to allow access to the requiredunits shall provide communication features. knee space for a forward approach. The Department recognizes that there The Department agrees with the com-are some programs (such as the one menters that covered entities may have toidentified by the commenter), in which make reasonable modifications to their poli-units are not designed and constructed cies, practices, and procedures in order tountil an individual buyer is identified. In ensure that when they offer pre-built acces-such cases, the public entity is still obligated sible residential units for sale, the units areto comply with the 2010 Standards. In addi- offered in a manner that gives access totion, the public entity must ensure that pre- those units to persons with disabilities whoidentified buyers with mobility disabilities and need the features of the units and who arevisual and hearing disabilities are afforded otherwise eligible for the housing program.the opportunity to buy the accessible units. This may be accomplished, for example, byOnce the program has identified buyers who adopting preferences for accessible unitsneed the number of accessible units man- for persons who need the features of thedated by the 2010 Standards, it may have units, holding separate lotteries for acces-to make reasonable modifications to its poli- sible units, or other suitable methods hatcies, practices, and procedures in order to result in the sale of accessible units to per-provide accessible units to other buyers sons who need the features of such units.with disabilities who request such units. In addition, the Department believes that units designed and constructed or altered The Department notes that the residen- that comply with the requirements for resi-tial facilities standards allow for construction dential facilities and are offered for sale toof units with certain features of adaptabil- individuals must be provided at the sameity. Public entities that are concerned that price as units without such features.fully accessible units are less marketablemay choose to build these units to includethe allowable adaptable features, and thenDepartment of Justice Guidance on 2010 Standards: Title II - 31
    • Section 35.151 -- Title II RegulationSection 35.151(k) The Department believes that the insuf-Detention and correctional facilities ficient number of accessible cells is, in part, due to the fact that most jails and prisons The 1991 Standards did not contain spe- were built long before the ADA became lawcific accessibility standards applicable to and, since then, have undergone few altera-cells in correctional facilities. However, cor- tions that would trigger the obligation to pro-rectional and detention facilities operated by vide accessible features in accordance withor on behalf of public entities have always UFAS or the 1991 Standards. In addition,been subject to the nondiscrimination and the Department has found that even someprogram accessibility requirements of title new correctional facilities lack accessibleII of the ADA. The 2004 ADAAG estab- features. The Department believes that thelished specific requirements for the design unmet demand for accessible cells is alsoand construction and alterations of cells due to the changing demographics of thein correctional facilities for the first time. inmate population. With thousands of prison- ers serving life sentences without eligibility for Based on complaints received by the parole, prisoners are aging, and the prisonDepartment, investigations, and compliance population of individuals with disabilities andreviews of jails, prisons, and other detention elderly individuals is growing. A Bureau ofand correctional facilities, the Department Justice Statistics study of State and Federalhas determined that many detention and cor- sentenced inmates (those sentenced to morerectional facilities do not have enough acces- than one year) shows the total estimatedsible cells, toilets, and shower facilities to count of State and Federal prisoners agedmeet the needs of their inmates with mobility 55 and older grew by 36,000 inmates fromdisabilities and some do not have any at all. 2000 (44,200) to 2006 (80,200). WilliamInmates are sometimes housed in medical J. Sabol et al., Prisoners in 2006, Bureauunits or infirmaries separate from the gen- of Justice Statistics Bulletin, Dec. 2007, ateral population simply because there are no 23 (app. table 7), available at http://bjs.ojp.accessible cells. In addition, some inmates usdoj.gov/index.cfm?ty=pbdetail&iid=908have alleged that they are housed at a more (last visited July 16, 2008); Allen J. Beckrestrictive classification level simply because et al., Prisoners in 2000, Bureau of Justiceno accessible housing exists at the appropri- Statistics Bulletin, Aug. 2001, at 10 (Aug.ate classification level. The Department’s 2001) (Table 14), available at bjs.ojp.usdoj.compliance reviews and investigations have gov/index.cfm?ty=pbdetail&iid=927 (lastsubstantiated certain of these allegations. visited July 16, 2008). This jump consti- tutes an increase of 81 percent in prison- ers aged 55 and older during this period.32 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulation In the NPRM, the Department proposed a that new construction of jails, prisons, andnew section, Sec. 35.152, which combined a other detention facilities shall comply withrange of provisions relating to both program the requirements of 2010 Standards. Sectionaccessibility and application of the proposed 35.151(k)(1) also increases the scoping forstandards to detention and correctional accessible cells from the 2 percent specifiedfacilities. In the final rule, the Department is in the 2004 ADAAG to 3 percent.placing those provisions that refer to design,construction, and alteration of detention and Alterations. Although the 2010 Standardscorrection facilities in a new paragraph (k) contain specifications for alterations inof Sec. 35.151, the section of the rule that existing detention and correctional facilities,addresses new construction and alterations section 232.2 defers to the Attorneyfor covered entities. Those portions of the General the decision as to the extent thesefinal rule that address other issues, such requirements will apply to alterations of cells.as placement policies and program acces- The NPRM proposed at Sec. 35.152(c)sibility, are placed in the new Sec. 35.152. that “[a]lterations to jails, prisons, and other detention and correctional facilities In the NPRM, the Department also will comply with the requirements of Sec.sought input on how best to meet the 35.151(b).’’ 73 FR 34466, 34507 (June 17,needs of inmates with mobility disabilities 2008). The final rule retains that requirementin the design, construction, and altera- at Sec. 35.151(k)(2), but increases thetion of detention and correctional facili- scoping for accessible cells from the 2ties. The Department received a number of percent specified in the 2004 ADAAG to 3comments in response to this question. percent.New Construction. The NPRM did not Substitute cells. In the ANPRM, theexpressly propose that new construction Department sought public comment about theof correctional and detention facilities most effective means to ensure that existingshall comply with the proposed standards correctional facilities are made accessible tobecause the Department assumed it would prisoners with disabilities and presented threebe clear that the requirements of Sec. options: (1) Require all altered elements to be35.151 would apply to new construction accessible, which would maintain the currentof correctional and detention facilities in policy that applies to other ADA alterationthe same manner that they apply to other requirements; (2) permit substitute cells tofacilities constructed by covered entities. The be made accessible within the same facility,Department has decided to create a new which would permit correctional authoritiessection, Sec. 35.151(k)(1), which clarifies to meet their obligation by providing theDepartment of Justice Guidance on 2010 Standards: Title II - 33
    • Section 35.151 -- Title II Regulationrequired accessible features in cells within needs, cost considerations, and the needs ofthe same facility, other than those specific inmates with disabilities. One commenter not-cells in which alterations are planned; or (3) ed, however, that with older facilities, requiredpermit substitute cells to be made accessible modifications may be inordinately costly andwithin a prison system, which would focus on technically infeasible. A large county jail sys-ensuring that prisoners with disabilities are tem supported the proposed approach ashoused in facilities that best meet their needs, the most viable option allowing modificationas alterations within a prison environment or alteration of existing cells based on needoften result in piecemeal accessibility. and providing a flexible approach to provide program and mobility accessibility. It noted, In Sec. 35.152(c) of the NPRM, the as an alternative, that permitting substituteDepartment proposed language based cells to be made accessible within a prisonon Option 2, providing that when cells are system would also be a viable option sincealtered, a covered entity may satisfy its obli- such an approach could create a centralizedgation to provide the required number of location for accessibility needs and, becausecells with mobility features by providing the that jail system’s facilities were in close prox-required mobility features in substitute cells imity, it would have little impact on families(i.e., cells other than those where altera- for visitation or on accessible programming.tions are originally planned), provided thateach substitute cell is located within the A large State department of correctionssame facility, is integrated with other cells objected to the Department’s proposal. Theto the maximum extent feasible, and has, commenter stated that some very old prisonat a minimum, physical access equal to buildings have thick walls of concrete andthat of the original cells to areas used by reinforced steel that are difficult, if not impos-inmates or detainees for visitation, dining, sible to retrofit, and to do so would be veryrecreation, educational programs, medical expensive. This State system approachesservices, work programs, religious services, accessibility by looking at its system as aand participation in other programs that whole and providing access to programs forthe facility offers to inmates or detainees. inmates with disabilities at selected prisons. This commenter explained that not all of The Department received few comments its facilities offer the same programs or theon this proposal. The majority who chose same levels of medical or mental health ser-to comment supported an approach that vices. An inmate, for example, who needsallowed substitute cells to be made acces- education, substance abuse treatment, andsible within the same facility. In their view, sex offender counseling may be transferredsuch an approach balanced administrators’ between facilities in order to meet his needs.34 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II RegulationThe inmate population is always in flux and accessible cells is sufficient to meet thethere are not always beds or program avail- needs of county jails. Similarly, a largeability for every inmate at his security level. county sheriff’s department advised that theThis commenter stated that the Department’s 2 percent requirement far exceeds the needproposed language would put the State in the at its detention facility, where the averageposition of choosing between adding acces- age of the population is 32. This commentersible cells and modifying paths of travel to stressed that the regulations need to addressprograms and services at great expense or the differences between a local detentionnot altering old facilities, causing them to facility with low average lengths of stay asbecome in states of disrepair and obsoles- opposed to a State prison housing inmatescent, which would be fiscally irresponsible. for lengthy periods. This commenter asserted that more stringent requirements will raise The Department is persuaded by these construction costs by requiring modificationscomments and has modified the altera- that are not needed. If more stringenttions requirement in Sec. 35.151(k)(2)(iv) requirements are adopted, the commenterin the final rule to allow that if it is techni- suggested that they apply only to Statecally infeasible to provide substitute cells and Federal prisons that house prisonersin the same facility, cells can be provided sentenced to long terms. The Departmentelsewhere within the corrections system. notes that a prisoner with a mobility disability needs a cell with mobility features regardlessNumber of accessible cells. Section 232.2.1 of the length of incarceration. However, theof the 2004 ADAAG requires at least 2 length of incarceration is most relevant inpercent, but no fewer than one, of the cells in addressing the needs of an aging population.newly constructed detention and correctionalfacilities to have accessibility features for The overwhelming majority of commentersindividuals with mobility disabilities. Section responded that the 2 percent ADAAG require-232.3 provides that, where special holding ment is inadequate to meet the needs of thecells or special housing cells are provided, incarcerated. Many commenters suggestedat least one cell serving each purpose shall that the requirement be expanded to applyhave mobility features. The Department to each area, type, use, and class of cells insought input on whether these 2004 ADAAG a facility. They asserted that if a facility hasrequirements are sufficient to meet the separate areas for specific programs, suchneeds of inmates with mobility disabilities. as a dog training program or a substanceA major association representing county abuse unit, each of these areas shouldjails throughout the country stated that the also have 2 percent accessible cells but not2004 ADAAG 2 percent requirement for less than one. These same commentersDepartment of Justice Guidance on 2010 Standards: Title II - 35
    • Section 35.151 -- Title II Regulationsuggested that 5-7 percent of cells should the needs of inmates with mobility disabili-be accessible to meet the needs of both ties, the Bureau of Prisons has elected toan aging population and the larger number increase that percentage and require thatof inmates with mobility disabilities. One 3 percent of inmate housing at its facilitiesorganization recommended that the require- be accessible. Bureau of Prisons, Designment be increased to 5 percent overall, and Construction Branch, Design Guidelines,that at least 2 percent of each type and use Attachment A: Accessibility Guidelines forof cell be accessible. Another commenter Design, Construction, and Alteration ofrecommended that 10 percent of cells be Federal Bureau of Prisons (Oct. 31, 2006).accessible. An organization with extensivecorrections experience noted that the integra- The Department believes that a 3 per-tion mandate requires a sufficient number cent accessible requirement is reason-and distribution of accessible cells so as to able. Moreover, it does not believe it shouldprovide distribution of locations relevant to impose a higher percentage on detention andprograms to ensure that persons with dis- corrections facilities than it utilizes for its ownabilities have access to the programs. facilities. Thus, the Department has adopted a 3 percent requirement in Sec. 35.151(k) Through its investigations and compli- for both new construction and alterations.ance reviews, the Department has found The Department notes that the 3 percentthat in most detention and correctional requirement is a minimum. As correctionsfacilities, a 2 percent accessible cell require- systems plan for new facilities or alterations,ment is inadequate to meet the needs of the Department urges planners to includethe inmate population with disabilities. That numbers of inmates with disabilities in theirfinding is supported by the majority of the population projections in order to take thecommenters that recommended a 5-7 per- necessary steps to provide a sufficient num-cent requirement. Indeed, the Department ber of accessible cells to meet inmate needs.itself requires more than 2 percent of thecells to be accessible at its own corrections Dispersion of Cells. The NPRM did notfacilities. The Federal Bureau of Prisons contain express language addressingis subject to the requirements of the 2004 dispersion of cells in a facility. However,ADAAG through the General Services Advisory 232.2 of the 2004 ADAAGAdministration’s adoption of the 2004 ADAAG recommends that “[a]ccessible cells oras the enforceable accessibility standard rooms should be dispersed among differentfor Federal facilities under the Architectural levels of security, housing categories, andBarriers Act of 1968. 70 FR 67786, 67846- holding classifications (e.g., male/female47 (Nov. 8, 2005). However, in order to meet and adult/juvenile) to facilitate access.’’ In explaining the basis for recommending,36 - Guidance on 2010 Standards: Title II Department of Justice
    • Section 35.151 -- Title II Regulationbut not requiring, this type of dispersal, the (1) and (k)(2) of the final rule require acces-Access Board stated that “[m]any detention sible cells in each classification area.and correctional facilities are designed sothat certain areas (e.g., `shift’ areas) can be Medical facilities. The NPRM also did notadapted to serve as different types of housing propose language addressing the applicationaccording to need’’ and that “[p]lacement of the 2004 ADAAG to medical and long-termof accessible cells or rooms in shift areas care facilities in correctional and detentionmay allow additional flexibility in meeting facilities. The provisions of the 2004 ADAAGrequirements for dispersion of accessible contain requirements for licensed medicalcells or rooms.’’ and long-term care facilities, but not those that are unlicensed. A disability advocacy The Department notes that inmates are group and a number of other commenterstypically housed in separate areas of deten- recommended that the Department expandtion and correctional facilities based on a the application of section 232.4 to apply to allnumber of factors, including their classifica- such facilities in detention and correctionaltion level. In many instances, detention and facilities, regardless of licensure. Theycorrectional facilities have housed inmates recommended that whenever a correctionalin inaccessible cells, even though acces- facility has a program that is addressedsible cells were available elsewhere in the specifically in the 2004 ADAAG, such asfacility, because there were no cells in the a long-term care facility, the 2004 ADAAGareas where they needed to be housed, such scoping and design features should applyas in administrative or disciplinary segrega- for those elements. Similarly, a buildingtion, the women’s section of the facility, or code organization noted that its percentagein a particular security classification area. requirements for accessible units is based on what occurs in the space, not on the building The Department received a number of type.comments stating that dispersal of acces-sible cells together with an adequate number The Department is persuaded by theseof accessible cells is necessary to prevent comments and has added Sec. 35.151(k)inmates with disabilities from placement in (3), which states that “[w]ith respect toimproper security classification and to ensure medical and long-term care facilities in jails,integration. Commenters recommended prisons, and other detention and correc-modification of the scoping requirements tional facilities, public entities shall applyto require a percentage of accessible cells the 2010 Standards technical and scopingin each program, classification, use or ser- requirements for those facilities irrespectivevice area. The Department is persuaded by of whether those facilities are licensed.’’these comments. Accordingly, Sec. 35.151(k)Department of Justice Guidance on 2010 Standards: Title II - 37
    • 38
    • 3 Public Accommodations and Commercial Facilities 39
    • 40 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III RegulationPublic Accommodations altering its facility, there should be a legaland Commerical Facilities: requirement that individuals with disabili- ties are entitled to increased accessibil-Guidance on the Revisions to ity provided by the 2004 ADAAG for path28 CFR part 36, Subpart D of travel work. These commenters also stated that they did not believe there was Subpart D establishes the title III require- a statutory basis for “grandfathering’’ facili-ments applicable to new construction and ties that comply with the 1991 Standards.alterations. The Department has amended Another commenter argued that thethis subpart to adopt the 2004 ADAAG, updates incorporated into the 2004 ADAAGset forth the effective dates for implemen- provide very substantial improvements fortation of the 2010 Standards, and make access, and that since there already is a 20related revisions as described below. percent cost limit on the amount that can be expended on path of travel alterations,Section 36.403 Alterations: there is no need for a further limitation.Path of Travel Some commenters supported the safe In the NPRM, the Department proposed harbor as lessening the economic costs ofone change to Sec. 36.403 on alterations implementing the 2004 ADAAG for existingand path of travel by adding a path of travel facilities. One commenter also stated thatsafe harbor. Proposed Sec. 36.403(a) without the safe harbor, entities that already(1) stated that if a private entity has have complied with the 1991 Standards willconstructed or altered required elements have to make and pay for compliance twice,of a path of travel in accordance with the as compared to those entities that made no1991 Standards, the private entity is not effort to comply in the first place. Anotherrequired to retrofit such elements to reflect commenter asked that the safe harbor beincremental changes in the 2010 Standards revised to include pre-ADA facilities thatsolely because of an alteration to a primary have been made compliant with the 1991function area served by that path of travel. Standards to the extent “readily achiev- able’’ or, in the case of alterations, “ to the A substantial number of commenters maximum extent feasible,’’ but that are notobjected to the Department’s creation of in full compliance with the 1991 Standards.a safe harbor for alterations to requiredelements of a path of travel that comply The final rule retains the safe harborwith the current 1991 Standards. These for required elements of a path of travel tocommenters argued that if a public accom- altered primary function areas for privatemodation already is in the process of entities that already have complied withDepartment of Justice Guidance on 2010 Standards: Title III - 41
    • Subpart D - Title III Regulationthe 1991 Standards with respect to those applicable, it is necessary in this final rulerequired elements. As discussed with to provide new regulatory text. No substan-respect to Sec. 36.304, the Department tive change in the Department’s approachbelieves that this safe harbor strikes an in this area is intended by this revision.appropriate balance between ensuring thatindividuals with disabilities are provided Section 36.406 Standards foraccess to buildings and facilities and New Construction and Alterationsmitigating potential financial burdens onexisting places of public accommodation Applicable standards. Section 306 of thethat are undertaking alterations subject to ADA, 42 U.S.C. 12186, directs the Attorneythe 2010 Standards. This safe harbor is General to issue regulations to implementnot a blanket exemption for facilities. If a title III that are consistent with the guide-private entity undertakes an alteration to lines published by the Access Board. Asa primary function area, only the required described in greater detail elsewhere inelements of a path of travel to that area that this Appendix, the Department is a statu-already comply with the 1991 Standards tory member of the Access Board and wasare subject to the safe harbor. If a private involved significantly in the developmententity undertakes an alteration to a primary of the 2004 ADAAG. Nonetheless, thefunction area and the requiredelements of Department has reviewed the standardsa path of travel to the altered area do not and has determined that additional regu-comply with the 1991 Standards, then the latory provisions are necessary to clarifyprivate entity must bring those elements how the Department will apply the 2010into compliance with the 2010 Standards. Standards to places of lodging, social service center establishments, housing atSection 36.405 Alterations: a place of education, assembly areas, andHistoric Preservation medical care facilities. Those provisions are contained in Sec. 36.406(c)-(g). Each In the 1991 rule, the Department provided of these provisions is discussed below.guidance on making alterations to buildingsor facilities that are eligible for listing in the Section 36.406(a) adopts the 2004National Register of Historic Places under ADAAG as part of the 2010 Standards andthe National Historic Preservation Act or establishes the compliance date and trig-that are designated as historic under State gering events for the application of thoseor local law. That provision referenced the standards to both new construction and1991 Standards. Because those cross-refer- alterations. Appendix B of this final ruleences to the 1991 Standards are no longer (Analysis and Commentary on the 201042 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III RegulationADA Standards for Accessible Design) deleting the advisory information nowprovides a description of the major changes published in a table at Sec. 36.406(b).in the 2010 Standards (as compared to Compliance date. When the ADA wasthe 1991 ADAAG) and a discussion of enacted, the compliance dates for variousthe public comments that the Department provisions were delayed in order to providereceived on specific sections of the 2004 time for covered entities to become familiarADAAG. A number of commenters asked with their new obligations. Titles II and IIIthe Department to revise certain provi- of the ADA generally became effective onsions in the 2004 ADAAG in a manner that January 26, 1992, six months after thewould reduce either the required scoping or regulations were published. See 42 U.S.C.specific technical accessibility requirements. 12131 note; 42 U.S.C. 12181 note. NewAs previously stated, the ADA requires the construction under title II and alterationsDepartment to adopt standards consistent under either title II or title III had to complywith the guidelines adopted by the Access with the design standards on that date. SeeBoard. The Department will not adopt any 42 U.S.C. 12131 note; 42 U.S.C. 12183(a)standards that provide less accessibil- (2). For new construction under title III, theity than is provided under the guidelines requirements applied to facilities designedcontained in the 2004 ADAAG because the and constructed for first occupancy afterguidelines adopted by the Access Board are January 26, 1993--18 months after the“ minimum guidelines.’’ 42 U.S.C. 12186(c). 1991 Standards were published by the Department. See 42 U.S.C. 12183(a)(1). In the NPRM, the Department specifi-cally proposed amending Sec. 36.406(a) by The Department received numerousdividing it into two sections. Proposed Sec. comments on the issue of effective date,36.406(a)(1) specified that new construc- many of them similar to those receivedtion and alterations subject to this part shall in response to the ANPRM. A substantialcomply with the 1991 Standards if physical number of commenters advocated a mini-construction of the property commences mum of 18 months from publication of theless than six months after the effective final rule to the effective date for applica-date of the rule. Proposed Sec. 36.406(a) tion of the standards to new construction,(2) specified that new construction and consistent with the time period used foralterations subject to this part shall comply implementation of the 1991 Standards.with the proposed standards if physical Many of these commenters argued that theconstruction of the property commences 18-month period was necessary to minimizesix months or more after the effective date the likelihood of having to redesign projectsof the rule. The Department also proposed already in the design and permitting stagesDepartment of Justice Guidance on 2010 Standards: Title III - 43
    • Subpart D - Title III Regulationat the time that the final rule is published. the same reasons, and one commenterAccording to these commenters, large argued that there should be a tolling of theprojects take several years from design to effective date for those businesses thatoccupancy, and can be subject to delays are in the midst of the permitting processfrom obtaining zoning, site approval, third- if the necessary permits are delayedparty design approval (i.e., architectural due to legal challenges or other circum-review), and governmental permits. To stances outside the business’s control.the extent the new standards necessitatechanges in any previous submissions or Several commenters took issue with thepermits already issued, businesses might Department’s characterization of the 2004have to expend significant funds and incur ADAAG and the 1991 Standards as twodelays due to redesign and resubmission. similar rules. These commenters argued that many provisions in the 2004 ADAAG repre- Some commenters also expressed sent a “substantial and significant’’ departureconcern that a six-month period would be from the 1991 Standards and that it will takehard to implement given that many renova- a great deal of time and money to identifytions are planned around retail selling peri- all the changes and implement them. Inods, holidays, and other seasonal concerns. particular, they were concerned that smallFor example, hotels plan renovations during businesses lacked the internal resourcestheir slow periods, retail establishments to respond quickly to the new changes andavoid renovations during the major holiday that they would have to hire outside expertsselling periods, and businesses in certain to assist them. One commenter expressedparts of the country cannot do any major concern that regardless of familiarity withconstruction during parts of the winter. the 2004 ADAAG, since the 2004 ADAAG standards are organized in an entirely differ- Some commenters argued that ent manner from the 1991 Standards, andchain establishments need additional contain, in the commenter’s view, extensivetime to redesign their “master facil- changes, it will make the shift from the oldity’’ designs for replication at multiple to the new standards quite complicated.locations, taking into account both thenew standards and applicable State Several commenters also took issue withand local accessibility requirements. the Department’s proffered rationale that by adopting a six-month effective date, the Other commenters argued for extend- Department was following the precedent ofing the effective date from six months other Federal agencies that have adoptedto a minimum of 12 months for many of the 2004 ADAAG for facilities whose44 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationaccessibility they regulate. These comment- In contrast, many commenters argueders argued that the Department’s title III that the proposed six-month effectiveregulation applies to a much broader range date should be retained in the final rule.and number of facilities and programs thanthe other Federal agencies (i.e., Department The Department has been persuaded byof Transportation and the General Services concerns raised by some of the comment-Administration) and that those agencies ers that the six month compliance dateregulate accessibility primarily in either proposed in the NPRM for application ofgovernmental facilities or facilities oper- the 2010 Standards may be too short forated by quasi-governmental authorities. certain projects that are already in the midst of the design and permitting process. Several commenters representing the The Department has determined that fortravel, vacation, and golf industries argued new construction and alterations, compli-that the Department should adopt a two- ance with the 2010 Standards will not beyear effective date for new construction. required until 18 months from the dateIn addition to many of the arguments the final rule is published. This is consis-made by commenters in support of an tent with the amount of time given when18-month effective date, these comment- the 1991 regulation was published. Sinceers also argued that a two-year time frame many State and local building codes containwould allow States with DOJ-certified provisions that are consistent with 2004building codes to have the time to amend ADAAG, the Department has decided thattheir codes to meet the 2004 ADAAG public accommodations that choose toso that design professionals can work comply with the 2010 Standards as definedfrom compatible codes and standards. in Sec. 36.104 before the compliance date will still be considered in compliance Several commenters recommended with the ADA. However, public accom-treating alterations differently than new modations that choose to comply withconstruction, arguing for a one-year effec- the 2010 Standards in lieu of the 1991tive date for alterations. Another commenter Standards prior to the compliance daterepresenting building officials argued described in this rule must choose onethat a minimum of a six-month phase- or the other standard, and may not relyin for alterations was sufficient, since a on some of the requirements containedvery large percentage of alteration proj- in one standard and some of the require-ects “are of a scale that they should be ments contained in the other standard.able to accommodate the phase-in.’’Department of Justice Guidance on 2010 Standards: Title III - 45
    • Subpart D - Title III RegulationTriggering event. In the NPRM, the cases where permits are required, theDepartment proposed using the start of Department should use “date of permitphysical construction as the triggering application’’ as the effective date trigger-event for applying the proposed standards ing event, and if no permit is required, theto new construction under title III. This Department should use “start of construc-triggering event parallels that for the tion.’’ A number of these commentersalterations provisions (i.e., the date on argued that the date of permit applicationwhich construction begins), and would apply is appropriate because the applicant wouldclearly across all types of covered public have to consider the applicable State andaccommodations. The Department also Federal accessibility standards in order toproposed that for prefabricated elements, submit the designs usually required with thesuch as modular buildings and amusement application. Moreover, the date of permitpark rides and attractions, or installed application is a typical triggering event inequipment, such as ATMs, the start of other code contexts, such as when jurisdic-construction means the date on which the tions introduce an updated building code.site preparation begins. Site preparation Some commenters expressed concernincludes providing an accessible route to the that using the date of “ start of construc-element. tion’’ was problematic because the date can be affected by factors that are outside The Department’s NPRM sought public the control of the owner. For example, ancomment on how to define the start of owner can plan construction to start beforeconstruction and the practicality of apply- the new standards take effect and thereforeing commencement of construction as use the 1991 Standards in the design. Ifa triggering event. The Department also permits are not issued in a timely manner,requested input on whether the proposed then the construction could be delayeddefinition of the start of construction was until after the effective date, and then thesufficiently clear and inclusive of different project would have to be redesigned. Thistypes of facilities. The Department also problem would be avoided if the permitsought input about facilities subject to title application date was the triggering event.III for which commencement of construc- Two commenters expressed concern thattion would be ambiguous or problematic. the term “start of construction’’ is ambigu- ous, because it is unclear whether start The Department received numer- of construction means the razing of struc-ous comments recommending that the tures on the site to make way for a newDepartment adopt a two-pronged approach facility or means site preparation, suchto defining the triggering event. In those as regrading or laying the foundation.46 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulation One commenter recommended using alterations’’ is not intended to mean thethe “signing date of a construction date of ceremonial groundbreaking or thecontract,’’ and an additional commenter date a structure is razed to make it possiblerecommended that the new standards for construction of a facility to take place.apply only to “buildings permitted afterthe effective date of the regulations.’’ Amusement rides. Section 234 of the 2010 Standards provides accessibility guidelines One commenter stated that for facilities for newly designed and constructedthat fall outside the building permit require- amusement rides. The amusement ridements (ATMs, prefabricated saunas, small provisions do not provide a “triggeringsheds), the triggering event should be the event’’ for new construction or alteration ofdate of installation, rather than the date an amusement ride. An industry commenterthe space for the facility is constructed. requested that the triggering event of “first use’’ as noted in the Advisory note to section The Department is persuaded by 234.1 of the 2004 ADAAG be included in thethe comments to adopt a two-pronged final rule. The Advisory note provides thatapproach to defining the triggering event “[a] custom designed and constructed ride isfor new construction and alterations. The new upon its first use, which is the first timefinal rule states that in those cases where amusement park patrons take the ride.’’ Thepermits are required, the triggering event Department declines to treat amusementshall be the date when the last application rides differently than other types of newfor a building permit application or permit construction and alterations and under theextension is certified to be complete by a final rule, they are subject to Sec. 36.406(a)State, county, or local government, or in (3). Thus, newly constructed and alteredthose jurisdictions where the government amusement rides shall comply with the 2010does not certify completion of applica- Standards if the start of physical constructiontions, the date when the last application or the alteration is on or after 18 monthsfor a building permit or permit extension from the publication date of this rule. Theis received by the State, county, or local Department also notes that section 234.4.2government. If no permits are required, of the 2010 Standards only applies where thethen the triggering event shall be the “start structural or operational characteristics of anof physical construction or alterations.’’ amusement ride are altered. It does not applyThe Department has also added clarifying in cases where the only change to a ride islanguage related to the term “start of physi- the theme.cal construction or alterations’’ to make itclear that “start of physical construction orDepartment of Justice Guidance on 2010 Standards: Title III - 47
