Guidance on the 2010 ADA Standards for Accessible Design
INTRODUCTION
The Department of Justice published its revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 “ADA” in the Federal Register on September 15, 2010, which include the 2010 Standards for Accessible Design “2010 Standards” or “Standards”. In the revised regulations, the Department included detailed guidance with a section-by-section analysis of the revisions:
The following includes guidance from the revised regulations related to 28 CFR 35.151; 28 CFR part 26, subpart D; and the 2004 ADAAG. It addresses changes to the Standards, the reasoning behind those changes, and responses to public comments received on these topics.
For More Information
For information about the ADA, including the revised 2010 ADA regulations, please visit the Department’s website www.ADA.gov; or, for answers to specific questions, call the toll-free ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY).
CONTENTS
State and Local Government Facilities: Guidance on the Revisions to 28 CFR 35.151
Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible Design.
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State and Local Government Facilities: Guidance on the Revisions to 28 CFR 35.151
Guidance on the Revisions to 28 CFR 35.151
Section 35.151(a), which provided that those facilities that are
constructed or altered by, on behalf of, or for the use of a public
entity shall be designed, constructed, or altered to be readily
accessible to and usable by individuals with disabilities, is
unchanged in the final rule, but has been redesignated as Sec.
35.151(a)(1). The Department has added a new section, designated as
Sec. 35.151(a)(2), to provide that full compliance with the
requirements of this section is not required where an entity can
demonstrate that it is structurally impracticable to meet the
requirements. Full compliance will be considered structurally
impracticable only in those rare circumstances when the unique
characteristics of terrain prevent the incorporation of
accessibility features. This exception was contained in the title
III regulation and in the 1991 Standards (applicable to both public
accommodations and facilities used by public entities), so it has
applied to any covered facility that was constructed under the 1991
Standards since the effective date of the ADA. The Department added
it to the text of Sec. 35.151 to maintain consistency between the
design requirements that apply under title II and those that apply
under title III. The Department received no significant comments
about this section.
§ 35.151(b) Alterations
The 1991 title II regulation does not contain any specific
regulatory language comparable to the 1991 title III regulation
relating to alterations and path of travel for covered entities,
although the 1991 Standards describe standards for path of travel
during alterations to a primary function. See 28 CFR part 36, app
A., section 4.1.6(a) (2009).
The path of travel requirements contained in the title III
regulation are based on section 303(a)(2) of the ADA, 42 U.S.C.
12183(a)(2), which provides that when an entity undertakes an
alteration to a place of public accommodation or commercial facility
that affects or could affect the usability of or access to an area
that contains a primary function, the entity shall ensure that, to
the maximum extent feasible, the path of travel to the altered
area–and the restrooms, telephones, and drinking fountains serving
it–is readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.
The NPRM proposed amending Sec. 35.151 to add both the path of
travel requirements and the exemption relating to barrier removal
(as modified to apply to the program accessibility standard in title
II) that are contained in the title III regulation to the title II
regulation. Proposed Sec. 35.151(b)(4) contained the requirements
for path of travel. Proposed Sec. 35.151(b)(2) stated that the path
of travel requirements of Sec. 35.151(b)(4) shall not apply to
measures taken solely to comply with program accessibility
requirements.
Where the specific requirements for path of travel apply under
title III, they are limited to the extent that the cost and scope of
alterations to the path of travel are disproportionate to the cost
of the overall alteration, as determined under criteria established
by the Attorney General.
The Access Board included the path of travel requirement for
alterations to facilities covered by the standards (other than those
subject to the residential facilities standards) in section 202.4 of
2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes
the criteria for determining when the cost of alterations to the path of travel is “disproportionate” to the
cost of the overall alteration.
The NPRM also provided that areas such as supply storage rooms,
employee lounges and locker rooms, janitorial closets, entrances,
and corridors are not areas containing a primary function. Nor are
restroom areas considered to contain a primary function unless the
provision of restrooms is a primary purpose of the facility, such as
at a highway rest stop. In that situation, a restroom would be
considered to be an “area containing a primary function” of the
facility.
The Department is not changing the requirements for program
accessibility. As provided in Sec. 35.151(b)(2) of the regulation,
the path of travel requirements of Sec. 35.151(b)(4) only apply to
alterations undertaken solely for purposes other than to meet the
program accessibility requirements. The exemption for the specific
path of travel requirement was included in the regulation to ensure
that the specific requirements and disproportionality exceptions for
path of travel are not applied when areas are being altered to meet
the title II program accessibility requirements in Sec. 35.150. In
contrast, when areas are being altered to meet program accessibility
requirements, they must comply with all of the applicable
requirements referenced in section 202 of the 2010 Standards. A
covered title II entity must provide accessibility to meet the
requirements of Sec. 35.150 unless doing so is an undue financial
and administrative burden in accordance with Sec. 35.150(a)(3). A
covered title II entity may not use the disproportionality exception
contained in the path of travel provisions as a defense to providing
an accessible route as part of its obligation to provide program
accessibility. The undue financial and administrative burden
standard does not contain any bright line financial tests.
The Department’s proposed Sec. 35.151(b)(4) adopted the
language now contained in Sec. 36.403 of the title III regulation,
including the disproportionality limitation (i.e., alterations made
to provide an accessible path of travel to the altered area would be
deemed disproportionate to the overall alteration when the cost
exceeds 20 percent of the cost of the alteration to the primary
function area). Proposed Sec. 35.151(b)(2) provided that the path
of travel requirements do not apply to alterations undertaken solely
to comply with program accessibility requirements.
The Department received a substantial number of comments
objecting to the Department’s adoption of the exemption for the path
of travel requirements when alterations are undertaken solely to
meet program accessibility requirements. These commenters argued
that the Department had no statutory basis for providing this
exemption nor does it serve any purpose. In addition, these
commenters argued that the path of travel exemption has the effect
of placing new limitations on the obligations to provide program
access. A number of commenters argued that doing away with the path
of travel requirement would render meaningless the concept of
program access. They argued that just as the requirement to provide
an accessible path of travel to an altered area (regardless of the
reason for the alteration), including making the restrooms,
telephones, and drinking fountains that serve the altered area
accessible, is a necessary requirement in other alterations, it is
equally necessary for alterations made to provide program access.
Several commenters expressed concern that a readily accessible path
of travel be available to ensure that persons with disabilities can
get to the physical location in which programs are held. Otherwise,
they will not be able to access the public entity’s service,
program, or activity. Such access is a cornerstone of the
protections provided by the ADA. Another commenter argued that it
would be a waste of money to create an accessible facility without
having a way to get to the primary area. This commenter also stated
that the International Building Code (IBC) requires the path of
travel to a primary function area, up to 20 percent of the cost of
the project. Another commenter opposed the exemption, stating that
the trigger of an alteration is frequently the only time that a
facility must update its facilities to comply with evolving
accessibility standards.
In the Department’s view, the commenters objecting to the path
of travel exemption contained in Sec. 35.151(b)(2) did not
understand the intention behind the exemption. The exemption was not
intended to eliminate any existing requirements related to
accessibility for alterations undertaken in order to meet program
access obligations under Sec. 35.149 and Sec. 35.150. Rather, it
was intended to ensure that covered entities did not apply the path
of travel requirements in lieu of the overarching requirements in
this Subpart that apply when making a facility accessible in order
to comply with program accessibility. The exemption was also
intended to make it clear that the disproportionality test contained
in the path of travel standards is not applicable in determining
whether providing program access results in an undue financial and
administration burden within the meaning of Sec. 35.150(a)(3). The
exemption was also provided to maintain consistency with the title
III path of travel exemption for barrier removal, see Sec.
36.304(d), in keeping with the Department’s regulatory authority
under title II of the ADA. See 42 U.S.C. 12134(b); see also H. R
Rep. No. 101B485, pt. 2, at 84 (1990) (“The committee intends,
however, that the forms of discrimination prohibited by section 202
be identical to those set out in the applicable provisions of titles
I and III of this legislation.”).
For title II entities, the path of travel requirements are of
significance in those cases where an alteration is being made solely
for reasons other than program accessibility. For example, a public
entity might have six courtrooms in two existing buildings and might
determine that only three of those courtrooms and the public use and
common use areas serving those courtrooms in one building are needed
to be made accessible in order to satisfy its program access
obligations. When the public entity makes those courtrooms and the
public use and common use areas serving them accessible in order to
meet its program access obligations, it will have to comply with the
2010 Standards unless the public entity can demonstrate that full
compliance would result in undue financial and administrative
burdens as described in Sec. 35.150(a)(3). If such action would
result in an undue financial or administrative burden, the public
entity would nevertheless be required to take some other action that
would not result in such an alteration or such burdens but would
ensure that the benefits and services provided by the public entity
are readily accessible to persons with disabilities. When the public
entity is making modifications to meet its program access
obligation, it may not rely on the path of travel exception under
Sec. 35.151(b)(4), which limits the requirement to those
alterations where the cost and scope of the alterations are not
disproportionate to the cost and scope of the overall alterations. If the public entity later decides to alter courtrooms in the other
building, for purposes of updating the facility (and, as previously
stated, has met its program access obligations) then in that case,
the public entity would have to comply with the path of travel
requirements in the 2010 Standards subject to the disproportionality
exception set forth in Sec. 35.151(b)(4).
