Guidance 2010 ada_standards_prt


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Guidance 2010 ada_standards_prt

  1. 1. Guidance on the2010 ADA Standardsfor Accessible Design Department of Justice September 15, 2010
  2. 2. Reproduction of this document is encouraged. This publication may be viewed or downloaded from the ADA website ( Additional copies may be obtained by calling the ADA Information Line: 800-514-0301 (voice) 800-514-0383 (TTY) September 15, 2010i
  3. 3. 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
  4. 4. iii
  5. 5. 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; or, for answers to specific questions, call the toll-free ADAInformation Line at 800-514-0301 (voice) or 800-514-0383 (TTY). 1
  6. 6. 2
  7. 7. 2 State and Local Government Facilities 3
  8. 8. 4 - Guidance on 2010 Standards: Title II Department of Justice
  9. 9. 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
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. Section 35.151 -- Title II Regulationwith the 1991 Standards are not required implements that delegation of 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
  14. 14. 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 ( 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) (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
  15. 15. 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
  16. 16. 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 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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 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
  23. 23. 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 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
  24. 24. 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
  25. 25. 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
  26. 26. 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
  27. 27. 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
  28. 28. 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
  29. 29. 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
  30. 30. 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
  31. 31. 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
  32. 32. 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
  33. 33. 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
  34. 34. 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
  35. 35. 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
  36. 36. 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 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