    • Subpart D - Title III Regulation Noncomplying new construction and or altered facilities are accessible to indi-alterations. The element-by-element safe viduals with disabilities. Once the construc-harbor referenced in Sec. 36.304(d)(2) has tion or alteration of a facility has beenno effect on new or altered elements in completed, all other aspects of programs,existing facilities that were subject to the services, and activities conducted in that1991 Standards on the date that they were facility are subject to the operational require-constructed or altered, but do not comply ments established elsewhere in this finalwith the technical and scoping specifications rule. Although the Department has oftenfor those elements in the 1991 Standards. chosen to use the requirements of theSection 36.406(a)(5) of the final rule 1991 Standards as a guide to determin-sets forth the rules for noncompliant new ing when and how to make equipmentconstruction or alterations in facilities that and furnishings accessible, those cover-were subject to the requirements of this part. age determinations fall within the discre-Under those provisions, noncomplying new tionary authority of the Department.construction and alterations constructed oraltered after the effective date of the appli- The Department is also clarifying thatcable ADA requirements and before March the advisory notes, appendix notes, and15, 2012 shall, before March 15, 2012, be figures that accompany the 1991 andmade accessible in accordance with either 2010 Standards do not establish sepa-the 1991 Standards or the 2010 Standards. rately enforceable requirements unlessNoncomplying new construction and altera- otherwise specified in the text of the stan-tions constructed or altered after the effec- dards. This clarification has been made totive date of the applicable ADA requirements address concerns expressed by ANPRMand before March 15, 2012, shall, on or commenters who mistakenly believed thatafter March 15, 2012, be made accessible the advisory notes in the 2004 ADAAGin accordance with the 2010 Standards. established requirements beyond those established in the text of the guidelinesSection 36.406(b) Application (e.g., Advisory 504.4 suggests, but doesof Standards to Fixed Elements not require, that covered entities provide visual contrast on stair tread nosings to The final rule contains a new Sec. make them more visible to individuals with36.406(b) that clarifies that the require- low vision). The Department received noments established by this section, includ- comments on this provision in the NPRM.ing those contained in the 2004 ADAAG,prescribe the requirements necessary toensure that fixed or built-in elements in new48 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III RegulationSection 36.406(c) Places of Lodging condominium hotels, and mixed-use and corporate hotel facilities, shall comply with In the NPRM, the Department proposed the provisions of the proposed standards,a new definition for public accommodations including, but not limited to, the require-that are “places of lodging’’ and a new Sec. ments for transient lodging in sections36.406(c) to clarify the scope of coverage 224 and 806 of the 2004 ADAAG.for places of public accommodation thatmeet this definition. For many years the The Department’s NPRM sought publicDepartment has received inquiries from input on this proposal. The Departmentmembers of the public seeking clarification received a substantial number of commentsof ADA coverage of rental accommoda- on these issues from industry representa-tions in timeshares, condominium hotels, tives, advocates for persons with disabilities,and mixed-use and corporate hotel facilities and individuals. A significant focus of thesethat operate as places of public accom- comments was on how the Departmentmodation (as that term is now defined in should define and regulate vacation rentalSec. 36.104). These facilities, which have units in timeshares, vacation communi-attributes of both residential dwellings and ties, and condo-hotels where the units aretransient lodging facilities, have become owned and controlled by individual ownersincreasingly popular since the ADA’s enact- and rented out some portion of time to thement in 1990 and make up the majority of public, as compared to traditional hotelsnew hotel construction in some vacation and motels that are owned, controlled,destinations. The hybrid residential and and rented to the public by one entity.lodging characteristics of these new typesof facilities, as well as their ownership char- Scoping and technical requirementsacteristics, complicate determinations of applicable to “places of lodging.’’ In theADA coverage, prompting questions from NPRM, the Department asked for publicboth industry and individuals with disabili- comment on its proposal in Sec. 36.406(c)ties. While the Department has interpreted to apply to places of lodging the scopingthe ADA to encompass these hotel-like and technical requirements for transientfacilities when they are used to provide lodging, rather than the scoping and techni-transient lodging, the regulation previously cal requirements for residential dwellinghas specifically not addressed them. In the units.NPRM, the Department proposed a newSec. 36.406(c), entitled “Places of Lodging,’’ Commenters generally agreed that thewhich was intended to clarify that places transient lodging requirements should applyof lodging, including certain timeshares, to places of lodging. Several commentersDepartment of Justice Guidance on 2010 Standards: Title III - 49
    • Subpart D - Title III Regulationstated that the determination as to which rental. Another commenter pointed outrequirements apply should be made that unlike traditional hotels and motels,based on the intention for use at the time the number of units available for rentalof design and construction. According to in a facility or development containingthese commenters, if units are intended for individually owned units is not fixed overtransient rentals, then the transient lodg- time. Owners have the right to partici-ing standards should apply, and if they pate in a public rental program some, all,are intended to be used for residential or none of the time, and individual ownerpurposes, the residential standards should participation changes from year to year.apply. Some commenters agreed with theapplication of transient lodging standards to The Department believes that the deter-places of lodging in general, but disagreed mination for scoping should be based onabout the characterization of certain types the number of units in the project that areof facilities as covered places of lodging. designed and constructed with the inten- tion that their owners may participate in The Department agrees that the a transient lodging rental program. Thescoping and technical standards appli- Department cautions that it is not thecable to transient lodging should apply number of owners that actually exerciseto facilities that contain units that meet their right to participate in the programthe definition of “places of lodging.’’ that determines the scoping. Rather it is the units that could be placed into an Scoping for timeshare or condominium on-site or off-site transient lodging rentalhotels. In the NPRM, the Department program. In the final rule, the Departmentsought comment on the appropriate basis has added a provision to Sec. 36.406(c)for determining scoping for a timeshare or (3), which states that units intended to becondominium-hotel. A number of comment- used exclusively for residential purposesers indicated that scoping should be based that are contained in facilities that also meeton the usage of the facility. Only those the definition of place of lodging are notunits used for short-term stays should be covered by the transient lodging standards.counted for application of the transient Title III of the ADA does not apply to unitslodging standards, while units sold as designed and constructed with the intentionresidential properties should be treated that they be rented or sold as exclusivelyas residential units not subject to the residential units. Such units are coveredADA. One commenter stated that scoping by the Fair Housing Act (FHAct), whichshould be based on the maximum number contains requirements for certain featuresof sleeping units available for public of accessible and adaptable design both50 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationfor units and for public and common use One commenter also asked theareas. All units designed and constructed Department for clarification of how to countwith the intention that they may be used individually owned “lock-off units.’’ Lock-offfor both residential and transient lodging units are units that are multi-bedroom butpurposes are covered by the ADA and must can be “locked off’’ into two separate units,be counted for determining the required each having individual external access. Thisnumber of units that must meet the transient commenter requested that the Departmentlodging standards in the 2010 Standards. state in the final rule that individually ownedPublic use and common use areas in facili- lock-off units do not constitute multiple guestties containing units subject to the ADA also rooms for purposes of calculating compli-must meet the 2010 Standards. In some ance with the scoping requirements fordevelopments, units that may serve as resi- accessible units, since for the most part thedential units some of the time and rental lock-off units are used as part of a largerunits some of the time will have to meet accessible unit, and portions of a unit notboth the FHAct and the ADA requirements. locked off would constitute both an acces-For example, all of the units in a vaca- sible one-bedroom unit or an accessibletion condominium facility whose owners two-bedroom unit with the lock-off unit.choose to rent to the public when they arenot using the units themselves would be It is the Department’s view that lock-counted for the purposes of determining off units that are individually owned thatthe appropriate number of units that must can be temporarily converted into twocomply with the 2010 Standards. In a newly units do not constitute two separate guestconstructed condominium that has three rooms for purposes of calculating compli-floors with units dedicated to be sold solely ance with the scoping requirements.as residential housing and three floors withunits that may be used as residences or One commenter asked the Departmenthotel units, only the units on the three latter how developers should scope units wherefloors would be counted for applying the buildings are constructed in phases over a2010 Standards. In a newly constructed span of years, recommending that the scop-timeshare development containing 100 ing be based on the total number of unitsunits, all of which may be made available expected to be constructed at the projectto the public through an exchange or rental and not on a building-by-building basis or onprogram, all 100 units would be counted for a phase-by-phase basis. The Departmentpurposes of applying the 2010 Standards. does not think scoping should be based on planned number of units, which may or may not be actually constructed over a periodDepartment of Justice Guidance on 2010 Standards: Title III - 51
    • Subpart D - Title III Regulationof years. However, the Department recog- rooms available to the public must complynizes that resort developments may contain with the general nondiscrimination require-buildings and facilities that are of all sizes ments of the ADA. In addition, as providedfrom single-unit cottages to facilities with in Sec. 36.406(c), newly constructed facili-hundreds of units. The Department believes ties that contain accommodations intendedit would be appropriate to allow design- to be used for transient lodging purposesers, builders, and developers to aggregate must comply with the 2010 Standards.the units in facilities with 50 or fewer unitsthat are subject to a single permit applica- In the NPRM, the Department asked fortion and that are on a common site or that public comment on several issues related toare constructed at the same time for the ensuring the availability of accessible unitspurposes of applying the scoping require- in a rental program operated by a place ofments in table 224.2. Facilities with more lodging. The Department sought input onthan 50 units should be scoped individually how it could address a situation in whichin accordance with the table. The regula- a new or converted facility constructs thetion has been revised to reflect this appli- required number of accessible units, but thecation of the scoping requirements. owners of those units choose not to partici- pate in the rental program; whether the facil- One commenter also asked the ity has an obligation to encourage or requireDepartment to use the title III regulation owners of accessible units to participate into declare that timeshares subject to the the rental program; and whether the facilitytransient lodging standards are exempt developer, the condominium association, orfrom the design and construction require- the hotel operator has an obligation to retainments of the FHAct. The coverage of the ownership or control over a certain numberFHAct is set by Congress and interpreted of accessible units to avoid this problem.by regulations issued by the Departmentof Housing and Urban Development. The In the NPRM, the Department soughtDepartment has no authority to exempt public input on how to regulate scoping foranyone from coverage of the FHAct. a timeshare or condominium-rental facility that decides, after the sale of units to indi- Application of ADA to places of lodg- vidual owners, to begin a rental programing that contain individually owned units. that qualifies the facility as a place of lodg-The Department believes that regardless ing, and how the condominium associa-of ownership structure for individual units, tion, operator, or developer should deter-rental programs (whether they are on- or mine which units to make accessible.off-site) that make transient lodging guest52 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulation A number of commenters expressed term vacation rental can select any rentalconcerns about the ability of the Department or management company to lease andto require owners of accessible units manage their unit, or they may rent themto participate in the rental program, to out on their own. They also may chooserequire developers, condo associations, or never to lease those units. Thus, there arehomeowners associations to retain owner- no guarantees that at any particular time,ship of accessible units, and to impose accessible units will be available for rentalaccessibility requirements on individual by the public. According to this commenter,owners who choose to place inaccessible providing incentives for owners of acces-units into a rental program after purchase. sible units to place their units in the rentalThese commenters stated that individuals program will not work, because it doeswho purchase accessible vacation units in not guarantee the availability of the requi-condominiums, individual vacation homes, site number of rooms dispersed acrossand timeshares have ownership rights in the development, and there is not anytheir units and may choose lawfully to make reasonable, identifiable source of fundstheir units available to the public some, all, to cover the costs of such incentives.or none of the time. Commenters advisedthe Department that the Securities and A number of commenters also indicatedExchange Commission takes the position that it potentially is discriminatory as wellthat if condominium units are offered in as economically infeasible to require thatconnection with participation in a required a developer hold back the accessiblerental program for any part of the year, units so that the units can be maintainedrequire the use of an exclusive rental agent, in the rental program year-round. Oneor impose conditions otherwise restricting commenter pointed out that if a developerthe occupancy or rental of the unit, then did not sell the accessible condominiumsthat offering will be viewed as an offering or timeshares in the building inventory, theof securities in the form of an investment developer would be subject to a potential(rather than a real estate offering). SEC ADA or FHAct complaint because personsRelease No. 33-5347, Guidelines as to the with disabilities who wanted to buy acces-Applicability of the Federal Securities Laws sible units rather than rent them each yearto Offers and Sales of Condominiums or would not have the option to purchaseUnits in a Real Estate Development (Jan. them. In addition, if a developer held4, 1973). Consequently, most condominium back accessible units, the cost of thosedevelopers do not impose such restric- units would have to be spread across alltions at the time of sale. Moreover, owners the buyers of the inaccessible units, andwho choose to rent their units as a short- in many cases would make the projectDepartment of Justice Guidance on 2010 Standards: Title III - 53
    • Subpart D - Title III Regulationfinancially infeasible. This would be espe- pool to increase the availability of accessiblecially true for smaller projects. Finally, this units. One commenter argued that the legalcommenter argued that requiring units to entity running the place of lodging has anbe part of the common elements that are obligation to retain control over the requiredowned by all of the individual unit owners number of accessible units to ensure thatis infeasible because the common owner- they are available in accordance with title III.ship would result in pooled rental income,which would transform the owners into A number of commenters also arguedparticipants in a rental pool, and thus turn that the Department has no legal author-the sale of the condominiums into the sale ity to require individual owners to engageof securities under SEC Release 33-5347. in barrier removal where an existing development adds a rental program. Several commenters noted that requir- One commenter stated that Texas lawing the operator of the rental program to prohibits the operator of on-site rentalown the accessible units is not feasible program from demanding that alterationseither because the operator of the rental be made to a particular unit. In addition,program would have to have the funds to under Texas law, condominium declara-invest in the purchase of all of the acces- tions may not require some units and notsible units, and it would not have a means others to make changes, because thatof recouping its investment. One commenter would lead to unequal treatment of unitsstated that in Texas, it is illegal for on-site and owners, which is not permissible.rental programs to own condominium units.Another commenter noted that such a One commenter stated that since itrequirement might lead to the loss of on-site was not possible for operators of rentalrental programs, leaving owners to use indi- programs offering privately owned condo-vidual third-party brokers, or rent the units miniums to comply with accessible scop-privately. One commenter acknowledged ing, the Department should create exemp-that individual owners cannot be required tions from the accessible scoping, espe-to place their units in a rental pool simply to cially for existing facilities. In addition, thisoffer an accessible unit to the public, since commenter stated that if an operator ofthe owners may be purchasing units for their an on-site rental program were to requireown use. However, this commenter recom- renovations as a condition of participa-mended that owners who choose to place tion in the rental program, unit ownerstheir units in a rental pool be required to might just rent their units through a differ-contribute to a fund that would be used to ent broker or on their own, in which caserenovate units that are placed in the rental such requirements would not apply.54 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulation A number of commenters argued that circumstances where there are legal barri-if a development decides to create a ers to requiring compliance with either therental program, it must provide accessible alterations requirements or the requirementsunits. Otherwise the development would related to barrier removal. The Departmenthave to ensure that units are retrofitted. A has added an exception to Sec. 36.406(c),commenter argued that if an existing build- providing that in existing facilities thating is being converted, the Department meet the definition of places of lodging,should require that if alterations of the units where the guest rooms are not owned orare performed by an owner or developer substantially controlled by the entity thatprior to sale of the units, then the altera- owns, leases, or operates the overall facil-tions requirements should apply, in order ity and the physical features of the guestto ensure that there are some accessible room interiors are controlled by their indi-units in the rental pool. This commenter vidual owners, the units are not subject tostated that because of the proliferation the alterations requirement, even whereof these type of developments in Hawaii, the owner rents the unit out to the publicmandatory alteration is the only way to through a transient lodging rental program.guarantee the availability of accessible In addition, the Department has added anunits in the long run. In this commenter’s exception to the barrier removal require-view, since conversions almost always ments at Sec. 36.304(g) providing that inrequire makeover of existing buildings, existing facilities that meet the definition ofthis will not lead to a significant expense. places of lodging, where the guest rooms are not owned or substantially controlled The Department agrees with the by the entity that owns, leases, or oper-commenters that it would not be feasible ates the overall facility and the physicalto require developers to hold back or features of the guest room interiors arepurchase accessible units for the purposes controlled by their individual owners, theof making them available to the public in units are not subject to the barrier removala transient lodging rental program, nor requirement. The Department notes,would it be feasible to require individual however, that there are legal relation-owners of accessible units to participate ships for some timeshares and coopera-in transient lodging rental programs. tives where the ownership interests do not convey control over the physical features The Department recognizes that places of units. In those cases, it may be the caseof lodging are developed and financed that the facility has an obligation to meetunder myriad ownership and management the alterations or barrier removal require-structures and agrees that there will be ments or to maintain accessible features.Department of Justice Guidance on 2010 Standards: Title III - 55
    • Subpart D - Title III RegulationSection 36.406(d) Social Service The Department believes that a substantialCenter Establishments percentage of social service providers are recipients of Federal financial assistance In the NPRM, the Department proposed a from the Department of Housing and Urbannew Sec. 36.406(d) requiring group homes, Development (HUD). The Department ofhalfway houses, shelters, or similar social Health and Human Services (HHS) alsoservice center establishments that provide provides financial assistance for the opera-temporary sleeping accommodations or tion of shelters through the Administrationresidential dwelling units to comply with the for Children and Families programs. Asprovisions of the 2004 ADAAG that apply to such, they are covered both by the ADA andresidential facilities, including, but not limited section 504. UFAS is currently the designto, the provisions in sections 233 and 809. standard for new construction and altera- tions for entities subject to section 504. The NPRM explained that this proposal The two design standards for accessibility-was based on two important changes in the -the 1991 Standards and UFAS--have2004 ADAAG. First, for the first time, resi- confronted many social service providersdential dwelling units are explicitly covered with separate, and sometimes conflicting,in the 2004 ADAAG in section 233. Second, requirements for design and constructionthe 2004 ADAAG eliminates the language of facilities. To resolve these conflicts, thecontained in the 1991 Standards address- residential facilities standards in the 2004ing scoping and technical requirements ADAAG have been coordinated with thefor homeless shelters, group homes, and section 504 requirements. The transientsimilar social service center establish- lodging standards, however, are not simi-ments. Currently, such establishments are larly coordinated. The deletion of sectioncovered in section 9.5 of the transient lodg- 9.5 of the 1991 Standards from the 2004ing section of the 1991 Standards. The ADAAG presented two options: (1) Requiredeletion of section 9.5 creates an ambigu- coverage under the transient lodging stan-ity of coverage that must be addressed. dards, and subject such facilities to sepa- rate, conflicting requirements for design and The NPRM explained the Department’s construction; or (2) require coverage underbelief that transferring coverage of social the residential facilities standards, whichservice center establishments from the tran- would harmonizes the regulatory require-sient lodging standards to the residential ments under the ADA and section 504. Thefacilities standards would alleviate conflicting Department chose the option that harmo-requirements for social service providers. nizes the regulatory requirements: coverage under the residential facilities standards.56 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulation In the NPRM, the Department expressed increased level of accessibility by elimi-concern that the residential facilities stan- nating the confusion and inaction that aredards do not include a requirement for sometimes caused by the current existenceclear floor space next to beds similar to of multiple requirements. One commenterthe requirement in the transient lodging stated that the residential facilities guide-standards; as a result, the Department lines were more appropriate because indi-proposed adding a provision that would viduals housed in social service centerrequire certain social service center estab- establishments typically stay for a prolongedlishments that provide sleeping rooms period of time, and guests of a transientwith more than 25 beds to ensure that a lodging facility typically are not housed tominimum of 5 percent of the beds have participate in a program or receive services.clear floor space in accordance withsection 806.2.3 of the 2004 ADAAG. One commenter opposed to the proposed section argued for the applica- The Department requested informa- tion of the transient lodging standards totion from providers who operate homeless all social service center establishmentsshelters, transient group homes, halfway except those that were “intended as ahouses, and other social service center person’s place of abode,’’ referencingestablishments, and from the clients of the Department’s question related to thethese facilities who would be affected definition of place of lodging in the titleby this proposed change. In the NPRM, III NPRM. A second commenter statedthe Department asked to what extent that the use of transient lodging guide-conflicts between the ADA and section lines would lead to greater accessibility.504 have affected these facilities andwhat the effect would be of applying the The Department continues to beresidential dwelling unit requirements to concerned about alleviating the challengesthese facilities, rather than the require- for social service providers that are alsoments for transient lodging guest rooms. subject to section 504 and that would likely be subject to conflicting requirements if the Many of the commenters supported transient lodging standard were applied.applying the residential facilities require- Thus, the Department has retained thements to social service center establish- requirement that social service centerments stating that even though the residen- establishments comply with the residentialtial facilities requirements are less demand- dwelling standards. The Department diding, in some instances, the existence of not receive comments regarding adding aone clear standard will result in an overall requirement for bathing options, such asDepartment of Justice Guidance on 2010 Standards: Title III - 57
    • Subpart D - Title III Regulationa roll-in shower, in social service center The Department also notes that whileestablishments operated by public accom- dwelling units at some social servicemodations. The Department did, however, center establishments are also subject toreceive comments in support of adding FHAct design and construction require-such a requirement regarding public entities ments that require certain features ofunder title II. The Department believes that adaptable and accessible design, FHActsocial service center establishments that units do not provide the same level ofprovide emergency shelter to large transient accessibility that is required for residen-populations should be able to provide bath- tial facilities under the 2010 Standards.ing facilities that are accessible to persons The FHAct requirements, where alsowith mobility disabilities who need roll-in applicable, should not be considered ashowers. Because of the transient nature substitute for the 2010 Standards. Rather,of the population of these large shelters, it the 2010 Standards must be followed inwill not be feasible to modify bathing facili- addition to the FHAct requirements.ties in a timely manner when faced with aneed to provide a roll-in shower with a The Department also notes that while inseat when requested by an overnight visi- the NPRM the Department used the termtor. As a result, the Department has added “social service establishment,’’ the finala requirement that social service center rule uses the term “ social service centerestablishments with sleeping accommo- establishment.’’ The Department has madedations for more than 50 individuals must this editorial change so that the final ruleprovide at least one roll-in shower with a is consistent with the terminology used inseat that complies with the relevant provi- the ADA. See 42 U.S.C. 12181(7)(K).sions of section 608 of the 2010 Standards.Transfer-type showers are not permitted in Section 36.406(e) Housinglieu of a roll-in shower with a seat, and the at a Place of Educationexceptions in sections 608.3 and 608.4 forresidential dwelling units are not permit- The Department of Justice and theted. When separate shower facilities are Department of Education share responsi-provided for men and for women, at least bility for regulation and enforcement of theone roll-in shower must be provided for each ADA in postsecondary educational settings,group. This supplemental requirement to the including architectural features. Housingresidential facilities standards is in addition types in educational settings range fromto the supplemental requirement that was traditional residence halls and dormito-proposed in the NPRM for clear floor space ries to apartment or townhouse-style resi-in sleeping rooms with more than 25 beds. dences. In addition to title III of the ADA,58 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationuniversities and schools that are recipients in the NPRM, the Department proposedof Federal financial assistance also are a new Sec. 36.406(e) that provided thatsubject to section 504, which contains its residence halls or dormitories operated byown accessibility requirements currently or on behalf of places of education shallthrough the application of UFAS. Residential comply with the provisions of the proposedhousing, including housing in an educa- standards for transient lodging, includ-tional setting, is also covered by the FHAct, ing, but not limited to, the provisions inwhich requires newly constructed multifam- sections 224 and 806 of the 2004 ADAAG.ily housing to include certain features ofaccessible and adaptable design. Covered Private universities and schools coveredentities subject to the ADA must always by title III as public accommodations arebe aware of, and comply with, any other required to make their programs and activi-Federal statutes or regulations that govern ties accessible to persons with disabilities.the operation of residential properties. The housing facilities that they provide have varied characteristics. College and Although the 1991 Standards mention university housing facilities typically providedormitories as a form of transient lodg- housing for up to one academic year, buting, they do not specifically address how may be closed during school vacation peri-the ADA applies to dormitories and other ods. In the summer, they often are usedtypes of residential housing provided in an for short-term stays of one to three days,educational setting. The 1991 Standards a week, or several months. Graduate andalso do not contain any specific provisions faculty housing often is provided year-roundfor residential facilities, allowing covered in the form of apartments, which may serveentities to elect to follow the residential individuals or families with children. Thesestandards contained in UFAS. Although housing facilities are diverse in their layout.the 2004 ADAAG contains provisions for Some are double-occupancy rooms with aboth residential facilities and transient lodg- shared toilet and bathing room, which maying, the guidelines do not indicate which be inside or outside the unit. Others mayrequirements apply to housing provided contain cluster, suite, or group arrange-in an educational setting, leaving it to the ments where several rooms are locatedadopting agencies to make that choice. inside a defined unit with bathing, kitchen,After evaluating both sets of standards, the and similar common facilities. In someDepartment concluded that the benefits of cases, these suites are indistinguishableapplying the transient lodging standards in features from traditional apartments.outweighed the benefits of applying the resi- Universities may build their own hous-dential facilities standards. Consequently, ing facilities or enter into agreements withDepartment of Justice Guidance on 2010 Standards: Title III - 59
    • Subpart D - Title III Regulationprivate developers to build, own, or lease specific exceptions. In addition, the residen-housing to the educational institution or tial facilities standards do not require acces-to its students. Academic housing may be sible roll-in showers in bathrooms, while thelocated on the campus of the university or transient lodging requirements require somemay be located in nearby neighborhoods. of the accessible units to be served by bath- rooms with roll-in showers. The transient Throughout the school year and the lodging standards also require that a greatersummer, academic housing can become number of units have accessible featuresprogram areas in which small groups meet, for persons with communication disabilities.receptions and educational sessions are The transient lodging standards provideheld, and social activities occur. The abil- for installation of the required accessibleity to move between rooms--both acces- features so that they are available immedi-sible rooms and standard rooms--in order ately, but the residential facilities standardsto socialize, to study, and to use all public allow for certain features of the unit to beuse and common use areas is an essential adaptable. For example, only reinforce-part of having access to these educational ments for grab bars need to be provided inprograms and activities. Academic housing residential dwellings, but the actual grabalso is used for short-term transient educa- bars must be installed under the transienttional programs during the time students are lodging standards. By contrast, the residen-not in regular residence and may be rented tial facilities standards do require certainout to transient visitors in a manner similar features that provide greater accessibilityto a hotel for special university functions. within units, such as usable kitchens and an accessible route throughout the dwell- The Department was concerned that ing. The residential facilities standards alsoapplying the new construction requirements require 5 percent of the units to be acces-for residential facilities to educational hous- sible to persons with mobility disabilities,ing facilities could hinder access to educa- which is a continuation of the same scopingtional programs for students with disabilities. that is currently required under UFAS andElevators generally are not required under is therefore applicable to any educationalthe 2004 ADAAG residential facilities stan- institution that is covered by section 504.dards unless they are needed to provide The transient lodging standards requirean accessible route from accessible units a lower percentage of accessible sleep-to public use and common use areas, while ing rooms for facilities with large numbersunder the 2004 ADAAG as it applies to other of rooms than is required by UFAS. Fortypes of facilities, multistory private facilities example, if a dormitory has 150 rooms, themust have elevators unless they meet very transient lodging standards would require 760 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationaccessible rooms, while the residential stan- of required accessible units for residentialdards would require 8. In a large dormitory facilities as compared to transient lodg-with 500 rooms, the transient lodging stan- ing may increase the cost of constructiondards would require 13 accessible rooms, or alteration, this cost would be offset byand the residential facilities standards would a reduced need later to adapt rooms if therequire 25. There are other differences demand for accessible rooms exceedsbetween the two sets of standards, includ- the supply. The commenter also encour-ing requirements for accessible windows, aged the Department to impose a visit-alterations, kitchens, an accessible route ability (accessible doorways and neces-throughout a unit, and clear floor space in sary clear floor space for turning radius)bathrooms allowing for a side transfer. requirement for both the residential facili- ties and transient lodging requirements to In the NPRM, the Department requested allow students with mobility impairments topublic comment on how to scope educa- interact and socialize in a fully integratedtional housing facilities, and it asked fashion. Another commenter stated thatwhether the residential facilities require- while dormitories should be treated like resi-ments or the transient lodging require- dences as opposed to transient lodging, thements in the 2004 ADAAG would be more Department should ensure that “all floors areappropriate for housing at places of educa- accessible,’’ thus ensuring community inte-tion and asked how the different require- gration and visitability. Another commenterments would affect the cost of building new argued that housing at a place of educa-dormitories and other student housing. See tion is comparable to residential housing,73 FR 34508, 34545 (June 17, 2008). and that most of the housing types used by schools do not have the same ameni- The Department received several ties and services or function like transientcomments on this issue under title III. One lodging and should not be treated as such.commenter stated that the Departmentshould adopt the residential facilities stan- Several commenters focused on thedards for housing at a place of education. In length of stay at this type of housing andthe commenter’s view, the residential facili- suggested that if the facilities are subjectties standards are congruent with overlap- to occupancy for greater than 30 days, theping requirements imposed by HUD, and residential standards should apply. Anotherthe residential facilities requirements would commenter supported the Department’sensure dispersion of accessible features adoption of the transient lodging standards,more effectively. This commenter also arguing this will provide greater accessibil-argued that while the increased number ity and therefore increase opportunitiesDepartment of Justice Guidance on 2010 Standards: Title III - 61