The Department has slightly revised proposed Sec. 35.151(b)(2)
to make it clearer that the path of travel requirements only apply
when alterations are undertaken solely for purposes other than
program accessibility.
§ 35.151(b)(4)(ii)(C) Path of travel–safe harbor
In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the Department
included a provision that stated that public entities that have
brought required elements of path of travel into compliance with the
1991 Standards are not required to retrofit those elements in order
to reflect incremental changes in the 2010 Standards solely because
of an alteration to a primary function area that is served by that
path of travel. In these circumstances, the public entity is
entitled to a safe harbor and is only required to modify elements to
comply with the 2010 Standards if the public entity is planning an
alteration to the element.
A substantial number of commenters objected to the Department’s
imposition of a safe harbor for alterations to facilities of public
entities that comply with the 1991 Standards. These commenters
argued that if a public entity is already in the process of altering
its facility, there should be a legal requirement that individuals
with disabilities be entitled to increased accessibility by using
the 2010 Standards for path of travel work. They also stated that
they did not believe there was a statutory basis for
“grandfathering” facilities that comply with the 1991 Standards.
The ADA is silent on the issue of “grandfathering” or
establishing a safe harbor for measuring compliance in situations
where the covered entity is not undertaking a planned alteration to
specific building elements. The ADA delegates to the Attorney
General the responsibility for issuing regulations that define the
parameters of covered entities’ obligations when the statute does not directly
address an issue. This regulation implements that delegation of
authority.
One commenter proposed that a previous record of barrier removal
be one of the factors in determining, prospectively, what renders a
facility, when viewed in its entirety, usable and accessible to
persons with disabilities. Another commenter asked the Department to
clarify, at a minimum, that to the extent compliance with the 1991
Standards does not provide program access, particularly with regard
to areas not specifically addressed in the 1991 Standards, the safe
harbor will not operate to relieve an entity of its obligations to
provide program access.
One commenter supported the proposal to add a safe harbor for
path of travel.
The final rule retains the safe harbor for required elements of
a path of travel to altered primary function areas for public
entities that have already complied with the 1991 Standards with
respect to those required elements. The Department believes that
this safe harbor strikes an appropriate balance between ensuring
that individuals with disabilities are provided access to buildings
and facilities and potential financial burdens on existing public
entities that are undertaking alterations subject to the 2010
Standards. This safe harbor is not a blanket exemption for
facilities. If a public entity undertakes an alteration to a primary
function area, only the required elements of a path of travel to
that area that already comply with the 1991 Standards are subject to
the safe harbor. If a public entity undertakes an alteration to a
primary function area and the required elements of a path of travel
to the altered area do not comply with the 1991 Standards, then the
public entity must bring those elements into compliance with the
2010 Standards.
§ 35.151(b)(3) Alterations to historic facilities
The final rule renumbers the requirements for alterations to
historic facilities enumerated in current Sec. 35.151(d)(1) and (2)
as Sec. 35.151(b)(3)(i) and (ii). Currently, the regulation
provides that alterations to historic facilities shall comply to the
maximum extent feasible with section 4.1.7 of UFAS or section 4.1.7
of the 1991 Standards. See 28 CFR 35.151(d)(1). Section
35.151(b)(3)(i) of the final rule eliminates the option of using
UFAS for alterations that commence on or after March 15, 2012. The
substantive requirement in current Sec. 35.151(d)(2)–that
alternative methods of access shall be provided pursuant to the
requirements of Sec. 35.150 if it is not feasible to provide
physical access to an historic property in a manner that will not
threaten or destroy the historic significance of the building or
facility–is contained in Sec. 35.151(b)(3)(ii).
§ 35.151(c) Accessibility standards for new construction and
alterations
Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1,
ADA Chapter 2, and Chapters 3 through 10 of the Americans with
Disabilities Act and Architectural Barriers Act Guidelines (2004
ADAAG) into the ADA Standards for Accessible Design (2010
Standards). As the Department has noted, the development of these
standards represents the culmination of a lengthy effort by the
Access Board to update its guidelines, to make the Federal
guidelines consistent to the extent permitted by law, and to
harmonize the Federal requirements with the private sector model
codes that form the basis of many State and local building code
requirements. The full text of the 2010 Standards is available for
public review on the ADA Home Page (http://www.ada.gov) and on the
Access Board’s Web site (http://www.access-board.gov/gs.htm) (last
visited June 24, 2010). The Access Board site also includes an
extensive discussion of the development of the 2004 ADA/ABA
Guidelines, and a detailed comparison of the 1991 Standards, the
2004 ADA/ABA Guidelines, and the 2003 International Building Code.
Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney
General to issue regulations to implement title II that are
consistent with the minimum guidelines published by the Access
Board. The Attorney General (or his designee) is a statutory member
of the Access Board (see 29 U.S.C. 792(a)(1)(B(vii)) and was
involved in the development of the 2004 ADAAG. Nevertheless, during
the process of drafting the NPRM, the Department reviewed the 2004
ADAAG to determine if additional regulatory provisions were
necessary. As a result of this review, the Department decided to
propose new sections, which were contained in Sec. 35.151(e)-(h) of
the NPRM, to clarify how the Department will apply the proposed
standards to social service center establishments, housing at places
of education, assembly areas, and medical care facilities. Each of
these provisions is discussed below.
Congress anticipated that there would be a need for close
coordination of the ADA building requirements with State and local
building code requirements. Therefore, the ADA authorized the
Attorney General to establish an ADA code certification process
under title III of the ADA. That process is addressed in 28 CFR part
36, subpart F. Revisions to that process are addressed in the
regulation amending the title III regulation published elsewhere in
the Federal Register today. In addition, the Department operates an
extensive technical assistance program. The Department anticipates
that once this rule is final, revised technical assistance material
will be issued to provide guidance about its implementation.
Section 35.151(c) of the 1991 title II regulation establishes
two standards for accessible new construction and alteration. Under
paragraph (c), design, construction, or alteration of facilities in
conformance with UFAS or with the 1991 Standards (which, at the time
of the publication of the rule were also referred to as the
Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (1991 ADAAG)) is deemed to comply with the
requirements of this section with respect to those facilities
(except that if the 1991 Standards are chosen, the elevator
exemption does not apply). The 1991 Standards were based on the 1991
ADAAG, which was initially developed by the Access Board as
guidelines for the accessibility of buildings and facilities that
are subject to title III. The Department adopted the 1991 ADAAG as
the standards for places of public accommodation and commercial
facilities under title III of the ADA and it was published as
Appendix A to the Department’s regulation implementing title III, 56
FR 35592 (July 26, 1991) as amended, 58 FR 17522 (April 5, 1993),
and as further amended, 59 FR 2675 (Jan. 18, 1994), codified at 28
CFR part 36 (2009).
Section 35.151(c) of the final rule adopts the 2010 Standards
and establishes the compliance date and triggering events for the
application of those standards to both new construction and
alterations. Appendix B of the final title III rule (Analysis and
Commentary on the 2010 ADA Standards for Accessible Design) (which
will be published today elsewhere in this volume and codified as
Appendix B to 28 CFR part 36) provides a description of the major
changes in the 2010 Standards (as compared to the 1991 ADAAG) and a
discussion of the public comments that the Department received on
specific sections of the 2004 ADAAG. A number of commenters asked
the Department to revise certain provisions in the 2004 ADAAG in a
manner that would reduce either the required scoping or specific
technical accessibility requirements. As previously stated, although
the ADA requires the enforceable standards issued by the Department
under title II and title III to be consistent with the minimum
guidelines published by the Access Board, it is the sole
responsibility of the Attorney General to promulgate standards and
to interpret and enforce those standards. The guidelines adopted by
the Access Board are “minimum guidelines.” 42 U.S.C. 12186(c).
Compliance date. When the ADA was enacted, the effective dates
for various provisions were delayed in order to provide time for
covered entities to become familiar with their new obligations.
Titles II and III of the ADA generally became effective on January
26, 1992, six months after the regulations were published. See 42
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under
title II and alterations under either title II or title III had to
comply with the design standards on that date. See 42 U.S.C.
12183(a)(1). For new construction under title III, the requirements
applied to facilities designed and constructed for first occupancy
after January 26, 1993–18 months after the 1991 Standards were published by the Department. In the NPRM, the Department proposed to
amend Sec. 35.151(c)(1) by revising the current language to limit
the application of the 1991 standards to facilities on which
construction commences within six months of the final rule adopting
revised standards. The NPRM also proposed adding paragraph (c)(2) to
Sec. 35.151, which states that facilities on which construction
commences on or after the date six months following the effective
date of the final rule shall comply with the proposed standards
adopted by that rule.
As a result, under the NPRM, for the first six months after the
effective date, public entities would have the option to use either UFAS or the 1991 Standards and be in compliance with title II. Six
months after the effective date of the rule, the new standards would
take effect. At that time, construction in accordance with UFAS
would no longer satisfy ADA requirements. The Department stated that
in order to avoid placing the burden of complying with both
standards on public entities, the Department would coordinate a
government-wide effort to revise Federal agencies’ section 504
regulations to adopt the 2004 ADAAG as the standard for new
construction and alterations.
