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Understanding the ADA's Safe Harbor Provision for Path of Travel in Public Facilities
The Americans with Disabilities Act (ADA) establishes requirements to ensure that individuals with disabilities have equal access to public facilities and services. One important aspect of these requirements concerns the "path of travel," which includes routes like sidewalks, ramps, corridors, and elevators that connect various parts of a building or facility.
What is the Safe Harbor Provision?
Under Section 35.151(b)(4)(ii)(C) of the ADA regulations, a safe harbor provision exists for public entities regarding the path of travel when they make alterations to areas of primary function (areas where major activities occur, such as classrooms, auditoriums, or administrative offices).
The safe harbor states that if a public entity has already made the required elements of the path of travel compliant with the 1991 ADA Standards for Accessible Design, they are not required to upgrade those elements to meet the newer 2010 ADA Standards solely because they are altering the primary function area served by that path of travel. In other words, as long as the existing path of travel elements meet the 1991 Standards and are not being altered themselves, they do not need to be updated to the 2010 Standards during alterations to adjacent primary function areas.
The Debate Around the Safe Harbor
When this provision was proposed, it sparked significant debate:
Despite the objections, the Department of Justice (DOJ) retained the safe harbor in the final rule, reasoning that:
For public entities undertaking facility alterations, it's crucial to:
The ADA's safe harbor provision for the path of travel is designed to balance the need for accessibility with practical considerations for public entities. By understanding this provision, public entities can make informed decisions during facility alterations that comply with legal requirements and promote inclusivity.
Moving Forward
Public entities should:
The Americans with Disabilities Act (ADA) establishes requirements to ensure that individuals with disabilities have equal access to public facilities and services. One important aspect of these requirements concerns the "path of travel," which includes routes like sidewalks, ramps, corridors, and elevators that connect various parts of a building or facility.
What is the Safe Harbor Provision?
Under Section 35.151(b)(4)(ii)(C) of the ADA regulations, a safe harbor provision exists for public entities regarding the path of travel when they make alterations to areas of primary function (areas where major activities occur, such as classrooms, auditoriums, or administrative offices).
The safe harbor states that if a public entity has already made the required elements of the path of travel compliant with the 1991 ADA Standards for Accessible Design, they are not required to upgrade those elements to meet the newer 2010 ADA Standards solely because they are altering the primary function area served by that path of travel. In other words, as long as the existing path of travel elements meet the 1991 Standards and are not being altered themselves, they do not need to be updated to the 2010 Standards during alterations to adjacent primary function areas.
The Debate Around the Safe Harbor
When this provision was proposed, it sparked significant debate:
- Concerns About Accessibility Advancement: Many advocates and commenters argued against the safe harbor, stating that any opportunity to enhance accessibility should be taken. They believed that relying on older standards misses the chance to provide improved access afforded by the 2010 Standards.
- Legal Basis for Grandfathering: Critics also questioned the legal justification for "grandfathering" facilities under outdated standards, suggesting that the ADA does not explicitly allow for such exemptions when the statute delegates authority to the Attorney General to issue regulations defining compliance obligations.
- Support for the Safe Harbor: Some commenters supported the safe harbor, asserting that it provides a reasonable balance between improving accessibility and managing the financial and logistical burdens on public entities.
Despite the objections, the Department of Justice (DOJ) retained the safe harbor in the final rule, reasoning that:
- Balanced Approach: The safe harbor strikes an appropriate balance by acknowledging the efforts of public entities that have already complied with previous standards while still promoting accessibility.
- Limited Scope: The provision is not a blanket exemption. It applies only to specific elements of the path of travel that already meet the 1991 Standards and are not being altered. If these elements do not comply with the 1991 Standards or are being altered, they must be updated to meet the 2010 Standards.
- Alterations and Compliance:
- When altering a primary function area, public entities must ensure that the path of travel to that area is accessible.
- If the existing path of travel elements comply with the 1991 Standards and are not being altered, they do not need to be updated to the 2010 Standards under the safe harbor.
- If the path of travel elements do not comply with the 1991 Standards or are being altered, they must be brought into compliance with the 2010 Standards.
- Program Access vs. Facility Access:
- The safe harbor does not eliminate the obligation of public entities to provide program access. If compliance with the 1991 Standards does not ensure access to programs or services, entities may need to make additional modifications regardless of the safe harbor.
- Financial Considerations:
- The safe harbor helps manage the financial impact on public entities by not requiring immediate upgrades to all elements during alterations, especially when those elements already meet previous standards.
For public entities undertaking facility alterations, it's crucial to:
- Assess Compliance Status: Determine which elements of the path of travel comply with the 1991 Standards and which do not.
- Plan for Accessibility Improvements: Even if the safe harbor applies, consider the benefits of voluntarily upgrading to the 2010 Standards to enhance accessibility.
- Ensure Program Access: Remember that the ultimate goal is to provide accessible programs and services, which may require actions beyond physical alterations.
The ADA's safe harbor provision for the path of travel is designed to balance the need for accessibility with practical considerations for public entities. By understanding this provision, public entities can make informed decisions during facility alterations that comply with legal requirements and promote inclusivity.
Moving Forward
Public entities should:
- Stay Informed: Keep up-to-date with ADA regulations and standards to ensure ongoing compliance.
- Consult Experts: Work with accessibility professionals when planning alterations to navigate the complexities of compliance.
- Engage with the Community: Involve individuals with disabilities in the planning process to better understand their needs and improve accessibility outcomes.