    • Subpart D - Title III Regulationfor students with disabilities to participate. The Department has determined thatOne commenter, while supporting the use the best approach to this type of hous-of transient lodging standards in this area, ing is to continue to require the appli-argued that the Department also should cation of transient lodging standardsdevelop regulations relating to the usability but, at the same time, to add severalof equipment in housing facilities by persons requirements drawn from the resi-who are blind or visually impaired. Another dential facilities standards relatedcommenter argued that the Department to accessible turning spaces and workshould not impose the transient lodging surfaces in kitchens, and the acces-requirements on K-12 schools because the sible route throughout the unit. This willcost of adding elevators can be prohibitive, ensure the maintenance of the transientand because there are safety concerns lodging standard requirements relatedrelated to evacuating students in wheel- to access to all floors of the facility, roll-chairs living on floors above the ground floor in showers in facilities with more thanin emergencies causing elevator failures. 50 sleeping rooms, and other important accessibility features not found in the The Department has considered the residential facilities standards, but alsocomments recommending the use of the will ensure usable kitchens and accessresidential facilities standards and acknowl- to all the rooms in a suite or apartment.edges that they require certain featuresthat are not included in the transient lodg- The Department has added a new defini-ing standards and that should be required tion to Sec. 36.104, “Housing at a Place offor housing provided at a place of educa- Education,’’ and has revised Sec. 36.406(e)tion. In addition, the Department notes that to reflect the accessible features that nowsince educational institutions often use will be required in addition to the require-their academic housing facilities as short- ments set forth under the transient lodgingterm transient lodging in the summers, standards. The Department also recognizesit is important that accessible features that some educational institutions providebe installed at the outset. It is not realis- some residential housing on a year-roundtic to expect that the educational institu- basis to graduate students and staff thattion will be able to adapt a unit in a timely is comparable to private rental housingmanner in order to provide accessible but contains no facilities for educationalaccommodations to someone attending a programming. Section 36.406(e)(3) exemptsone-week program during the summer. from the transient lodging standards apart- ments or townhouse facilities that are provided with a lease on a year-round62 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationbasis exclusively to graduate students or Section 36.406(f)(1) ensures that therefaculty and that do not contain any public is greater dispersion of wheelchair spacesuse or common use areas available for and companion seats throughout stadi-educational programming; instead, such ums, arenas, and grandstands than wouldhousing must comply with the require- otherwise be required by sections 221 andments for residential facilities in sections 802 of the 2004 ADAAG. In some cases,233 and 809 of the 2010 Standards. the accessible route may not be the same route that other individuals use to reach The regulatory text uses the term their seats. For example, if other patrons“sleeping room’’ in lieu of the term “guest reach their seats on the field by an inac-room,’’ which is the term used in the tran- cessible route (e.g., by stairs), but theresient lodging standards. The Department is an accessible route that complies withis using this term because it believes section 206.3 of the 2004 ADAAG that couldthat for the most part, it provides a better be connected to seats on the field, wheel-description of the sleeping facilities used chair spaces and companion seats mustin a place of education than “guest room.’’ be placed on the field even if that routeThe final rule states in Sec. 36.406(e) is not generally available to the public.that the Department intends the terms tobe used interchangeably in the applica- Regulatory language that was includedtion of the transient lodging standards in the 2004 ADAAG advisory, but thatto housing at a place of education. did not appear in the NPRM, has been added by the Department in Sec. 36.406(f)Section 36.406(f) Assembly Areas (2). Section 36.406(f)(2) now requires an assembly area that has seating encircl- In the NPRM, the Department proposed ing, in whole or in part, a field of play orSec. 36.406(f) to supplement the assem- performance area, such as an arena orbly area requirements of the 2004 ADAAG, stadium, to place wheelchair spaces andwhich the Department is adopting as companion seats around the entire facil-part of the 2010 Standards. The NPRM ity. This rule, which is designed to preventproposed at Sec. 36.406(f)(1) to require a public accommodation from placingwheelchair spaces and companion seat- wheelchair spaces and companion seatsing locations to be dispersed to all levels on one side of the facility only, is consis-of the facility that are served by an acces- tent with the Department’s enforcementsible route. The Department received no practices and reflects its interpretation ofsignificant comments on this paragraph section 4.33.3 of the 1991 Standards.and has decided to adopt the proposedlanguage with minor modifications.Department of Justice Guidance on 2010 Standards: Title III - 63
    • Subpart D - Title III Regulation In the NPRM, the Department proposed required, thus reducing the opportunitiesSec. 36.406(f)(2), which prohibits wheel- for persons who need accessible seating tochair spaces and companion seat- have the same choice of ticket prices anding locations from being “located on (or amenities that are available to other patronsobstructed by) temporary platforms * * in the facility. In addition, use of removable*.’’ 73 FR 34508, 34557 (June 17, 2008). platforms may result in instances whereThrough its enforcement actions, last minute requests for wheelchair andthe Department discovered that some companion seating cannot be met becausevenues place wheelchair spaces and entire sections of accessible seating will becompanion seats on temporary platforms lost when a platform is removed. See 73that, when removed, reveal conventional FR 34508, 34546 (June 17, 2008). Further,seating underneath, or cover the wheel- use of temporary platforms allows facilitieschair spaces and companion seats with to limit persons who need accessible seat-temporary platforms on top of which they ing to certain seating areas, and to relegateplace risers of conventional seating. These accessible seating to less desirable loca-platforms cover groups of conventional tions. The use of temporary platforms hasseats and are used to provide groups of the effect of neutralizing dispersion andwheelchair seats and companion seats. other seating requirements (e.g., line of sight) for wheelchair spaces and companion Several commenters requested an seats. Cf. Independent Living Resources v.exception to the prohibition of the use of Oregon Arena Corp., 1 F. Supp. 2d 1159,temporary platforms for public accom- 1171 (D. Or. 1998) (holding that while amodations that sell most of their tickets public accommodation may “infill’’ wheel-on a season-ticket or other multi-event chair spaces with removable seats whenbasis. Such commenters argued that they the wheelchair spaces are not needed toshould be able to use temporary platforms accommodate individuals with disabilities,because they know, in advance, that the under certain circumstances “[s]uch a prac-patrons sitting in certain areas for the whole tice might well violate the rule that wheel-season do not need wheelchair spaces and chair spaces must be dispersed throughoutcompanion seats. The Department declines the arena in a manner that is roughly propor-to adopt such an exception. As it explained tionate to the overall distribution of seat-in detail in the NPRM, the Department ing’’). In addition, using temporary platformsbelieves that permitting the use of movable to convert unsold wheelchair spaces toplatforms that seat four or more wheel- conventional seating undermines the flexibil-chair users and their companions have the ity facilities need to accommodate second-potential to reduce the number of available ary ticket market exchanges as requiredwheelchair seating spaces below the level by Sec. 36.302(f)(7) of the final rule.64 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulation As the Department explained in the For stadium-style movie theaters, in Sec.NPRM, however, this provision was not 36.406(f)(4) of the NPRM the Departmentdesigned to prohibit temporary seating that proposed requiring placement of wheelchairincreases seating for events (e.g., placing seating spaces and companion seats on atemporary seating on the floor of a basket- riser or cross-aisle in the stadium sectionball court for a concert). Consequently, the of the theater that satisfies at least one offinal rule, at Sec. 36.406(f)(3), has been the following criteria: (1) It is located withinamended to clarify that if an entire seat- the rear 60 percent of the seats provided ining section is on a temporary platform for the auditorium; or (2) It is located within thea particular event, then wheelchair spaces area of the auditorium where the verticaland companion seats may also be in that viewing angles are between the 40th andseating section. However, adding a tempo- 100th percentile of vertical viewing anglesrary platform to create wheelchair spaces for all seats in that theater as ranked fromand companion seats that are otherwise the first row (1st percentile) to the backdissimilar from nearby fixed seating and row (100th percentile). The vertical view-then simply adding a small number of ing angle is the angle between a horizontaladditional seats to the platform would not line perpendicular to the seated viewer’squalify as an “entire seating section’’ on eye to the screen and a line from the seatedthe platform. In addition, Sec. 36.406(f) viewer’s eye to the top of the screen.(3) clarifies that facilities may fill in wheel-chair spaces with removable seats when The Department proposed this bright-linethe wheelchair spaces are not needed rule for two reasons: (1) the movie theaterby persons who use wheelchairs. industry petitioned for such a rule; and (2) the Department has acquired exper- The Department has been responsive to tise in the design of stadium-style theatersassembly areas’ concerns about reduced during its litigation with several major movierevenues due to unused accessible seating. theater chains. See United States. v. AMCAccordingly, the Department has reduced Entertainment, Inc., 232 F. Supp.2d 1092scoping requirements significantly--by (C.D. Cal. 2002), rev’d in part, 549 F.3d 760almost half in large assembly areas--and (9th Cir. 2008); United States v. Cinemarkdetermined that allowing assembly areas to USA, Inc., 348 F.3d 569 (6th Cir. 2003). Twoin-fill unsold wheelchair spaces with readily industry commenters--at least one of whomremovable temporary individual seats appro- otherwise supported this rule--requestedpriately balances their economic concerns that the Department explicitly state that thiswith the rights of individuals with disabilities. rule does not apply retroactively to existingSee section 221.1 of the 2010 Standards. theaters. Although this provision on its faceDepartment of Justice Guidance on 2010 Standards: Title III - 65
    • Subpart D - Title III Regulationapplies to new construction and alterations, theaters with 300 or fewer seats; stadium-these commenters were concerned that the style theaters of all sizes must comply withrule could be interpreted to apply retroac- this rule. So, for example, stadium-styletively because of the Department’s state- theaters that must vertically disperse wheel-ments in the NPRM and ANPRM that this chair spaces and companion seats mustbright line rule, although newly articulated, do so within the parameters of this rule.is not a new standard but “merely codifi[es]longstanding Department requirement[s],’’ The NPRM included a provision that73 FR 34508, 34534 (June 17, 2008), and required assembly areas with moredoes not represent a “substantive change than 5,000 seats to provide at least fivefrom the existing line-of-sight requirements’’ wheelchair spaces with at least threeof section 4.33.3 of the 1991 Standards, companion seats for each of those five69 FR 58768, 58776 (Sept. 30, 2004). wheelchair spaces. The Department agrees with commenters who asserted Although the Department intends for that group seating is better addressedSec. 36.406(f)(4) of this rule to apply through ticketing policies rather thanprospectively to new construction and design and has deleted that provisionalterations, this rule is not a departure from this section of the final rule.from, and is consistent with, the line-of-sight requirements in the 1991 Standards. Section 36.406(g)The Department has always interpreted Medical Care Facilitiesthe line-of-sight requirements in the 1991Standards to require viewing angles In the 1991 title III regulation, there wasprovided to patrons who use wheelchairs no provision addressing the dispersionto be comparable to those afforded to other of accessible sleeping rooms in medicalspectators. Section 36.406(f)(4) merely care facilities. The Department is aware,represents the application of these require- however, of problems that individuals withments to stadium-style movie theaters. disabilities face in receiving full and equal medical care when accessible sleeping One commenter from a trade association rooms are not adequately dispersed. Whensought clarification whether Sec. 36.406(f) accessible rooms are not fully dispersed,(4) applies to stadium-style theaters with a person with a disability is often placed inmore than 300 seats, and argued that it an accessible room in an area that is notshould not since dispersion requirements medically appropriate for his or her condi-apply in those theaters. The Department tion, and is thus denied quick access todeclines to limit this rule to stadium-style staff with expertise in that medical specialty66 - Guidance on 2010 Standards: Title III Department of Justice
    • Subpart D - Title III Regulationand specialized equipment. While the The Department has decided to requireAccess Board did not establish specific medical care facilities to disperse theirdesign requirements for dispersion in the accessible sleeping rooms in a manner that2004 ADAAG, in response to extensive is proportionate by type of medical specialty.comments in support of dispersion it added This does not require exact mathematicalan advisory note, Advisory 223.1 General, proportionality, which at times would beencouraging dispersion of accessible impossible. However, it does require thatrooms within the facility so that accessible medical care facilities disperse their acces-rooms are more likely to be proximate to sible rooms by medical specialty so thatappropriate qualified staff and resources. persons with disabilities can, to the extent practical, stay in an accessible room within In the NPRM, the Department sought the wing or ward that is appropriate for theiradditional comment on the issue, asking medical needs. The language used in thiswhether it should require medical care rule (“in a manner that is proportionate byfacilities, such as hospitals, to disperse type of medical specialty’’) is more specifictheir accessible sleeping rooms, and if than that used in the NPRM (“in a mannerso, by what method (by specialty area, that enables patients with disabilities to havefloor, or other criteria). All of the comments access to appropriate specialty services’’)the Department received on this issue and adopts the concept of proportionalitysupported dispersing accessible sleep- proposed by the commenters. Accessibleing rooms proportionally by specialty area. rooms should be dispersed throughout allThese comments from individuals, orga- medical specialties, such as obstetrics,nizations, and a building code associa- orthopedics, pediatrics, and cardiac care.tion, argued that it would not be difficult forhospitals to disperse rooms by specialtyarea, given the high level of regulation towhich hospitals are subject and the plan-ning that hospitals do based on utiliza-tion trends. Further, comments suggestthat without a requirement, it is unlikelythat hospitals would disperse the rooms.In addition, concentrating accessiblerooms in one area perpetuates segrega-tion of individuals with disabilities, whichis counter to the purpose of the ADA.Department of Justice Guidance on 2010 Standards: Title III - 67
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    • 4 Analysis and Commentary on the 2010 Standards for Accessible Design 69
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    • Analysis and Commentary on the 2010 ADAStandards Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible DesignThe following is a discussion of substantive Editorial changes are not discussed. Scopingchanges in the scoping and technical and technical requirements are discussedrequirements for new construction and together, where appropriate, for ease ofalterations resulting from the adoption of understanding the requirements. In addition,new ADA Standards for Accessible Design this document addresses selected public(2010 Standards) in the final rules for title II comments received by the Department in(28 CFR part 35) and title III (28 CFR part response to its September 2004 Advance36) of the Americans with Disabilities Act Notice of Proposed Rulemaking (ANPRM)(ADA). The full text of the 2010 Standards is and its June 2008 Notice of Proposedavailable for review at www.ada.gov. Rulemaking (NPRM).In the Department’s revised ADA title II The ANPRM and NPRM issued by theregulation, 28 CFR 35.104 Definitions, Department concerning the proposed 2010the Department defines the term “2010 Standards stated that comments receivedStandards” to mean the 2010 ADA Standards by the Access Board in response to itsfor Accessible Design. The 2010 Standards development of the ADAAG upon whichconsist of the 2004 ADA Accessibility the 2010 Standards are based would beGuidelines (ADAAG) and the requirements considered in the development of the finalcontained in 28 CFR 35.151. Standards. Therefore, the Department will not restate here all of the comments andIn the Department’s revised ADA title III responses to them issued by the Accessregulation, 28 CFR 36.104 Definitions, Board. The Department is supplementing thethe Department defines the term “2010 Access Board’s comments and responsesStandards” to mean the 2010 ADA Standards with substantive comments and responsesfor Accessible Design. The 2010 Standards here. Comments and responses addressedconsist of the 2004 ADA Accessibility by the Access Board that also wereGuidelines (ADAAG) and the requirements separately submitted to the Department willcontained in 28 CFR part 36 subpart D. not be restated in their entirety here.This summary addresses selectedsubstantive changes between the 1991ADA Standards for Accessible Design(1991 Standards) codified at 28 CFR part36, app. A (2009) and the 2010 Standards.Department of Justice Guidance on the 2010 Standards: Titles II and III - 71
    • Analysis and Commentary on the 2010 ADAStandards Section-by-Section Analysis with Public CommentsApplication and Administration properly rests with the covered entity. The purpose of allowing for equivalent facilitation102 Dimensions for Adults and Children is to encourage flexibility and innovation while still ensuring access. The DepartmentSection 2.1 of the 1991 Standards stated believes that establishing potentiallythat the specifications were based upon adult cumbersome bureaucratic provisions fordimensions and anthropometrics. reviewing requests for equivalent facilitationThe 1991 Standards did not provide specific is inappropriate.requirements for children’s elements orfacilities. 104 ConventionsSection 102 of the 2010 Standards states Dimensions. Section 104.1 of the 2010that the technical requirements are based Standards notes that dimensions not statedon adult dimensions and anthropometrics. as a “maximum” or “minimum” are absolute.In addition, technical requirements are also Section 104.1.1 of the 2010 Standardsprovided based on children’s dimensions and provides that all dimensions are subject toanthropometrics for drinking fountains, water conventional industry tolerances exceptclosets and other elements located in toilet where the requirement is stated as a rangecompartments, lavatories and sinks, dining with specific minimum and maximumsurfaces, and work surfaces. end points. A commenter stated that the 2010 Standards restrict the application of103 Equivalent Facilitation construction tolerances only to those few requirements that are expressed as anThis section acknowledges that nothing absolute dimension.in these requirements prevents the useof designs, products, or technologies as This is an incorrect interpretation of sectionsalternatives to those prescribed, provided 104.1 and 104.1.1 of the 2010 Standards.that the alternatives result in substantially Construction and manufacturing tolerancesequivalent or greater accessibility and apply to absolute dimensions as well as tousability. dimensions expressed as a maximum or minimum. When the requirement states aA commenter encouraged the Department specified range, such as in section 609.4to include a procedure for determining where grab bars must be installed betweenequivalent facilitation. The Department 33 inches and 36 inches above the finishedbelieves that the responsibility for determining floor, that range provides an adequateand demonstrating equivalent facilitation72 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardstolerance. Advisory 104.1.1 gives further 106 Definitionsguidance about tolerances. Various definitions have been added to theSection 104.2 of the 2010 Standards 2010 Standards and some definitions haveprovides that where the required number been deleted.of elements or facilities to be provided isdetermined by calculations of ratios or One commenter asked that the term publicpercentages and remainders or fractions right-of-way be defined; others asked thatresult, the next greater whole number of various terms and words defined by thesuch elements or facilities shall be provided. 1991 Standards, but which were eliminatedWhere the determination of the required size from the 2010 Standards, plus other wordsor dimension of an element or facility involves and terms used in the 2010 Standards, beratios or percentages, rounding down for defined.values less than one-half is permissible. The Department believes that it is notA commenter stated that it is customary in necessary to add definitions to this textthe building code industry to round up rather because section 106.3 of the 2010 Standardsthan down for values less than one-half. provides that the meanings of terms notAs noted here, where the 2010 Standards specifically defined in the 2010 Standards,provide for scoping, any resulting fractional in the Department’s ADA regulations, or incalculations will be rounded to the next whole referenced standards are to be defined bynumber. The Department is retaining the collegiate dictionaries in the sense that theportion of section 104.2 that permits rounding context implies. The Department believes thatdown for values less than one-half where this provision adequately addresses thesethe determination of the required size or commenters’ concerns.dimension of an element or facility involvesratios or percentages. Such practice is Scoping andstandard with the industry, and is in keeping Technical Requirementswith model building codes. 202 Existing Buildings and Facilities105 Referenced Standards Alterations. Under section 4.1.6(1)(c) ofSection 105 lists the industry requirements the 1991 Standards if alterations to singlethat are referenced in the 2010 Standards. elements, when considered together, amountThis section also clarifies that where there is to an alteration of a room or space in aa difference between a provision of the 2010 building or facility, the entire room or spaceStandards and the referenced requirements, would have to be made accessible. Thisthe provision of the 2010 Standards applies. requirement was interpreted to mean thatDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 73
    • Analysis and Commentary on the 2010 ADAStandardsif a covered entity chose to alter several function area. The UFAS requirements for aelements in a room there would come a point substantial alteration, though different, maywhen so much work had been done that it have covered some of the items that will nowwould be considered that the entire room or be covered by the path of travel requirement.space would have to be made accessible.Under section 202.3 of the 2010 Standards Visible Alarms in Alterations to Existingentities can alter as many elements within a Facilities. The 1991 Standards, at sectionsroom or space as they like without triggering 4.1.3(14) and 4.1.6(1)(b), and sections 202.3a requirement to make the entire room or and 215.1 of the 2010 Standards requirespace accessible based on the alteration of that when existing elements and spaces ofindividual elements. This does not, however, a facility are altered, the alterations mustchange the requirement that if the intent was comply with new construction requirements.to alter the entire room or space, the entire Section 215.1 of the 2010 Standards addsroom or space must be made accessible and a new exception to the scoping requirementcomply with the applicable requirements of for visible alarms in existing facilities so thatChapter 2 of the 2010 Standards. visible alarms must be installed only when an existing fire alarm system is upgradedAlterations to Primary Function Areas. or replaced, or a new fire alarm system isSection 202.4 restates a current requirement installed.under title III, and therefore represents nochange for title III facilities or for those title II Some commenters urged the Departmentfacilities that have elected to comply with the not to include the exception and to make1991 Standards. However, under the revised visible alarms a mandatory requirement fortitle II regulation, state and local government all spaces, both existing and new. Otherfacilities that have previously elected to commenters said that the exception willcomply with the Uniform Federal Accessibility make the safety of individuals with disabilitiesStandards (UFAS) instead of the 1991 dependent upon the varying age of existingStandards will no longer have that option, and fire alarm systems. Other commentersthus will now be subject to the path of travel suggested that including this requirement,requirement. The path of travel requirement even with the exception, will result inprovides that when a primary function area significant cost to building owners andof an existing facility is altered, the path operators.of travel to that area (including restrooms,telephones, and drinking fountains serving The Department believes that the languagethe area) must also be made accessible, of the exception to section 215.1 of thebut only to the extent that the cost of doing 2010 Standards strikes a reasonableso does not exceed twenty percent (20%) balance between the interests of individualsof the cost of the alterations to the primary with disabilities and those of the business74 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardscommunity. If undertaken at the time a and constructed so that individuals withsystem is installed, whether in a new facility disabilities can approach, enter, and exitor in a planned system upgrade, the cost of the areas. Section 206.2.8 of the 2010adding visible alarms is reasonable. Over Standards requires accessible commontime, existing facilities will become fully use circulation paths within employee workaccessible to individuals who are deaf or areas unless they are subject to exceptionshard of hearing, and will add minimal costs to in sections 206.2.8, 403.5, 405.5, and 405.8.owners and operators. The ADA, 42 U.S.C. 12112 (b)(5)(A) and (B), requires employers to make reasonable203 General Exceptions accommodations in the workplace for individuals with disabilities, which mayLimited Access Spaces and Machinery include modifications to work areas whenSpaces. The 1991 Standards, at section needed. Providing increased access in the4.1.1, contain an exception that exempts facility at the time of construction or alteration“non-occupiable” spaces that have limited will simplify the process of providingmeans of access, such as ladders or very reasonable accommodations when they arenarrow passageways, and that are visited needed.only by service personnel for maintenance,repair, or occasional monitoring of equipment, The requirement for accessible commonfrom all accessibility requirements. Sections use circulation paths will not apply to203.4 and 203.5 of the 2010 Standards existing facilities pursuant to the readilyexpand this exception by removing the achievable barrier removal requirement.condition that the exempt spaces be “non- The Department has consistently taken theoccupiable,” and by separating the other position that barrier removal requirementsconditions into two independent exceptions: do not apply to areas used exclusively byone for spaces with limited means of access, employees because the purpose of title III isand the other for machinery spaces. More to ensure that access is provided to clientsspaces are exempted by the exception in the and customers. See Appendix B to the 19912010 Standards. regulation implementing title III, 28 CFR part 36.203, 206 and 215 Employee Work Areas Several exceptions to section 206.2.8 ofCommon Use Circulation Paths in the 2010 Standards exempt common useEmployee Work Areas. The 1991 circulation paths in employee work areasStandards at section 4.1.1(3), and the from the requirements of section 402 where2010 Standards at section 203.9, require it may be difficult to comply with the technicalemployee work areas in new construction requirements for accessible routes due to theand alterations only to be designed size or function of the area:Department of Justice Guidance on the 2010 Standards: Titles II and III - 75
    • Analysis and Commentary on the 2010 ADAStandards • Employee work areas, or portions of • Machinery and equipment are permitted employee work areas, that are less than to reduce the clear width of common use 300 square feet and are elevated 7 inches circulation paths where the reduction is or more above the ground or finish floor, essential to the function of the work per- where elevation is essential to the func- formed. Machinery and equipment that tion of the space, are exempt. must be placed a certain way to work properly, or for ergonomics or to prevent • Common use circulation paths within workplace injuries are covered by this employee work areas that are less than exception. 1,000 square feet and are defined by permanently installed partitions, counters, • Handrails are not required on ramps, pro- casework, or furnishings are exempt. vided that they can be added in the future. Kitchens in quick service restaurants, cocktail bars, and the employee side of Commenters stated that the requirements service counters are frequently covered set out in the 2010 Standards for accessible by this exception. common use circulation paths in employee work areas are inappropriate, particularly in • Common use circulation paths within commercial kitchens, storerooms, and behind employee work areas that are an integral cocktail bars where wheelchairs would not be component of equipment are exempt. easily accommodated. These commenters Common use circulation paths within further urged the Department not to adopt large pieces of equipment in factories, a requirement that circulation paths in electric power plants, and amusement employee work areas be at least 36 inches rides are covered by this exception. wide, including those at emergency exits. • Common use circulation paths within These commenters misunderstand the exterior employee work areas that are scope of the provision. Nothing in the 2010 fully exposed to the weather are exempt. Standards requires all circulation paths in Farms, ranches, and outdoor mainte- non-exempt areas to be accessible. The nance facilities are covered by this excep- Department recognizes that building codes tion. and fire and life safety codes, which are adopted by all of the states, require primaryThe 2010 Standards in sections 403.5 and circulation paths in facilities, including405.8 also contain exceptions to the technical employee work areas, to be at least 36requirements for accessible routes for inches wide for purposes of emergencycirculation paths in employee work areas: egress. Accessible routes also are at least 36 inches wide. Therefore, the Department anticipates that covered entities will be76 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandards able to satisfy the requirement to provide Visible Alarms. Section 215.3 of the 2010accessible circulation paths by ensuring that Standards provides that where employeetheir required primary circulation paths are work areas in newly constructed facilitiesaccessible. have audible alarm coverage they are required to have wiring systems thatIndividual employee work stations, such as a are capable of supporting visible alarmsgrocery checkout counter or an automobile that comply with section 702 of the 2010service bay designed for use by one person, Standards. The 1991 Standards, at sectiondo not contain common use circulation paths 4.1.1(3), require visible alarms to be providedand are not required to comply. Other work where audible fire alarm systems areareas, such as stockrooms that typically have provided, but do not require areas used onlynarrow pathways between shelves, would by employees as work areas to be equippedbe required to design only one accessible with accessibility features. As applied to officecirculation path into the stockroom. It would buildings, the 1991 Standards require visiblenot be necessary to make each circulation alarms to be provided in public and commonpath in the room accessible. In alterations use areas such as hallways, conferenceit may be technically infeasible to provide rooms, break rooms, and restrooms, whereaccessible common use circulation paths in audible fire alarm systems are provided.some employee work areas. For example,in a stock room of a department store Commenters asserted that the requirementssignificant existing physical constraints, such of section 215.3 of the 2010 Standards wouldas having to move walls to avoid the loss of be burdensome to meet. These commentersspace to store inventory, may mean that it also raised concerns that all employee workis technically infeasible (see section 106.5 areas within existing buildings and facilities“Defined Terms” of the 2010 Standards) must be equipped with accessibility features.to make even the primary common usecirculation path in that stock room wide The commenters’ concerns about sectionenough to be accessible. In addition, the 215.3 of the 2010 Standards represent2010 Standards include exceptions for a misunderstanding of the requirementscommon use circulation paths in employee applicable to employee work areas.work areas where it may be difficult to Newly constructed buildings and facilitiescomply with the technical requirements for merely are required to provide wiring soaccessible routes due to the size or function that visible alarm systems can be added asof the areas. The Department believes that needed to accommodate employees whothese exceptions will provide the flexibility are deaf or hard of hearing. This is a minimalnecessary to ensure that this requirement requirement without significant impact. does not interfere with legitimate businessoperations. Department of Justice Guidance on the 2010 Standards: Titles II and III - 77
    • Analysis and Commentary on the 2010 ADAStandardsThe other issue in the comments represents exceptions covering operable parts intendeda misunderstanding of the Department’s only for use by service or maintenanceexisting regulatory requirements. Employee personnel, electrical or communicationcommon use areas in covered facilities receptacles serving a dedicated use, and(e.g., locker rooms, break rooms, cafeterias, floor electrical receptacles. Operable partstoilet rooms, corridors to exits, and other covered by these new exceptions are exemptcommon use spaces) were required to from all of the technical requirements forbe accessible under the 1991 Standards; operable parts in section 309. The 2010areas in which employees actually perform Standards also add exceptions that exempttheir jobs are required to enable a person certain outlets at kitchen counters; heating,using a wheelchair or mobility device to ventilating and air conditioning diffusers;approach, enter, and exit the area. The 2010 redundant controls provided for a singleStandards require increased access through element, other than light switches; andthe accessible common use circulation path exercise machines and equipment from allrequirement, but neither the 1991 Standards of the technical requirements for operablenor the 2010 Standards require employee parts. Exception 7, in section 205.1 of thework stations to be accessible. Access to 2010 Standards, exempts cleats and otherspecific employee work stations is governed boat securement devices from the accessibleby title I of the ADA. height requirement. Similarly, section 309.4 of the 2010 Standards exempts gas205 and 309 Operable Parts pump nozzles, but only from the technical requirement for activating force.Section 4.1.3, and more specificallysections 4.1.3(13), 4.27.3, and 4.27.4 of Reach Ranges. The 1991 Standards setthe 1991 Standards, require operable parts the maximum height for side reach at 54on accessible elements, along accessible inches above the floor. The 2010 Standards,routes, and in accessible rooms and spaces at section 308.3, lower that maximum heightto comply with the technical requirements to 48 inches above the finish floor or ground.for operable parts, including height and The 2010 Standards also add exceptions, asoperation. The 1991 Standards, at section discussed above, to the scoping requirement4.27.3, contain an exception, “ * * * where the for operable parts for certain elements that,use of special equipment dictates otherwise among other things, will exempt them fromor where electrical and communications the reach range requirements in section 308.systems receptacles are not normallyintended for use by building occupants,” from The 1991 Standards, at sections 4.1.3,the technical requirement for the height of 4.27.3, and 4.2.6, and the 2010 Standards,operable parts. Section 205.1 of the 2010 at sections 205.1, 228.1, 228.2, 308.3, andStandards divides this exception into three 309.3, require operable parts of accessible78 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardselements, along accessible routes, and in will be burdensome for small businesses toaccessible rooms and spaces to be placed comply with. These comments argued thatwithin the forward or side-reach ranges the new reach range requirements restrictspecified in section 308. The 2010 Standards design options, especially in residentialalso require at least five percent (5%) of housing.mailboxes provided in an interior locationand at least one of each type of depository, The Department continues to believe thatvending machine, change machine, and gas data submitted by advocacy groups andpump to meet the technical requirements for others provides compelling evidence thata forward or a side reach. lowered reach range requirements will better serve significantly greater numbersSection 4.2.6 of the 1991 Standards specifies of individuals with disabilities, includinga maximum 54-inch high side reach and individuals of short stature, persons witha minimum 9-inch low side reach for an limited upper body strength, and othersunobstructed reach depth of 10 inches with limited use of their arms and fingers.maximum. Section 308.3.1 of the 2010 The change to the side-reach range wasStandards specifies a maximum 48-inch high developed by the Access Board overside reach and a minimum 15-inch low side a prolonged period in which there wasreach where the element being reached for extensive public participation. This processis unobstructed. Section 308.3.1, Exception did not produce any significant data to1, permits an obstruction that is no deeper indicate that applying the new unobstructedthan 10 inches between the edge of the clear side-reach range requirement in newfloor or ground space and the element that construction or during alterations wouldthe individual with a disability is trying to impose a significant burden.reach. Changes in the side-reach range fornew construction and alterations in the 2010 206 and Chapter 4 Accessible RoutesStandards will affect a variety of buildingelements such as light switches, electrical Slope. The 2010 Standards provide, atoutlets, thermostats, fire alarm pull stations, section 403.3, that the cross slope of walkingcard readers, and keypads. surfaces not be steeper than 1:48. The 1991 Standards’ cross slope requirementCommenters were divided in their views was that it not exceed 1:50. A commenterabout the changes to the unobstructed side- recommended increasing the cross slopereach range. Disability advocacy groups and requirement to allow a maximum of ½ inchothers, including individuals of short stature, per foot (1:24) to prevent imperfections insupported the modifications to the proposed concrete surfaces from ponding water. Thereach range requirements. Other commenters Department continues to believe that thestated that the new reach range requirements requirement that a cross slope not be steeperDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 79