The purpose of the proposed six-month delay in requiring
compliance with the 2010 Standards was to allow covered entities a
reasonable grace period to transition between the existing and the
proposed standards. For that reason, if a title II entity preferred
to use the 2010 Standards as the standard for new construction or
alterations commenced within the six-month period after the
effective date of the final rule, such entity would be considered in
compliance with title II of the ADA.
The Department received a number of comments about the proposed
six-month effective date for the title II regulation that were
similar in content to those received on this issue for the proposed
title III regulation. Several commenters supported the six-month
effective date. One commenter stated that any revisions to its State
building code becomes effective six months after adoption and that
this has worked well. In addition, this commenter stated that since
2004 ADAAG is similar to IBC 2006 and ICC/ANSI A117.1-2003, the
transition should be easy. By contrast, another commenter advocated
for a minimum 12-month effective date, arguing that a shorter
effective date could cause substantial economic hardships to many
cities and towns because of the lengthy lead time necessary for
construction projects. This commenter was concerned that a six-month
effective date could lead to projects having to be completely
redrawn, rebid, and rescheduled to ensure compliance with the new
standards. Other commenters advocated that the effective date be
extended to at least 18 months after the publication of the rule.
One of these commenters expressed concern that the kinds of
bureaucratic organizations subject to the title II regulations lack
the internal resources to quickly evaluate the regulatory changes,
determine whether they are currently compliant with the 1991
standards, and determine what they have to do to comply with the new
standards. The other commenter argued that 18 months is the minimum
amount of time necessary to ensure that projects that have already
been designed and approved do not have to undergo costly design
revisions at taxpayer expense.
The Department is persuaded by the concerns raised by commenters
for both the title II and III regulations that the six-month
compliance date proposed in the NPRM for application of the 2010
Standards may be too short for certain projects that are already in
the midst of the design and permitting process. The Department has
determined that for new construction and alterations, compliance
with the 2010 Standards will not be required until 18 months from
the date the final rule is published. Until the time compliance with
the 2010 Standards is required, public entities will have the option
of complying with the 2010 Standards, the UFAS, or the 1991
Standards. However, public entities that choose to comply with the
2010 Standards in lieu of the 1991 Standards or UFAS prior to the
compliance date described in this rule must choose one of the three
standards, and may not rely on some of the requirements contained in
one standard and some of the requirements contained in the other
standards.
Triggering event. In Sec. 35.151(c)(2) of the NPRM, the
Department proposed that the commencement of construction serve as
the triggering event for applying the proposed standards to new
construction and alterations under title II. This language is
consistent with the triggering event set forth in Sec. 35.151(a) of
the 1991 title II regulation. The Department received only four
comments on this section of the title II rule. Three commenters
supported the use of “start of construction” as the triggering
event. One commenter argued that the Department should use the
“last building permit or start of physical construction, whichever
comes first,” stating that “altering a design after a building
permit has been issued can be an undue burden.”
After considering these comments, the Department has decided to
continue to use the commencement of physical construction as the
triggering event for application of the 2010 Standards for entities
covered by title II. The Department has also added clarifying
language at Sec. 35.151(c)(4) to the regulation to make it clear
that the date of ceremonial groundbreaking or the date a structure
is razed to make it possible for construction of a facility to take
place does not qualify as the commencement of physical construction.
Section 234 of the 2010 Standards provides accessibility
guidelines for newly designed and constructed amusement rides. The
amusement ride provisions do not provide a “triggering event” for
new construction or alteration of an amusement ride. An industry
commenter requested that the triggering event of “first use,” as
noted in the Advisory note to section 234.1 of the 2004 ADAAG, be
included in the final rule. The Advisory note provides that “[a] custom designed and constructed ride is new upon its first use,
which is the first time amusement park patrons take the ride.” The
Department declines to treat amusement rides differently than other
types of new construction and alterations. Under the final rule,
they are subject to Sec. 35.151(c). Thus, newly constructed and
altered amusement rides shall comply with the 2010 Standards if the
start of physical construction or the alteration is on or after 18
months from the publication date of this rule. The Department also
notes that section 234.4.2 of the 2010 Standards only applies where
the structural or operational characteristics of an amusement ride
are altered. It does not apply in cases where the only change to a
ride is the theme.
Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec. 35.150(b)(2) has no effect
on new or altered elements in existing facilities that were subject
to the 1991 Standards or UFAS on the date that they were constructed
or altered, but do not comply with the technical and scoping
specifications for those elements in the 1991 Standards or UFAS.
Section 35.151(c)(5) of the final rule sets forth the rules for
noncompliant new construction or alterations in facilities that were
subject to the requirements of this part. Under those provisions,
noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and
before March 15, 2012 shall, before March 15, 2012, be made
accessible in accordance with either the 1991 Standards, UFAS, or
the 2010 Standards. Noncomplying new construction and alterations
constructed or altered after the effective date of the applicable
ADA requirements and before March 15, 2012, shall, on or after March
15, 2012 be made accessible in accordance with the 2010 Standards.
§ 35.151(d) Scope of coverage
In the NPRM, the Department proposed a new provision, Sec.
35.151(d), to clarify that the requirements established by Sec.
35.151, including those contained in the 2004 ADAAG, prescribe what
is necessary to ensure that buildings and facilities, including
fixed or built-in elements in new or altered facilities, are
accessible to individuals with disabilities. Once the construction
or alteration of a facility has been completed, all other aspects of
programs, services, and activities conducted in that facility are
subject to the operational requirements established in this final
rule. Although the Department may use the requirements of the 2010
Standards as a guide to determining when and how to make equipment
and furnishings accessible, those determinations fall within the
discretionary authority of the Department.
The Department also wishes to clarify that the advisory notes,
appendix notes, and figures that accompany the 1991 and 2010
Standards do not establish separately enforceable requirements
unless specifically stated otherwise in the text of the standards.
This clarification has been made to address concerns expressed by
ANPRM commenters who mistakenly believed that the advisory notes in
the 2004 ADAAG established requirements beyond those established in
the text of the guidelines (e.g., Advisory 504.4 suggests, but does
not require, that covered entities provide visual contrast on stair
tread nosing to make them more visible to individuals with low
vision). The Department received no significant comments on this
section and it is unchanged in the final rule.
Definitions of residential facilities and transient lodging. The
2010 Standards add a definition of “residential dwelling unit” and
modify the current definition of “transient lodging.” Under
section 106.5 of the 2010 Standards, “residential dwelling unit”
is defined as “[a] unit intended to be used as a residence, that is
primarily long-term in nature” and does not include transient
lodging, inpatient medical care, licensed long-term care, and
detention or correctional facilities. Additionally, section 106.5 of
the 2010 Standards changes the definition of “transient lodging” to a
building or facility “containing one or more guest room(s) for
sleeping that provides accommodations that are primarily short-term
in nature.” “Transient lodging” does not include residential
dwelling units intended to be used as a residence. The references to
“dwelling units” and “dormitories” that are in the definition of
the 1991 Standards are omitted from the 2010 Standards.
The comments about the application of transient lodging or
residential standards to social service center establishments, and
housing at a place of education are addressed separately below. The
Department received one additional comment on this issue from an
organization representing emergency response personnel seeking an
exemption from the transient lodging accessibility requirements for
crew quarters and common use areas serving those crew quarters
(e.g., locker rooms, exercise rooms, day room) that are used
exclusively by on-duty emergency response personnel and that are not
used for any public purpose. The commenter argued that since
emergency response personnel must meet certain physical
qualifications that have the effect of exempting persons with
mobility disabilities, there is no need to build crew quarters and
common use areas serving those crew quarters to meet the 2004 ADAAG. In addition, the commenter argued that applying the transient
lodging standards would impose significant costs and create living
space that is less usable for most emergency response personnel.
The ADA does not exempt spaces because of a belief or policy
that excludes persons with disabilities from certain work. However,
the Department believes that crew quarters that are used exclusively
as a residence by emergency response personnel and the kitchens and
bathrooms exclusively serving those quarters are more like
residential dwelling units and are therefore covered by the
residential dwelling standards in the 2010 Standards, not the
transient lodging standards. The residential dwelling standards
address most of the concerns of the commenter. For example, the
commenter was concerned that sinks in kitchens and lavatories in
bathrooms that are accessible under the transient lodging standards
would be too low to be comfortably used by emergency response
personnel. The residential dwelling standards allow such features to
be adaptable so that they would not have to be lowered until
accessibility was needed. Similarly, grab bars and shower seats
would not have to be installed at the time of construction provided
that reinforcement has been installed in walls and located so as to
permit their installation at a later date.
§ 35.151(e) Social service center establishments
In the NPRM, the Department proposed a new Sec. 35.151(e)
requiring group homes, halfway houses, shelters, or similar social
service center establishments that provide temporary sleeping
accommodations or residential dwelling units to comply with the
provisions of the 2004 ADAAG that apply to residential facilities,
including, but not limited to, the provisions in sections 233 and
809.
The NPRM explained that this proposal was based on two important
changes in the 2004 ADAAG. First, for the first time, residential
dwelling units are explicitly covered in the 2004 ADAAG in section
233. Second, the 2004 ADAAG eliminates the language contained in the
1991 Standards addressing scoping and technical requirements for
homeless shelters, group homes, and similar social service center
establishments. Currently, such establishments are covered in
section 9.5 of the transient lodging section of the 1991 Standards.
