DOJ’s 2010 ADA Standards Become Mandatory March 15

[mark handler]

DOJ’s 2010 ADA Standards Become Mandatory March 15

On March 15, the Department of Justice’s updated ADA Standards (2010) will become mandatory for new construction and alterations covered by the ADA. On the date, optional use of the original 1991 ADA standards will no longer be allowed. DOJ adopted the updated standards in September 2010, but permitted continued use of the 1991 standards for 18 months to allow time for transitioning to the 2010 edition.

Under DOJ’s ADA regulations, the March 15 effective date applies to the date of the permit application or, where no permit is required, to the physical start of construction or alteration. For public accommodations and commercial facilities covered by title III of the ADA, compliance with the 2010 standards is required where:

the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government is on or after March 15, 2012;

the date the last application for a building permit or permit extension is received by a State, county, or local government (where the government does not certify the completion of applications) is on or after March 15, 2012; or

the start of physical construction or alteration (if no permit is required) is on or after March 15, 2012.

For state and local government facilities covered by title II, compliance with the 2010 standards is required where the physical start of construction or alteration occurs on or after March 15, 2012. However, public transportation facilities, including bus stops and rail stations, are subject to ADA standards issued by the Department of Transportation (DOT), not DOJ. DOT’s updated ADA standards (2006), which are very similar to DOJ’s 2010 edition, are already mandatory for public transportation facilities.

Copies of the 2010 standards and related information are available on DOJ’s website at www.ada.gov.

 

[Sifu]

It is my understanding that the DOJ/Feds are pushing to consolidate the various codes out there or at least cause the 2010 standard to become the nationwide "code". Is that your understanding as well?

 

[mark handler]

The 2010 ADAAG is a nationwide standard and the ADA is a nationwide LAW

 

[Sifu]

I know it is a nationwide standard but as a prescriptive code is it mandated for all commercial occupancies? If I have this correct, one of my previous jurisdictions (NC) has or had dropped the NC State Accessibility Code and moved to the ANSI standard. As I recall they were doing this as a temporary measure while they wrote a new state code which had to be done in order to bring it up to compliance with the 2010 ADA. My current location (TN) has a pretty disorganized adoption of accessibility standards. When I worked for the state gov't. in the health department we were actually enforcing the state adopted NC code. Now as a local inspector we have no accessibility adoption. I am not sure what the other individual jurisdictions in TN have adopted, probably ANSI since it is included/affiliated with the ICC but I am pretty sure there is no mandatory standard since there isn't even a definitive building code mandated across the state. (Where there are codes I am pretty sure they are all straight ICC but the editions can vary from 2003 to 2012) I am going to an ADA seminar put on by the DOJ in March and am trying to get an over-all idea of what is going on outside of my bubble.

 

[Papio Bldg Dept]

In my bubble, the State has has adopted the 91 Federal Standard, and our AHJ has adopted the ICC/ANSI A117.1-2003. We have an inter-departmental policy to accept any current ADAAG standard as an alternative to the 2003 ANSI for accessibility compliance. Our website currently references a link to the 2010 ADAAG.

 

[mark handler]

I know it is a nationwide standard but as a prescriptive code is it mandated for all commercial occupancies? If I have this correct, one of my previous jurisdictions (NC) has or had dropped the NC State Accessibility Code and moved to the ANSI standard. As I recall they were doing this as a temporary measure while they wrote a new state code which had to be done in order to bring it up to compliance with the 2010 ADA. My current location (TN) has a pretty disorganized adoption of accessibility standards. When I worked for the state gov't. in the health department we were actually enforcing the state adopted NC code. Now as a local inspector we have no accessibility adoption. I am not sure what the other individual jurisdictions in TN have adopted, probably ANSI since it is included/affiliated with the ICC but I am pretty sure there is no mandatory standard since there isn't even a definitive building code mandated across the state. (Where there are codes I am pretty sure they are all straight ICC but the editions can vary from 2003 to 2012) I am going to an ADA seminar put on by the DOJ in March and am trying to get an over-all idea of what is going on outside of my bubble.

You still do not understand, The 2010 ADAAG is a nationwide standard and the

ADA is not a standard. ADA is a LAW.

 

[Sifu]

You still do not understand, The 2010 ADAAG is a nationwide standard and the ADA is not a standard. ADA is a LAW.

You are correct, I still don't understand. So if the ADA is a law who enforces it? Are there federal agents running around writing tickets? Does it need to be adopted by each jurisdiction in order to be enforced? Does it only get enforced retroactively, say after a lawsuit? I have never met anyone who enforces it. I have enforced other accessibilty codes that had been adopted but never the ADA. That is what I am trying to understand. How does the ADA or ADAAG impact the locally adopted accessibility codes? In my last job I was tasked with trying to ensure that a very large hospital corp. had complied with the settlement that was agreed to by them and the DOJ in a federal lawsuit in the hundreds of millions of dollars. My role was isolated to one hospital but the suit was much larger. Upon inspection I found the contractors had not complied with the architectural designs. I also found that the architectural design did not comply with any of the three codes/standards I was familiar with. When I questioned the architect he told me that I was correct but that it was a settlement "compromise" reached between the DOJ and the defendant. So in the end, I had a hospital that met the DOJ compromise but not the local accessibility code. See my confusion?