    • Analysis and Commentary on the 2010 ADAStandardsthan 1:48 adequately provides for water exception will not apply. It will apply onlydrainage in most situations. The suggested in the relatively rare situations where thechanges would double the allowable cross route between the site arrival point and theslope and create a significant impediment accessible facility dictates vehicular access –for many wheelchair users and others with a for example, an office complex on an isolatedmobility disability. site that has a private access road, or a self- service storage facility where all users areAccessible Routes from Site Arrival Points expected to drive to their storage units.and Within Sites. The 1991 Standards,at sections 4.1.2(1) and (2), and the 2010 Another commenter suggested that theStandards, at sections 206.2.1 and 206.2.2, language of section 406.1 of the 2010require that at least one accessible route Standards is confusing because it states thatbe provided within the site from site arrival curb ramps on accessible routes shall complypoints to an accessible building entrance and with 406, 405.2 through 405.5, and 405.10.that at least one accessible route connect The 1991 Standards require that curb rampsaccessible facilities on the same site. The be provided wherever an accessible route2010 Standards also add two exceptions crosses a curb.that exempt site arrival points and accessiblefacilities within a site from the accessible The Department declines to change thisroute requirements where the only means of language because the change is purelyaccess between them is a vehicular way that editorial, resulting from the overall changesdoes not provide pedestrian access. in the format of the 2010 Standards. It does not change the substantive requirement.Commenters urged the Department to In the 2010 Standards all elements on aeliminate the exception that exempts site required accessible route must be accessible;arrival points and accessible facilities from therefore, if the accessible route crosses athe accessible route requirements where curb, a curb ramp must be provided.the only means of access between them isa vehicular way not providing pedestrian Areas of Sport Activity. Section 206.2.2access. The Department declines to of the 2010 Standards requires at leastaccept this recommendation because the one accessible route to connect accessibleDepartment believes that its use will be buildings, facilities, elements, and spaceslimited. If it can be reasonably anticipated on the same site. Advisory section 206.2.2that the route between the site arrival point adds the explanation that an accessible routeand the accessible facilities will be used must connect the boundary of each area ofby pedestrians, regardless of whether a sport activity (e.g., courts and playing fields,pedestrian route is provided, then this whether indoor or outdoor). Section 206.2.12 of the 2010 Standards further requires that80 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsin court sports the accessible route must recently developed these new “buttonless”directly connect both sides of the court. elevator control systems. These new, more efficient elevators are usually found in high-Limited-Use/Limited-Application rise buildings that have several elevators.Elevators, Destination-Oriented Elevators They require passengers to enter theirand Private Residence Elevators. The destination floor on an entry device, usually1991 Standards, at section 4.1.3(5), and a keypad, in the elevator lobby. The systemthe 2010 Standards, at sections 206.2 and then sends the most efficient car available206.6, include exceptions to the scoping to take all of the passengers going to therequirement for accessible routes that sixth floor, for example, only to the sixth floor,exempt certain facilities from connecting without making stops at the third, fourth,each story with an elevator. If a facility is and fifth floors on the way to the sixth floor.exempt from the scoping requirement, but The challenge for individuals who are blindnonetheless installs an elevator, the 1991 or have low vision is how to know whichStandards require the elevator to comply elevator car to enter, after they have enteredwith the technical requirements for elevators. their destination floor into the keypad.The 2010 Standards add a new exceptionthat allows a facility that is exempt from Commenters requested that the Departmentthe scoping requirement to install a limited- impose a moratorium on the installation ofuse/limited-application (LULA) elevator. destination-oriented elevators arguing thatLULA elevators are also permitted in the this new technology presents wayfinding1991 Standards and the 2010 Standards challenges for persons who are blind or haveas an alternative to platform lifts. The 2010 low vision.Standards also add a new exception thatpermits private residence elevators in multi- Section 407.2.1.5 of the 2010 Standardsstory dwelling and transient lodging units. allows destination-oriented elevators to notThe 2010 Standards contain technical provide call buttons with visible signals torequirements for LULA elevators at section indicate when each call is registered and408 and private residence elevators at when each call is answered provided thatsection 409. visible and audible signals, compliant with 407.2.2 of the 2010 Standards, indicatingSection 407.2.1.4 of the 2010 Standards which elevator car to enter, are provided.includes an exception to the technical This will require the responding elevator carrequirements for locating elevator call buttons to automatically provide audible and visiblefor destination-oriented elevators. The communication so that the system will alwaysadvisory at section 407.2.1.4 describes lobby verbally and visually indicate which elevatorcontrols for destination-oriented elevator car to enter.systems. Many elevator manufacturers haveDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 81
    • Analysis and Commentary on the 2010 ADAStandardsAs with any new technology, all users must and constructed buildings and facilities andhave time to become acquainted with how altered portions of existing buildings andto use destination-oriented elevators. The facilities be accessible. Sections 206.2.7(1)Department will monitor the use of this new and (2) of the 2010 Standards add twotechnology and work with the Access Board exceptions that exempt small press boxesso that there is not a decrease in accessibility that are located in bleachers with entrancesas a result of permitting this new technology on only one level, and small press boxes thatto be installed. are free-standing structures elevated 12 feet or more above grade, from the accessibleAccessible Routes to Tiered Dining Areas route requirement when the aggregate areain Sports Facilities. The 1991 Standards, at of all press boxes in a sports facility does notsections 4.1.3(1) and 5.4, and section 206.2.5 exceed 500 square feet. The Departmentof the 2010 Standards require an accessible anticipates that this change will significantlyroute to be provided to all dining areas in reduce the economic impact on smallernew construction, including raised or sunken sports facilities, such as those associateddining areas. The 2010 Standards add a new with high schools or community colleges.exception for tiered dining areas in sportsfacilities. Dining areas in sports facilities Public Entrances. The 1991 Standards, atare typically integrated into the seating bowl sections 4.1.3(8) and 4.1.6(1)(h), require atand are tiered to provide adequate lines of least fifty percent (50%) of public entrancessight for individuals with disabilities. The new to be accessible. Additionally, the 1991exception requires accessible routes to be Standards require the number of accessibleprovided to at least 25 percent (25%) of the public entrances to be equivalent to thetiered dining areas in sports facilities. Each number of exits required by applicabletier must have the same services and the building and fire codes. With very fewaccessible routes must serve the accessible exceptions, building and fire codes requireseating. at least two exits to be provided from spaces within a building and from the building itself.Accessible Routes to Press Boxes. The Therefore, under the 1991 Standards where1991 Standards, at sections 4.1.1(1) and two public entrances are planned in a newly4.1.3(1), cover all areas of newly constructed constructed facility, both entrances arefacilities required to be accessible, and required to be accessible.require an accessible route to connectaccessible entrances with all accessible Instead of requiring accessible entrancesspaces and elements within the facility. based on the number of public entrancesSection 201.1 of the 2010 Standards provided or the number of exits requiredrequires that all areas of newly designed (whichever is greater), section 206.4.182 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsof the 2010 Standards requires at least one entrance, and the requirements of thesixty percent (60%) of public entrances 1991 Standards typically resulted in theseto be accessible. The revision is intended buildings having more than one accessibleto achieve the same result as the 1991 entrance. Requiring at least sixty percentStandards. Thus, under the 2010 Standards (60%) of public entrances to be accessiblewhere two public entrances are planned in is not expected to result in a substantiala newly constructed facility, both entrances increase in the number of accessiblemust be accessible. entrances compared to the requirements of the 1991 Standards. In some very largeWhere multiple public entrances are planned facilities this change may result in fewerto serve different site arrival points, the accessible entrances being required by the1991 Standards, at section 4.1.2(1), and 2010 Standards. However, the Departmentsection 206.2.1 of the 2010 Standards believes that the realities of good commercialrequire at least one accessible route to design will result in more accessiblebe provided from each type of site arrival entrances being provided for the conveniencepoint provided, including accessible parking of all users.spaces, accessible passenger loading zones,public streets and sidewalks, and public The 1991 Standards and the 2010 Standardstransportation stops, to an accessible public also contain exceptions that limit theentrance that serves the site arrival point. number of accessible entrances required in alterations to existing facilities. WhenCommenters representing small businesses entrances to an existing facility are alteredrecommended retaining the 1991 requirement and the facility has an accessible entrance,for fifty percent (50%) of public entrances the entrance being altered is not requiredof covered entities to be accessible. These to be accessible, unless a primary functioncommenters also raised concerns about the area also is altered and then an accessibleimpact upon existing facilities of the new sixty path of travel must be provided to the primarypercent (60%) requirement. function area to the extent that the cost to do so is not disproportionate to the overall costThe Department believes that these of the alteration.commenters misunderstand the 1991Standards. As explained above, the Alterations to Existing Elevators. When arequirements of the 1991 Standards single space or element is altered, the 1991generally require more than fifty percent Standards, at sections 4.1.6(1)(a) and (b),(50%) of entrances in small facilities to be require the space or element to be madeaccessible. Model codes require that most accessible. When an element in one elevatorbuildings have more than one means of is altered, the 2010 Standards, at sectionegress. Most buildings have more than 206.6.1, require the same element to beDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 83
    • Analysis and Commentary on the 2010 ADAStandardsaltered in all elevators that are programmed kitchen and dining area, bedroom, bathroom,to respond to the same call button as the and laundry area, where provided, in coveredaltered elevator. dwelling units with mobility features to be on an accessible route. Where covered dwellingThe 2010 Standards, at sections 407.2.1 - units have two or more bedrooms, at least407.4.7.1.2, also contain exceptions to the two bedrooms are required to be on antechnical requirements for elevators when accessible route.existing elevators are altered that minimizethe impact of this change. The 2010 Standards at sections 233.3.1.1, 809.1, 809.2, 809.2.1, and 809.4 will requireCommenters expressed concerns about all spaces and elements within dwelling unitsthe requirement that when an element in with mobility features to be on an accessibleone elevator is altered, the 2010 Standards, route. These changes exempt unfinishedat section 206.6.1, will require the same attics and unfinished basements from theelement to be altered in all elevators accessible route requirement. Sectionthat are programmed to respond to the 233.3.5 of the 2010 Standards also includessame call button as the altered elevator. an exception to the dispersion requirementCommenters noted that such a requirement that permits accessible single-story dwellingis burdensome and will result in costly efforts units to be constructed, where multi-storywithout significant benefit to individuals with dwelling units are one of the types of unitsdisabilities. provided.The Department believes that this Location of Accessible Routes. Sectionrequirement is necessary to ensure that when 4.3.2(1) of the 1991 Standards requiresan individual with a disability presses a call accessible routes connecting site arrivalbutton, an accessible elevator will arrive. points and accessible building entrancesWithout this requirement, individuals with to coincide with general circulation paths,disabilities would have to wait unnecessarily to the maximum extent feasible. The 2010for an accessible elevator to make its way Standards require all accessible routes toto them arbitrarily. The Department also coincide with or be located in the samebelieves that the effort required to meet general area as general circulation paths.this provision is minimal in the majority of Additionally, a new provision specifies thatsituations because it is typical to upgrade all where a circulation path is interior, theof the elevators in a bank at the same time. required accessible route must also be located in the interior of the facility. TheAccessible Routes in Dwelling Units with change affects a limited number of buildings.Mobility Features. Sections 4.34.1 and Section 206.3 of the 2010 Standards requires4.34.2 of the UFAS require the living area, all accessible routes to coincide with or84 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsbe located in the same general area as 207 Accessible Means of Egressgeneral circulation paths. Designing newlyconstructed interior accessible routes to General. The 1991 Standards at sectionscoincide with or to be located in the same 4.1.3(9); 4.1.6(1)(g); and 4.3.10 establisharea as general circulation paths will not scoping and technical requirements fortypically present a difficult design challenge accessible means of egress. Sectionand is expected to impose limited design 207.1 of the 2010 Standards reference theconstraints. The change will have no impact International Building Code (IBC) for scopingon exterior accessible routes. The 1991 and technical requirements for accessibleStandards and the 2010 Standards also means of egress.require accessible routes to be located inthe interior of the facility where general The 1991 Standards require the samecirculation paths are located in the interior number of accessible means of egress to beof the facility. The revision affects a limited provided as the number of exits required bynumber of buildings. applicable building and fire codes. The IBC requires at least one accessible means ofLocation of Accessible Routes to Stages. egress and at least two accessible meansThe 1991 Standards at section 4.33.5 require of egress where more than one means ofan accessible route to connect the accessible egress is required by other sections of theseating and the performing area. building code. The changes in the 2010Section 206.2.6 of the 2010 Standards Standards are expected to have minimalrequires the accessible route to directly impact since the model fire and life safetyconnect the seating area and the accessible codes, which are adopted by all of the states,seating, stage, and all areas of the stage, contain equivalent requirements with respectwhere a circulation path directly connects to the number of accessible means of egress.the seating area and the stage. Both the1991 Standards and the 2010 Standards The 1991 Standards require areas of rescuealso require an accessible route to connect assistance or horizontal exits in facilitiesthe stage and ancillary areas, such as with levels above or below the level of exitdressing rooms, used by performers. The discharge. Areas of rescue assistance are2010 Standards do not require an additional spaces that have direct access to an exit,accessible route to be provided to the stair, or enclosure where individuals whostage. Rather, the changes specify where are unable to use stairs can go to call forthe accessible route to the stage, which is assistance and wait for evacuation. The 2010required by the 1991 Standards, must be Standards incorporate the requirementslocated. established by the IBC. The IBC requires an evacuation elevator designed with standby power and other safety features that canDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 85
    • Analysis and Commentary on the 2010 ADAStandardsbe used for emergency evacuation of stairways. Directional exit signs and signs atindividuals with disabilities in facilities with areas of refuge required by section 216.4.3four or more stories above or below the exit must have visual characters and featuresdischarge level, and allows exit stairways complying with section 703.5.and evacuation elevators to be used as anaccessible means of egress in conjunction Standby Power for Platform Lifts. Thewith areas of refuge or horizontal exits. 2010 Standards at section 207.2 requireThe change is expected to have minimal standby power to be provided for platformimpact since the model fire and life safety lifts that are permitted to serve as part ofcodes, adopted by most states, already an accessible means of egress by the IBC.contain parallel requirements with respect to The IBC permits platform lifts to serve asevacuation elevators. part of an accessible means of egress in a limited number of places where platformThe 1991 Standards exempt facilities lifts are allowed in new construction. Theequipped with a supervised automatic 1991 Standards, at 4.1.3 (5) Exception 4sprinkler system from providing areas (a) through (d), and the 2010 Standards, atof rescue assistance, and also exempt sections 206.7.1 through 206.7.10, similarlyalterations to existing facilities from limit the places where platform lifts areproviding an accessible means of egress. allowed in new construction.The IBC exempts buildings equipped with asupervised automatic sprinkler system from Commenters urged the Department tocertain technical requirements for areas reconsider provisions that would requireof refuge, and also exempts alterations to standby power to be provided for platformexisting facilities from providing an accessible lifts. Concerns were raised that ensuringmeans of egress. standby power would be too burdensome. The Department views this issue as aThe 1991 and 2010 Standards require fundamental life safety issue. Lift users facesigns that provide direction to or information the prospect of being trapped on the lift inabout functional spaces to meet certain the event of a power failure if standby powertechnical requirements. The 2010 Standards, is not provided. The lack of standby powerat section 216.4, address exit signs. This could be life-threatening in situations wheresection is consistent with the requirements the power failure is associated with a fire orof the IBC. Signs used for means of egress other emergency. The use of a platform liftare covered by this scoping requirement. is generally only one of the options availableThe requirements in the 2010 Standards to covered entities. Covered entities thatrequire tactile signs complying with sections are concerned about the costs associated703.1, 703.2 and 703.5 at doors at exit with maintaining standby power for a lift maypassageways, exit discharge, and at exit86 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardswish to explore design options that would parking spaces. The Department believesincorporate the use of a ramp. that this exception provides necessary relief for small business entities that may otherwise208 and 502 Parking Spaces face the prospect of having between twenty-five percent (25%) and one hundredGeneral. Where parking spaces are percent (100%) of their limited parking areaprovided, the 1991 Standards, at sections unavailable to their customers because they4.1.2 (5)(a) and (7) and 7(a), and the 2010 are reserved for the exclusive use of personsStandards, at section 208.1, require a whose vehicles display accessible tags orspecified number of the parking spaces to be parking placards. The 2010 Standards stillaccessible. The 2010 Standards, at section require these businesses to ensure that at208, include an exception that exempts least one of their available parking spaces isparking spaces used exclusively for buses, designed to be accessible.trucks, delivery vehicles, law enforcementvehicles, or for purposes of vehicular A commenter stated that accessible parkingimpound, from the scoping requirement for spaces must be clearly marked. Theparking spaces, provided that when these Department notes that section 502.6 of thelots are accessed by the public the lot has an 2010 Standards provides that accessibleaccessible passenger loading zone. parking spaces must be identified by signs that include the International Symbol ofThe 2010 Standards require accessible Accessibility. Also, section 502.3.3 of theparking spaces to be identified by signs 2010 Standards requires that access aislesthat display the International Symbol of be marked so as to discourage parking inAccessibility. Section 216.5, Exceptions 1 them.and 2, of the 2010 Standards exempt certainaccessible parking spaces from this signage Access Aisle. Section 502.3 of the 2010requirement. The first exception exempts Standards requires that an accessible routesites that have four or fewer parking spaces adjoin each access aisle serving accessiblefrom the signage requirement. Residential parking spaces. The accessible routefacilities where parking spaces are assigned connects each access aisle to accessibleto specific dwelling units are also exempted entrances.from the signage requirement. Commenters questioned why the 2010Commenters stated that the first exception, Standards would permit an accessibleby allowing a small parking lot with four or route used by individuals with disabilities tofewer spaces not to post a sign at its one coincide with the path of moving vehicles.accessible space, is problematic because it The Department believes that the 2010could allow all drivers to park in accessible Standards appropriately recognize that not allDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 87
    • Analysis and Commentary on the 2010 ADAStandardsparking facilities provide separate pedestrian A commenter asked whether automobilesroutes. Section 502.3 of the 2010 Standards other than vans may park in van accessibleprovides the flexibility necessary to permit parking spaces. The 2010 Standards do notdesigners and others to determine the most prohibit automobiles other than vans fromappropriate location of the accessible route using van accessible parking spaces. Theto the accessible entrances. If all pedestrians Department does not distinguish betweenusing the parking facility are expected to vehicles that are actual “vans” versus othershare the vehicular lanes, then the ADA vehicles such as trucks, station wagons, sportpermits covered entities to use the vehicular utility vehicles, etc. since many vehicles otherlanes as part of the accessible route. The than vans may be used by individuals withadvisory note in section 502.3 of the 2010 disabilities to transport mobility devices.Standards, however, calls attention to thefact that this practice, while permitted, is not Commenters’ opinions were divided on thisideal. Accessible parking spaces must be point. Facility operators and others askedlocated on the shortest accessible route of for a reduction in the number of requiredtravel to an accessible entrance. Accessible accessible parking spaces, especially theparking spaces and the required accessible number of van accessible parking spaces,route should be located where individuals because they claimed these spaces oftenwith disabilities do not have to cross vehicular are not used. Individuals with disabilities,lanes or pass behind parked vehicles to however, requested an increase in thehave access to an accessible entrance. scoping requirements for these parkingIf it is necessary to cross a vehicular lane spaces.because, for example, local fire engineaccess requirements prohibit parking The Department is aware that a strongimmediately adjacent to a building, then a difference of opinion exists between thosemarked crossing running perpendicular to who use such spaces and those who mustthe vehicular route should be included as provide or maintain them. Therefore, thepart of the accessible route to an accessible Department did not increase the total numberentrance. of accessible spaces required. The only change was to increase the proportion ofVan Accessible Parking Spaces. The spaces that must be accessible to vans and1991 Standards, at sections 4.1.2 (5) other vehicles equipped to transport mobility(b), 4.6.3, 4.6.4, and 4.6.5, require one devices.in every eight accessible parking spacesto be van accessible. Section 208.2.4 of Direct Access Entrances from Parkingthe 2010 Standards requires one in every Structures. Where levels in a parkingsix accessible parking spaces to be van garage have direct connections foraccessible. pedestrians to another facility, the 199188 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsStandards, at section 4.1.3(8)(b)(i), require 4.6.6, require at least one passenger loadingat least one of the direct connections to zone to be accessible. Sections 209.2.1 andbe accessible. The 2010 Standards, at 503 of the 2010 Standards, require facilitiessection 206.4.2, require all of these direct such as airport passenger terminals that haveconnections to be accessible. long, continuous passenger loading zones to provide one accessible passenger loading209 and 503 Passenger Loading Zones zone in every continuous 100 linear feet ofand Bus Stops loading zone space. The 1991 Standards and the 2010 Standards both include technicalPassenger Loading Zones at Medical Care requirements for the vehicle pull-up spaceand Long-Term Care Facilities. Sections (96 inches wide minimum and 20 feet long6.1 and 6.2 of the 1991 Standards and minimum). Accessible passenger loadingsection 209.3 of the 2010 Standards require zones must have an access aisle that is 60medical care and long-term care facilities, inches wide minimum and extends the fullwhere the period of stay exceeds 24 hours, length of the vehicle pull-up space. The 1991to provide at least one accessible passenger Standards permit the access aisle to be onloading zone at an accessible entrance. The the same level as the vehicle pull-up space,1991 Standards also require a canopy or roof or on the sidewalk. The 2010 Standardsoverhang at this passenger loading zone. require the access aisle to be on the sameThe 2010 Standards do not require a canopy level as the vehicle pull-up space and to beor roof overhang. marked so as to discourage parking in the access aisle.Commenters urged the Department toreinstate the requirement for a canopy or roof Commenters expressed concern that certainoverhang at accessible passenger loading covered entities, particularly airports, cannotzones at medical care and long-term care accommodate the requirements of the 2010facilities. While the Department recognizes Standards to provide passenger loadingthat a canopy or roof overhang may afford zones, and urged a revision that woulduseful protection from inclement weather require one accessible passenger loadingconditions to everyone using a facility, it is zone located in reasonable proximity to eachnot clear that the absence of such protection building entrance served by the curb.would impede access by individuals withdisabilities. Therefore, the Department Commenters raised a variety of issues aboutdeclined to reinstate that requirement. the requirements at section 503 of the 2010 Standards stating that the requirements forPassenger Loading Zones. Where an access aisle, width, length, and markingpassenger loading zones are provided, the of passenger loading zones are not clear,1991 Standards, at sections 4.1.2(5) and do not fully meet the needs of individualsDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 89
    • Analysis and Commentary on the 2010 ADAStandardswith disabilities, may run afoul of state or to self-park may be a required reasonablelocal requirements, or may not be needed modification of policy by a covered entity.because many passenger loading zones aretypically staffed by doormen or valet parkers. 210 and 504 StairwaysThe wide range of opinions expressed inthese comments indicates that this provision The 1991 Standards require stairs to beis controversial. However, none of these accessible only when they provide access tocomments provided sufficient data to enable floor levels not otherwise connected by anthe Department to determine that the accessible route (e.g., where the accessiblerequirement is not appropriate. route is provided by an elevator, lift, or ramp). The 2010 Standards, at sections 210.1 andValet Parking and Mechanical Access 504, require all newly constructed stairs thatParking Garages. The 1991 Standards, at are part of a means of egress to complysections 4.1.2(5)(a) and (e), and sections with the requirements for accessible stairs,208.2, 209.4, and 209.5 of the 2010 which include requirements for accessibleStandards require parking facilities that treads, risers, and handrails. In existingprovide valet parking services to have an facilities, where floor levels are connectedaccessible passenger loading zone. The by an accessible route, only the handrail2010 Standards extend this requirement to requirement will apply when the stairs aremechanical access parking garages. The altered. Exception 2 to section 210.1 of1991 Standards contained an exception the 2010 Standards permits altered stairsthat exempted valet parking facilities from to not comply with the requirements forproviding accessible parking spaces. The accessible treads and risers where there is2010 Standards eliminate this exception. The an accessible route between floors served byreason for not retaining the provision is that the stairs.valet parking is a service, not a facility type. Most commenters were in favor of thisCommenters questioned why the exception requirement for handrails in alterations andfor valet parking facilities from providing stated that adding handrails to stairs duringaccessible parking spaces was eliminated. alterations would be feasible and not costlyThe provision was eliminated because valet while providing important safety benefits.parkers may not have the skills necessary The Department believes that it strikesto drive a vehicle that is equipped to be an appropriate balance by focusing theaccessible, including use of hand controls, or expanded requirements on new construction.when a seat is not present to accommodate The 2010 Standards apply to stairs whicha driver using a wheelchair. In that case, are part of a required means of egress. Fewpermitting the individual with a disability stairways are not part of a means of egress. The 2010 Standards are consistent with90 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsmost building codes which do not exempt requires at least five percent (5%) of sinksstairways when the route is also served by a in each accessible space to comply withramp or elevator. the technical requirements for sinks. The technical requirements address clear floor211 and 602 Drinking Fountains space, height, faucets, and exposed pipes and surfaces. The 1991 Standards, at sectionSections 4.1.3(10) and 4.15 of the 1991 4.24, and the 2010 Standards, at section 606,Standards and sections 211 and 602 of the both require the clear floor space at sinks2010 Standards require drinking fountains to to be positioned for a forward approach andbe provided for persons who use wheelchairs knee and toe clearance to be provided underand for others who stand. The 1991 the sink. The 1991 Standards, at sectionStandards require wall and post-mounted 9.2.2(7), allow the clear floor space at kitchencantilevered drinking fountains mounted sinks and wet bars in transient lodging guestat a height for wheelchair users to provide rooms with mobility features to be positionedclear floor space for a forward approach with for either a forward approach with knee andknee and toe clearance and free standing toe clearance or for a parallel approach.or built-in drinking fountains to provide clear The 2010 Standards include an exceptionfloor space for a parallel approach. The that permits the clear floor space to be2010 Standards require drinking fountains positioned for a parallel approach at kitchenmounted at a height for wheelchair users sinks in any space where a cook top orto provide clear floor space for a forward conventional range is not provided, and at aapproach with knee and toe clearance, wet bar.and include an exception for a parallelapproach for drinking fountains installed at a A commenter stated that it is unclear whatheight to accommodate very small children. the difference is between a sink and aThe 2010 Standards also include a technical lavatory, and that this is complicated byrequirement for drinking fountains for requirements that apply to sinks (five percentstanding persons. (5%) accessible) and lavatories (at least one accessible). The term “lavatory” generally212 and 606 Kitchens, Kitchenettes, refers to the specific type of plumbing fixtureLavatories, and Sinks required for hand washing in toilet and bathing facilities. The more generic termThe 1991 Standards, at sections 4.24, and “sink” applies to all other types of sinks9.2.2(7), contain technical requirements located in covered facilities.for sinks and only have specific scopingrequirements for sinks in transient lodging. A commenter recommended that theSection 212.3 of the 2010 Standards mounting height of sinks and lavatoriesDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 91
    • Analysis and Commentary on the 2010 ADAStandardsshould take into consideration the increased is examining airport terminal accessibilityuse of three-wheeled scooters and some as part of an ongoing effort to facilitatelarger wheelchairs. The Department is aware accessibility and promote effective design.that the use of three-wheeled scooters and As part of these efforts, the Access Board willlarger wheelchairs may be increasing and examine requirements for accessible toiletthat some of these devices may require compartments in larger airport restrooms.changes in space requirements in the future. The Department declines to change theThe Access Board is funding research to scoping for accessible toilet compartments atobtain data that may be used to develop this time.design guidelines that provide access toindividuals using these mobility devices. Ambulatory Accessible Toilet213, 603, 604, and 608 Toilet and Bathing Compartments. Section 213.3.1 of the 2010Facilities, Rooms, and Compartments Standards requires multi-user men’s toilet rooms, where the total of toilet compartmentsGeneral. Where toilet facilities and bathing and urinals is six or more, to contain at leastfacilities are provided, they must comply with one ambulatory accessible compartment.section 213 of the 2010 Standards. The 1991 Standards count only toilet stalls (compartments) for this purpose. The 2010A commenter recommended that all Standards establish parity between multi-accessible toilet facilities, toilet rooms, and user women’s toilet rooms and multi-usercompartments should be required to have men’s toilet rooms with respect to ambulatorysignage indicating that such spaces are accessible toilet compartments.restricted solely for the use of individualswith disabilities. The Department believes Urinals. Men’s toilet rooms with only onethat it is neither necessary nor appropriate to urinal will no longer be required to provide anrestrict the use of accessible toilet facilities. accessible urinal under the 2010 Standards.Like many other facilities designed to be Such toilet rooms will still be required toaccessible, accessible toilet facilities can and provide an accessible toilet compartment.do serve a wide range of individuals with and Commenters urged that the exception bewithout disabilities. eliminated. The Department believes that this change will provide flexibility to manyA commenter recommended that more than small businesses and it does not alter theone wheelchair accessible compartment be requirement that all common use restroomsprovided in toilet rooms serving airports and must be accessible.train stations because these compartmentsare likely to be occupied by individuals with Multiple Single-User Toilet Rooms. Whereluggage and persons with disabilities often multiple single-user toilet rooms are clusteredtake longer to use them. The Access Board in a single location, fifty percent (50%),92 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsrather than the one hundred percent (100%) toilet compartments and 17 to 19 inches inrequired by the 1991 Standards, are required ambulatory accessible toilet compartments.to be accessible by section 213.2, Exception4 of the 2010 Standards. Section 216.8 of Water Closet Clearance. Section 604.3 ofthe 2010 Standards requires that accessible the 2010 Standards represents a changesingle-user toilet rooms must be identified in the accessibility requirements where aby the International Symbol of Accessibility lavatory is installed adjacent to the waterwhere all single-user toilet rooms are not closet. The 1991 Standards allow theaccessible. nearest side of a lavatory to be placed 18 inches minimum from the water closetHospital Patient Toilet Rooms. An centerline and 36 inches minimum fromexception was added in section 223.1 of the the side wall adjacent to the water closet.2010 Standards to allow toilet rooms that However, locating the lavatory so close toare part of critical or intensive care patient the water closet prohibits many individualssleeping rooms to no longer be required to with disabilities from using a side transfer.provide mobility features. To allow greater transfer options, including side transfers, the 2010 Standards prohibitWater Closet Location and Rear Grab lavatories from overlapping the clear floorBar. Section 604.2 of the 2010 Standards space at water closets, except in coveredallows greater flexibility for the placement residential dwelling units.of the centerline of wheelchair accessibleand ambulatory accessible water closets. A majority of commenters, including personsSection 604.5.2, Exception 1 permits a who use wheelchairs, strongly agreed withshorter grab bar on the rear wall where there the requirement to provide enough space foris not enough wall space due to special a side transfer. These commenters believedcircumstances (e.g., when a lavatory or that the requirement will increase the usabilityother recessed fixture is located next to of accessible single-user toilet rooms bythe water closet and the wall behind the making side transfers possible for manylavatory is recessed so that the lavatory does individuals who use wheelchairs and wouldnot overlap the required clear floor space have been unable to transfer to a waterat the water closet). The 1991 Standards closet using a side transfer even if the watercontain no exception for grab bar length, closet complied with the 1991 Standards. Inand require the water closet centerline to be addition, many commenters noted that theexactly 18 inches from the side wall, while additional clear floor space at the side of thethe 2010 Standards requirement allows the water closet is also critical for those providingcenterline to be between 16 and 18 inches assistance with transfers and personal carefrom the side wall in wheelchair accessible for persons with disabilities. Numerous comments noted that this requirement isDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 93
