County governments face 2010 ADA regulations, accessibility guidelines

By Jacqueline Byers
DIRECTOR OF RESEARCH AND OUTREACH

In July 2008, the U.S. Department of Justice (DOJ) released proposed regulations for the amended Americans with Disabilities Act along with what is now known as the 2010 Americans with Disabilities Accessibility Guidelines.

The Americans with Disabilities Act, signed into law in 1990, under its Title II, provides the guidelines and requirements for accessibility of programs and services conducted by states and local governments, and at the same time it prohibits discrimination against any qualified person with a disability who wants to participate in these programs and activities.

Following the signing of the act, the DOJ issued its Americans with Disabilities Act Accessibility Guidelines (ADAAG). These guidelines apply to any new construction or alterations or renovations of existing structures, and also provide specific guidance for implementation of the ADA.

During the next decade, the American National Standards Institute (ANSI) and Uniform Federal Accessibility Standards (UFAS) were added to ADAAG as acceptable codes for construction or modification for accessibility. Guidelines for playgrounds were issued in 2000 and additional ADAAG changes and recommendations were issued in 2004.

According to the ADA original regulations, county governments were required to comply with most accessibility requirements of the act by the mid-1990s or make alternative access easily available unless it created an undue burden for the county or a fundamental alteration in the service or program. Counties were encouraged to appoint an ADA coordinator who would be responsible for developing and monitoring the county accessibility plan and who would also be available to the public to respond to inquiries about accessibility of county programs and services.

At the time of the original act, many governments were concerned about the unfunded costs to them to make everything accessible in their programs and buildings, many of which were more than 50 years old, without specifically taking the time to look at the options available to them. Estimates for compliance were often quoted at millions of dollars, without the counties actually convening an advisory committee to help make an assessment, as the guidelines suggested. Although many county governments came into compliance with the ADA, others did not.

As the years passed, numerous complaints were filed against county governments, most of which were settled through the DOJ mediation process. In nearly every case, counties were required to make the necessary modifications for accessibility. Throughout the decade that followed, additional accessibility guidelines were released, including those for playground areas. In the mid 2000s, several disability advocacy groups stepped up their monitoring of compliance by county governments causing many counties that had failed to comply during the 1990s, or discontinued their compliance or aspects of their compliance, to face complaints and investigations by DOJ.

On Sept. 15, the Final Rules for ADA were published in the Federal Register and will become effective six months from that date on March 15, 2011. All new construction and alterations to existing county government buildings will be required to comply with the new standards 18 months after publication (March 15, 2012). In the interim period, all covered county government entities may decide whether to follow the 1991 standards or the 2010 standards in new construction or alterations.

The rules also include lengthy commentary that responds to the comments received to the proposed regulations. Those that are of most importance to county governments include the following:

Safe Harbor

This provision would allow counties that have already complied with the 1991 standards to be in compliance with the new standards until they engage in new construction, alteration or renovation. Safe harbor status is also available for counties that provided an accessible path of travel, using the 1991 standards, to an alternative program site that is also accessible.

Counties, however, will not be granted blanket safe harbor status. Rather, safe harbor status will be awarded on a program-by-program basis, or on an “element-by-element” basis, as the regulations put it. Not eligible for safe harbor protections under any circumstances are play areas, swimming pools, wading pools, spas and golf facilities.

Definition of Mobility Device

This definition has been expanded to provide for wheelchairs and other power-driven mobility devices. Included in the second group are mobility devices that were not specifically designed for use by persons with mobility impairments but are being used for this purpose by some individuals. The most controversial of these is the Segway-PT. The new guidelines allow the use of these devices, thus requiring that government accessibility to programs and services accommodate these vehicles, but with some caveats.

The first caveat is that governmental entities can require some proof (a valid state-issued placard, verbal assertion, etc.) that the person using the device in government programs, activities and facilities is disabled. The second is that “a public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities.” The third caveat is that “the burden of proof to demonstrate that such devices cannot be operated in accordance with legitimate safety requirements rests upon the public entity.”

The final caveat is that when assessing whether a power-driven mobility device can be allowed in a particular government facility, counties should take the following into consideration:

• the type, size, weight, dimensions, and speed of the device,
• the facility’s volume of pedestrian traffic (which may vary at different times,
• the facility’s design and operational characteristics,
• whether legitimate safety requirements can be established to permit the safe operation of the device in the facility, and
• whether the use of the device creates a substantial risk of serious harm to the immediate environment or nature or cultural resources.

Definition of Service Animals

The definition has been expanded from service dogs to include service-trained miniature horses and other species that that have been specifically trained to provide assistance to persons with disabilities.

Accessibility of Playgrounds and Play Areas

The new regulations now apply to all play areas including play areas of less than 1,000 square feet. The 1991 standards did not include requirements for design and construction of play areas. Those guidelines were released by the Access Board in October 2000. If governments complied only with the 1991 standards, in order to meet program accessibility requirements where structural changes are necessary for accessibility, they are now required to apply the new construction and alteration standards to the maximum extent possible. These include access to parking, routes to the playground, playground equipment and amenities (picnic tables and restrooms.)

Accessible Swimming Pools

The 2004 ADAAG requires that swimming pools have two accessible means of entry, except that swimming pools with less than 300 linear feet of swimming pool wall are only required to provide one accessible means of entry, provided that it is either a swimming pool lift or a sloped entry that is in compliance with the guidelines.

Accessibility of Jails, Detention and Correctional Facilities

Although the final rule does clarify the requirements by saying that 3 percent of newly constructed or altered cells must be accessible, the regulations also state the following:

Public entities shall implement reasonable policies, including physical modifications to additional cells in accordance with the 2010 standards so as to ensure that each inmate with a disability is housed in a cell with the accessible elements necessary to afford the inmate access to safe appropriate housing.

Tipping Point for Compliance

The final guidelines provide no regulatory requirement because DOJ decided that it is too difficult to determine a financial “tipping point” in the cost of compliance because of the varying sizes of governmental entities.

Summary

As the new ADA regulations and accessibility guidelines take effect, county governments will be held to a much higher standard in providing access to their programs and services for people with disabilities.

Although the new regulations do provide a safe harbor in many instances for those counties that have complied with past regulations, it does require that all counties provide accessibility to people with disabilities. In order for counties to avoid potential liability, a review of the new regulations and a full assessment of the accessibility of all of their programs and services in their entirety should be undertaken immediately.

Source: http://www.naco.org/newsroom/countynews/Current%20Issue/10-18-10/Pages/Countygovernmentsface2010ADAregulations,accessibilityguidelines.aspx