 

[Papio Bldg Dept]

I don't know if this will help, but when I summarize it to new small business owners, I state that the ADAAG is a guidance document/standard to help translate aspects of the ADA into construction terms. The ADAAG is not an end all be all, but is a helpful standard by which to measure some degree of compliance. As you may see in forum threads, interpretation of the ADAAG varies, and even when the access-board or the DOJ offer insight, you still maybe in violation of the ADA law. The ADAAG continues to be amended to respond to DOJ/ADA rulings.

Maybe an even simpler way to look at is, RDP's are to the ADAAG, where lawyers are to the ADA. State and local AHJ's adopt accessibility standards like the old Federal Standard, the ANSI or ADAAG in an effort to comply, or do their part in meeting the ADA. I suppose it ensures to some degree that governmental agencies are not adopting ordinances, regulations and codes that would be discriminatory to "Americans" with "disabilities." Many of my surrounding AHJ's have received letters from the DOJ on revising their standards. Some have responded, and some have not.

I guess your next step is to give the DOJ Technical Assistance line a call and see if a one on one talk with them will help. I also recommend attending a seminar that deals with the ADA, rather than just the accessibility codes.

 

[mark handler]

Sifu

ADA is a law who enforces it?

The Department of Justice and the courts enforce the ADA, some states have, by adopting the ADA as their accessibility code, empowered their building departments to enforce the ADAAG.

Are there federal agents running around writing tickets?

Yes and No, Through lawsuits and both formal and informal settlement agreements, the Department has achieved access for persons with disabilities

Does it need to be adopted by each jurisdiction in order to be enforced?

Each jurisdiction must enforce their states accessibility codes, local jurisdictions are not empowered to enforce the ADA

Does it only get enforced retroactively, say after a lawsuit?

The DOJ responds to complaints and does stings

I have enforced other accessibilty codes that had been adopted but never the ADA.

Each jurisdiction must enforce their states accessibility codes, local jurisdictions are not empowered to enforce the ADA

How does the ADA or ADAAG impact the locally adopted accessibility codes?

Sometimes they conflict but each jurisdiction must enforce their states accessibility codes, local jurisdictions are not empowered to enforce the ADA

In my last job I was tasked with trying to ensure that a very large hospital corp. had complied with the settlement that was agreed to by them and the DOJ in a federal lawsuit in the hundreds of millions of dollars.

Owners, employers and designers are required to comply.

Upon inspection I found the contractors had not complied with the architectural designs.

Typical

I also found that the architectural design did not comply with any of the three codes/standards I was familiar with.

Typical

When I questioned the architect he told me that I was correct but that it was a settlement "compromise" reached between the DOJ and the defendant. So in the end, I had a hospital that met the DOJ compromise but not the local accessibility code.

Typical

 

[mark handler]

Sifu

The following does enpower you to enforce the ADAAG for public buildings

http://tn.gov/commerce/sfm/documents/tennesseepublicbldgsaccessact.pdf

Tennessee Public Buildings Accessibility Act

The Tennessee Public Building Accessibility Act (TPBAA), T.C.A. 68120201 et seq., requires any public building that is constructed, enlarged, or substantially altered or repaired after July 1, 2006, to be designed and constructed to make the building accessible. TPBAA contains provisions of law designed to make public buildings accessible to and functional for persons who are physically handicapped.

Accessibility Code

T.C.A. 68120204(a)(1) establishes the current accessibility codes as:

1. the 2002 North Carolina Accessibility Code with 2004 amendments, and any further amendments, supplements or subsequent editions; or

2. any other code as the state fire marshal determines by rule; or

3. the currently enforced Uniform Federal Accessibility Standards (UFAS); or

4. the currently enforced Americans with Disabilities Act Accessibility Guidelines (ADAAG).

 

[mark handler]

Tennessee adopted the North Carolina Accessibility Code

2002 North Carolina Accessibility Code with 2004 amendments,

http://www.ncdoi.com/OSFM/Engineering/BCC/Documents/2006_Edition/Accessibility_amendments_2004.pdf

FINAL CERTIFICATION OF NC ACCESSIBILITY CODE

On November 28, 2005, North Carolina became the sixth state in the nation to receive ADA

certification of its statewide accessibility code. This distinguished status was so noted in recent

communications with the NC Department of Insurance (DOI) by Wan J. Kim, Assistant Attorney

General for Civil Rights, US Department of Justice (USDOJ). The Department of Justice provided a

summary of its final determination of the North Carolina Accessibility Code’s equivalency and

amplification of its meaning in the Federal Register (December 8, 2005).

As specified in the Federal Register, certification means that the 2002 North Carolina Accessibility

Code with 2004 Amendments (NCAC) meets or exceeds the new construction and alterations

requirements of title III of the Americans with Disabilities Act, and further "...constitutes rebuttable

evidence, in any enforcement proceeding, that a building constructed or altered in accordance with the

NCAC meets or exceeds the requirements of the ADA."