The deletion of section 9.5 creates an ambiguity of coverage that
must be addressed.
The NPRM explained the Department’s belief that transferring
coverage of social service center establishments from the transient
lodging standards to the residential facilities standards would
alleviate conflicting requirements for social service center
providers. The Department believes that a substantial percentage of
social service center establishments are recipients of Federal
financial assistance from the Department of Housing and Urban
Development (HUD). The Department of Health and Human Services (HHS)
also provides financial assistance for the operation of shelters
through the Administration for Children and Families programs. As
such, these establishments are covered both by the ADA and section
504 of the Rehabilitation Act. UFAS is currently the design standard
for new construction and alterations for entities subject to section
504. The two design standards for accessibility–the 1991 Standards
and UFAS–have confronted many social service providers with
separate, and sometimes conflicting, requirements for design and
construction of facilities. To resolve these conflicts, the
residential facilities standards in the 2004 ADAAG have been
coordinated with the section 504 requirements. The transient lodging
standards, however, are not similarly coordinated. The deletion of
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two
options: (1) Require coverage under the transient lodging standards,
and subject such facilities to separate, conflicting requirements
for design and construction; or (2) require coverage under the
residential facilities standards, which would harmonize the
regulatory requirements under the ADA and section 504. The
Department chose the option that harmonizes the regulatory
requirements: coverage under the residential facilities standards.
In the NPRM, the Department expressed concern that the
residential facilities standards do not include a requirement for
clear floor space next to beds similar to the requirement in the
transient lodging standards and as a result, the Department proposed
adding a provision that would require certain social service center
establishments that provide sleeping rooms with more than 25 beds to
ensure that a minimum of 5 percent of the beds have clear floor
space in accordance with section 806.2.3 or 2004 ADAAG.
In the NPRM, the Department requested information from providers
who operate homeless shelters, transient group homes, halfway
houses, and other social service center establishments, and from the
clients of these facilities who would be affected by this proposed
change, asking, “[t]o what extent have conflicts between the ADA
and section 504 affected these facilities? What would be the effect
of applying the residential dwelling unit requirements to these
facilities, rather than the requirements for transient lodging guest
rooms?” 73 FR 34466, 34491 (June 17, 2008).
Many of the commenters supported applying the residential
facilities requirements to social service center establishments,
stating that even though the residential facilities requirements are
less demanding in some instances, the existence of one clear
standard will result in an overall increased level of accessibility
by eliminating the confusion and inaction that are sometimes caused
by the current existence of multiple requirements. One commenter
also stated that “it makes sense to treat social service center
establishments like residential facilities because this is how these
establishments function in practice.”
Two commenters agreed with applying the residential facilities
requirements to social service center establishments but recommended
adding a requirement for various bathing options, such as a roll-in
shower (which is not required under the residential standards).
One commenter objected to the change and asked the Department to
require that social service center establishments continue to comply
with the transient lodging standards.
One commenter stated that it
did not agree that the standards for residential coverage would
serve persons with disabilities as well as the 1991 transient
lodging standards. This commenter expressed concern that the
Department had eliminated guidance for social service agencies and
that the rule should be put on hold until those safeguards are
restored. Another commenter argued that the rule that would provide
the greatest access for persons with disabilities should prevail.
Several commenters argued for the application of the transient
lodging standards to all social service center establishments except
those that were “intended as a person’s place of abode,”
referencing the Department’s question related to the definition of
“place of lodging” in the title III NPRM. One commenter stated
that the International Building Code requires accessible units in
all transient facilities. The commenter expressed concern that group
homes should be built to be accessible, rather than adaptable.
The Department continues to be concerned about alleviating the
challenges for social service providers that are also subject to
section 504 and would likely be subject to conflicting requirements
if the transient lodging standards were applied. Thus, the
Department has retained the requirement that social service center
establishments comply with the residential dwelling standards. The
Department believes, however, that social service center
establishments that provide emergency shelter to large transient
populations should be able to provide bathing facilities that are
accessible to persons with mobility disabilities who need roll-in showers. Because
of the transient nature of the population of these large shelters,
it will not be feasible to modify bathing facilities in a timely
manner when faced with a need to provide a roll-in shower with a
seat when requested by an overnight visitor. As a result, the
Department has added a requirement that social service center
establishments with sleeping accommodations for more than 50
individuals must provide at least one roll-in shower with a seat
that complies with the relevant provisions of section 608 of the
2010 Standards. Transfer-type showers are not permitted in lieu of a
roll-in shower with a seat and the exceptions in sections 608.3 and
608.4 for residential dwelling units are not permitted. When
separate shower facilities are provided for men and for women, at
least one roll-in shower shall be provided for each group. This
supplemental requirement to the residential facilities standards is
in addition to the supplemental requirement that was proposed in the
NPRM for clear floor space in sleeping rooms with more than 25 beds.
The Department also notes that while dwelling units at some
social service center establishments are also subject to the Fair
Housing Act (FHAct) design and construction requirements that
require certain features of adaptable and accessible design, FHAct
units do not provide the same level of accessibility that is
required for residential facilities under the 2010 Standards. The
FHAct requirements, where also applicable, should not be considered
a substitute for the 2010 Standards. Rather, the 2010 Standards must
be followed in addition to the FHAct requirements.
The Department also notes that whereas the NPRM used the term
“social service establishment,” the final rule uses the term
“social service center establishment.” The Department has made
this editorial change so that the final rule is consistent with the
terminology used in the ADA. See 42 U.S.C. 12181(7)(k).
§ 35.151(f) Housing at a place of education
The Department of Justice and the Department of Education share
responsibility for regulation and enforcement of the ADA in
postsecondary educational settings, including its requirements for
architectural features. In addition, the Department of Housing and
Urban Development (HUD) has enforcement responsibility for housing
subject to title II of the ADA. Housing facilities in educational
settings range from traditional residence halls and dormitories to
apartment or townhouse-style residences. In addition to title II of
the ADA, public universities and schools that receive Federal
financial assistance are also subject to section 504, which contains
its own accessibility requirements through the application of UFAS.
Residential housing in an educational setting is also covered by the
FHAct, which requires newly constructed multifamily housing to
include certain features of accessible and adaptable design. Covered
entities subject to the ADA must always be aware of, and comply
with, any other Federal statutes or regulations that govern the
operation of residential properties.
Although the 1991 Standards mention dormitories as a form of
transient lodging, they do not specifically address how the ADA
applies to dormitories or other types of residential housing
provided in an educational setting. The 1991 Standards also do not
contain any specific provisions for residential facilities, allowing
covered entities to elect to follow the residential standards
contained in UFAS. Although the 2004 ADAAG contains provisions for
both residential facilities and transient lodging, the guidelines do
not indicate which requirements apply to housing provided in an
educational setting, leaving it to the adopting agencies to make
that choice. After evaluating both sets of standards, the Department
concluded that the benefits of applying the transient lodging
standards outweighed the benefits of applying the residential
facilities standards. Consequently, in the NPRM, the Department
proposed a new Sec. 35.151(f) that provided that residence halls or
dormitories operated by or on behalf of places of education shall
comply with the provisions of the proposed standards for transient
lodging, including, but not limited to, the provisions in sections
224 and 806 of the 2004 ADAAG.
Both public and private school housing facilities have varied
characteristics. College and university housing facilities typically
provide housing for up to one academic year, but may be closed
during school vacation periods. In the summer, they are often used
for short-term stays of one to three days, a week, or several
months. Graduate and faculty housing is often provided year-round in
the form of apartments, which may serve individuals or families with
children. These housing facilities are diverse in their layout. Some
are double-occupancy rooms with a shared toilet and bathing room,
which may be inside or outside the unit. Others may contain cluster,
suite, or group arrangements where several rooms are located inside
a defined unit with bathing, kitchen, and similar common facilities.
In some cases, these suites are indistinguishable in features from
traditional apartments. Universities may build their own housing
facilities or enter into agreements with private developers to
build, own, or lease housing to the educational institution or to
its students. Academic housing may be located on the campus of the
university or may be located in nearby neighborhoods.
Throughout the school year and the summer, academic housing can
become program areas in which small groups meet, receptions and
educational sessions are held, and social activities occur. The
ability to move between rooms–both accessible rooms and standard
rooms–in order to socialize, to study, and to use all public use
and common use areas is an essential part of having access to these
educational programs and activities. Academic housing is also used
for short-term transient educational programs during the time
students are not in regular residence and may be rented out to
transient visitors in a manner similar to a hotel for special
university functions.