    • Analysis and Commentary on the 2010 ADAStandardsalready included in other model accessibility Several commenters concluded thatstandards and many state and local building alterations of single-user toilet roomscodes and its adoption in the 2010 Standards should be exempt from the requirementsis a important part of harmonization efforts. of section 604.3 of the 2010 StandardsThe Department agrees that the provision because of the significant reconfiguration andof enough clear floor space to permit side reconstruction that would be required, suchtransfers at water closets is an important as moving plumbing fixtures, walls, and/orfeature that must be provided to ensure doors at significant additional expense. Theaccess for persons with disabilities in Department disagrees with this conclusiontoilet and bathing facilities. Furthermore, since it fails to take into account severalthe adoption of this requirement closely key points. The 2010 Standards containharmonizes with the model codes and many provisions for in-swinging doors, 603.2.3,state and local building codes. Exception 2, and recessed fixtures adjacent to water closets, 604.5.2, Exception 1. TheseOther commenters urged the Department not provisions give flexibility to create moreto adopt section 604.3 of the 2010 Standards compact room designs and maintain requiredclaiming that it will require single-user clearances around fixtures. As with the 1991toilet rooms to be two feet wider than the Standards, any alterations must comply to1991 Standards require, and this additional the extent that it is technically feasible to dorequirement will be difficult to meet. Multiple so.commentators also expressed concern that the size of single-user toilet rooms would The requirements at section 604.3.2 ofbe increased but they did not specify how the 2010 Standards specify how requiredmuch larger such toilet rooms would have to clearance around the water closet canbe in their estimation. In response to these overlap with specific elements and spaces.concerns, the Department developed a An exception that applies only to coveredseries of single-user toilet room floor plans residential dwelling units permits a lavatorydemonstrating that the total square footage to be located no closer than 18 inchesbetween representative layouts complying from the centerline of the water closet.with the 1991 Standards and the 2010 The requirements at section 604.3.2 of theStandards are comparable. The Department 2010 Standards increase accessibility forbelieves the floor plan comparisons clearly individuals with disabilities. One commentershow that size differences between the two expressed concern about other items thatStandards are not substantial and several of might overlap the clear floor space, such asthe 2010 Standards-compliant plans do not dispensers, shelves, and coat hooks on therequire additional square footage compared side of the water closet where a wheelchairto the 1991 Standards plans. These single- would be positioned for a transfer. Sectionuser toilet room floor plans are shown below. 604.3.2 of the 2010 Standards allows items94 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardssuch as associated grab bars, dispensers, In the NPRM, the Department providedsanitary napkin disposal units, coat hooks, a series of plan drawings illustratingand shelves to overlap the clear floor space. comparisons of the minimum size single-These are items that typically do not affect user toilet rooms. These floor plansthe usability of the clear floor space. showed typical examples that met the minimum requirements of the proposedToilet Room Doors. Sections 4.22.2 and ADA Standards. A commenter was of the4.22.3 of the 1991 Standards and Section opinion that the single-user toilet plans603.2.3 of the 2010 Standards permit the shown in the NPRM demonstrated thatdoors of all toilet or bathing rooms with in- the new requirements will not result in aswinging doors to swing into the required substantial increase in room size. Severalturning space, but not into the clear floor other commenters representing industryspace required at any fixture. In single- offered criticisms of the single-user toiletuser toilet rooms or bathing rooms, Section floor plans to support their assertion that a603.2.3 Exception 2 of the 2010 Standards 2010 Standards-compliant single-user toiletpermits the door to swing into the clear floor room will never be smaller and will likelyspace of an accessible fixture if a clear floor be larger than such a toilet room requiredspace that measures at least 30 inches by 48 under the 1991 Standards. Commentersinches is provided outside of the door swing. also asserted that the floor plans prepared by the Department were of a very basicSeveral commenters expressed reservations design which could be accommodated inabout Exception 2 of Section 603.2.3. a minimal sized space whereas the typesConcerns were raised that permitting of facilities their customers demand woulddoors of single-user toilet or bathing rooms require additional space to be added towith in-swinging doors to swing into the the rooms shown in the floor plans. Theclearance around any fixture will result in Department recognizes that there are manyinaccessibility to individuals using larger design choices that can affect the size of awheelchairs and scooters. Additionally, a room or space. Choices to install additionalcommenter stated that the exception would features may result in more space beingrequire an unacceptable amount of precision needed to provide sufficient clear floormaneuvering by individuals who use standard space for that additional feature to comply.size wheelchairs. The Department believes However, many facilities that have thesethat this provision achieves necessary extra features also tend to have ample spaceflexibility while providing a minimum standard to meet accessibility requirements. Otherfor maneuvering space. The standard does commenters asserted that public single-permit additional maneuvering space to be user toilet rooms always include a closerprovided, if needed. and a latch on the entry door, requiring a larger clear floor space than shown on theDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 95
    • Analysis and Commentary on the 2010 ADAStandardspush side of the door shown in Plan 1B. TheDepartment acknowledges that in instanceswhere a latch is provided and a closer isrequired by other regulations or codes, theminimum size of a room with an out-swingingdoor may be slightly larger than as shown inPlan 1C.Additional floor plans of single-user toiletrooms are now included in further responseto the commentary received.96 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Comparison of Single-User Toilet Room Layouts 1991 Standards 2010 Standards Plan-1B: 2010 Standards Minimum with Out-Swinging Door 7’-0” x 5’-0” • 35.00 Square FeetPlan-1A: 1991 Standards Minimum with This plan shows a typical example of a single-user Out-Swinging Door toilet room that meets the minimum requirements of the 2010 Standards. Features include: five-foot 5’-0” x 7’-3” • 36.25 Square Feet minimum width between the side wall of the water closet and the lavatory; 60-inch minimum circular wheelchair turning space; and 36-inch by 48-inchThis plan shows a typical example of a single-user clear maneuvering space for the out-swinging entrytoilet room that meets the minimum requirements door. Section 604.3.1 of the 2010 Standards requiresof the 1991 Standards. The size of this space is a floor clearance at a water closet that is a minimumdetermined by the minimum width required for the of 60 inches wide by 56 inches deep regardlesswater closet and lavatory between the side walls, the of approach. Section 604.3.2 prohibits any otherminimum wheelchair turning space, and the space plumbing fixtures from being located in this clearrequired for the out-swinging door. A lavatory with knee space, except in residential dwelling units. The 2010space can overlap the clear floor space required for Standards, at section 304.3, allows the turning spacethe water closet provided that at least 36 inches of to extend into toe and knee space provided beneathclearance is maintained between the side wall next to fixtures and other elements. Required maneuveringthe water closet and the lavatory (see section 4.16.2 space for the entry door (inside the room) must beand Fig. 28 of the 1991 Standards). A wheelchair clear of all fixtures. If the door had both a closerturning space meeting section 4.2.3 of the 1991 and latch, section 404.2.4.1 and Figure 404.2.4.1(c)Standards must be provided. The size of this room require additional space on the latch side.requires that the entry door swing out. The room wouldbe larger if the door were in-swinging. This layout is three point five percent (3.5%) smaller than the accompanying Plan-1A: 1991 Standards Minimum with Out-Swinging Door example.Department of Justice Guidance on the 2010 Standards: Titles II and III - 97
    • Comparison of Single-User Toilet Room Layouts 2010 Standards Plan-1C: 2010 Standards Minimum with Out-Swinging Door (entry door has both closer and latch) 7’-0” x 5’-6” • 38.50 Square Feet This plan shows the same typical features of a single- user toilet room that meets the minimum requirements of the 2010 Standards as Plan-1B does except the entry door has both a closer and latch. Because the door has both a closer and latch, a minimum additional foot of maneuvering space is required on the latch side (see section 404.2.4.1 and Figure 404.2.4.1(c) of the 2010 Standards). This layout is six point two percent (6.2%) larger than the accompanying Plan-1A: 1991 Standards Minimum with Out-Swinging Door example.98 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Comparison of Single-User Toilet Room Layouts 1991 Standards 2010 Standards Plan-2A: 1991 Standards Minimum Plan-2B: 2010 Standards Minimum with In-Swinging Door with In-Swinging Door 5’-0” x 8’-6” • 42.50 Square Feet 7’-0” x 6’-6” • 45.50 Square FeetThis plan shows a typical example of a single-user This plan shows a typical example of a single-usertoilet room that meets the minimum requirements toilet room that meets the minimum requirements ofof the 1991 Standards. Depending on the width of the 2010 Standards when the entry door swings intothe hallway and other circulation issues, it can be the room. In the 2010 Standards an exception allowspreferable to swing the entry door into the toilet room. the entry door to swing over the clear floor spaces andBusinesses and public entities typically prefer to have clearances required at the fixtures if a clear floor spacean in-swinging door. The in-swinging door increases complying with section 305.3 (minimumoverall room size because it cannot swing over the 30 inches by 48 inches) is provided outside the arcrequired clear floor space at any accessible fixture, of the door swing, section 603.3.3 exception 2. The(see section 4.22.2 of the 1991 Standards). This required maneuvering space for the door, sectionincreases the room depth from Plan-1A. The door is 404.2.4.1 and Figure 404.2.4.1(a), also is a factor inpermitted to swing over the required turning space room size. This clear space cannot be obstructed byshown as a 60-inch circle. the plumbing fixtures. Note that this layout provides more space for turning when the door is closed than Plan-1B. This layout is seven percent (7%) larger than the accompanying Plan-2A: 1991 Standards Minimum with In-Swinging Door example.Department of Justice Guidance on the 2010 Standards: Titles II and III - 99
    • Comparison of Single-User Toilet Room Layouts 2010 Standards Plan-2C: 2010 Standards Minimum with In-Swinging Door 7’-0” x 6’-6” • 40.00 Square Feet (plumbing chase not included) This plan shows the same typical features of a single- user toilet room that meets the minimum requirements of the 2010 Standards as Plan-2B when the entry door swings into the room. Note that this layout also provides more space for turning when the door is closed than Plan-1B. This layout is six point two five percent (6.25%) smaller than the accompanying Plan-2A: 1991 Standards Minimum with In-Swinging Door example.100 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Comparison of Single-User Toilet Room Layouts 1991 Standards and 2010 Standards Plan-3: Meets Both 1991 Standards and 2010 Standards 7’-0” x 5’-9” • 40.25 Square Feet This plan shows an example of a single-user toilet room that meets the minimum requirements of both the 1991 Standards and 2010 Standards. A T-shaped turning space has been used (see Fig. 3(a) of the 1991 Standards and Figure 304.3.2 of the 2010 Standards) to maintain a compact room size. An out- swinging door also minimizes the overall layout depth and cannot swing over the required clear floor space or clearance at any accessible plumbing fixture. This layout is eleven percent (11%) larger than the Plan-1A: 1991 Standards Minimum with Out-Swinging Door example shown at the beginning of these plan comparisons.Department of Justice Guidance on the 2010 Standards: Titles II and III - 101
    • Comparison of Single-User Toilet Room “Pairs” With Fixtures Side-by-Side 1991 Standards 2010 StandardsPlan-1A Pair: 1991 Standards with Out- Plan-1B Pair: 2010 Standards with Swinging Doors Out-Swinging Doors Two 5’-0” x 7’-3” Rooms – Two 7’-0” x 5’-0” Rooms – 72.50 Square Feet Total 70.00 Square Feet Total These plans show men’s/women’s room configurations using Plans 1A and 1B.102 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Comparison of Single-User Toilet Room “Pairs” With Fixtures Side-by-Side 2010 Standards Plan-2C Pair: 2010 Standards with In-Swinging Doors Two 7’-2” x 6’-6” Rooms - 82.00 Square Feet Total This plan shows a men’s/women’s room configuration using Plan 2C.Department of Justice Guidance on the 2010 Standards: Titles II and III - 103
    • Analysis and Commentary on the 2010 ADAStandardsToilet Paper Dispensers. The provisions Shower Spray Controls. In accessiblefor toilet paper dispensers at section 604.7 of bathtubs and shower compartments, sectionsthe 2010 Standards require the dispenser to 607.6 and 608.6 of the 2010 Standardsbe located seven inches minimum and nine require shower spray controls to have aninches maximum in front of the water closet on/off control and to deliver water that ismeasured to the centerline of the dispenser. 120°F (49°C) maximum. Neither feature wasThe paper outlet of the dispenser must be required by the 1991 Standards, but maylocated 15 inches minimum and 48 inches be required by plumbing codes. Deliveringmaximum above the finish floor. In the 1991 water that is no hotter than 120°F (49°C) willStandards the location of the toilet paper require controlling the maximum temperaturedispenser is determined by the centerline at each accessible shower spray unit.and forward edge of the dispenser. In the2010 Standards the mounting location of the Shower Compartments. The 1991toilet paper dispenser is determined by the Standards at sections 4.21 and 9.1.2 andcenterline of the dispenser and the location the 2010 Standards at section 608 containof the outlet for the toilet paper. technical requirements for transfer-type and roll-in shower compartments. The 2010One commenter discussed the difficulty Standards provide more flexibility than theof using large roll toilet paper dispensers 1991 Standards as follows:and dispensers with two standard size rollsstacked on top of each other. The size of • Transfer-type showers are exactly 36the large dispensers can block access to inches wide by 36 inches long.the grab bar and the outlet for the toiletpaper can be too low or too high to be • The 1991 Standards and the 2010 Stan-usable. Some dispensers also control the dards permit a ½-inch maximum curb indelivery of the toilet paper which can make transfer-type showers. The 2010 Stan-it impossible to get the toilet paper. Toilet dards add a new exception that permitspaper dispensers that control delivery or a 2-inch maximum curb in transfer-typedo not allow continuous paper flow are not showers in alterations to existing facili-permitted by the 1991 Standards or the 2010 ties, where recessing the compartmentStandards. Also, many of the large roll toilet to achieve a ½-inch curb will disturb thepaper dispensers do not comply with the structural reinforcement of the floor slab.2010 Standards since their large size doesnot allow them to be mounted 12 inches • Roll-in showers are 30 inches wide mini-above or 1 ½ inches below the side grab bar mum by 60 inches long minimum. Alter-as required by section 609.3. nate roll-in showers are 36 inches wide by 60 inches long minimum, and have a 36-inch minimum wide opening on the104 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandards long side of the compartment. The 1991 Toilet and Bathing Rooms. Section 213 Standards require alternate roll-in show- of the 2010 Standards sets out the scoping ers in a portion of accessible transient requirements for toilet and bathing rooms. lodging guest rooms, but provision of this shower type in other facilities is gener- Commenters recommended that section 213, ally permitted as an equivalent facilita- Toilet Facilities and Bathing Facilities, of the tion. The 1991 Standards require a seat 2010 Standards include requirements that to be provided adjacent to the opening; unisex toilet and bathing rooms be provided and require the controls to be located on in certain facilities. These commenters the side adjacent to the seat. The 2010 suggested that unisex toilet and bathing Standards permit alternate roll-in showers rooms are most useful as companion care to be used in any facility, only require a facilities. seat in transient lodging guest rooms, and allow location of controls on the back wall Model plumbing and building codes require opposite the seat as an alternative. single-user (unisex or family) toilet facilities in certain occupancies, primarily assemblyCommenters raised concerns that adding facilities, covered malls, and transportationa new exception that permits a 2-inch facilities. These types of toilet rooms providemaximum curb in transfer-type showers flexibility for persons needing privacy soin alterations to existing facilities, where that they can obtain assistance from familyrecessing the compartment to achieve members or persons of the opposite sex.a ½-inch curb will disturb the structural When these facilities are provided, both thereinforcement of the floor slab, will impair the 1991 Standards and 2010 Standards requireability of individuals with disabilities to use that they be accessible. The 2010 Standardstransfer-type showers. do not scope unisex toilet facilities because plumbing codes generally determine theThe exception in section 608.7 of the 2010 number and type of plumbing fixtures toStandards permitting a 2-inch maximum curb be provided in a particular occupancy andin transfer-type showers is allowed only in often determine whether an occupancy mustexisting facilities where provision of a ½-inch provide separate sex facilities in addition tohigh threshold would disturb the structural single-user facilities. However, the scopingreinforcement of the floor slab. Whenever this at section 213.2.1 of the 2010 Standardsexception is used the least high threshold coordinates with model plumbing and buildingthat can be used should be provided, up to a code requirements which will permit a smallmaximum height of 2 inches. This exception toilet room with two water closets or oneis intended to provide some flexibility water closet and one urinal to be consideredwhere the existing structure precludes full a single-user toilet room provided that thecompliance. room has a privacy latch. In this way, aDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 105
    • Analysis and Commentary on the 2010 ADAStandardsperson needing assistance from a person of A commenter objected to the scopingthe opposite sex can lock the door to use the provision for accessible washing machinesfacility while temporarily inconveniencing only and clothes dryers stating that the probabilityone other potential user. These provisions is low that more than one accessible machinestrike a reasonable balance and impose less would be needed at the same time in theimpact on covered entities. laundry facility of a place of transient lodging.A commenter recommended that in shower The scoping in this provision is based on thecompartments rectangular seats as provided relative size of the facility. The Departmentin section 610.3.1 of the 2010 Standards assumes that the size of the facility (and,should not be permitted as a substitute for therefore, the number of accessible machinesL-shaped seats as provided in 610.3.2. provided) will be determined by the covered entity’s assessment of the demand forThe 2010 Standards do not indicate a laundry facilities. The Department declinespreference for either rectangular or L-shaped to assume that persons with disabilitiesseats in shower compartments. L-shaped will have less use for accessible facilitiesseats in transfer and certain roll-in showers in transient lodging than in other publichave been used for many years to provide accommodations.users with poor balance additional supportbecause they can position themselves in the 216 and 703 Signscorner while showering. The following types of signs, though they214 and 611 Washing Machines and are not specifically subject to the 1991Clothes Dryers Standards requirement for signs, will now be explicitly exempted by sections 216 andSections 214.2 (washing machines) and 703 of the 2010 Standards. These types of214.3 (clothes dryers) of the 2010 Standards signs include: seat and row designations inspecify the number of each type of these assembly areas; occupant names, buildingmachines required to be accessible (one addresses; company names and logos; signsto two depending upon the total number of in parking facilities (except those identifyingmachines provided) and section 611 specifies accessible parking spaces and meansthe technical requirements. An exception will of egress); and exterior signs identifyingpermit the maximum height for the tops of permanent rooms and spaces that are notthese machines to be 2 inches higher than located at the door to the space they serve.the general requirement for maximum high This requirement also clarifies that thereach over an obstruction. exception for temporary signs applies to signs used for seven days or less.106 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsThe 2010 Standards retain the option to emergency room, a hospital recovery room,provide one sign where both visual and tactile or a hospital waiting room. Section 217.4.7characters are provided or two signs, one of the 2010 Standards also requires that,with visual, and one with tactile characters. in addition to the requirements for a public TTY to be provided at each location where217 and 704 Telephones at least four or more public pay telephones are provided at a bank of pay telephonesDrive-up Public Telephones. Where public and where at least one public pay telephonetelephones are provided, the 1991 Standards, is provided on a floor or in a public building,at section 4.1.3(17)(a), and section 217.2 of where at least one public pay telephonethe 2010 Standards, require a certain number serves a particular entrance to a bus orof telephones to be wheelchair accessible. rail facility at least one public TTY mustThe 2010 Standards add a new exception serve that entrance. In airports, in additionthat exempts drive-up public telephones. to the requirements for the provision of a public TTY at phone banks, on floors, andText Telephones (TTY). Section 4.1.3(17) in public buildings with pay phones, whereof the 1991 Standards requires a public TTY four or more public pay phones are locatedto be provided if there are four or more public in a terminal outside the security areas, inpay telephones at a site and at least one is a concourse within the security areas, or ain an interior location. Section 217.4.2 of the baggage claim area in a terminal at least one2010 Standards requires that a building or public TTY must be provided. Section 217.4.8facility provide a public TTY on each floor that of the 2010 Standards also requires that ahas four or more public telephones, and in TTY be provided in at least one secured areaeach telephone bank that has four or more where at least one pay telephone is providedtelephones. Additionally, section 217.4.4 of in a secured area used only by detainees orthe 2010 Standards requires that at least inmates and security personnel in detentionone public TTY be installed where four or and correctional facilities.more public pay telephones are providedon an exterior site. Section 217.4.5 of the Wheelchair Accessible Telephones2010 Standards also requires that a publicTTY be provided where at least one public Section 217.2 of the 2010 Standards requirespay telephone is provided at a public rest that where public telephones are providedstop, emergency roadside stop, or service wheelchair accessible telephones complyingplaza. Section 217.4.6 of the 2010 Standards with section 704.2 must be provided inalso requires that a public TTY be provided accordance with Table 217.2.at each location where at least one publicpay telephone is provided serving a hospitalDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 107
    • Analysis and Commentary on the 2010 ADAStandardsA commenter stated that requiring installation areas, reflecting pools, and transit platformof telephones within the proposed reach edges. The 2010 Standards at sectionsrange requirements would adversely 218, 810.5, 705.1, and 705.2 only requireimpact public and telephone owners and detectable warnings at transit platform edges.operators. According to the commenter, The technical specifications for the diameterindividuals without disabilities will not use and spacing of the truncated domes havetelephones that are installed within the reach also been changed. The 2010 Standardsrange requirements because they may be also delete the requirement for the materialinconvenienced by having to stoop to operate used to contrast in resiliency or sound-on-these telephones, and, therefore, owners and cane contact from adjoining walking surfacesoperators will lose revenue due to less use of at interior locations.public telephones. The 2010 Standards apply to detectableThis comment misunderstands the scoping warnings on developed sites. They do notrequirements for wheelchair accessible apply to the public right-of-way. Scopingtelephones. Section 217.2 of the 2010 for detectable warnings at all locationsStandards provides that where one or more other than transit platform edges hassingle units are provided, only one unit per been eliminated from the 2010 Standards.floor, level, or exterior site is required to be However, because detectable warningswheelchair accessible. However, where have been shown to significantly benefitbanks of telephones are provided, only one individuals with disabilities at transit platformtelephone in each bank is required to be edges, the 2010 Standards provide scopingwheelchair accessible. The Department and technical requirements for detectablebelieves these scoping requirements for warnings at transit platform edges.wheelchair accessible telephones arereasonable and will not result in burdensome 219 and 706 Assistive Listening Systemsobligations or lost revenue for owners andoperators. Signs. Section 216.10 of the 2010 Standards requires each covered assembly218 and 810 Transportation Facilities area to provide signs at each auditorium to inform patrons that assistive listeningDetectable Warnings. Detectable warnings systems are available. However, an exceptionprovide a distinctively textured surface of to this requirement permits assembly areastruncated domes. The 1991 Standards at that have ticket offices or ticket windowssections 4.1.3(15), 4.7.7, 4.29.2, 4.29.5, to display the required signs at the ticket4.29.6, and 10.3.1(8) require detectable window.warnings at curb ramps, hazardous vehicular108 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsA commenter recommended eliminating the The required percentage declines as the sizeexception at 216.10 because, for example, of the facility increases. The changes alsopeople who buy tickets through the mail, by require at least twenty-five percent (25%),subscription, or on-line may not need to stop but no fewer than two, of the receivers toat a ticket office or window upon arrival at the be hearing-aid compatible. Assembly areasassembly area. The Department believes that served by an induction loop assistive listeningan individual’s decision to purchase tickets system will not have to provide hearing-aidbefore arriving at a performance does not compatible receivers.limit the discretion of the assembly operatorto use the ticket window to provide other Commenters were divided in theirservices to its patrons. The Department opinion of this change. The Departmentretained the exception at 216.10 to permit the believes that the reduction in the requiredvenue operator some flexibility in determining number of assistive listening systemshow to meet the needs of its patrons. for larger assembly areas will meet the needs of individuals with disabilities. TheAudible Communication. The 1991 new requirement to provide hearing-aidStandards, at section 4.1.3(19)(b), compatible receivers should make assistiverequire assembly areas, where audible listening systems more usable for people whocommunication is integral to the use of the have been underserved until now.space, to provide an assistive listeningsystem if they have an audio amplification Concerns were raised that the requirementsystem or an occupant load of 50 or to provide assistive listening systems maymore people and have fixed seating. The have an adverse impact on restaurants.2010 Standards at section 219 require This comment misunderstands the scope ofassistive listening systems in spaces where coverage. The 2010 Standards define thecommunication is integral to the space term “assembly area” to include facilitiesand audio amplification is provided and in used for entertainment, educational, or civiccourtrooms. gatherings. A restaurant would fall within this category only if it is presenting programs toThe 1991 Standards require receivers to educate or entertain diners, and it providesbe provided for at least four percent (4%) an audio amplification system.of the total number of fixed seats. The 2010Standards, at section 219.3, revise the Same Management or Building. The 2010percentage of receivers required according Standards add a new exception that allowsto a table that correlates the required number multiple assembly areas that are in the sameof receivers to the seating capacity of the building and under the same management,facility. Small facilities will continue to provide such as theaters in a multiplex cinemareceivers for four percent (4%) of the seats. and lecture halls in a college building, toDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 109
    • Analysis and Commentary on the 2010 ADAStandardscalculate the number of receivers required and independently usable by persons withbased on the total number of seats in all the visual impairments, but do not contain anyassembly areas, instead of each assembly technical specifications.area separately, where the receivers arecompatible with the assistive listening 221 Assembly Areassystems used in each of the assembly areas. Wheelchair Spaces/Companion Seats.Mono Jacks, Sound Pressure, Etc. Owners of large assembly areas haveSection 4.33.7 of the 1991 Standards does historically complained to the Departmentnot contain specific technical requirements that the requirement for one percent (1%)for assistive listening systems. The 2010 of seating to be wheelchair seating isStandards at section 706 require assistive excessive and that wheelchair seats arelistening systems to have standard mono not being sold. At the same time, advocatesjacks and will require hearing-aid compatible have traditionally argued that persons whoreceivers to have neck loops to interface with use wheelchairs will increasingly participatetelecoils in hearing aids. The 2010 Standards in activities at assembly areas once theyalso specify sound pressure level, signal-to- become accessible and that at least onenoise ratio, and peak clipping level. Currently percent (1%) of seats should be accessible.available assistive listening systems typicallymeet these technical requirements. The 1991 Standards, at sections 4.1.3(19) (a) and 4.33.3, require assembly areas to220 and 707 Automatic Teller Machines provide wheelchair and companion seats.and Fare Machines In assembly areas with a capacity of more than five hundred seats, accessible seatingSection 707 of the 2010 Standards adds at a ratio of one percent (1%) (plus onespecific technical requirements for speech seat) of the number of traditional fixed seatsoutput, privacy, tactilely-discernible input must be provided. The 2010 Standards, atcontrols, display screens, and Braille section 221.2, require assembly areas withinstructions to the general accessibility 501 to 5000 seats to provide at least sixrequirements set out in the 1991 Standards. wheelchair spaces and companion seatsMachines shall be speech enabled plus one additional wheelchair space forand exceptions are provided that cover each additional 150 seats (or fraction thereof)when audible tones are permitted, when between 501 through 5000. In assemblyadvertisements or similar information are areas with more than 5000 seats at least 36provided, and where speech synthesis wheelchair spaces and companion seats pluscannot be supported. The 1991 Standards one additional wheelchair space for eachrequire these machines to be accessible to110 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandards200 seats (or fraction thereof) more than Section 221.2.1.3 of the 2010 Standards5000 are required. See sections 221.1 and clarifies that the scoping requirements for221.2 of the 2010 Standards. wheelchair spaces and companion seats are to be applied separately to general seatingCommenters questioned why scoping areas and to each luxury box, club box, andrequirements for large assembly areas are suite in arenas, stadiums, and grandstands.being reduced. During the development In assembly areas other than arenas,of the 2004 ADAAG, industry providers, stadiums, and grandstands, the scopingparticularly those representing larger requirements will not be applied separately.stadium-style assembly areas, supplied Thus, in performing arts facilities with tiereddata to the Access Board demonstrating boxes designed for spatial and acousticalthe current scoping requirements for large purposes, the scoping requirement is toassembly areas often exceed the demand. be applied to the seats in the tiered boxes.Based on the data provided to the Access The requisite number of wheelchair spacesBoard, the Department believes the reduced and companion seats required in the tieredscoping requirements will adequately meet boxes are to be dispersed among at leastthe needs of individuals with disabilities, while twenty percent (20%) of the tiered boxes.balancing concerns of the industry. For example, if a performing arts facility has 20 tiered boxes with 10 fixed seats in eachCommenters representing assembly areas box, for a total of 200 seats, at least fivesupported the reduced scoping. One wheelchair spaces and companion seatscommenter asked that scoping requirements must be provided in the boxes, and they mustfor larger assembly areas be reduced even be dispersed among at least four of the 20further. Although the commenter referenced boxes.data demonstrating that wheelchair spacesin larger facilities with seating capacities Commenters raised concerns that the 2010of 70,000 or more may not be used by Standards should clarify requirements forindividuals with disabilities, the data was not scoping of seating areas and that requiringbased on actual results, but was calculated accessible seating in each luxury box, clubat least in part based on probability box, and suite in arenas, stadiums andassumptions. The Department is not grandstands could result in no wheelchairconvinced that further reductions should be and companion spaces available formade based upon those projections and that individuals with disabilities in the generalfurther reductions would not substantially limit seating area(s). These comments appear toaccessibility at assembly areas for persons misunderstand the requirements. The 2010who use wheelchairs. Standards require each luxury box, club box, and suite in an arena, stadium or grandstand to be accessible and to contain wheelchairDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 111
    • Analysis and Commentary on the 2010 ADAStandardsspaces and companion seats as required the wheelchair space may overlap theby sections 221.2.1.1, 221.2.1.2 and 221.3. “extra” circulation path width. Where a mainIn addition, the remaining seating areas circulation path is located behind a row ofnot located in boxes must also contain the seats that contains a wheelchair space andnumber of wheelchair and companion seating the wheelchair space is entered from thelocations specified in the 2010 Standards rear, the aisle in front of the row may needbased on the total number of seats in the to be wider in order not to block the requiredentire facility excluding luxury boxes, club circulation path to the other seats in theboxes and suites. row, or a mid-row opening may need to be provided to access the required circulationWheelchair Space Overlap in Assembly path to the other seats.Areas. Section 4.33.3 of the 1991 Standardsand the 2010 Standards, at sections 402, Line of Sight and Dispersion of403.5.1, 802.1.4, and 802.1.5, require Wheelchair Spaces in Assembly Areas.walkways that are part of an accessible Section 4.33.3 of the 1991 Standardsroute to have a 36-inch minimum clear width. requires wheelchair spaces and companionSection 802.1.5 of the 2010 Standards seats to be an integral part of any fixedspecifically prohibits accessible routes from seating plan in assembly areas and tooverlapping wheelchair spaces. This change provide individuals with disabilities a choiceis consistent with the technical requirements of admission prices and lines of sightfor accessible routes, since the clear width comparable to those available to otherof accessible routes cannot be obstructed spectators. Section 4.33.3 also requiresby any object. The 2010 Standards also wheelchair spaces and companion seats tospecifically prohibit wheelchair spaces from be dispersed in assembly areas with moreoverlapping circulation paths. An advisory than 300 seats. Under the 1991 Standards,note clarifies that this prohibition applies sports facilities typically located someonly to the circulation path width required wheelchair spaces and companion seats onby applicable building codes and fire and each accessible level of the facility. In 1994,life safety codes since the codes prohibit the Department issued official guidanceobstructions in the required width of assembly interpreting the requirement for comparableaisles. lines of sight in the 1991 Standards to mean wheelchair spaces and companion seatsSection 802.1.5 of the 2010 Standards in sports stadia and arenas must provideprovides that where a main circulation path is patrons with disabilities and their companionslocated in front of a row of seats that contains with lines of sight over standing spectators toa wheelchair space and the circulation the playing field or performance area, wherepath is wider than required by applicable spectators were expected to stand duringbuilding codes and fire and life safety codes, events. See “Accessible Stadiums,”112 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardswww.ada.gov/stadium.pdf. The Department angle. The Department is convinced that thealso interpreted the section 4.33.3 regulatory language in the 2010 Standardscomparable lines of sight requirement to is sufficient to provide a performance-basedmean that wheelchair spaces and companion standard for designers, architects, and otherseats in stadium-style movie theaters must professionals to design facilities that provideprovide patrons with disabilities and their comparable lines of sight for wheelchaircompanions with viewing angles comparable seating in assembly areas, including viewingto those provided to other spectators. angles. The Department believes that as a general rule, the vast variety of sizes andSections 221.2.3 and 802.2 of the configurations in assembly areas requires2010 Standards add specific technical it to establish a performance standardrequirements for providing lines of sight for designers to adapt to the specificover seated and standing spectators circumstances of the venue that is beingand also require wheelchair spaces and designed. The Department has implementedcompanion seats (per section 221.3) to more explicit requirements for stadium-styleprovide individuals with disabilities choices movie theaters in 28 CFR 36.406(f) andof seating locations and viewing angles that 35.151(g) of the final regulations based onare substantially equivalent to, or better experience and expertise gained after severalthan, the choices of seating locations and major enforcement actions.viewing angles available to other spectators.This applies to all types of assembly areas, Another commenter inquired as to whatincluding stadium-style movie theaters, determines whether a choice of seatingsports arenas, and concert halls. These rules locations or viewing angles is better thanare expected to have minimal impact since that available to all other spectators. Thethey are consistent with the Department’s answer to this question varies according tolongstanding interpretation of the 1991 each assembly area that is being designed,Standards and technical assistance. but designers and venue operators understand which seats are better and thatCommenters stated that the qualitative understanding routinely drives design choicesviewing angle language contained in section made to maximize profit and successful221.2.3 is not appropriate for an enforceable operation of the facility, among other things.regulatory standard unless the terms of such For example, an “equivalent or better” line oflanguage are defined. Other commenters sight in a major league football stadium wouldrequested definitions for viewing angles, be different than for a 350-seat lecture hall.an explanation for precisely how viewing This performance standard is based uponangles are measured, and an explanation the underlying principle of equal opportunityfor precisely how to evaluate whether one for a good viewing experience for everyone,viewing angle is better than another viewing including persons with disabilities. TheDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 113