Members of the disability community, agencies and other advocates across the state are to be

applauded for their efforts to shepherd and safeguard this certification process. The NC Department

of Insurance and the NC Building Code Council, whose code development, adoptions and

amendments helped make this a reality, are to be congratulated. Further, as noted by the US

Department of Justice, special thanks are extended to Jeff Kanner and Laurel Wright of the

Department of Insurance staff for their cooperation and hard work to help achieve this goal.

The NC Department of Vocational Rehabilitation, along with its partnership support from Center for

Universal Design (part of NCSU’s College of Design), were pleased also to be a part of this effort.

Perhaps the best outcome of this certification process is stated in a recent letter from the USDOJ to the

NC DOI: "The State of North Carolina has set a fine example for other jurisdictions to follow

and its effort will make a lasting difference in the lives of individuals with disabilities."

A ceremony marking the occasion was held in Cary, NC on February 9, 2006. Speakers at the

event included Wan J. Kim, Assistant Attorney General, US DOJ, Civil rights Division; Jim Long,

Commissioner, North Carolina Department of Insurance; Dan Tingen, Chairman, North

Carolina Building Code Council; and, Leslie Young, Director of Design, Center for Universal

Design, NC State University. Speakers noted the pivotal roles of Ron Mace and John Dalrymple,

NC Division of Vocational Rehabilitation, (retired).

http://www.ncsu.edu/ncsu/design/cud/quicklinks_ql/docs/NCAC.pdf

 

[Sifu]

Its coming together. I worked in NC and enforced the NCAC, on occasion with Laurel Wright. When I left NC and found that TN had adopted the NCAC I wasn't suprised as I found that code to be a pretty good one. In subsequent conversations with some of the NC State Division engineers, as I recall, I found out that they were in the process of re-writing the NCAC. I guess it was to bring it in line with the 2010 ADA but I am only guessing at that. Your suggestion to attend some training is a good one, in fact I am ahead of you there. The primary reason for these questions is because I am attending a 2 day DOJ seminar in Atlanta the second week of March. I was trying to go in with as much back-ground as possible. I am thinking of pointing my career more towards the accessibility end and want to gain as much knowledge and certifications as I can to that end. I greatly appreciate you taking the time to clear some of this up for me.

 

[Yikes]

Sifu, to put it another way:

The "law" of ADA says you cannot discriminate against a person with a disability. This is civil law, meaning it is enforced by people suing you when they feel you have discriminated against them on the basis of their disability. the Department of Justice assists them in these lawsuits. The only way you will be 100% certain that you are not violating ADA is when someone sues you, and they are defeated.

We don't want property owners to live in continual fear of threat of lawsuit, so the federal government has issued a set of "ADA Guidelines" that, if your facility components comply with the guidelines, then those components will not be counted against you in a discrimination suit.

The reason they are called ADA "Guidelines" and not "ADA rules" is because all they are is guide to predict how a civil court might view your intent not to discriminate based on the physical evidence at your facility.

Conversely, if your facility components are not in compliance with the ADA guidelines, and you do not have a proactive plan in place to address those noncompliant items, this may very well work as evidence against you in civil court.

Please note that you can have a facility that is in 100% compliance with ADA guidelines and still be found liable for discriminating in some other fashion, for example in your policies.

 

[Sifu]

I think I have a pretty clear picture....for now. To my knowledge my current jurisdiction does not have a single accessibility code or guideline in place, nothing adopted locally. Since they have not even adopted a commercial building code it is my understanding that the state is in some way overseeing/enforcing codes on these properties but I have as yet been unable to get a clear picture of this process nor have I seen any evidence that anything is actually taking place in the field. I think the local politic believes this insulates them from any liability, such as an ADA suit. I don't believe this to be the case but the politics are so thick and my job so narrowly defined I am forced to stay out of it. While and if I stay here I will gently encourage increased attention to this, starting with commercial codes which would lead to accessibility but I don't believe the locals will do anything unless forced into it. Thats pretty much what prompted the code adoption process to begin with.

 

[Codegeek]

The easiest way for me to explain the difference between ADA and ADAAG is that ADA is the law; ADAAG is the standard which references the law but cannot be enforced as the law as it only serves as a guideline.

My question is in regards to the two and if a building complied with the 1991 ADA and improvments are made to it, say to the restroom, does the restroom now have to comply with the 2010 ADA?

 

[mark handler]

My question is in regards to the two and if a building complied with the 1991 ADA and improvments are made to it, say to the restroom, does the restroom now have to comply with the 2010 ADA?

The scoping sections in the 2010 ADAAG cover this, and the answer is NO.

 

[Codegeek]

The scoping sections in the 2010 ADAAG cover this, and the answer is NO.

Thanks for your prompt response Mark!

 

[rshuey]

PA opted to not adopt the 09 IBC which makes it pretty freakin hard to figure out how to use the 2010 ADA with 06 IBC.