The Department was concerned that applying the new construction
requirements for residential facilities to educational housing
facilities could hinder access to educational programs for students
with disabilities. Elevators are not generally required under the
2004 ADAAG residential facilities standards unless they are needed
to provide an accessible route from accessible units to public use
and common use areas, while under the 2004 ADAAG as it applies to
other types of facilities, multistory public facilities must have
elevators unless they meet very specific exceptions. In addition,
the residential facilities standards do not require accessible roll-
in showers in bathrooms, while the transient lodging requirements
require some of the accessible units to be served by bathrooms with
roll-in showers. The transient lodging standards also require that a
greater number of units have accessible features for persons with
communication disabilities. The transient lodging standards provide
for installation of the required accessible features so that they
are available immediately, but the residential facilities standards
allow for certain features of the unit to be adaptable. For example,
only reinforcements for grab bars need to be provided in residential
dwellings, but the actual grab bars must be installed under the
transient lodging standards. By contrast, the residential facilities
standards do require certain features that provide greater
accessibility within units, such as more usable kitchens, and an
accessible route throughout the dwelling. The residential facilities
standards also require 5 percent of the units to be accessible to
persons with mobility disabilities, which is a continuation of the
same scoping that is currently required under UFAS, and is therefore
applicable to any educational institution that is covered by section
504. The transient lodging standards require a lower percentage of
accessible sleeping rooms for facilities with large numbers of rooms
than is required by UFAS. For example, if a dormitory had 150 rooms,
the transient lodging standards would require seven accessible rooms
while the residential standards would require eight. In a large
dormitory with 500 rooms, the transient lodging standards would
require 13 accessible rooms and the residential facilities standards
would require 25. There are other differences between the two sets
of standards as well with respect to requirements for accessible
windows, alterations, kitchens, accessible route throughout a unit,
and clear floor space in bathrooms allowing for a side transfer.
In the NPRM, the Department requested public comment on how to
scope educational housing facilities, asking, “[w]ould the
residential facility requirements or the transient lodging
requirements in the 2004 ADAAG be more appropriate for housing at
places of education? How would the different requirements affect the
cost when building new dormitories and other student housing?” 73
FR 34466, 34492 (June 17, 2008).
The vast majority of the comments received by the Department
advocated using the residential facilities standards for housing at
a place of education instead of the transient lodging standards,
arguing that housing at places of public education are in fact homes
for the students who live in them. These commenters argued, however,
that the Department should impose a requirement for a variety of options for
accessible bathing and should ensure that all floors of dormitories
be accessible so that students with disabilities have the same
opportunities to participate in the life of the dormitory community
that are provided to students without disabilities. Commenters
representing persons with disabilities and several individuals
argued that, although the transient lodging standards may provide a
few more accessible features (such as roll-in showers), the
residential facilities standards would ensure that students with
disabilities have access to all rooms in their assigned unit, not
just to the sleeping room, kitchenette, and wet bar. One commenter
stated that, in its view, the residential facilities standards were
congruent with overlapping requirements from HUD, and that access
provided by the residential facilities requirements within
alterations would ensure dispersion of accessible features more
effectively. This commenter also argued that while the increased
number of required accessible units for residential facilities as
compared to transient lodging may increase the cost of construction
or alteration, this cost would be offset by a reduced need to adapt
rooms later if the demand for accessible rooms exceeds the supply.
The commenter also encouraged the Department to impose a
visitability (accessible doorways and necessary clear floor space
for turning radius) requirement for both the residential facilities
and transient lodging requirements to allow students with mobility
impairments to interact and socialize in a fully integrated fashion.
Two commenters supported the Department’s proposed approach. One
commenter argued that the transient lodging requirements in the 2004
ADAAG would provide greater accessibility and increase the
opportunity of students with disabilities to participate fully in
campus life. A second commenter generally supported the provision of
accessible dwelling units at places of education, and pointed out
that the relevant scoping in the International Building Code
requires accessible units “consistent with hotel accommodations.”
The Department has considered the comments recommending the use
of the residential facilities standards and acknowledges that they
require certain features that are not included in the transient
lodging standards and that should be required for housing provided
at a place of education. In addition, the Department notes that
since educational institutions often use their academic housing
facilities as short-term transient lodging in the summers, it is
important that accessible features be installed at the outset. It is
not realistic to expect that the educational institution will be
able to adapt a unit in a timely manner in order to provide
accessible accommodations to someone attending a one-week program
during the summer.
The Department has determined that the best approach to this
type of housing is to continue to require the application of
transient lodging standards, but at the same time to add several
requirements drawn from the residential facilities standards related
to accessible turning spaces and work surfaces in kitchens, and the
accessible route throughout the unit. This will ensure the
maintenance of the transient lodging standard requirements related
to access to all floors of the facility, roll-in showers in
facilities with more than 50 sleeping rooms, and other important
accessibility features not found in the residential facilities
standards, but will also ensure usable kitchens and access to all
the rooms in a suite or apartment.
The Department has added a new definition to Sec. 35.104,
“Housing at a Place of Education,” and has revised Sec. 35.151(f)
to reflect the accessible features that now will be required in
addition to the requirements set forth under the transient lodging
standards. The Department also recognizes that some educational
institutions provide some residential housing on a year-round basis
to graduate students and staff which is comparable to private rental
housing, and which contains no facilities for educational
programming. Section 35.151(f)(3) exempts from the transient lodging
standards apartments or townhouse facilities provided by or on
behalf of a place of education that are leased on a year-round basis
exclusively to graduate students or faculty, and do not contain any
public use or common use areas available for educational
programming; instead, such housing shall comply with the
requirements for residential facilities in sections 233 and 809 of
the 2010 Standards.
Section 35.151(f) uses the term “sleeping room” in lieu of the
term “guest room,” which is the term used in the transient lodging
standards. The Department is using this term because it believes
that, for the most part, it provides a better description of the
sleeping facilities used in a place of education than “guest
room.” The final rule states that the Department intends the terms
to be used interchangeably in the application of the transient
lodging standards to housing at a place of education.
§ 35.151(g) Assembly areas
In the NPRM, the Department proposed Sec. 35.151(g) to
supplement the assembly area requirements of the 2004 ADAAG, which
the Department is adopting as part of the 2010 Standards. The NPRM
proposed at Sec. 35.151(g)(1) to require wheelchair spaces and
companion seating locations to be dispersed to all levels of the
facility and are served by an accessible route. The Department
received no significant comments on this paragraph and has decided
to adopt the proposed language with minor modifications. The
Department has retained the substance of this section in the final
rule but has clarified that the requirement applies to stadiums,
arenas, and grandstands. In addition, the Department has revised the
phrase “wheelchair and companion seating locations” to
“wheelchair spaces and companion seats.”
Section 35.151(g)(1) ensures that there is greater dispersion of
wheelchair spaces and companion seats throughout stadiums, arenas,
and grandstands than would otherwise be required by sections 221 and
802 of the 2004 ADAAG. In some cases, the accessible route may not
be the same route that other individuals use to reach their seats.
For example, if other patrons reach their seats on the field by an
inaccessible route (e.g., by stairs), but there is an accessible
route that complies with section 206.3 of the 2010 Standards that
could be connected to seats on the field, wheelchair spaces and
companion seats must be placed on the field even if that route is
not generally available to the public.
Regulatory language that was included in the 2004 ADAAG
advisory, but that did not appear in the NPRM, has been added by the
Department in Sec. 35.151(g)(2). Section 35.151(g)(2) now requires
an assembly area that has seating encircling, in whole or in part, a
field of play or performance area such as an arena or stadium, to
place wheelchair spaces and companion seats around the entire
facility. This rule, which is designed to prevent a public entity
from placing wheelchair spaces and companion seats on one side of
the facility only, is consistent with the Department’s enforcement
practices and reflects its interpretation of section 4.33.3 of the
1991 Standards.
In the NPRM, the Department proposed Sec. 35.151(g)(2) which
prohibits wheelchair spaces and companion seating locations from
being “located on, (or obstructed by) temporary platforms or other
moveable structures.” Through its enforcement actions, the
Department discovered that some venues place wheelchair spaces and
companion seats on temporary platforms that, when removed, reveal
conventional seating underneath, or cover the wheelchair spaces and
companion seats with temporary platforms on top of which they place
risers of conventional seating. These platforms cover groups of
conventional seats and are used to provide groups of wheelchair
seats and companion seats.
Several commenters requested an exception to the prohibition of
the use of temporary platforms for public entities that sell most of
their tickets on a season-ticket or other multi-event basis. Such
commenters argued that they should be able to use temporary
platforms because they know, in advance, that the patrons sitting in
certain areas for the whole season do not need wheelchair spaces and
companion seats. The Department declines to adopt such an exception.
As it explained in detail in the NPRM, the Department believes that
permitting the use of movable platforms that seat four or more
wheelchair users and their companions have the potential to reduce
the number of available wheelchair seating spaces below the level
required, thus reducing the opportunities for persons who need
accessible seating to have the same choice of ticket prices and
amenities that are available to other patrons in the facility. In
addition, use of removable platforms may result in instances where
last minute requests for wheelchair and companion seating cannot be
met because entire sections of accessible seating will be lost when
a platform is removed. See 73 FR 34466, 34493 (June 17, 2008).
Further, use of temporary platforms allows facilities to limit
persons who need accessible seating to certain seating areas, and to
relegate accessible seating to less desirable locations. The use of
temporary platforms has the effect of neutralizing dispersion and other
seating requirements (e.g., line of sight) for wheelchair spaces and
companion seats. Cf. Independent Living Resources v. Oregon Arena
Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding that while a
public accommodation may “infill” wheelchair spaces with removable
seats when the wheelchair spaces are not needed to accommodate
individuals with disabilities, under certain circumstances “[s]uch
a practice might well violate the rule that wheelchair spaces must
be dispersed throughout the arena in a manner that is roughly
proportionate to the overall distribution of seating”). In
addition, using temporary platforms to convert unsold wheelchair
spaces to conventional seating undermines the flexibility facilities
need to accommodate secondary ticket markets exchanges as required
by Sec. 35.138(g) of the final rule.