    • Analysis and Commentary on the 2010 ADAStandardsDepartment believes that for each specific Sections 221.2.3.2 and 221.3 of the 2010facility that is designed, the owner, operator, Standards require wheelchair spaces andand design professionals will be able to companion seats to be vertically disperseddistinguish easily between seating locations at varying distances from the screen,and the quality of the associated lines of performance area, or playing field. Thesight from those seating locations in order 2010 Standards, at section 221.2.3.2, alsoto decide which ones are better than others. require wheelchair spaces and companionThe wheelchair locations do not have to be seats to be located in each balcony orexclusively among the seats with the very mezzanine served by an accessible route.best lines of sight nor may they be exclusively The final regulations at 28 CFR 35.151(g)among the seats with the worst lines of sight. (1) and 36.406(f)(1) also require assemblyRather, wheelchair seating locations should areas to locate wheelchair spaces andoffer a choice of viewing experiences and be companion seats at all levels of the facilitylocated among the seats where most of the that include seating and that are served by anaudience chooses to sit. accessible route. The Department interprets that requirement to mean that wheelchairSection 4.33.3 of the 1991 Standards and companion seating must be providedrequires wheelchair spaces and companion in a particular area even if the accessibleseating to be offered at a choice of admission route may not be the same route that otherprices, but section 221.2.3.2 of the 2010 individuals use to reach their seats. ForStandards no longer requires wheelchair example, if other patrons reach their seatsspaces and companion seats to be dispersed on the field by an inaccessible route (e.g., bybased on admission prices. Venue owners stairs), but there is an accessible route thatand operators commented during the 2004 complies with section 206.3 that could beADAAG rulemaking process that pricing is connected to seats on the field, accessiblenot always established at the design phase seats must be placed on the field even if thatand may vary from event to event within the route is not generally available to the public.same facility, making it difficult to determine The 2010 Standards, at section 221.2.3.2,where to place wheelchair seats during the provide an exception for vertical dispersiondesign and construction phase. Their concern in assembly areas with 300 or fewer seats ifwas that a failure by the venue owner or the wheelchair spaces and companion seatsoperator to provide a choice of ticket prices provide viewing angles that are equivalentfor wheelchair seating as required by the to, or better than, the average viewing angle1991 Standards governing new construction provided in the facility.could somehow unfairly subject partiesinvolved in the design and construction toliability unknowingly.114 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsSection 221.3 of the 2010 Standards requires equal to those of non-stadium-style theaters,wheelchair spaces and companion seats with larger theaters being required to provideto be dispersed horizontally. In addition, 28 accessible seating locations and viewingCFR 35.151(g)(2) and 36.406(f)(2) require angles equal to those offered to individualsassembly areas that have seating around without disabilities.the field of play or performance area to placewheelchair spaces and companion seating all One commenter noted that stadium-stylearound that field of play or performance area. movie theaters, sports arenas, music venues, theaters, and concert halls eachStadium-Style Movie Theaters pose unique conditions that require separate and specific standards to accommodatePursuant to 28 CFR 35.151(g) and 36.406(f), patrons with disabilities, and recommendedin addition to other obligations, stadium-style that the Department provide more specificmovie theaters must meet horizontal and requirements for sports arenas, musicvertical dispersion requirements set forth venues, theaters, and concert halls. Thein sections 221.2.3.1 and 221.2.3.2 of the Department has concluded that the 20102010 Standards; placement of wheelchair Standards will provide sufficient flexibility toand companion seating must be on a riser adapt to the wide variety of assembly venuesor cross-aisle in the stadium section of the covered.theater; and placement of such seatingmust satisfy at least one of the following Companion Seats. Section 4.33.3 of thecriteria: (i) it is located within the rear sixty 1991 Standards required at least one fixedpercent (60%) of the seats provided in the companion seat to be provided next to eachauditorium; or (ii) it is located within the area wheelchair space. The 2010 Standards atof the auditorium where the vertical viewing sections 221.3 and 802.3 permit companionangles are between the 40th and 100th seats to be movable. Several commenterspercentile of vertical viewing angles for all urged the Department to ensure thatseats in that theater as ranked from the first companion seats are positioned in a mannerrow (1st percentile) to the back row (100th that places the user at the same shoulderpercentile). The line-of-sight requirements height as their companions using mobilityrecognize the importance to the movie-going devices. The Department recognizes thatexperience of viewing angles, and the final some facilities have created problems byregulations ensure that movie patrons with locating the wheelchair space and companiondisabilities are provided views of the movie seat on different floor elevations (oftenscreen comparable to other theater patrons. a difference of one riser height). SectionSome commenters supported regulatory 802.3.1 of the 2010 Standards addresses thislanguage that would require stadium-style problem by requiring the wheelchair spacetheaters to meet standards of accessibility and the companion seat to be on the sameDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 115
    • Analysis and Commentary on the 2010 ADAStandardsfloor elevation. This solution should prevent During the separate rulemaking on theany vertical discrepancies that are not the 2004 ADAAG the Access Board specificallydirect result of differences in the sizes and requested public comment on the question ofconfigurations of wheelchairs. whether aisle seats should be required to be located on accessible routes. After reviewingDesignated Aisle Seats. Section 4.1.3(19) the comments submitted during the 2004(a) of the 1991 Standards requires one Access Board rulemaking, the Access Boardpercent (1%) of fixed seats in assembly concluded that this could not be done withoutareas to be designated aisle seats with making significant and costly changes in theeither no armrests or folding or retractable design of most assembly areas. However,armrests on the aisle side of the seat. The section 221.4 of the 2004 ADAAG required2010 Standards, at sections 221.4 and 802.4, that designated aisle seats be the aisle seatsbase the number of required designated closest to accessible routes. The Departmentaisle seats on the total number of aisle seats, proposed the same provision and concurs ininstead of on all of the seats in an assembly the Access Board’s conclusion and declinesarea as the 1991 Standards require. At to implement further changes.least five percent (5%) of the aisle seats arerequired to be designated aisle seats and to Team or Player Seating Areas. Sectionbe located closest to accessible routes. This 221.2.1.4 of the 2010 Standards requiresoption will almost always result in fewer aisle that at least one wheelchair space compliantseats being designated aisle seats compared with section 802.1 be provided in each teamto the 1991 Standards. The Department is or player seating area serving areas of sportaware that sports facilities typically locate activity. For bowling lanes, the requirementdesignated aisle seats on, or as near to, for a wheelchair space in player seatingaccessible routes as permitted by the areas is limited to lanes required to beconfiguration of the facility. accessible.One commenter recommended that section Lawn Seating. The 1991 Standards, at221.4, Designated Aisle Seats, be changed to section 4.1.1(1), require all areas of newlyrequire that aisle seats be on an accessible constructed facilities to be accessible, but doroute, and be integrated and dispersed not contain a specific scoping requirementthroughout an assembly area. Aisle seats, for lawn seating in assembly areas. Theby their nature, typically are located within 2010 Standards, at section 221.5, specificallythe general seating area, and integration require lawn seating areas and exterioroccurs almost automatically. The issue of overflow seating areas without fixed seats todispersing aisle seats or locating them on connect to an accessible route.accessible routes is much more challenging.116 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsAisle Stairs and Ramps in Assembly a handrail may be provided at either sideAreas. Sections 4.1.3 and 4.1.3(4) of the or within the aisle width when handrails are1991 Standards require that interior and not provided on both sides of aisle ramps.exterior stairs connecting levels that are not Section 505.3 states that, in assembly areas,connected by an elevator, ramp, or other handrails need not be continuous in aislesaccessible means of vertical access must serving seating.comply with the technical requirementsfor stairs set out in section 4.9 of the 1991 222 and 803 Dressing, Fitting, and LockerStandards. Section 210.1 of the 2010 RoomsStandards requires that stairs that are partof a means of egress shall comply with Dressing rooms, fitting rooms, and lockersection 504’s technical requirements for rooms are required to comply with thestairs. The 1991 Standards do not contain accessibility requirements of sections 222any exceptions for aisle stairs in assembly and 803 of the 2010 Standards. Where theseareas. Section 210.1, Exception 3 of the types of rooms are provided in clusters, five2010 Standards adds a new exception that percent (5%) but at least one room in eachexempts aisle stairs in assembly areas cluster must comply. Some commentersfrom section 504’s technical requirements stated that clothing and retail stores wouldfor stairs, including section 505’s technical have to expand and reconfigure accessiblerequirements for handrails. dressing, fitting and locker rooms to meet the changed provision for clear floor spaceSection 4.8.5 of the 1991 Standards exempts alongside the end of the bench. Commentersaisle ramps that are part of an accessible explained that meeting the new requirementroute from providing handrails on the side would result in a loss of sales and inventoryadjacent to seating. The 2010 Standards, at space. Other commenters also expressedsection 405.1, exempt aisle ramps adjacent opposition to the changed requirement into seating in assembly areas and not serving locker rooms for similar reasons.elements required to be on an accessibleroute, from complying with all of section The Department reminds the commenters405’s technical requirements for ramps. that the requirements in the 2010 StandardsWhere aisle ramps in assembly areas serve for the clear floor space to be beside theelements required to be on an accessible short axis of the bench in an accessibleroute, the 2010 Standards require that dressing, fitting, or locker room apply onlythe aisle ramps comply with section 405’s to new construction and alterations. Thetechnical requirements for ramps. Sections requirements for alterations in the 2010505.2 and 505.3 of the 2010 Standards Standards at section 202.3 do not includeprovide exceptions for aisle ramp handrails. the requirement from the 1991 StandardsSection 505.2 states that in assembly areas, at section 4.1.6(1)(c) that if alterations toDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 117
    • Analysis and Commentary on the 2010 ADAStandardssingle elements, when considered together, Some commenters opposed requirementsamount to an alteration of a room or space for guest rooms accessible to individualsin a building or facility, the entire space shall with mobility disabilities stating that statisticsbe made accessible. Therefore, under the provided by the industry demonstrate that all2010 Standards, the alteration requirements types of accessible guest rooms are unused.only apply to specific elements or spaces that They further claimed that the requirementsare being altered. So providing the clear floor of the 2010 Standards are too burdensomespace at the end of the bench as required by to meet in new construction, and that thethe 2010 Standards instead of in front of the requirements will result in a loss of livingbench as is allowed by the 1991 Standards space in places of transient lodging. Otherwould only be required when the bench in the commenters urged the Department toaccessible dressing room is altered or when increase the number of guest rooms requiredthe entire dressing room area is altered. to be accessible. The number of guest rooms accessible to individuals with mobility224 and 806 Transient Lodging Guest disabilities and the number accessible toRooms persons who are deaf or who are hard of hearing in the 2010 Standards are consistentScoping. The minimum number of guest with the 1991 Standards and with therooms required to be accessible in transient IBC. The Department continues to receivelodging facilities is covered by section 224 of complaints about the lack of accessible guestthe 2010 Standards. Scoping requirements rooms throughout the country. Accessiblefor guest rooms with mobility features guest rooms are used not only by individualsand guest rooms with communication using mobility devices such as wheelchairsfeatures are addressed at section 224.2 and scooters, but also by individuals withand section 224.4, respectively. Under the other mobility disabilities including persons1991 Standards all newly constructed guest who use walkers, crutches, or canes.rooms with mobility features must providecommunication features. Under the 2010 Data provided by the Disability StatisticsStandards, in section 224.5, at least one Center at the University of California, Sanguest room with mobility features must also Francisco demonstrated that the numberprovide communication features. Additionally, of adults who use wheelchairs has beennot more than ten percent (10%) of the guest increasing at the rate of six percent (6%) perrooms required to provide mobility features year from 1969 to 1999; and by 2010, it wasand also equipped with communication projected that two percent (2%) of the adultfeatures can be used to satisfy the minimum population would use wheelchairs. In additionnumber of guest rooms required to provide to persons who use wheelchairs, threecommunication features. percent (3%) of adults used crutches, canes, walkers, and other mobility devices in 1999;118 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsand the number was projected to increase Other commenters stated that views shouldto four percent (4%) by 2010. Thus, in 2010, only be a dispersion criteria if view is a factorup to six percent (6%) of the population may for pricing room rates.need accessible guest rooms. These terms are not to be considered termsDispersion. The 2010 Standards, in of art, but should be used as in their normalsection 224.5, set scoping requirements course. For example, “class” is definedfor dispersion in facilities covered by the by Webster’s Dictionary as “a division bytransient lodging provisions. This section quality.” “Type” is defined as “a group ofcovers guest rooms with mobility features * * * things that share common traits orand guest rooms with communication characteristics distinguishing them as anfeatures and applies in new construction identifiable group or class.” Accordingly, theseand alterations. The primary requirement terms are not intended to convey differentis to provide choices of types of guest concepts, but are used as synonyms. Inrooms, number of beds, and other amenities the 2010 Standards, section 224.5 and itscomparable to the choices provided to other advisory require dispersion in such a variedguests. An advisory in section 224.5 provides range of hotels and lodging facilities that theguidance that “factors to be considered in Department believes that the chosen termsproviding an equivalent range of options may are appropriate to convey what is intended.include, but are not limited to, room size, bed Dispersion required by this section is notsize, cost, view, bathroom fixtures such as “one size fits all” and it is imperative thathot tubs and spas, smoking and nonsmoking, each covered entity consider its individualand the number of rooms provided.” circumstance as it applies this requirement. For example, a facility would considerCommenters asked the Department to view as an amenity if some rooms facedclarify what is meant by various terms used mountains, a beach, a lake, or other sceneryin section 224.5 such as “classes,” “types,” that was considered to be a premium. A“options,” and “amenities.” Other commenters facility where view was not marketed orasked the Department to clarify and simplify requested by guests would not factor thethe dispersion requirements set forth in view as an amenity for purposes of meetingsection 224.5 of the 2010 Standards, in the dispersion requirement.particular the scope of the term “amenities.”One commenter expressed concern that Section 224.5 of the 2010 Standards requiresviews, if considered an amenity, would further that guest rooms with mobility features andcomplicate room categories and force owners guest rooms with communication featuresand operators to make an educated guess. “shall be dispersed among the various classes of guest rooms, and shall provide choices of types of guest rooms, number ofDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 119
    • Analysis and Commentary on the 2010 ADAStandardsbeds, and other amenities comparable to the As previously discussed, the advisorychoices provided to other guests. When the materials provided in the 2010 Standardsminimum number of guest rooms required is are meant to be illustrative and do not setnot sufficient to allow for complete dispersion, out specific requirements. In this particularguest rooms shall be dispersed in the instance, the advisory materials for sectionfollowing priority: guest room type, number of 224.5 set out some of the common types ofbeds and amenities.” amenities found at transient lodging facilities, and include common sense concepts suchThis general dispersion requirement is as view, bathroom fixtures, and smokingintended to effectuate Congress’ directive status. The intention of these factors is tothat a percentage of each class of hotel indicate to the hospitality industry the sortsrooms is to be fully accessible to persons of considerations that the Department, in itswith disabilities. See H.R. Rep. No. 101-485 enforcement efforts since the enactment of(II) at 391. Accordingly, the promise of the the ADA, has considered as amenities thatADA in this instance is that persons with should be made available to persons withdisabilities will have an equal opportunity to disabilities, just as they are made available tobenefit from the various options available to guests without disabilities.hotel guests without disabilities, from singleoccupancy guest rooms with limited features Commenters offered several suggestions for(and accompanying limited price tags) to addressing dispersion. One option includedluxury suites with lavish features and choices. the flexibility to use an equivalent facilitationThe inclusion of section 224.5 of the 2010 option similar to that provided in sectionStandards is not new. Substantially similar 9.1.4(2) of the 1991 Standards.language is contained in section 9.1.4 of the1991 Standards. The 2010 Standards eliminated all specific references to equivalent facilitation. SinceCommenters raised concerns that the factors Congress made it clear that each class ofincluded in the advisory to section 224.5 of hotel room is to be available to individualsthe 2010 Standards have been expanded. with disabilities, the Department declines toThe advisory provides: “[f]actors to be adopt such a specific limitation in favor of theconsidered in providing an equivalent range specific requirement for new construction andof options may include, but are not limited alterations found in section 224.5 of the 2010to, room size, bed size, cost, view, bathroom Standards.fixtures such as hot tubs and spas, smokingand nonsmoking, and the number of rooms In considering the comments of theprovided.” hospitality industry from the ANPRM and the Department’s enforcement efforts in this area, the Department sought120 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardscomment in the NPRM on whether the dispersion based on views to the extent thatdispersion requirements should be applied up to eight units may be vertically stacked inproportionally, or whether the requirements a single location.of section 224.5 of the 2010 Standards wouldbe complied with if access to at least one Section 224.1.1 of the 2010 Standardsguest room of each type were to be provided. sets scoping requirements for alterations to transient lodging guest rooms. The advisoryOne commenter expressed concern about to section 224.1.1 further explains thatrequiring different guest room types to be compliance with 224.5 is more likely to beproportionally represented in the accessible achieved if all of the accessible guest roomsguest room pool as opposed to just having are not provided in the same area of theeach type represented. Some commenters facility, when accessible guest rooms arealso expressed concern about accessible added as a result of subsequent alterations.guest rooms created in pre-1993 facilitiesand they requested that such accessible Some commenters requested a specificguest rooms be safe harbored just as they exemption for small hotels of 300 or fewerare safe harbored under the 1991 Standards. guest rooms from dispersion regardingIn addition, one commenter requested that smoking rooms. The ADA requires thatthe proposed dispersion requirements in individuals with disabilities be provided withsection 224.5 of the 2010 Standards not be the same range of options as persons withoutapplied to pre-1993 facilities even when they disabilities, and, therefore, the Departmentare altered. Some commenters also offered declines to add such an exemption. It isa suggestion for limitations to the dispersion noted, however, that the existence of thisrequirements as an alternative to safe language in the advisory does not require aharboring pre-1993 facilities. The suggestion place of transient lodging that does not offerincluded: (1) Guest rooms’ interior or exterior smoking guest rooms at its facility to do sofootprints may remain unchanged in order only for individuals with disabilities.to meet the dispersion requirements; (2)Dispersion should only be required among Guest Rooms with Mobility Features.the types of rooms affected by an alteration; Scoping provisions for guest rooms withand (3) Subject to (1) and (2) above and mobility features are provided in sectiontechnical feasibility, a facility would need to 224.2 of the 2010 Standards. Scopingprovide only one guest room in each guest requirements for alterations are included inroom type such as single, double and suites. 224.1.1. These scoping requirements in theOne commenter requested an exception to 2010 Standards are consistent with the 1991the dispersion criteria that applies to both Standards.existing and new multi-story timesharefacilities. This requested exception waivesDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 121
    • Analysis and Commentary on the 2010 ADAStandardsOne commenter expressed opposition to sections as in the 1991 Standards. Thethe new scoping provisions for altered guest revised provisions also limit the overlaprooms, which, according to the commenter, between guest rooms required to providerequire greater numbers of accessible guest mobility features and guest rooms requiredrooms with mobility features. to provide communication features. Section 224.5 of the 2010 Standards requires thatSection 224.1.1 of the 2010 Standards at least one guest room providing mobilityprovides scoping requirements for alterations features must also provide communicationsto guest rooms in existing facilities. Section features. At least one, but not more than ten224.1.1 modifies the scoping requirements percent (10%), of the guest rooms required tofor new construction in section 224 by limiting provide mobility features can also satisfy thethe application of section 224 requirements minimum number of guest rooms required toonly to those guest rooms being altered or provide communication features.added until the number of such accessibleguest rooms complies with the minimum Commenters suggested that thenumber required for new construction in requirements for scoping and dispersionsection 224.2 of the 2010 Standards. The of guest rooms for persons with mobilityminimum required number of accessible impairments and guest rooms withguest rooms is based on the total number communication features are too complex forof guest rooms altered or added instead of the industry to effectively implement.the total number of guest rooms provided.These requirements are consistent with The Department believes the requirementsthe requirements in the 1991 Standards. for guest rooms with communicationsLanguage in the 2010 Standards clarifies features in the 2010 Standards clarify thethe provision of section 104.2 of the 2010 requirements necessary to provide equalStandards which requires rounding up values opportunity for travelers with disabilities.to the next whole number for calculations of Additional technical assistance will be madepercentages in scoping. available to address questions before the rule goes into effect.Guest Rooms with CommunicationFeatures. The revisions at section 224.4 Visible Alarms in Guest Rooms withof the 2010 Standards effect no substantive Communication Features. The 1991change from the 1991 Standards with respect Standards at sections 9.3.1 and 4.28.4to the number of guest rooms required require transient lodging guest rooms withto provide communication features. The communication features to provide eitherscoping requirement is consolidated into a permanently installed visible alarms that aresingle table, instead of appearing in three connected to the building fire alarm system or portable visible alarms that are connected122 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsto a standard 110-volt electrical outlet and of portable visible alarms used in transientare both activated by the building fire alarm lodging guest rooms. These commenterssystem and provide a visible alarm when the recommended retaining requirements thatsingle station smoke detector is activated. allow the use of portable visible alarms.Section 215.4 of the 2010 Standards nolonger includes the portable visible alarm Persons who are deaf or hard of hearingoption and instead requires that transient have reported that portable visible alarmslodging guest rooms with communication used in transient lodging guest roomsfeatures be equipped with a fire alarm are deficient because the alarms are notsystem which includes permanently installed activated by the building fire alarm system,audible and visible alarms in accordance with and the alarms do not work when the buildingNFPA 72 National Fire Alarm Code (1999 power source goes out in emergencies.or 2002 edition). Such guest rooms with The 2010 Standards are consistent with thecommunication features are also required by model building, fire, and life safety codessection 806.3.2 of the 2010 Standards to be as applied to newly constructed transientequipped with visible notification devices that lodging facilities. One commenter soughtalert room occupants of incoming telephone confirmation of its understanding of visiblecalls and a door knock or bell. alarm requirements from the Department. This commenter interpreted the exceptionThe 2010 Standards add a new exception for to section 215.1 of the 2010 Standards andalterations to existing facilities that exempts the Department’s commentary to the NPRMexisting fire alarm systems from providing to mean that if a transient lodging facilityvisible alarms, unless the fire alarm system does not have permanently installed visibleitself is upgraded or replaced, or a new fire alarms in its communication accessible guestalarm system is installed. Transient lodging rooms, it will not be required to provide suchfacilities that alter guest rooms are not alarms until such time that its fire alarmrequired to provide permanently installed system is upgraded or replaced, or a newvisible alarms complying with the NFPA 72 if fire alarm system is installed. In addition, thisthe existing fire alarm system has not been commenter also understood that, if a hotelupgraded or replaced, or a new fire alarm already has permanently installed visiblesystem has not been installed. alarms in all of its mobility accessible guest rooms, it would not have to relocate suchCommenters representing small providers visible alarms and other communicationof transient lodging raised concerns about features in those rooms to other guestthe proposed changes to prohibit the use rooms to comply with the ten percent (10%) overlap requirement until the alarm system is upgraded or replaced.Department of Justice Guidance on the 2010 Standards: Titles II and III - 123
    • Analysis and Commentary on the 2010 ADAStandardsThis commenter’s interpretation and “comparable” vague and expressed concernunderstanding are consistent with the about confusion the new requirement wouldDepartment’s position in this matter. Section cause. This commenter suggested that the215.4 of the 2010 Standards requires that phrase “equal area in square inches” be usedguest rooms required to have communication instead of comparable vanity space.features be equipped with a fire alarm systemcomplying with section 702. Communication In some circumstances, the addition ofaccessible guest rooms are required to a shelf in an existing facility may be ahave all of the communication features reasonable way to provide a space fordescribed in section 806.3 of the 2010 travelers with disabilities to use their toiletriesStandards including a fire alarm system and other personal items. However, this is awhich provides both audible and visible determination that must be made on a case-alarms. The exception to section 215.1 of by-case basis. Comparable vanity countertopthe 2010 Standards, which applies only to space need not be one continuous surfacefire alarm requirements for guest rooms with and need not be exactly the same size as thecommunication features in existing facilities, countertops in comparable guest bathrooms.exempts the visible alarm requirement until For example, accessible shelving withinsuch time as the existing fire alarm system reach of the lavatory could be stacked tois upgraded or replaced, or a new fire alarm provide usable surfaces for toiletries andsystem is installed. If guest rooms in existing other personal items.facilities are altered and they are requiredby section 224 of the 2010 Standards to Shower and Sauna Doors in Transienthave communication features, such guest Lodging Facilities. Section 9.4 of the 1991rooms are required by section 806.3 to have Standards and section 206.5.3 of the 2010all other communication features including Standards both require passage doors innotification devices. transient lodging guest rooms that do not provide mobility features to provide at leastVanity Counter Space. Section 806.2.4.1 32 inches of clear width. Congress directedof the 2010 Standards requires that if vanity this requirement to be included so thatcountertop space is provided in inaccessible individuals with disabilities could visit gueststransient lodging guest bathrooms, in other rooms. See H. Rept. 101-485, pt. 2,comparable vanity space must be provided in at 118 (1990); S. Rept. 101-116, at 70 (1989).accessible transient lodging guest bathrooms. Section 224.1.2 of the 2010 Standards adds a new exception to clarify that shower andA commenter questioned whether in sauna doors in such inaccessible guestexisting facilities vanity countertop space rooms are exempt from the requirement formay be provided through the addition of a passage doors to provide at least 32 inchesshelf. Another commenter found the term of clear width. Two commenters requested124 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsthat saunas and steam rooms in existing of an accessible route. The 2010 Standardsfacilities be exempt from the section 224.1.2 add a new scoping requirement that permitsrequirement and that the requirement be platform lifts to be used to connect levelsmade applicable to new construction only. within transient lodging guest rooms and dwelling units with mobility features. The exemption to the section 224.1.2requirement for a 32-inch wide clearance 806 Transient Lodging Guest Roomsat doors to shower and saunas appliesonly to those showers and saunas in guest In the NPRM, the Department included floorrooms which are not required to have plans showing examples of accessible guestmobility features. Showers and saunas in rooms and bathrooms designs with mobilityother locations, including those in common features to illustrate how compliance withuse areas and guest rooms with mobility the 2010 Standards could be accomplishedfeatures, are required to comply with the with little or no additional space compared to32-inch clear width standard as well as designs that comply with the 1991 Standards.other applicable accessibility standards.Saunas come in a variety of types: portable, Commenters noted that the Department’spre-built, pre-cut, and custom-made. All plans showing accessible transient lodgingsaunas except for custom-made saunas guest rooms compliant with the 2010are made to manufacturers’ standard Standards were not common in the transientdimensions. The Department is aware that lodging industry and also noted that the planscreating the required 32-inch clearance omitted doors at sleeping room closets.at existing narrower doorways may notalways be technically feasible. However, The Department agrees that the configurationthe Department believes that owners and of the accessible bathrooms is somewhatoperators will have an opportunity to provide different from past designs used by thethe required doorway clearance, unless industry, but this was done to meet thedoing so is technically infeasible, when an requirements of the 2010 Standards. Thealteration to an existing sauna is undertaken. plans were provided to show that, with someTherefore, the Department has retained redesign, the 2010 Standards do not normallythese requirements. increase the square footage of an accessible sleeping room or bathroom with mobilityPlatform Lifts in Transient Lodging Guest features in new construction. The DepartmentRooms and Dwelling Units. The 1991 has also modified several accessible guestStandards, at section 4.1.3(5), exception 4, room plans to show that doors can beand the 2010 Standards, at sections 206.7 installed on closets and comply with the 2010and 206.7.6, both limit the locations where Standards.platform lifts are permitted to be used as partDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 125
    • Analysis and Commentary on the 2010 ADAStandardsA commenter stated that the Department’s options for providing access. The Departmentdrawings suggest that the fan coil units for recognizes that relocating mechanicalheat and air conditioning are overhead, chases in multi-story facilities may be difficultwhile the typical sleeping room usually or impossible to accomplish. While thesehas a vertical unit, or a packaged terminal issues do not exist in new facilities, alteredair conditioning unit within the room. The existing facilities must comply with the 2010Department’s drawings are sample plans, Standards to the extent that it is technicallyshowing the layout of the space, relationship feasible to do so. When an alterationof elements to each other, and required cannot fully comply because it is technicallyclear floor and turning spaces. It was not the infeasible to do so, the alteration must stillintent of the Department to provide precise be designed to comply to the greatest extentlocations for all elements, including heating feasible.and air conditioning units. Commenters noted that on some of theCommenters noted that in guest rooms with Department’s plans where a vanity is locatedtwo beds, each bed was positioned close adjacent to a bathtub, the vanity may requireto a wall, reducing access on one side. more maintenance due to exposure to water.Another commenter stated that additional The Department agrees that it would behousekeeping time is needed to clean the advisable that items placed next to a bathtubroom when beds are placed closer to walls. or shower be made of materials that are notThe 2010 Standards require that, when two susceptible to water damage.beds are provided, there must be at least36 inches of clear space between the beds.The plans provided in the NPRM showedtwo bed arrangements with adequate clearwidth complying with the 1991 Standardsand the 2010 Standards. Additional spacecan be provided on the other side of the bedsto facilitate housekeeping as long as theclear floor space between beds is at least 36inches wide.Commenters stated that chases in sleepingroom bathrooms that route plumbing andother utilities can present challenges whenmodifying existing facilities. In multi-storyfacilities, relocating or re-routing theseelements may not be possible, limiting126 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Transient Lodging Guest Room Floor Plans and Related Text The Department has included the following floor plans showing application of the requirements of the 2010 Standards without significant loss of guest room living space in transient lodging compared to the 1991 Standards.Department of Justice Guidance on the 2010 Standards: Titles II and III - 127
    • Plan 1A: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and doorconnecting to adjacent guest room. Furnishings include a king bed and additional seating. 13’-0” The following accessible features are provided in the 7’-6” bathroom: • Comparable vanity counter top space (section 806); • Bathtub with a lavatory at the control end (section 607.2); • Removable bathtub seat (section 607.3);8’-2” • Clearance in front of the bathtub extends its full length and is 30 inches wide min. (section 607.2); • Recessed bathtub location permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from15’-4” side wall (section 604.2); and • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).128 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 1B: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and doorconnecting to adjacent guest room. Furnishings include two beds. 13’-0” The following accessible features are provided in the 7’-6” bathroom: • Comparable vanity counter top space (section 806); • Bathtub with a lavatory at the control end (section 607.2); • Removable bathtub seat (section 607.3);8’-2” • Clearance in front of the bathtub extends its full length and is 30 inches wide min. (section 607.2); • Recessed bathtub location permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from15’-4” side wall (section 604.2); and • No other fixtures or obstructions located within required water closet clearance (section 604.3); The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309). Department of Justice Guidance on the 2010 Standards: Titles II and III - 129
