Boston – Attorneys who represent state and local governments or private clients whose buildings are open to the public will need to get up to date quickly on new Americans with Disabilities Act accessibility standards.
The Department of Justice’s 2010 rules updating Title II and Title III regulations include revised ADA standards for accessible design. The heightened accessibility requirements affect almost all buildings open to the public, including hotels, restaurants, bars, theaters, stadiums, retail stores, museums, libraries, parks, private schools and day care centers.
The rule-making marks the first major revision to Title II and Title III regulations, and the accompanying standards for accessible design, since 1991.
Some facilities that were not covered under the 1991 standards are subject to the new requirements, including amusement park rides, playgrounds, golf and miniature golf facilities, swimming pools, spas and recreational boating facilities.
“It is really going to affect anybody who has buildings,” said Irene Bowen, president of ADA One, a Washington, D.C.-area consulting firm. “It’s not just that there are new requirements for construction and alterations.”
In addition to the revised accessibility standards, DOJ is issuing new policies for service animals, ticketing rules regarding accessible seating at events and requirements for handling reservations for handicapped accessible rooms.
“It’s going to affect a mom-and-pop grocery store, a little theater, a big stadium – everybody,” Bowen said.
The standards will take effect March 15, or six months after the Sept. 15 publication in the Federal Register.
Eighteen months after publication, compliance with the 2010 standards will be required for new construction, alterations and barrier removal, Bowen said.
Andrea M. Kirshenbaum, an attorney at Duane Morris in Philadelphia, suggested that lawyers with clients whose buildings are open to the public review the new standards now.
“The regulations are extraordinarily complex, so whenever anyone is making significant modifications or engaging in new construction they are going to want to do an analysis to make sure they are in compliance,” she said.
Details of the new rules
Highlights of the new accessibility rules include:
Updated standards for accessible design in public accommodations. Affected areas include reach ranges, single user toilet rooms, assembly areas and commonly used paths in employee work areas, including elements of those paths, such as doors and entrances.
Definitions of “service animal” that include any dog that is individually trained to do work or perform tasks for an individual with a disability. (In certain cases, miniature horses are also considered service animals.)
The regulations define how public accommodations must treat someone traveling with a service animal.
Provisions to allow “power-driven mobility devices” not primarily designed for people with disabilities – such as golf carts or Segways – in all areas open to pedestrian use, unless it can be shown that the devices interfere with safety.
Guidance on the sale of tickets for accessible seating at events, and rules about the hold and release of accessible seating.
Provisions regarding video remote interpreting (VRI) services as an auxiliary aid for communications. VRI is an interpreting service that uses video conference technology over dedicated lines or wireless technology.
Additional requirements for hotels regarding reservations for accessible rooms. These include procedures to allow individuals with disabilities to reserve accessible guest rooms during the same hours and in the same manner as other guests. Hotels must also ensure that a reserved accessible guest room is removed from all reservations systems so that it is not inadvertently released to someone else. (These requirements take effect 18 months after publication of the rule.)
A provision stating that timeshare and condominium properties that operate like hotels are subject to Title III.
Kirshenbaum said that attorneys should rely on accessibility experts for the nuts-and-bolts of design compliance.
But, she said, lawyers should “be aware if they are advising Title II and Title III entities that there have been changes in terms of mobility devices, service animals, reservations made at places of lodging and effective communications.”
Lawyers should also be aware that their own offices are defined as public accommodations, Kirshenbaum noted. So if they are planning any renovations, they need to conduct an analysis and make sure they are in compliance, she said.
‘Look to the new … or old’
The revised ADA standards for accessible design are subject to a “safe harbor” provision. Facilities that were built or altered in compliance with the 1991 standards will not be required to comply with the 2010 standards until they make future alterations.
During the period between the effective date (six months after publication) and the compliance date (18 months after publication), covered entities can choose whether to follow the 1991 or 2010 standards.
“There’s going to be a time period where you can look to the new or look to the old and see which one is more favorable,” Kirshenbaum said. (The exception is that newly covered entities, such as spas and swimming pools, have to comply with the new standards.)
“This is where attorneys can be really helpful to their clients,” Bowen said. “Look at the type of facility you have and the type of alteration you’re going to do and choose which to follow.”
In some cases, it may make more economic sense to follow the 1991 regulations, according to Bowen, former deputy chief of the disability rights section of the DOJ’s Civil Rights Division.
For example, she said, a stadium-style theater planning renovations during the period between the effective date of the rule and the compliance date may be better off following the current standards, since the new standards’ enhanced seating accessibility requirements could make renovations more costly.
But an entity must apply one standard consistently, she added. The theater, for example, can’t be renovated partly under the 1991 standards and partly under the 2010 standards.
Bowen also noted that barrier removal is required for an entire building if the building contains elements that weren’t covered by the 1991 standards, such as a swimming pool.
In those buildings, she said, “You do have to remove [accessibility] barriers, to the extent you can.”