As the Department explained in the NPRM, however, this provision
was not designed to prohibit temporary seating that increases
seating for events (e.g., placing temporary seating on the floor of
a basketball court for a concert). Consequently, the final rule, at
Sec. 35.151(g)(3), has been amended to clarify that if an entire
seating section is on a temporary platform for a particular event,
then wheelchair spaces and companion seats may be in that seating
section. However, adding a temporary platform to create wheelchair
spaces and companion seats that are otherwise dissimilar from nearby
fixed seating and then simply adding a small number of additional
seats to the platform would not qualify as an “entire seating
section” on the platform. In addition, Sec. 35.151(g)(3) clarifies
that facilities may fill in wheelchair spaces with removable seats
when the wheelchair spaces are not needed by persons who use
wheelchairs.
The Department has been responsive to assembly areas’ concerns
about reduced revenues due to unused accessible seating.
Accordingly, the Department has reduced scoping requirements
significantly–by almost half in large assembly areas–and
determined that allowing assembly areas to infill unsold wheelchair
spaces with readily removable temporary individual seats
appropriately balances their economic concerns with the rights of
individuals with disabilities. See section 221.2 of the 2010
Standards.
For stadium-style movie theaters, in Sec. 35.151(g)(4) of the
NPRM the Department proposed requiring placement of wheelchair
seating spaces and companion seats on a riser or cross-aisle in the
stadium section of the theater and placement of such seating so that
it satisfies at least one of the following criteria: (1) It is
located within the rear 60 percent of the seats provided in the
auditorium; or (2) it is located within the area of the auditorium
where the vertical viewing angles are between the 40th to 100th
percentile of vertical viewing angles for all seats in that theater
as ranked from the first row (1st percentile) to the back row (100th
percentile). The vertical viewing angle is the angle between a
horizontal line perpendicular to the seated viewer’s eye to the
screen and a line from the seated viewer’s eye to the top of the
screen.
The Department proposed this bright-line rule for two reasons:
(1) The movie theater industry petitioned for such a rule; and (2)
the Department has acquired expertise on the design of stadium style
theaters from litigation against several major movie theater chains.
See U.S. v. AMC Entertainment, 232 F. Supp. 2d 1092 (C.D. Ca. 2002),
rev’d in part, 549 F. 3d 760 (9th Cir. 2008); U.S. v. Cinemark USA,
Inc., 348 F. 3d 569 (6th Cir. 2003), cert. denied, 542 U.S. 937
(2004). Two industry commenters–at least one of whom otherwise
supported this rule–requested that the Department explicitly state
that this rule does not apply retroactively to existing theaters.
Although this rule on its face applies to new construction and
alterations, these commenters were concerned that the rule could be
interpreted to apply retroactively because of the Department’s
statement in the ANPRM that this bright-line rule, although newly-
articulated, does not represent a “substantive change from the
existing line-of-sight requirements” of section 4.33.3 of the 1991
Standards. See 69 FR 58768, 58776 (Sept. 30, 2004).
Although the Department intends for Sec. 35.151(g)(4) of this
rule to apply prospectively to new construction and alterations,
this rule is not a departure from, and is consistent with, the line-
of-sight requirements in the 1991 Standards. The Department has
always interpreted the line-of-sight requirements in the 1991
Standards to require viewing angles provided to patrons who use
wheelchairs to be comparable to those afforded to other spectators.
Section 35.151(g)(4) merely represents the application of these
requirements to stadium-style movie theaters.
One commenter from a trade association sought clarification
whether Sec. 35.151(g)(4) applies to stadium-style theaters with
more than 300 seats, and argued that it should not since dispersion
requirements apply in those theaters. The Department declines to
limit this rule to stadium-style theaters with 300 or fewer seats;
stadium-style theaters of all sizes must comply with this rule. So,
for example, stadium-style theaters that must vertically disperse
wheelchair and companion seats must do so within the parameters of
this rule.
The NPRM included a provision that required assembly areas with
more than 5,000 seats to provide at least five wheelchair spaces
with at least three companion seats for each of those five
wheelchair spaces. The Department agrees with commenters who
asserted that group seating is better addressed through ticketing
policies rather than design and has deleted that provision from this
section of the final rule.
§ 35.151(h) Medical care facilities
In the 1991 title II regulation, there was no provision
addressing the dispersion of accessible sleeping rooms in medical
care facilities. The Department is aware, however, of problems that
individuals with disabilities face in receiving full and equal
medical care when accessible sleeping rooms are not adequately
dispersed. When accessible rooms are not fully dispersed, a person
with a disability is often placed in an accessible room in an area
that is not medically appropriate for his or her condition, and is
thus denied quick access to staff with expertise in that medical
specialty and specialized equipment. While the Access Board did not
establish specific design requirements for dispersion in the 2004
ADAAG, in response to extensive comments in support of dispersion it
added an advisory note, Advisory 223.1 General, encouraging
dispersion of accessible rooms within the facility so that
accessible rooms are more likely to be proximate to appropriate
qualified staff and resources.
In the NPRM, the Department sought additional comment on the
issue, asking whether it should require medical care facilities,
such as hospitals, to disperse their accessible sleeping rooms, and
if so, by what method (by specialty area, floor, or other criteria).
All of the comments the Department received on this issue supported
dispersing accessible sleeping rooms proportionally by specialty
area. These comments, from individuals, organizations, and a
building code association, argued that it would not be difficult for
hospitals to disperse rooms by specialty area, given the high level
of regulation to which hospitals are subject and the planning that
hospitals do based on utilization trends. Further, commenters
suggested that without a requirement, it is unlikely that hospitals
would disperse the rooms. In addition, concentrating accessible
rooms in one area perpetuates segregation of individuals with
disabilities, which is counter to the purpose of the ADA.
The Department has decided to require medical care facilities to
disperse their accessible sleeping rooms in a manner that is
proportionate by type of medical specialty. This does not require
exact mathematical proportionality, which at times would be
impossible. However, it does require that medical care facilities
disperse their accessible rooms by medical specialty so that persons
with disabilities can, to the extent practical, stay in an
accessible room within the wing or ward that is appropriate for
their medical needs. The language used in this rule (“in a manner
that is proportionate by type of medical specialty”) is more
specific than that used in the NPRM (“in a manner that enables
patients with disabilities to have access to appropriate specialty
services”) and adopts the concept of proportionality proposed by
the commenters. Accessible rooms should be dispersed throughout all
medical specialties, such as obstetrics, orthopedics, pediatrics,
and cardiac care.
§ 35.151(i) Curb ramps
Section 35.151(e) on curb ramps in the 1991 rule has been
redesignated as Sec. 35.151(i). In the NPRM, the Department
proposed making a minor editorial change to this section, deleting
the phrase “other sloped areas” from the two places in which it
appears in the 1991 title II regulation. In the NPRM, the Department
stated that the phrase “other sloped areas” lacks technical
precision. The Department received no significant public comments on
this proposal. Upon further consideration, however, the Department
has concluded that the regulation should acknowledge that there are
times when there are transitions from sidewalk to road surface that do not technically qualify as “curb
ramps” (sloped surfaces that have a running slope that exceed 5
percent). Therefore, the Department has decided not to delete the
phrase “other sloped areas.”
§ 35.151(j) Residential housing for sale to individual owners
Although public entities that operate residential housing
programs are subject to title II of the ADA, and therefore must
provide accessible residential housing, the 1991 Standards did not
contain scoping or technical standards that specifically applied to
residential housing units. As a result, under the Department’s title
II regulation, these agencies had the choice of complying with UFAS,
which contains specific scoping and technical standards for
residential housing units, or applying the ADAAG transient lodging
standards to their housing. Neither UFAS nor the 1991 Standards
distinguish between residential housing provided for rent and those
provided for sale to individual owners. Thus, under the 1991 title
II regulation, public entities that construct residential housing
units to be sold to individual owners must ensure that some of those
units are accessible. This requirement is in addition to any
accessibility requirements imposed on housing programs operated by
public entities that receive Federal financial assistance from
Federal agencies such as HUD.
The 2010 Standards contain scoping and technical standards for
residential dwelling units. However, section 233.3.2 of the 2010
Standards specifically defers to the Department and to HUD, the
standard-setting agency under the ABA, to decide the appropriate
scoping for those residential dwelling units built by or on behalf
of public entities with the intent that the finished units will be
sold to individual owners. These programs include, for example,
HUD’s public housing and HOME programs as well as State-funded
programs to construct units for sale to individuals. In the NPRM,
the Department did not make a specific proposal for this scoping.
Instead, the Department stated that after consultation and
coordination with HUD, the Department would make a determination in
the final rule. The Department also sought public comment on this
issue stating that “[t]he Department would welcome recommendations
from individuals with disabilities, public housing authorities, and
other interested parties that have experience with these programs.
Please comment on the appropriate scoping for residential dwelling
units built by or on behalf of public entities with the intent that
the finished units will be sold to individual owners.” 73 FR 34466,
34492 (June 17, 2008).