    • Plan 2A: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting toadjacent guest room. Furnishings include a king bed and additional seating. 13’-0” The following accessible features are provided in the 7’-6” bathroom: • Comparable vanity counter top space (section 806); • Standard roll-in type shower with folding seat (section 608.2.2); • Recessed roll-in shower location permits shorter8’-2” rear grab bar at water closet (section 604.5.2); • Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and15’-4” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).130 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 2B: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting toadjacent guest room. Furnishings include two beds. 13’-0” The following accessible features are provided in the 8’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Alternate roll-in type shower with folding seat is 36 inches deep and 60 inches wide (section 608.2.3); • Alternate roll-in shower has a 36-inch wide entry8’-2” at one end of the long side of the compartment (section 608.2.3); • Recessed alternate roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2); 2’-8” • Circular turning space in room (section 603.2.1); min. • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);15’-4” • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).Department of Justice Guidance on the 2010 Standards: Titles II and III - 131
    • Plan 3A: 12-Foot Wide Accessible Guest RoomThis drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards.Features include a bathtub with a seat, comparable vanity, open clothes closet, and door connecting to adjacentguest room. Furnishings include a king bed and additional seating. 12’-0” The following accessible features are provided in the 7’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Bathtub (section 607.2); • Removable bathtub seat (section 607.3); • Clearance in front of the bathtub extends its full9’-3” length and is 30 inches wide min. (section 607.2); • Recessed lavatory with vanity countertop permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and14’-3” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).132 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 3B: 12-Foot Wide Accessible Guest RoomThis drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards.Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting toadjacent guest room. Furnishings include two beds. 12’-0” The following accessible features are provided in the 7’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Standard roll-in type shower with folding seat (section 608.2.2); • Recessed lavatory with vanity counter top permits8’-11” shorter rear grab bar at water closet (section 604.5.2); • Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from14’-7” side wall (section 604.2); and • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).Department of Justice Guidance on the 2010 Standards: Titles II and III - 133
    • Plan 4A: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a standard roll-in shower with a seat, comparable vanity, clothes closet with swinging doors, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. 13’-0” The following accessible features are provided in the 7’-6” bathroom: • Comparable vanity counter top space (section 806); • Standard roll-in type shower with folding seat (section 608.2.2);8’-2” • Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2); • Recessed roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and15’-4” • No other fixtures or obstructions located within required water closet clearance (section 604.3). • 30-inch wide by 48-inch long minimum clear floor space provided beyond the arc of the swing of the entry door (section 603.2.3 exception 2). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309). 134 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 4B: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting toadjacent guest room. Furnishings include two beds. 13’-0” The following accessible features are provided in the 8’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Alternate roll-in type shower with folding seat is 36 inches deep and 60 inches wide (section 608.2.3); • Alternate roll-in shower has a 36-inch wide entry8’-2” at one end of the long end of the compartment (section 608.2.3); • Recessed alternate roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Turning space includes knee and toe clearance at lavatory (section 304.3); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);15’-4” • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 309); and • Accessible controls for the heat and air conditioning (section 309).Department of Justice Guidance on the 2010 Standards: Titles II and III - 135
    • Plan 5A: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include a transfer shower, comparable vanity, clothes closet with swinging door, and door connecting toadjacent guest room. Furnishings include a king bed and additional seating. 13’-0” The following accessible features are provided in the 8’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Transfer shower (section 603.2); • Shower seat (section 610.3);7’-8” • Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2); • Recessed transfer shower location permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16 inches from side wall (section 604.2); and15’-10” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • Circular turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 229); and • Accessible controls for the heat and air conditioning (section 309). 136 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 5B: 13-Foot Wide Accessible Guest RoomThis drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.Features include a transfer shower, comparable vanity, open clothes closet, and door connecting to adjacentguest room. Furnishings include two beds. 13’-0” The following accessible features are provided in the 8’-0” 2’-10” bathroom: door • Comparable vanity counter top space (section 806); • Transfer shower (section 603.2); • Shower seat (section 610.3);8’-0” • Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2); • Lavatory with vanity counter top recessed to permit shorter rear grab bar at water closet (section 604.5.2); • T-shaped turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16-18 inches from side wall (section 604.2); and15’-6” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 229); and • Accessible controls for the heat and air conditioning (section 309).Department of Justice Guidance on the 2010 Standards: Titles II and III - 137
    • Plan 6A: 12-Foot Wide Accessible Guest Room This drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards. Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity, clothes closet with swinging door, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. 12’-0” The following accessible features are provided in the 6’-9” bathroom: • Comparable vanity counter top space (section 806); • Transfer shower (section 603.2); • Shower seat (section 610.3); • Clearance in front of the shower extends beyond8’-11” the seat and is 36 inches wide min. (section 607.2); • Recessed lavatory with vanity counter top permits shorter rear grab bar at water closet (section 604.5.2); • T-shaped turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16 inches from side wall (section 604.2); and14’-7” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • T-shaped turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space on both sides of the bed (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 229); and • Accessible controls for the heat and air conditioning (section 309). 138 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Plan 6B: 12-Foot Wide Accessible Guest RoomThis drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards.Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity,wardrobe, and door connecting to adjacent guest room. Furnishings include two beds. 12’-0” The following accessible features are provided in the 6’-9” bathroom: • Comparable vanity counter top space (section 806); • Transfer shower (section 603.2); • Shower seat (section 610.3); • Clearance in front of the shower extends beyond8’-11” the seat and is 36 inches wide min. (section 607.2); • Recessed lavatory with vanity counter top permits shorter rear grab bar at water closet (section 604.5.2); • Circular turning space in room (section 603.2.1); • Required clear floor spaces at fixtures and turning space overlap (section 603.2.2); • Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3); • Centerline of the water closet at 16 inches from side wall (section 604.2); and14’-7” • No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: • Circular turning space (section 304.3.2); • Accessible route (section 402); • Clear floor space between beds (section 806.2.3); • Maneuvering clearances at all doors (section 404.2); • Accessible operable window (section 229); and • Accessible controls for the heat and air conditioning (section 309). Department of Justice Guidance on the 2010 Standards: Titles II and III - 139
    • Analysis and Commentary on the 2010 ADAStandards225 and 811 Storage this requirement as too burdensome to retail and other entities and claimed that significantSection 225 of the 2010 Standards provides revenue would be lost if this requirementthat where storage is provided in accessible were to be implemented.spaces, at least one of each type shallcomply with the 2010 Standards. Self- Other commenters raised concerns thatservice shelving is required to be on an section 225.2.2 of the 2010 Standardsaccessible route, but is not required to scopes only self-service shelving whereascomply with the reach range requirements. section 4.1.3(12)(b) of the 1991 StandardsThese requirements are consistent with the applies to both “shelves or display units.”1991 Standards. Although “display units” were not includedSection 225.3 adds a new scoping in the 2010 Standards under the belief thatrequirement for self-storage facilities. displays are not to be touched and thereforeFacilities with 200 or fewer storage spaces by definition cannot be “self-service,” bothwill be required to make at least five percent the 2010 Standards and the 1991 Standards(5%) of the storage spaces accessible. should be read broadly to apply to all types ofFacilities with more than 200 storage spaces shelves, racks, hooks, and similar self-servicewill be required to provide ten accessible merchandising fittings, including self-servicestorage spaces, plus two percent (2%) of the display units. Such fixtures are permitted tototal storage spaces over 200. be installed above or below the reach ranges possible for many persons with disabilitiesSections 225.2.1 and 811 of the 2010 so that space available for merchandising isStandards require lockers to meet used as efficiently as possible.accessibility requirements. Where lockers areprovided in clusters, five percent (5%) but 226 and 902 Dining Surfaces and Workat least one locker in each cluster will have Surfacesto comply. Under the 1991 Standards, onlyone locker of each type provided must be Section 226.1 of the 2010 Standards requireaccessible. that where dining surfaces are provided for the consumption of food or drink, at leastCommenters recommended that the five percent (5%) of the seating spacesDepartment adopt language requiring public and standing spaces at the dining surfacesaccommodations to provide access to all self- comply with section 902. Section 902.2service shelves and display areas available requires the provision of accessible knee andto customers. Other commenters opposed toe clearance.140 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsCommenters stated that basing accessible of any sales and service counter to be theseating on seating spaces and standing same as the level of service provided at thespaces potentially represents a significant inaccessible portions of the counter.increase in scoping, particularly given theambiguity in what represents a “standing The 2010 Standards specify different lengthsspace” and urged a return to the 1991 for the accessible portion of sales and serviceStandard of requiring accessible seating counters based on the type of approachbased on fixed dining tables. The scoping provided. Where a forward approach ischange merely takes into account that provided, the accessible portion of thetables may vary in size so that basing counter must be at least 30 inches long andthe calculation on the number of tables no higher than 36 inches, and knee and toerather than on the number of individuals space must be provided under the counter.that may be accommodated by the tables The requirement that knee and toe spacecould unnecessarily restrict opportunities be provided where only clear floor space forfor persons with disabilities. The revised a forward approach to a sales and servicescoping permits greater flexibility by allowing counter is provided is not a new requirement.designers to disperse accessible seating It is a clarification of the ongoing requirementand standing spaces throughout the dining that part of the sales and service counter bearea. Human factors data, which is readily accessible. This requirement applies to theavailable to designers, provides information entire accessible part of sales and serviceabout the amount of space required for both counters and requires that the accessibleeating and drinking while seated or standing. clear floor or ground space adjacent to those counters be kept clear of merchandise,227 and 904 Sales and Service equipment, and other items so that the accessible part of the counter is readilyCheck-Out Aisles and Sales and Service accessible to and usable by individualsCounters. The 1991 Standards, at section with disabilities. The accessible part of the7.2, and the 2010 Standards, at section counter must also be staffed and provide an904.4, contain technical requirements equivalent level of service as that provided tofor sales and service counters. The 1991 all customers.Standards generally require sales andservice counters to provide an accessible Where clear floor space for a parallelportion at least 36 inches long and no approach is provided, the accessible portionhigher than 36 inches above the finish of the counter must be at least 36 inchesfloor. The nondiscrimination requirements long and no higher than 36 inches above theof the ADA regulations require the level of finish floor. A clear floor or ground space thatservice provided at the accessible portion is at least 48 inches long x 30 inches wideDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 141
    • Analysis and Commentary on the 2010 ADAStandardsmust be provided positioned for a parallel and toe clearance requirements will cause aapproach adjacent to the 36-inch minimum reduction in the sales and inventory space atlength of counter. check-out aisles and other sales and service counters.Section 904.4 of the 2010 Standards includesan exception for alterations to sales and Both the 1991 and the 2010 Standardsservice counters in existing facilities. It permit covered entities to determine whetherpermits the accessible portion of the counter they will provide a forward or a parallelto be at least 24 inches long, where providing approach to sales and service counters. Soa longer accessible counter will result in a any facility that does not wish to provide thereduction in the number of existing counters knee or toe clearance required for a frontat work stations or existing mailboxes, approach to such a counter may avoid thatprovided that the required clear floor or option. However, the Department believesground space is centered on the accessible that permitting a forward approach withoutlength of the counter. requiring knee and toe clearance is not adequate to provide accessibility because theSection 904.4 of the 2010 Standards also person using a wheelchair will be preventedclarifies that the accessible portion of the from coming close enough to the countercounter must extend the same depth as to see the merchandise or to transactthe sales or service counter top. Where business with a degree of conveniencethe counter is a single-height counter, this that is comparable to that provided to otherrequirement applies across the entire depth customers.of the counter top. Where the counter is asplit-height counter, this requirement applies A parallel approach to sales and serviceonly to the customer side of the counter top. counters also can provide the accessibilityThe employee-side of the counter top may be required by the 2010 Standards. Individualshigher or lower than the customer-side of the using wheelchairs can approach salescounter top. and service counters from the side, and, assuming the necessary elements, features,Commenters recommended that the or merchandise necessary to complete aDepartment consider a regulatory alternative business transaction are within the reachexempting small retailers from the new range requirements for a side approach, theknee and toe clearance requirement and needs of individuals with disabilities can beretaining existing wheelchair accessibility met effectively.standards for sales and service counters.These commenters believed that the knee Section 227 of the 2010 Standards clarifies the requirements for food service lines. Queues and waiting lines serving counters142 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsor check-out aisles, including those for food Accessible Courtroom Stations. Sectionsservice, must be accessible to individuals 231.2, 808, 304, 305, and 902 of the 2010with disabilities. Standards provide increased accessibility at courtroom stations. Clear floor space for a229 Windows forward approach is required for all courtroom stations (judges’ benches, clerks’ stations,A new requirement at section 229.1 of the bailiffs’ stations, deputy clerks’ stations, court2010 Standards provides that if operable reporters’ stations, and litigants’ and counselwindows are provided for building users, then stations). Other applicable specificationsat least one window in an accessible space include accessible work surface heights andmust be equipped with controls that comply toe and knee clearance.with section 309. Accessible Jury Boxes, Attorney Areas,Commenters generally supported this and Witness Stands. Section 206.2.4 of theprovision but some commenters asked 2010 Standards requires, in new constructionwhether the maximum five-pounds (5 lbs.) and alterations, at least one accessible routeof force requirement of section 309 applies to connect accessible building or facilityto the window latch itself or only to the entrances with all accessible spaces andforce required to open the window. Section elements within the building or facility that309 applies to all controls and operating are connected by a circulation path unlessmechanisms, so the latch must comply with they are exempted by Exceptions 1 - 7 ofthe requirement to operate with no more than section 206.2.3. Advisory 206.2.4 Spacesfive pounds of force (5 lbf). and Elements Exception 1 explains that the exception allowing raised courtroom stations230 and 708 Two-Way Communication to be used by court employees, such asSystems judge’s benches, to be adaptable does not apply to areas of the courtroom likely to beNew provisions of the 2010 Standards at used by members of the public such as jurysections 230.1 and 708 require two-way areas, attorney areas, or witness stands.communications systems to be equipped with These areas must be on an accessible routevisible as well as audible signals. at the time of initial construction or alteration.231 and 808 Judicial Facilities and Raised Courtroom Stations Not forCourtrooms Members of the Public. Section 206.2.4, Exception 1 of the 2010 Standards providesSection 231 of the 2010 Standards adds that raised courtroom stations that are usedrequirements for accessible courtrooms, by judges, clerks, bailiffs, and court reportersholding cells, and visiting areas. will not have to provide full vertical accessDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 143
    • Analysis and Commentary on the 2010 ADAStandardswhen first constructed or altered if they are the design of the space. The Departmentconstructed to be easily adaptable to provide believes that the 2010 Standards have beenvertical accessibility. drafted in a way that will achieve accessibility without unduly constraining the ability of aOne commenter suggested that a sufficient designer to address the other considerationsnumber of accessible benches for judges with that are unique to courtrooms.disabilities, in addition to requiring accessiblewitness stands and attorney areas, be Commenters argued that permittingrequired. The Department believes that courtroom stations to be adaptable ratherthe requirements regarding raised benches than fully accessible at the time of newfor judges are easily adaptable to provide construction likely will lead to discriminationvertical access in the event a judge requires in hiring of clerks, court reporters, and otheran accessible bench. Section 206.2.4 of court staff. The Department believes that thethe 2010 Standards provides that raised provisions will facilitate, not hinder, the hiringcourtroom stations used by judges and of court personnel who have disabilities. Allother judicial staff do not have to provide courtroom work stations will be on accessiblefull vertical access when first constructed or routes and will be required to have all fixedaltered as long as the required clear floor elements designed in compliance with thespace, maneuvering space, and electrical 2010 Standards. Elevated work stations forservice, where appropriate, is provided at the court employees may be designed to addtime of new construction or can be achieved vertical access as needed. Since the originalwithout substantial reconstruction during design must provide the proper space andalterations. electrical wiring to install vertical access, the change should be easily accomplished.A commenter asserted that there is nothinginherent in clerks’ stations, jury boxes, and 232 Detention Facilities and Correctionalwitness stands that require them to be Facilitiesraised. While it would, of course, be easiestto provide access by eliminating height Section 232 of the 2010 Standardsdifferences among courtroom elements, the establishes requirements for the design andDepartment recognizes that accessibility is construction of cells, medical care facilities,only one factor that must be considered in the and visiting areas in detention facilities anddesign process of a functioning courtroom. in correctional facilities. Section 35.151(k) ofThe need to ensure the ability of the judge to the Department’s title II rule provides scopingmaintain order, the need to ensure sight lines for newly constructed general holding cellsamong the judge, the witness, the jury, and and general housing cells requiring mobilityother participants, and the need to maintain features compliant with section 807.2 ofthe security of the participants all affect the 2010 Standards in a minimum of three144 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardspercent (3%) of cells, but no fewer than one scoping and technical requirements forcell. Section 232.2 of the 2010 Standards homeless shelters, group homes, and similarprovides scoping for newly constructed cells social service establishments were includedwith communications features requiring a in section 9 Transient Lodging. These typesminimum of two percent (2%) of cells, but of facilities will be covered by section 233at least one cell, to have communication of the 2010 Standards and by 28 CFRfeatures. 35.151(e) and 36.406(d) and will be subject to requirements for residential facilitiesThe Department’s title II rule at rather than the requirements for transient§ 35.151(k) also specifies scoping for lodging. This approach will harmonize federalalterations to detention and correctional accessibility obligations under both the ADAfacilities. Generally a minimum of three and section 504 of the Rehabilitation Act ofpercent (3%), but no fewer than one, of the 1973, as amended. In sleeping rooms withtotal number of altered cells must comply more than 25 beds that are covered bywith section 807.2 of the 2010 Standards § 36.406(d) a minimum of five percent (5%)and be provided within each facility. Altered of the beds must have clear floor spacecells with mobility features must be provided compliant with section 806.2.3 of the 2010in each classification level, including Standards. In large facilities with more thanadministrative and disciplinary segregation, 50 beds, at least one roll-in shower complianteach use and service area, and special with section 608.2.2 or section 608.2.3 of theprogram. The Department notes that the 2010 Standards must be provided. Wherethree percent (3%), but no fewer than one, separate shower facilities are provided forrequirement is a minimum. As corrections men and for women, at least one roll-insystems plan for new facilities or alterations, shower must be provided for each gender.the Department urges planners to include intheir population estimates a projection of the Housing Operated By or On Behalf ofnumbers of inmates with disabilities so as to Places of Education. Housing at a placehave sufficient numbers of accessible cells to of education includes: residence halls,meet inmate needs. dormitories, suites, apartments, or other places of residence operated by or on behalf233 Residential Facilities of places of education. Residence halls or dormitories operated by or on behalfHomeless Shelters, Group Homes, and of places of education are covered by theSimilar Social Service Establishments. provisions in sections 224 and 806 of theSection 233 of the 2010 Standards includes 2010 Standards. The Department hasspecific scoping and technical provisions that included in the title III rule at § 36.406(e)apply to new construction and alteration of requirements that apply to housing at placesresidential facilities. In the 1991 Standards of education that clarify requirements forDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 145
    • Analysis and Commentary on the 2010 ADAStandardsresidence halls and dormitories and other One commenter supported the provisions oftypes of student housing. Requirements for section 804 of the 2010 Standards but soughthousing at a place of education covered by clarification whether this section appliesthe title II rule are included at § 35.151(f). to residential units only, or to lodging and office buildings as well. Section 212 makesKitchens and Kitchenettes. Section section 804 applicable to all kitchens and4.34.2 of the UFAS requires a clear turning kitchenettes in covered buildings.space at least 60 inches in diameter oran equivalent T-shaped turning space in Residential Facilities. Section 4.1.4(11)kitchens. Section 4.34.6 requires a clearance of the UFAS contains scoping requirementsbetween opposing base cabinets, counters, for the new construction of housing. Underappliances, or walls of at least 40 inches the 1991 title II regulation, state and localexcept in a U-shaped kitchen where the governments had the option of complyingminimum clearance is 60 inches. with the UFAS or the 1991 Standards. After the compliance date for the 2010 Standards,Section 804 of the 2010 Standards provides state and local governments will no longertechnical requirements for kitchens and have the option of complying with the UFAS,kitchenettes. Section 804.2.1 requires that but will have to use the 2010 Standards forpass through kitchens, which have two new construction and alterations.entries and counters, appliances, or cabinetson two opposite sides or opposite a parallel Sections 233.1, 233.2, 233.3, 233.3.1,wall, provide at least 40 inches minimum and 233.3.2 of the 2010 Standardsclearance. Section 804.2.2 requires that differentiate between entities subjectU-shaped kitchens, which are enclosed to the United States Department ofon three continuous sides, provide at least Housing and Urban Development (HUD)60 inches minimum clearance between regulations implementing section 504 of theall opposing base cabinets, countertops, Rehabilitation Act of 1973 and entities notappliances, or walls within kitchen work subject to the HUD regulations. The HUDareas. Kitchens that do not have a cooktop regulations apply to recipients of federalor conventional range are exempt from the financial assistance through HUD, andclearance requirements but still must provide require at least five percent (5%) of dwellingan accessible route. units in multi-family projects of five or more dwelling units to provide mobility featuresIf a kitchen does not have two entries, the and at least two percent (2%) of the dwelling2010 Standards require the kitchen to have units to provide communication features.60 inches minimum clearance between The HUD regulations define a project uniquethe opposing base cabinets, counters, to its programs as “one or more residentialappliances, or walls. structures which are covered by a single146 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardscontract for federal financial assistance or specific scoping requirements for alterationsapplication for assistance, or are treated as to dwelling units. Dwelling units that are nota whole for processing purposes, whether or required to be accessible are exempt fromnot located on a common site.” To avoid any the general requirements for alterations topotential conflicts with the HUD regulations, elements and spaces and for alterations tothe 2010 Standards require residential primary function areas.dwelling units subject to the HUD regulationsto comply with the scoping requirements in The scoping requirements for alterations tothe HUD regulations, instead of the scoping dwelling units generally are based on therequirements in the 2010 Standards. requirements in the UFAS:For entities not subject to the HUD • Where a building is vacated for purposesregulations, the 2010 Standards require at of alterations and has more than 15 dwell-least five percent (5%) of the dwelling units ing units, at least five percent (5%) ofin residential facilities to provide mobility the altered dwelling units are required tofeatures, and at least two percent (2%) of provide mobility features and at least twothe dwelling units to provide communication percent (2%) of the dwelling units are re-features. The 2010 Standards define facilities quired to provide communication features.in terms of buildings located on a site. The2010 Standards permit facilities that contain • Where a bathroom or a kitchen is sub-15 or fewer dwelling units to apply the stantially altered in an individual dwellingscoping requirements to all the dwelling units unit and at least one other room is alsothat are constructed under a single contract, altered, the dwelling unit is required toor are developed as whole, whether or not comply with the scoping requirements forlocated on a common site. new construction until the total number of dwelling units in the facility required toAlterations to Residential Facilities. provide mobility features and communica-Section 4.1.6 of the UFAS requires federal, tion features is met.state, and local government housing tocomply with the general requirements for As with new construction, the 2010alterations to facilities. Applying the general Standards permit facilities that contain 15requirements for alterations to housing can or fewer dwelling units to apply the scopingresult in partially accessible dwelling units requirements to all the dwelling units thatwhere single elements or spaces in dwelling are altered under a single contract, or areunits are altered. developed as a whole, whether or not located on a common site. The 2010 Standards alsoThe 2010 Standards, at sections 202.3 permit a comparable dwelling unit to provideException 3, 202.4, and 233.3, containDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 147
    • Analysis and Commentary on the 2010 ADAStandardsmobility features where it is not technically constructed they must be level, providefeasible for the altered dwelling unit to comply wheelchair turning space, and be on anwith the technical requirements. accessible route compliant with Chapter 4 of the 2010 Standards except as modified by234 and 1002 Amusement Rides section 1002.2 of the 2010 Standards.New and Altered Permanently Installed Mobile or Portable Amusement Rides.Amusement Rides. Section 234 of The exception in section 234.1 of the 2010the 2010 Standards sets out scoping Standards exempts mobile or portablerequirements and section 1002 sets out the amusement rides, such as those set up fortechnical requirements for the accessibility short periods of time at carnivals, fairs orof permanently installed amusement rides. festivals, from having to comply with theThese requirements apply to newly designed 2010 Standards. However, even though theand constructed amusement rides and used mobile/portable ride itself is not subject torides when certain alterations are made. the Standards, these facilities are still subject to the ADA’s general requirement to ensureA commenter raised concerns that smaller that individuals with disabilities have anamusement parks tend to purchase used equal opportunity to enjoy the services andrides more frequently than new rides, and amenities of these facilities.that the conversion of a used ride to providethe required accessibility may be difficult to Subject to these general requirements,ensure because of the possible complications mobile or portable amusement rides shouldin modifying equipment to provide be located on an accessible route and theaccessibility. load and unload areas serving a ride should provide a level wheelchair turning space toThe Department agrees with this commenter. provide equal opportunity for individuals withThe Department notes, however, that the disabilities to be able to participate on the2010 Standards will require modifications amusement ride to the extent feasible.to existing amusement rides when a ride’sstructural and operational characteristics One commenter noted that the exceptionare altered to the extent that the ride’s in Section 234.1 of the 2010 Standards forperformance differs from that specified by the mobile or portable amusement rides limitsmanufacturer or the original design. Such an the opportunities of persons with disabilitiesextensive alteration to an amusement ride to participate on amusement rides becausemay well require that new load and unload traveling or temporary amusement ridesareas be designed and constructed. When by their nature come to their customers’load and unload areas serving existing town or a nearby town rather than theamusement rides are newly designed and customer having to go to them and so are148 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsless expensive than permanent amusement with the commenter that accessible load andparks. While the Department understands the unload areas may be the same where signscommenter’s concerns, the Department notes that comply with section 216.12 are provided.that most amusement rides are too complexto be reasonably modified or re-engineered to Wheelchair Space or Transfer Seat oraccommodate the majority of individuals with Transfer Device. Sections 234.3 and 1002.4disabilities and that additional complexities - 1002.6 of the 2010 Standards provideand safety concerns are added when the that each new and altered amusement ride,rides are mobile or portable. except for mobile/portable rides and a few additional excepted rides, will be required toA commenter asked that section 234 of provide at least one type of access by meansthe 2010 Standards make clear that the of one wheelchair space or one transfer seatrequirements for accessible routes include or one transfer device (the design of thethe routes leading up to and including the transfer device is not specified).loading and unloading areas of amusementrides. Sections 206.2.9 and 1002.2 of the Commenters urged the Department to revise2010 Standards clarify that the requirements the requirements for wheelchair spacesfor accessible routes include the routes and transfer seats and devices becauseleading up to and including the loading and most amusement rides are too complex tounloading areas of amusement rides. be reasonably modified or re-engineered to accommodate the majority of individuals withA commenter requested that the final rule disabilities. They argued that the experiencespecifically allow for wheelchair access of amusement rides will be significantlythrough the exit or other routes, or alternate reduced if the proposed requirements aremeans of wheelchair access routes to implemented.amusement rides. The commenter statedthat the concept of wheelchair access The 2004 ADAAG, which the Departmentthrough the exit or alternate routes was a adopted as part of the 2010 Standards, wasbase assumption for the 2010 Standards. developed with the assistance of an advisoryThe commenter noted that the concept is committee that included representation fromapparent in the signage and load/unload the design staffs of major amusement venuesarea provisions in Section 216.12 (“ * * * and from persons with disabilities. Thewhere accessible unload areas also serve as Department believes that the resulting 2004accessible load areas, signs indicating the ADAAG reflected sensitivity to the complexlocation of the accessible load and unload problems posed in adapting existing rides byareas shall be provided at entries to queues focusing on new rides that can be designedand waiting lines”). The Department agrees from the outset to be accessible.Department of Justice Guidance on the 2010 Standards: Titles II and III - 149
    • Analysis and Commentary on the 2010 ADAStandardsTo permit maximum design flexibility, Accessible Route. Sections 206.2.10 andthe 2010 Standards permit designers to 1003.2 of the 2010 Standards require andetermine whether it is more appropriate accessible route to all accessible boatingto permit individuals who use wheelchairs facilities, including boat slips and boardingto remain in their chairs on the ride, or to piers at boat launch ramps. Section 1003.2.1provide for transfer access. provides a list of exceptions applicable to structures such as gangways, transitionManeuvering Space in Load and Unload plates, floating piers, and structuresAreas. Sections 234.2 and 1002.3 of containing combinations of these elementsthe 2010 Standards require that a level that are affected by water level changes.wheelchair turning space be provided at the The list of exceptions specifies alternateload and unload areas of each amusement design requirements applicable to theseride. The turning space must comply with structures which, because of water levelsections 304.2 and 304.3. variables, cannot comply with the slope, cross slope, and handrail requirements forSigns Required at Waiting Lines to fixed ramps contained in sections 403.3,Amusement Rides. Section 216.12 of the 405.2, 405.3, 405.6, and 405.7 of the 20102010 Standards requires signs at entries to Standards. Exceptions 3 and 4 in Sectionqueues and waiting lines identifying type and 1003.2.1, which permit a slope greater thanlocation of access for the amusement ride. that specified in Section 405.2, are available for structures that meet specified length235 and 1003 Recreational Boating requirements. Section 206.7.10 permitsFacilities the use of platform lifts as an alternative to gangways that are part of accessible routes.These sections require that accessible boatslips and boarding piers be provided. Most Commenters raised concerns that becausecommenters approved of the requirements of water level fluctuations it may be difficultfor recreational boating facility accessibility to provide accessible routes to all accessibleand urged the Department to keep regulatory boating facilities, including boat slips andlanguage consistent with those provisions. boarding piers at boat launch ramps. One ofThey commented that the requirements the specific concerns expressed by severalappropriately reflect industry conditions. commenters relates to the limits for runningIndividual commenters and disability slope permitted on gangways that are partorganizations agreed that the 2010 Standards of an accessible route as gangways mayachieve acceptable goals for recreational periodically have a steeper slope than isboating facility access. permitted for a fixed ramp. The exceptions contained in section 1003.2 of the 2010 Standards modify the requirements of150 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsChapter 4. For example, where the total located in an area with limited space andlength of a gangway or series of gangways extreme tidal variations, a disproportionatelyserving as an accessible route is 80 feet long gangway might intrude into water travelor more an exception permits the slope on routes. The Department has considered agangways to exceed the maximum slope in wide range of boating facility characteristicssection 405.2. including size, water surface areas, tidal fluctuations, water conditions, variableSome commenters suggested that resources, whether the facility is in a highlypermissible slope variations could be reduced developed or remote location, and otherfurther by introducing a formula that ties factors. The Department has determinedrequired gangway length to anticipated that the 2010 Standards provide sufficientwater level fluctuations. Such a formula flexibility for such broad application.would incorporate predictions of tidal level Additionally, the length requirement forchanges such as those issued by the accessible routes in section 1003.2.1National Oceanographic and Atmospheric provides an easily determinable complianceAdministration (NOAA) and the United States standard.Geologic Survey (USGS). This suggestedapproach would be an alternative to the Accessible Boarding Piers. Wheregangway length exceptions and limits in boarding piers are provided at boat launchsection 1003.2.1 of the 2010 Standards. ramps, sections 235.3 and 1003.3.2 of theThese commenters noted that contemporary 2010 Standards require that at least fivebuilding materials and techniques make percent (5%) of boarding piers, but at leastgangways of longer length and alternative one, must be accessible.configurations achievable. Thesecommenters provided at least one example Accessible Boat Slips. Sections 235.2of a regional regulatory authority using this and 1003.3.1 of the 2010 Standards requiretype of formula. While this approach may be that a specified number of boat slips in eachsuccessfully implemented and consistent with recreational boating facility meet specifiedthe goals of the ADA, the example provided accessibility standards. The number ofwas applied in a highly developed area accessible boat slips required by the 2010containing larger facilities. The Department Standards is set out in a chart in sectionhas considered that many facilities do not 235.2. One accessible boat slip is requiredhave sufficient resources available to take for facilities containing 25 or fewer total slips.advantage of the latest construction materials The number of required accessible boat slipsand design innovations. Other commenters increases with the total number of slips at thesupported compliance exceptions for facilities facility. Facilities containing more than onethat are subject to extreme tidal conditions. thousand (1000) boat slips are required toOne commenter noted that if a facility is provide twelve (12) accessible boat slips plusDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 151
