Professional Development: Revised Regulations

By Teresa L. Jakubowski
Published in the September 2011 issue of Today’s Facility Manager

The U.S. Department of Justice’s recent changes to its regulations implementing Title II (state and local governments) and Title III (places of public accommodation and commercial facilities) of the Americans with Disabilities Act (ADA), 28 C.F.R. Parts 35 and 36, create new issues and accessibility standards for facilities covered by the ADA. Besides affecting a covered facility’s operational policies, practices, and procedures, the revised laws adopt updated accessible design requirements-the 2010 Standards for Accessible Design (2010 Standards).

The 2010 Standards represent a substantial revision to the previous standards, the 1991 Standards for Accessible Design (1991 Standards). The 2010 Standards update requirements for an array of building elements. They also set forth conditions for elements and facilities not addressed expressly in the 1991 Standards, such as windows, two way communications systems, judicial facilities, detention and correctional facilities, residential facilities, and a variety of recreational facilities. The Department also has clarified certain requirements applicable to specific types of facilities, such as housing in places of education and social service establishments (e.g., group homes and shelters), lodging facilities (such as time shares and condominium hotels), medical facilities, and assembly areas.

The key to ensuring compliance with the ADA is knowing when the 2010 Standards apply and how they impact existing facilities. Using 2010 Standards does not become mandatory until March 15, 2012. Meanwhile, facility managers (fms) can decide to follow the 1991 Standards or the 2010 Standards.

Facilities covered under Title II can also choose to comply with the Uniform Federal Accessibility Standards (UFAS). The 1991 Standards (or UFAS for Title II facilities) will continue to apply to any construction, alterations, or barrier removal undertaken prior to September 15, 2010.

The Department has cautioned that a facility cannot apply the standards piecemeal, i.e., a facility cannot choose to follow the 2010 Standards with respect to restrooms and the 1991 Standards with respect to accessible routes. Therefore, a facility must apply either the 2010 Standards or the 1991 Standards in their entirety to any new construction, alterations, or barrier removal undertaken after September 15, 2010 and prior to March 15, 2012. In deciding which to apply, fms should consider the accessibility requirements set forth in their state and/or local building codes. ICC/ANSI A117.1-2003, the model accessibility standard incorporated into many state and local building codes, is in several (although not all) respects consistent with the 2010 Standards.

Two safe harbor provisions limit the impact of the 2010 Standards on existing facilities. First, facility elements that comply with the 1991 Standards (or UFAS for Title II facilities) do not have to be modified to comply with the 2010 Standards unless they are altered after March 15, 2012. For example, if a restroom paper towel dispenser presently is mounted with its highest operable part 54″ above the floor (as allowed in the 1991 Standards when a side reach is provided), the facility is not required to lower the dispenser to 48″ (as specified in the 2010 Standards) prior to March 15, 2012. Rather, the facility would have to do so only if the restroom is altered or the dispenser is replaced before March 15, 2012.

The safe harbor also addresses those elements comprising a path of travel to a primary function area. When a primary function area is altered, the ADA requires that the path of travel (which is defined to include amenities serving the primary function area, such as restrooms and drinking fountains) also must be made accessible unless the cost of doing so is disproportionate to the cost of the overall alteration. Under the safe harbor, path of travel elements that comply with the 1991 Standards do not have to be modified to comply with the 2010 Standards solely because the primary function area served by that path of travel is altered. If such elements themselves are altered after March 15, 2012, however, the 2010 Standards will apply.

For example, if a restaurant’s restrooms comply with the 1991 Standards, the restaurant is not required to upgrade the restrooms to comply with the 2010 Standards merely because it alters its dining room. If the restrooms were altered subsequent to March 15, 2012, the 2010 Standards would apply.

In assessing the degree to which a particular facility is protected by the safe harbor, fms must consider the following:

  • The safe harbor does not provide blanket protection or immunity for the existing facility overall. Each element must be assessed on an individual basis.
  • The safe harbor does not extend to elements addressed in the 2010 Standards, but not the 1991 Standards (e.g., swimming pools, spas, and children’s play equipment). Any such existing elements will have to be compliant with the 2010 Standards to the extent readily achievable, prior to March 15, 2012.
  • Existing facilities have a continuing duty to engage in readily achievable barrier removal. Even if a single element has been modified to the extent readily achievable, the safe harbor will not apply in the event that changed circumstances subsequently render full compliance readily achievable.
  • The 2010 Standards do not supersede conditions under state or local law that may provide for greater accessibility. Several jurisdictions have adopted, whether wholly or partially, the International Building Code (IBC) and/or ICC/ANSI A117.1. Although IBC 2003 and ICC/ANSI A117.1-2003 are in many ways similar to the 2010 Standards, the IBC is often modified on a three year cycle and ICC/ANSI A117.1 was changed in 2009.

As they continue to evolve, they may differ in more respects from the 2010 Standards. Accordingly, facilities also must consider applicable state and local requirements, and where they differ from federal requirements, follow whichever one provides greater accessibility for individuals with disabilities.

  • Documentation regarding dates of alteration or construction will be vital in defending claims of noncompliance.
  • The safe harbor does not extend to settlements among private litigants wherein the parties agree to less than full compliance with the ADA. The facility still may be vulnerable to claims from enforcement agencies or other private litigants.

These revisions leave fms six months to comply with the new standards, and if fms have not reviewed their ADA compliance, now is the time for them to see where their buildings need to be updated before the deadline arrives.


Jakubowski is a partner in the Washington, DC office of Barnes & Thornburg LLP and a member of the firm’s disability law practice.