All of the public comments received by the Department in
response to this question were supportive of the Department’s
ensuring that the residential standards apply to housing built on
behalf of public entities with the intent that the finished units
would be sold to individual owners. The vast majority of commenters
recommended that the Department require that projects consisting of
five or more units, whether or not the units are located on one or
multiple locations, comply with the 2004 ADAAG requirements for
scoping of residential units, which require that 5 percent, and no
fewer than one, of the dwelling units provide mobility features, and
that 2 percent, and no fewer than one, of the dwelling units provide
communication features. See 2004 ADAAG Section 233.3. These
commenters argued that the Department should not defer to HUD
because HUD has not yet adopted the 2004 ADAAG and there is
ambiguity on the scope of coverage of pre-built for sale units under
HUD’s current section 504 regulations. In addition, these commenters
expressed concern that HUD’s current regulation, 24 CFR 8.29,
presumes that a prospective buyer is identified before design and
construction begins so that disability features can be incorporated
prior to construction. These commenters stated that State and
Federally funded homeownership programs typically do not identify
prospective buyers before construction has commenced. One commenter
stated that, in its experience, when public entities build
accessible for-sale units, they often sell these units through a
lottery system that does not make any effort to match persons who
need the accessible features with the units that have those
features. Thus, accessible units are often sold to persons without
disabilities. This commenter encouraged the Department to make sure
that accessible for-sale units built or funded by public entities
are placed in a separate lottery restricted to income-eligible
persons with disabilities.
Two commenters recommended that the Department develop rules for
four types of for-sale projects: single family pre-built (where
buyer selects the unit after construction), single family post-built
(where the buyer chooses the model prior to its construction),
multi-family pre-built, and multi-family post-built. These
commenters recommended that the Department require pre-built units
to comply with the 2004 ADAAG 233.1 scoping requirements. For post-
built units, the commenters recommended that the Department require
all models to have an alternate design with mobility features and an
alternate design with communications features in compliance with
2004 ADAAG. Accessible models should be available at no extra cost
to the buyer. One commenter recommended that, in addition to
required fully accessible units, all ground floor units should be
readily convertible for accessibility or for sensory impairments
technology enhancements.
The Department believes that consistent with existing
requirements under title II, housing programs operated by public
entities that design and construct or alter residential units for
sale to individual owners should comply with the 2010 Standards,
including the requirements for residential facilities in sections
233 and 809. These requirements will ensure that a minimum of 5
percent of the units, but no fewer than one unit, of the total
number of residential dwelling units will be designed and
constructed to be accessible for persons with mobility disabilities.
At least 2 percent, but no fewer than one unit, of the total number
of residential dwelling units shall provide communication features.
The Department recognizes that there are some programs (such as
the one identified by the commenter), in which units are not
designed and constructed until an individual buyer is identified. In
such cases, the public entity is still obligated to comply with the
2010 Standards. In addition, the public entity must ensure that pre-
identified buyers with mobility disabilities and visual and hearing
disabilities are afforded the opportunity to buy the accessible
units. Once the program has identified buyers who need the number of
accessible units mandated by the 2010 Standards, it may have to make
reasonable modifications to its policies, practices, and procedures
in order to provide accessible units to other buyers with
disabilities who request such units.
The Department notes that the residential facilities standards
allow for construction of units with certain features of
adaptability. Public entities that are concerned that fully
accessible units are less marketable may choose to build these units
to include the allowable adaptable features, and then adapt them at
their own expense for buyers with mobility disabilities who need
accessible units. For example, features such as grab bars are not
required but may be added by the public entity if needed by the
buyer at the time of purchase and cabinets under sinks may be
designed to be removable to allow access to the required knee space
for a forward approach.
The Department agrees with the commenters that covered entities
may have to make reasonable modifications to their policies,
practices, and procedures in order to ensure that when they offer
pre-built accessible residential units for sale, the units are
offered in a manner that gives access to those units to persons with
disabilities who need the features of the units and who are
otherwise eligible for the housing program. This may be
accomplished, for example, by adopting preferences for accessible
units for persons who need the features of the units, holding
separate lotteries for accessible units, or other suitable methods
that result in the sale of accessible units to persons who need the
features of such units. In addition, the Department believes that
units designed and constructed or altered that comply with the
requirements for residential facilities and are offered for sale to
individuals must be provided at the same price as units without such
features.
§ 35.151(k) Detention and correctional facilities
The 1991 Standards did not contain specific accessibility
standards applicable to cells in correctional facilities. However,
correctional and detention facilities operated by or on behalf of
public entities have always been subject to the nondiscrimination
and program accessibility requirements of title II of the ADA. The
2004 ADAAG established specific requirements for the design and
construction and alterations of cells in correctional facilities for
the first time.
Based on complaints received by the Department, investigations,
and compliance reviews of jails, prisons, and other detention and
correctional facilities, the Department has determined that many
detention and correctional facilities do not have enough accessible cells,
toilets, and shower facilities to meet the needs of their inmates
with mobility disabilities and some do not have any at all. Inmates
are sometimes housed in medical units or infirmaries separate from
the general population simply because there are no accessible cells.
In addition, some inmates have alleged that they are housed at a
more restrictive classification level simply because no accessible
housing exists at the appropriate classification level. The
Department’s compliance reviews and investigations have
substantiated certain of these allegations.
The Department believes that the insufficient number of
accessible cells is, in part, due to the fact that most jails and
prisons were built long before the ADA became law and, since then,
have undergone few alterations that would trigger the obligation to
provide accessible features in accordance with UFAS or the 1991
Standards. In addition, the Department has found that even some new
correctional facilities lack accessible features. The Department
believes that the unmet demand for accessible cells is also due to
the changing demographics of the inmate population. With thousands
of prisoners serving life sentences without eligibility for parole,
prisoners are aging, and the prison population of individuals with
disabilities and elderly individuals is growing. A Bureau of Justice
Statistics study of State and Federal sentenced inmates (those
sentenced to more than one year) shows the total estimated count of
State and Federal prisoners aged 55 and older grew by 36,000 inmates
from 2000 (44,200) to 2006 (80,200). William J. Sabol et al.,
Prisoners in 2006, Bureau of Justice Statistics Bulletin, Dec. 2007,
at 23 (app. table 7), available at http://bjs.ojp.usdoj.gov/
index.cfm?ty=pbdetail&iid=908 (last visited July 16, 2008); Allen J.
Beck et al., Prisoners in 2000, Bureau of Justice Statistics
Bulletin, Aug. 2001, at 10 (Aug. 2001) (Table 14), available at
bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=927 (last visited July
16, 2008). This jump constitutes an increase of 81 percent in
prisoners aged 55 and older during this period.
In the NPRM, the Department proposed a new section, Sec.
35.152, which combined a range of provisions relating to both
program accessibility and application of the proposed standards to
detention and correctional facilities. In the final rule, the
Department is placing those provisions that refer to design,
construction, and alteration of detention and correction facilities
in a new paragraph (k) of Sec. 35.151, the section of the rule that
addresses new construction and alterations for covered entities.
Those portions of the final rule that address other issues, such as
placement policies and program accessibility, are placed in the new
Sec. 35.152.
In the NPRM, the Department also sought input on how best to
meet the needs of inmates with mobility disabilities in the design,
construction, and alteration of detention and correctional
facilities. The Department received a number of comments in response
to this question.
New Construction. The NPRM did not expressly propose that new
construction of correctional and detention facilities shall comply
with the proposed standards because the Department assumed it would
be clear that the requirements of Sec. 35.151 would apply to new
construction of correctional and detention facilities in the same
manner that they apply to other facilities constructed by covered
entities. The Department has decided to create a new section, Sec.
35.151(k)(1), which clarifies that new construction of jails,
prisons, and other detention facilities shall comply with the
requirements of 2010 Standards. Section 35.151(k)(1) also increases
the scoping for accessible cells from the 2 percent specified in the
2004 ADAAG to 3 percent.
Alterations. Although the 2010 Standards contain specifications
for alterations in existing detention and correctional facilities,
section 232.2 defers to the Attorney General the decision as to the
extent these requirements will apply to alterations of cells. The
NPRM proposed at Sec. 35.152(c) that “[a]lterations to jails,
prisons, and other detention and correctional facilities will comply
with the requirements of Sec. 35.151(b).” 73 FR 34466, 34507 (June
17, 2008). The final rule retains that requirement at Sec.
35.151(k)(2), but increases the scoping for accessible cells from
the 2 percent specified in the 2004 ADAAG to 3 percent.
Substitute cells. In the ANPRM, the Department sought public
comment about the most effective means to ensure that existing
correctional facilities are made accessible to prisoners with
disabilities and presented three options: (1) Require all altered
elements to be accessible, which would maintain the current policy
that applies to other ADA alteration requirements; (2) permit
substitute cells to be made accessible within the same facility,
which would permit correctional authorities to meet their obligation
by providing the required accessible features in cells within the
same facility, other than those specific cells in which alterations
are planned; or (3) permit substitute cells to be made accessible
within a prison system, which would focus on ensuring that prisoners
with disabilities are housed in facilities that best meet their
needs, as alterations within a prison environment often result in
piecemeal accessibility.