    • Analysis and Commentary on the 2010 ADAStandardsone for each additional one hundred slips at 236 and 1004 Exercise Machines andthe facility. EquipmentOne commenter asserted the need for Accessible Route to Exercise Machinesspecificity in the requirement for dispersion of and Equipment. Section 206.2.13 of theaccessible slips. Section 235.2.1 of the 2010 2010 Standards requires an accessible routeStandards addresses dispersion and requires to serve accessible exercise machines andthat boat slips “shall be dispersed throughout equipment.the various types of boat slips provided.” Thecommenter was concerned that if a marina Commenters raised concerns that thecould not put accessible slips all on one pier, requirement to provide accessible routesit would have to reconstruct the entire facility to serve accessible exercise machinesto accommodate accessible piers, gangways, and equipment will be difficult for somedocks and walkways. The provision permits facilities to provide, especially somerequired accessible boat slips to be grouped transient lodging facilities that typicallytogether. The Department recognizes that locate exercise machines and equipmenteconomical and structural feasibility may in a single room. The Department believesproduce this result. The 2010 Standards do that this requirement is a reasonable one innot require the dispersion of the physical new construction and alterations becauselocation of accessible boat slips. Rather, the accessible exercise machines and equipmentdispersion must be among the various types can be located so that an accessible routeof boat slips offered by the facility. Section can serve more than one piece of equipment.235.2.1 of the 2010 Standards specifies thatif the required number has been met, no Exercise Machines and Equipment.further dispersion is required. For example, Section 236 of the 2010 Standards requiresif a facility offers five different ‘types’ of boat at least one of each type of exercise machineslips but is only required to provide three to meet clear floor space requirementsaccording to the table in Section 235.2, that of section 1004.1. Types of machinesfacility is not required to provide more than are generally defined according to thethree accessible boat slips, but the three muscular groups exercised or the kind ofmust be varied among the five ‘types’ of boat cardiovascular exercise provided.slips available at the facility. Several commenters were concerned that existing facilities would have to reduce the number of available exercise equipment and machines in order to comply with the 2010 Standards. One commenter submitted prototype drawings showing equipment and152 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsmachine layouts with and without the required a lateral seat-to-platform transfer. It isclearance specified in the 2010 Standards. permissible to locate the clear floor spaceThe accessible alternatives all resulted in a for such machines or equipment in the aisleloss of equipment and machines. However, behind the device and to overlap the clearbecause these prototype layouts included floor space and the accessible route.certain possibly erroneous assumptionsabout the 2010 Standards, the Department Commenters were divided in response towishes to clarify the requirements. the requirement for accessible exercise machines and equipment. Some supportedSection 1004.1 of the 2010 Standards requirements for accessible machines andrequires a clear floor space “positioned for equipment; others urged the Departmenttransfer or for use by an individual seated in not to require accessible machines anda wheelchair” to serve at least one of each equipment because of the costs involved.type of exercise machine and equipment. The Department believes that theThis requirement provides the designer requirement strikes an appropriate balancegreater flexibility regarding the location of in ensuring that persons with disabilities,the clear floor space than was employed particularly those who use wheelchairs, willby the commenter who submitted prototype have the opportunity to use the exerciselayouts. The 2010 Standards do not require equipment. Providing access to exercisechanges to exercise machines or equipment machines and equipment recognizesin order to make them more accessible the need and desires of individuals withto persons with disabilities. Even where disabilities to have the same opportunity asmachines or equipment do not have seats other patrons to enjoy the advantages ofand typically are used by individuals in a exercise and maintaining health.standing position, at least one of each typeof machine or equipment must have a clear 237 and 1005 Fishing Piers and Platformsfloor space. Therefore, it is reasonable toassume that persons with disabilities wishing Accessible Route. Sections 206.2.14 andto use this type of machine or equipment can 1005.1 of the 2010 Standards require anstand or walk, even if they use wheelchairs accessible route to each accessible fishingmuch of the time. As indicated in Advisory pier and platform. The exceptions described1004.1, “the position of the clear floor space under Recreational Boating above alsomay vary greatly depending on the use of apply to gangways and floating piers. Allthe equipment or machine.” Where exercise commenters supported the requirementsequipment or machines require users to for accessible routes to fishing piers andstand on them, the clear floor space need platforms.not be located parallel to the length of themachine or equipment in order to provideDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 153
    • Analysis and Commentary on the 2010 ADAStandardsAccessible Fishing Piers and Platforms. resulting from conflicting accessibilitySections 237 and 1005 of the 2010 requirements, and therefore has retained thisStandards require at least twenty-five percent exception.(25%) of railings, guards, or handrails (ifprovided) to be at a 34-inch maximum height 238 and 1006 Golf Facilities(so that a person seated in a wheelchaircan cast a fishing line over the railing) and Accessible Route. Sections 206.2.15,to be located in a variety of locations on 1006.2, and 1006.3 of the 2010 Standardsthe fishing pier or platform to give people require an accessible route to connect alla variety of locations to fish. An exception accessible elements within the boundaryallows a guard required to comply with the of the golf course and, in addition, toIBC to have a height greater than 34 inches. connect golf car rental areas, bag dropIf railings, guards, or handrails are provided, areas, teeing grounds, putting greens, andaccessible edge protection and clear floor weather shelters. An accessible route alsoor ground space at accessible railings are is required to connect any practice puttingrequired. Additionally, at least one turning greens, practice teeing grounds, and teeingspace complying with section 304.3 of the stations at driving ranges that are required2010 Standards is required to be provided on to be accessible. An exception permits thefishing piers and platforms. accessible route requirements to be met, within the boundaries of the golf course,Commenters expressed concerns about by providing a “golf car passage” (the paththe provision for fishing piers and platforms typically used by golf cars) if specifications forat the exception in section 1005.2.1 of the width and curb cuts are met.2010 Standards that allows a maximumheight of 42 inches for a guard when the Most commenters expressed the generalpier or platform is covered by the IBC. Two viewpoint that nearly all golf courses providecommenters stated that allowing a 42-inch golf cars and have either well-defined pathsguard or railing height for facilities covered or permit the cars to drive on the courseby another building code would be difficult where paths are not present, and thus meetto enforce. They also thought that this would the accessible route requirement.hinder access for persons with disabilitiesbecause the railing height would be too high The Department received many commentsfor a person seated in a wheelchair to reach requesting clarification of the term “golf carover with their fishing pole in order to fish. passage.” Some commenters recommendedThe Department understands these concerns additional regulatory language specifyingbut believes that the railing height exception that an exception from a pedestrian routeis necessary in order to avoid confusion requirement should be allowed only when a golf car passage provides unobstructed154 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsaccess onto the teeing ground, putting route. Some commenters cautioned that thegreen, or other accessible element of the 2010 Standards would jeopardize the integritycourse so that an accessible golf car can of golf course designs that utilize naturalhave full access to those elements. These terrain elements and elevation changes to setcommenters cautioned that full and equal up shots and create challenging golf holes.access would not be provided if a golfer wererequired to navigate a steep slope up or The Department has given carefuldown a hill or a flight of stairs in order to get consideration to the comments and hasto the teeing ground, putting green, or other decided to adopt the 2010 Standardsaccessible element of the course. requiring that at least one accessible route connect accessible elements and spacesConversely, another commenter requesting within the boundary of the golf courseclarification of the term “golf car passage” including teeing grounds, putting greens,argued that golf courses typically do not and weather shelters, with an exceptionprovide golf car paths or pedestrian paths provided that golf car passages shall beup to actual tee grounds or greens, many permitted to be used for all or part of requiredof which are higher or lower than the car accessible routes. In response to requestspath. This commenter argued that if golf for clarification of the term “golf car passage,”car passages were required to extend onto the Department points out that golf carteeing grounds and greens in order to qualify passage is merely a pathway on which afor an exception, then some golf courses motorized golf car can operate and includeswould have to substantially regrade teeing identified or paved paths, teeing grounds,grounds and greens at a high cost. fairways, putting greens, and other areas of the course. Golf cars cannot traverse stepsSome commenters argued that older golf and exceedingly steep slopes. A nine-holecourses, small nine-hole courses, and golf course or an executive golf course thatexecutive courses that do not have golf car lacks an identified golf car path but providespaths would be unable to comply with the golf car passage to teeing grounds, puttingaccessible route requirements because of the greens, and other elements throughout theexcessive cost involved. A commenter noted course may utilize the exception for all orthat, for those older courses that have not yet part of the accessible pedestrian route. Thecreated an accessible pedestrian route or golf exception in section 206.2.15 of the 2010car passage, the costs and impacts to do so Standards does not exempt golf coursesshould be considered. from their obligation to provide access to necessary elements of the golf course;A commenter argued that an accessible route rather, the exception allows a golf course toshould not be required where natural terrain use a golf car passage for part or all of themakes it infeasible to create an accessible accessible pedestrian route to ensure thatDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 155
    • Analysis and Commentary on the 2010 ADAStandardspersons with mobility disabilities can fully and Section 1006.3.2 of the 2010 Standardsequally participate in the recreational activity requires that where curbs or otherof playing golf. constructed barriers prevent golf cars from entering a fairway, openings 60 inches wideAccessible Teeing Grounds, Putting minimum shall be provided at intervals not toGreens, and Weather Shelters. Sections exceed 75 yards.238.2 and 1006.4 of the 2010 Standardsrequire that golf cars be able to enter and A commenter disagreed with the requirementexit each putting green and weather shelter. that openings 60 inches wide minimum beWhere two teeing grounds are provided, installed at least every 75 yards, arguingthe forward teeing ground is required to that a maximum spacing of 75 yards maybe accessible (golf car can enter and exit). not allow enough flexibility for terrain andWhere three or more teeing grounds are hazard placements. To resolve this problem,provided, at least two, including the forward the commenter recommended that theteeing ground, must be accessible. standards be modified to require that each golf car passage include one 60-inch wideA commenter supported requirements for opening for an accessible golf car to reachteeing grounds, particularly requirements the tee, and that one opening be providedfor accessible teeing grounds, noting that where necessary for an accessible golfaccessible teeing grounds are essential to car to reach a green. The requirement forthe full and equal enjoyment of the golfing openings where curbs or other constructedexperience. barriers may otherwise prevent golf cars from entering a fairway allows the distanceA commenter recommended that existing golf between openings to be less than every 75courses be required to provide access to only yards. Therefore, the Department believesone teeing ground per hole. The majority of that the language in section 1006.3.2 of thecommenters reported that most public and 2010 Standards allows appropriate flexibility.private golf courses already provide golf car Where a paved path with curbs or otherpassage to teeing grounds and greens. The constructed barrier exists, the DepartmentDepartment has decided that it is reasonable believes that it is essential that openingsto maintain the requirement. The 2010 be provided to enable golf car passages toStandards provide an exception for existing access teeing grounds, fairways and puttinggolf courses with three or more teeing greens, and other required elements. Golfgrounds not to provide golf car passage car passage is not restricted to a paved pathto the forward teeing ground where terrain with curbs. Golf car passage also includesmakes such passage infeasible. fairways, teeing grounds, putting greens, and other areas on which golf cars operate.156 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsAccessible Practice Putting Greens, golf holes. Commenters opposed to thisPractice Teeing Grounds, and Teeing change argued that allowing any breaksStations at Driving Ranges. Section in the sequence of accessible holes at a238.3 of the 2010 Standards requires that miniature golf course would disrupt the flowfive percent (5%) but at least one of each of play for persons with disabilities andof practice putting greens, practice teeing create a less socially integrated experience.grounds, and teeing stations at driving ranges A commenter noted that multiple breaks inmust permit golf cars to enter and exit. sequence would not necessarily guarantee the provision of access to holes that are most239 and 1007 Miniature Golf Facilities representative of those with landscaping, water elements, or a fantasy-like experience.Accessible Route to Miniature Golf CourseHoles. Sections 206.2.16, 239.3, and 1007.2 The Department has decided to retain theof the 2010 Standards require an accessible exception without change. Comments didroute to connect accessible miniature golf not provide a sufficient basis on which tocourse holes and the last accessible hole on conclude that allowing multiple breaks inthe course directly to the course entrance the sequence of accessible holes wouldor exit. Accessible holes are required to be necessarily increase integration of accessibleconsecutive with an exception permitting one holes with unique features of miniature golfbreak in the sequence of consecutive holes courses. Some designs of accessible holesprovided that the last hole on the miniature with multiple breaks in the sequence mightgolf course is the last hole in the sequence. provide equivalent facilitation where persons with disabilities gain access to landscaping,Many commenters supported expanding water or theme elements not otherwisethe exception from one to multiple breaks represented in a consecutive configurationin the sequence of accessible holes. One of accessible holes. A factor that mightcommenter noted that permitting accessible contribute to equivalent facilitation wouldholes with breaks in sequence would enable be an accessible route designed to bringcustomers with disabilities to enjoy the persons with disabilities to a unique feature,landscaping, water and theme elements of such as a waterfall, that would otherwise notthe miniature golf course. Another commenter be served by an accessible route connectingwrote in favor of allowing multiple breaks in consecutive accessible holes.accessible holes with a connecting accessibleroute. Specified exceptions are permitted for accessible route requirements when locatedOther commenters objected to allowing on the playing surfaces near holes.multiple breaks in the sequence of miniatureDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 157
    • Analysis and Commentary on the 2010 ADAStandardsAccessible Miniature Golf Course Holes. A commenter recommended thatSections 239.2 and 1007.3 of the 2010 the Department closely examine theStandards require at least fifty percent (50%) requirements for ground surfaces at playof golf holes on miniature golf courses to be areas. The Department is aware that thereaccessible, including providing a clear floor or is an ongoing controversy about play areaground space that is 48 inches minimum by ground surfaces arising from a concern60 inches minimum with slopes not steeper that some surfaces that meet the ASTMthan 1:48 at the start of play. requirements at the time of installation will become inaccessible if they do not receive240 and 1008 Play Areas constant maintenance. The Access Board is also aware of this issue and is working toSection 240 of the 2010 Standards provides develop a portable field test that will providescoping for play areas and section 1008 more relevant information on installed playprovides technical requirements for play surfaces. The Department would cautionareas. Section 240.1 of the 2010 Standards covered entities selecting among thesets requirements for play areas for children ground surfacing materials that complyages 2 and over and covers separate play with the ASTM requirements that they mustareas within a site for specific age groups. anticipate the maintenance costs that willSection 240.1 also provides four exceptions be associated with some of the products.to the requirements that apply to family Permitting a surface to deteriorate so that itchild care facilities, relocation of existing does not meet the 2010 Standards would beplay components in existing play areas, an independent violation of the Department’samusement attractions, and alterations to ADA regulations.play components where the ground surface isnot altered. Accessible Route to Play Components. Section 206.2.17 of the 2010 StandardsGround Surfaces. Section 1008.2.6 of provides scoping requirements for accessiblethe 2010 Standards provides technical routes to ground level and elevated playrequirements for accessible ground surfaces components and to soft contained playfor play areas on accessible routes, structures. Sections 240.2 and 1008 of theclear floor or ground spaces, and turning 2010 Standards require that accessiblespaces. These ground surfaces must follow routes be provided for play components. Thespecial rules, incorporated by reference accessible route must connect to at least onefrom nationally recognized standards for ground level play component of each differentaccessibility and safety in play areas, type provided (e.g., for different experiencesincluding those issued by the American such as rocking, swinging, climbing,Society for Testing and Materials (ASTM). spinning, and sliding). Table 240.2.1.2 sets158 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsrequirements for the number and types of elevated play structures based on the numberground level play components required to be of elevated play activities, but asserted thaton accessible routes. When elevated play transfer steps have not been documented ascomponents are provided, an accessible an effective means of access.route must connect at least fifty percent(50%) of the elevated play components. The 2010 Standards recognize that playSection 240.2.1.2, provides an exception structures are designed to provide uniqueto the requirements for ground level play experiences and opportunities for children.components if at least fifty percent (50%) of The 2010 Standards provide for playthe elevated play components are connected components that are accessible to childrenby a ramp and at least three of the elevated who cannot transfer from their wheelchair,play components connected by the ramp are but they also provide opportunities fordifferent types of play components. children who are able to transfer. Children often interact with their environment in waysThe technical requirements at section 1008 that would be considered inappropriate forinclude provisions where if three or fewer adults. Crawling and climbing, for example,entry points are provided to a soft contained are integral parts of the play experience forplay structure, then at least one entry point young children. Permitting the use of transfermust be on an accessible route. In addition, platforms in play structures provides somewhere four or more entry points are provided flexibility for creative playground design.to a soft contained play structure, then atleast two entry points must be served by an Accessible Play Components. Accessibleaccessible route. play components are required to be on accessible routes, including elevatedIf elevated play components are provided, play components that are required to befifty percent (50%) of the elevated connected by ramps. These play componentscomponents are required to be accessible. must also comply with other accessibilityWhere 20 or more elevated play components requirements, including specifications forare provided, at least twenty five percent clear floor space and seat heights (where(25%) will have to be connected by a provided).ramp. The remaining play components arepermitted to be connected by a transfer A commenter expressed concerns that thesystem. Where less than 20 elevated play general requirements of section 240.2.1components are provided, a transfer system of the 2010 Standards and the advisoryis permitted in lieu of a ramp. accompanying section 240.2.1 conflict. The comment asserts that section 240.2.1 ofA commenter noted that the 2010 Standards the 2010 Standards provides that the onlyallow for the provision of transfer steps to requirement for integration of equipment isDepartment of Justice Guidance on the 2010 Standards: Titles II and III - 159
    • Analysis and Commentary on the 2010 ADAStandardswhere there are two or more required ground usefulness in providing accessible saunaslevel play components, while the advisory and steam rooms. The Department believesappears to suggest that all accessible that there is an element of risk in manycomponents must be integrated. activities available to the general public. One of the major tenets of the ADA is thatThe commenter misinterprets the individuals with disabilities should have therequirement. The ADA mandates that persons same opportunities as other persons towith disabilities be able to participate in decide what risks to take. It is not appropriateprograms or activities in the most integrated for covered entities to prejudge the abilities ofsetting appropriate to their needs. Therefore, persons with disabilities.all accessible play components must beintegrated into the general playground 242 and 1009 Swimming Pools, Wadingsetting. Section 240.2.1 of the 2010 Pools, and SpasStandards specifies that where there ismore than one accessible ground level play Accessible Means of Entry to Pools.component, the components must be both Section 242 of the 2010 Standards requiresdispersed and integrated. at least two accessible means of entry for larger pools (300 or more linear feet) and at241 and 612 Saunas and Steam Rooms least one accessible entry for smaller pools. This section requires that at least one entrySection 241 of the 2010 Standards sets will have to be a sloped entry or a pool lift;scoping for saunas and steam rooms and the other could be a sloped entry, pool lift, asection 612 sets technical requirements transfer wall, or a transfer system (technicalincluding providing accessible turning space specifications for each entry type are includedand an accessible bench. Doors are not at section 1009).permitted to swing into the clear floor orground space for the accessible bench. Many commenters supported the scopingThe exception in section 612.2 of the 2010 and technical requirements for swimmingStandards permits a readily removable pools. Other commenters stated that the costbench to obstruct the required wheelchair of requiring facilities to immediately purchaseturning space and the required clear floor or a pool lift for each indoor and outdoorground space. Where they are provided in swimming pool would be very significantclusters, five percent (5%) but at least one especially considering the large number ofsauna or steam room in each cluster must be swimming pools at lodging facilities. Oneaccessible. commenter requested that the Department clarify what would be an “alteration” toCommenters raised concerns that the safety a swimming pool that would trigger theof individuals with disabilities outweighs the160 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsobligation to comply with the accessible sloped means of entry is required into themeans of entry in the 2010 Standards. deepest part of each wading pool.Alterations are covered by section 202.3 Accessible Means of Entry to Spas.of the 2010 Standards and the definition of Sections 242.4 and 1009.2, 1009.4, and“alteration” is provided at section 106.5. A 1009.5 of the 2010 Standards require spasphysical change to a swimming pool which to meet accessibility requirements, includingaffects or could affect the usability of the pool an accessible means of entry. Where spasis considered to be an alteration. Changes are provided in clusters, five percent (5%)to the mechanical and electrical systems, but at least one spa in each cluster must besuch as filtration and chlorination systems, accessible. A pool lift, a transfer wall, or aare not alterations. Exception 2 to section transfer system will be permitted to provide202.3 permits an altered swimming pool to the required accessible means of entry.comply with applicable requirements to themaximum extent feasible if full compliance is 243 Shooting Facilities with Firingtechnically infeasible. “Technically infeasible” Positionsis also defined in section 106.5 of the 2010Standards. Sections 243 and 1010 of the 2010 Standards require an accessible turningThe Department also received comments space for each different type of firingsuggesting that it is not appropriate to require position at a shooting facility if designed andtwo accessible means of entry to wave pools, constructed on a site. Where firing positionslazy rivers, sand bottom pools, and other are provided in clusters, five percent (5%),water amusements where there is only one but at least one position of each type in eachpoint of entry. Exception 2 of Section 242.2 cluster must be accessible.of the 2010 Standards exempts pools of thistype from having to provide more than one Additional Technical Requirementsaccessible means of entry provided that theone accessible means of entry is a swimming 302.1 Floor or Ground Surfacespool lift compliant with section 1009.2, asloped entry compliant with section 1009.3, Both section 4.5.1 of the 1991 Standards andor a transfer system compliant with section section 302.2 of the 2010 Standards require1009.5 of the 2010 Standards. that floor or ground surfaces along accessible routes and in accessible rooms and spacesAccessible Means of Entry to Wading be stable, firm, slip-resistant, and complyPools. Sections 242.3 and 1009.3 of the with either section 4.5 in the case of the 19912010 Standards require that at least one Standards or section 302 in the case of the 2010 Standards.Department of Justice Guidance on the 2010 Standards: Titles II and III - 161
    • Analysis and Commentary on the 2010 ADAStandardsCommenters recommended that the consensus about the appropriate dimensionDepartment apply an ASTM Standard on which to base revised requirements.(with modifications) to assess whether a The Access Board is conducting researchfloor surface is “slip resistant” as required to study this issue in order to determine ifby section 302.1 of the 2010 Standards. new requirements are warranted. For moreThe Department declines to accept this information, see the Access Board’s websiterecommendation since, currently, there is no at http://www.access-board.gov/research/generally accepted test method for the slip- current-projects.htm#suny. The Departmentresistance of all walking surfaces under all plans to wait for the results of this studyconditions. and action by the Access Board before considering any changes to the Department’s304 Turning Space rules. Covered entities may wish to consider providing more than the minimum amountSection 4.2.3 of the 1991 Standards and of turning space in confined spaces whereSection 304.3 of the 2010 Standards a turn will be required. Appendix sectionallow turning space to be either a circular A4.2.3 and Fig. A2 of the 1991 Standardsspace or a T-shaped space. Section 304.3 provide guidance on additional space forpermits turning space to include knee and making a smooth turn without bumping intotoe clearance complying with section 306. surrounding objects.Section 4.2.3 of the 1991 Standards did notspecifically permit turning space to include 404 Doors, Doorways, and Gatesknee and toe clearance. Commenters urgedthe Department to retain the turning space Automatic Door Break Out Openings. Therequirement, but exclude knee and toe 1991 Standards do not contain any technicalclearance from being permitted as part of this requirement for automatic door break outspace. They argued that wheelchairs and openings. The 2010 Standards at sectionsother mobility devices are becoming larger 404.1, 404.3, 404.3.1, and 404.3.6 requireand that more individuals with disabilities automatic doors that are part of a means ofare using electric three and four-wheeled egress and that do not have standby powerscooters which cannot utilize knee clearance. to have a 32-inch minimum clear break out opening when operated in emergencyThe Department recognizes that the mode. The minimum clear opening widthtechnical specifications for T-shaped and for automatic doors is measured with allcircular turning spaces in the 1991 and 2010 leaves in the open position. Automatic bi-Standards, which are based on manual parting doors or pairs of swinging doorswheelchair dimensions, may not adequately that provide a 32-inch minimum clear breakmeet the needs of individuals using larger out opening in emergency mode whenelectric scooters. However, there is no both leaves are opened manually meet the162 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardstechnical requirement. Section 404.3.6 of the Thresholds at Doorways. The 19912010 Standards includes an exception that Standards, at section 4.13.8, require theexempts automatic doors from the technical height of thresholds at doorways not torequirement for break out openings when exceed ½ inch and thresholds at exterioraccessible manual swinging doors serve the sliding doors not to exceed ¾ inch. Sectionssame means of egress. 404.1 and 404.2.5 of the 2010 Standards require the height of thresholds at allManeuvering Clearance or Standby Power doorways that are part of an accessible routefor Automatic Doors. Section 4.13.6 not to exceed ½ inch. The 1991 Standardsof the 1991 Standards does not require and the 2010 Standards require raisedmaneuvering clearance at automatic doors. thresholds that exceed ¼ inch in heightSection 404.3.2 of the 2010 Standards to be beveled on each side with a sloperequires automatic doors that serve as an not steeper than 1:2. The 2010 Standardsaccessible means of egress to either provide include an exception that exempts existingmaneuvering clearance or to have standby and altered thresholds that do not exceed ¾power to operate the door in emergencies. inch in height and are beveled on each sideThis provision has limited application and will from the requirement.affect, among others, in-swinging automaticdoors that serve small spaces. 505 HandrailsCommenters urged the Department to The 2010 Standards add a new technicalreconsider provisions that would require requirement at section 406.3 for handrailsmaneuvering clearance or standby power along walking surfaces.for automatic doors. They assert that theserequirements would impose unreasonable The 1991 Standards, at sections 4.8.5, 4.9.4,financial and administrative burdens on all and 4.26, and the 2010 Standards, at sectioncovered entities, particularly smaller entities. 505, contain technical requirements forThe Department declines to change these handrails. The 2010 Standards provide moreprovisions because they are fundamental life- flexibility than the 1991 Standards as follows:safety issues. The requirement applies onlyto doors that are part of a means of egress • Section 4.26.4 of the 1991 Standards re-that must be accessible in an emergency. If quires handrail gripping surfaces to havean emergency-related power failure prevents edges with a minimum radius of ¹/8 inch.the operation of the automatic door, a person Section 505.8 of the 2010 Standards re-with a disability could be trapped unless there quires handrail gripping surfaces to haveis either adequate maneuvering room to rounded edges.open the door manually or a back-up powersource.Department of Justice Guidance on the 2010 Standards: Titles II and III - 163
    • Analysis and Commentary on the 2010 ADAStandards • Section 4.26.2 of the 1991 Standards re- • Section 4.9.4 of the 1991 Standards quires handrail gripping surfaces to have requires handrails at the bottom of stairs a diameter of 1 ¼ inches to 1 ½ inches, or to continue to slope for a distance of the to provide an equivalent gripping surface. width of one tread beyond the bottom riser Section 505.7 of the 2010 Standards nosing and to further extend horizontally requires handrail gripping surfaces with a at least 12 inches. Section 505.10 of the circular cross section to have an outside 2010 Standards requires handrails at the diameter of 1 ¼ inches to 2 inches. Hand- bottom of stairs to extend at the slope of rail gripping surfaces with a non-circular the stair flight for a horizontal distance at cross section must have a perimeter least equal to one tread depth beyond the dimension of 4 inches to 6 ¼ inches, and last riser nosing. Section 4.1.6(3) of the a cross section dimension of 2 ¼ inches 1991 Standards has a special technical maximum. provision for alterations to existing facili- ties that exempts handrails at the top and • Sections 4.8.5 and 4.9.4 of the 1991 Stan- bottom of ramps and stairs from providing dards require handrail gripping surfaces to full extensions where it will be hazardous be continuous, and to be uninterrupted by due to plan configuration. Section 505.10 newel posts, other construction elements, of the 2010 Standards has a similar ex- or obstructions. Section 505.3 of the ception that applies in alterations. 2010 Standards sets technical require- ments for continuity of gripping surfaces. A commenter noted that handrail extensions Section 505.6 requires handrail gripping are currently required at the top and bottom surfaces to be continuous along their of stairs, but the proposed regulations do length and not to be obstructed along their not include this requirement, and urged the tops or sides. The bottoms of handrail Department to retain the current requirement. gripping surfaces must not be obstructed Other commenters questioned the need for for more than twenty percent (20%) of the extension at the bottom of stairs. their length. Where provided, horizontal projections must occur at least 1 ½ inches Sections 505.10.2 and 505.10.3 of the 2010 below the bottom of the handrail gripping Standards require handrail extensions at surface. An exception permits the dis- both the top and bottom of a flight of stairs. tance between the horizontal projections The requirement in the 1991 Standards that and the bottom of the gripping surface to handrails extend horizontally at least be reduced by 1/8 inch for each ½ inch of 12 inches beyond the width of one tread at additional handrail perimeter dimension the bottom of a stair was changed in the 2004 that exceeds 4 inches. ADAAG by the Access Board in response to public comments. Existing horizontal handrail164 - Guidance on the 2010 Standards: Titles II and III Department of Justice
    • Analysis and Commentary on the 2010 ADAStandardsextensions that comply with 4.9.4(2) of the1991 Standards should meet or exceed therequirements of the 2010 Standards.Commenters noted that the 2010 Standardswill require handrail gripping surfaceswith a circular cross section to have anoutside diameter of 2 inches, and that thisrequirement would impose a physical barrierto individuals with disabilities who needthe handrail for stability and support whileaccessing stairs.The requirement permits an outside diameterof 1 ¼ inches to 2 inches. This range allowsflexibility in meeting the needs of individualswith disabilities and designers and architects.The Department is not aware of any dataindicating that an outside diameter of 2 inches would pose any adverse impairmentto use by individuals with disabilities.Handrails Along Walkways. The 1991Standards do not contain any technicalrequirement for handrails provided alongwalkways that are not ramps. Section 403.6of the 2010 Standards specifies that wherehandrails are provided along walkwaysthat are not ramps, they shall comply withcertain technical requirements. The change isexpected to have minimal impact. Department of Justice Guidance on the 2010 Standards: Titles II and III - 165