In Sec. 35.152(c) of the NPRM, the Department proposed language
based on Option 2, providing that when cells are altered, a covered
entity may satisfy its obligation to provide the required number of
cells with mobility features by providing the required mobility
features in substitute cells (i.e., cells other than those where
alterations are originally planned), provided that each substitute
cell is located within the same facility, is integrated with other
cells to the maximum extent feasible, and has, at a minimum,
physical access equal to that of the original cells to areas used by
inmates or detainees for visitation, dining, recreation, educational
programs, medical services, work programs, religious services, and
participation in other programs that the facility offers to inmates
or detainees.
The Department received few comments on this proposal. The
majority who chose to comment supported an approach that allowed
substitute cells to be made accessible within the same facility. In
their view, such an approach balanced administrators’ needs, cost
considerations, and the needs of inmates with disabilities. One
commenter noted, however, that with older facilities, required
modifications may be inordinately costly and technically infeasible.
A large county jail system supported the proposed approach as the
most viable option allowing modification or alteration of existing
cells based on need and providing a flexible approach to provide
program and mobility accessibility. It noted, as an alternative,
that permitting substitute cells to be made accessible within a
prison system would also be a viable option since such an approach
could create a centralized location for accessibility needs and,
because that jail system’s facilities were in close proximity, it
would have little impact on families for visitation or on accessible
programming.
A large State department of corrections objected to the
Department’s proposal. The commenter stated that some very old
prison buildings have thick walls of concrete and reinforced steel
that are difficult, if not impossible to retrofit, and to do so
would be very expensive. This State system approaches accessibility
by looking at its system as a whole and providing access to programs
for inmates with disabilities at selected prisons. This commenter
explained that not all of its facilities offer the same programs or
the same levels of medical or mental health services. An inmate, for
example, who needs education, substance abuse treatment, and sex
offender counseling may be transferred between facilities in order
to meet his needs. The inmate population is always in flux and there
are not always beds or program availability for every inmate at his
security level. This commenter stated that the Department’s proposed
language would put the State in the position of choosing between
adding accessible cells and modifying paths of travel to programs
and services at great expense or not altering old facilities,
causing them to become in states of disrepair and obsolescent, which
would be fiscally irresponsible.
The Department is persuaded by these comments and has modified
the alterations requirement in Sec. 35.151(k)(2)(iv) in the final
rule to allow that if it is technically infeasible to provide
substitute cells in the same facility, cells can be provided
elsewhere within the corrections system.
Number of accessible cells. Section 232.2.1 of the 2004 ADAAG
requires at least 2 percent, but no fewer than one, of the cells in
newly constructed detention and correctional facilities to have
accessibility features for individuals with mobility disabilities.
Section 232.3 provides that, where special holding cells or special
housing cells are provided, at least one cell serving each purpose
shall have mobility features. The Department sought input on whether
these 2004 ADAAG requirements are sufficient to meet the needs of
inmates with mobility disabilities. A major association representing
county jails throughout the country stated that the 2004 ADAAG 2
percent requirement for accessible cells is sufficient to meet the
needs of county jails.
Similarly, a large county sheriff’s department advised that the 2
percent requirement far exceeds the need at its detention facility,
where the average age of the population is 32. This commenter
stressed that the regulations need to address the differences
between a local detention facility with low average lengths of stay
as opposed to a State prison housing inmates for lengthy periods.
This commenter asserted that more stringent requirements will raise
construction costs by requiring modifications that are not needed.
If more stringent requirements are adopted, the commenter suggested
that they apply only to State and Federal prisons that house
prisoners sentenced to long terms. The Department notes that a
prisoner with a mobility disability needs a cell with mobility
features regardless of the length of incarceration. However, the
length of incarceration is most relevant in addressing the needs of
an aging population.
The overwhelming majority of commenters responded that the 2
percent ADAAG requirement is inadequate to meet the needs of the
incarcerated. Many commenters suggested that the requirement be
expanded to apply to each area, type, use, and class of cells in a
facility. They asserted that if a facility has separate areas for
specific programs, such as a dog training program or a substance
abuse unit, each of these areas should also have 2 percent
accessible cells but not less than one. These same commenters
suggested that 5-7 percent of cells should be accessible to meet the
needs of both an aging population and the larger number of inmates
with mobility disabilities. One organization recommended that the
requirement be increased to 5 percent overall, and that at least 2
percent of each type and use of cell be accessible. Another
commenter recommended that 10 percent of cells be accessible. An
organization with extensive corrections experience noted that the
integration mandate requires a sufficient number and distribution of
accessible cells so as to provide distribution of locations relevant
to programs to ensure that persons with disabilities have access to
the programs.
Through its investigations and compliance reviews, the
Department has found that in most detention and correctional
facilities, a 2 percent accessible cell requirement is inadequate to
meet the needs of the inmate population with disabilities. That
finding is supported by the majority of the commenters that
recommended a 5-7 percent requirement. Indeed, the Department itself
requires more than 2 percent of the cells to be accessible at its
own corrections facilities. The Federal Bureau of Prisons is subject
to the requirements of the 2004 ADAAG through the General Services
Administration’s adoption of the 2004 ADAAG as the enforceable
accessibility standard for Federal facilities under the
Architectural Barriers Act of 1968. 70 FR 67786, 67846-47 (Nov. 8,
2005). However, in order to meet the needs of inmates with mobility
disabilities, the Bureau of Prisons has elected to increase that
percentage and require that 3 percent of inmate housing at its
facilities be accessible. Bureau of Prisons, Design Construction
Branch, Design Guidelines, Attachment A: Accessibility Guidelines
for Design, Construction, and Alteration of Federal Bureau of
Prisons (Oct. 31, 2006).
The Department believes that a 3 percent accessible requirement
is reasonable. Moreover, it does not believe it should impose a
higher percentage on detention and corrections facilities than it
utilizes for its own facilities. Thus, the Department has adopted a
3 percent requirement in Sec. 35.151(k) for both new construction
and alterations. The Department notes that the 3 percent requirement
is a minimum. As corrections systems plan for new facilities or
alterations, the Department urges planners to include numbers of
inmates with disabilities in their population projections in order
to take the necessary steps to provide a sufficient number of
accessible cells to meet inmate needs.
Dispersion of Cells. The NPRM did not contain express language
addressing dispersion of cells in a facility. However, Advisory
232.2 of the 2004 ADAAG recommends that “[a]ccessible cells or
rooms should be dispersed among different levels of security,
housing categories, and holding classifications (e.g., male/female
and adult/juvenile) to facilitate access.” In explaining the basis
for recommending, but not requiring, this type of dispersal, the
Access Board stated that “[m]any detention and correctional
facilities are designed so that certain areas (e.g., `shift’ areas)
can be adapted to serve as different types of housing according to
need” and that “[p]lacement of accessible cells or rooms in shift
areas may allow additional flexibility in meeting requirements for
dispersion of accessible cells or rooms.”
The Department notes that inmates are typically housed in
separate areas of detention and correctional facilities based on a
number of factors, including their classification level. In many
instances, detention and correctional facilities have housed inmates
in inaccessible cells, even though accessible cells were available
elsewhere in the facility, because there were no cells in the areas
where they needed to be housed, such as in administrative or
disciplinary segregation, the women’s section of the facility, or in
a particular security classification area.
The Department received a number of comments stating that
dispersal of accessible cells together with an adequate number of
accessible cells is necessary to prevent inmates with disabilities
from placement in improper security classification and to ensure
integration. Commenters recommended modification of the scoping
requirements to require a percentage of accessible cells in each
program, classification, use or service area. The Department is
persuaded by these comments. Accordingly, Sec. 35.151(k)(1) and
(k)(2) of the final rule require accessible cells in each
classification area.
Medical facilities. The NPRM also did not propose language
addressing the application of the 2004 ADAAG to medical and long-
term care facilities in correctional and detention facilities. The
provisions of the 2004 ADAAG contain requirements for licensed
medical and long-term care facilities, but not those that are
unlicensed. A disability advocacy group and a number of other
commenters recommended that the Department expand the application of
section 232.4 to apply to all such facilities in detention and
correctional facilities, regardless of licensure. They recommended
that whenever a correctional facility has a program that is
addressed specifically in the 2004 ADAAG, such as a long-term care
facility, the 2004 ADAAG scoping and design features should apply
for those elements. Similarly, a building code organization noted
that its percentage requirements for accessible units is based on
what occurs in the space, not on the building type.
The Department is persuaded by these comments and has added
Sec. 35.151(k)(3), which states that “[w]ith respect to medical
and long-term care facilities in jails, prisons, and other detention
and correctional facilities, public entities shall apply the 2010
Standards technical and scoping requirements for those facilities
irrespective of whether those facilities are licensed.”
Public Accommodations and Commercial Facilities: Guidance on the Revisions to 28 CFR part 36, subpart D
Guidance on the Revisions to 28 CFR part 36, subpart D
Subpart D establishes the title III requirements applicable to
new construction and alterations. The Department has amended this
subpart to adopt the 2004 ADAAG, set forth the effective dates for
implementation of the 2010 Standards, and make related revisions as
described below.
§ 36.403 Alterations: Path of Travel
In the NPRM, the Department proposed one change to Sec. 36.403
on alterations and path of travel by adding a path of travel safe
harbor. Proposed Sec. 36.403(a)(1) stated that if a private entity
has constructed or altered required elements of a path of travel in
accordance with the 1991 Standards, the private entity is not
required to retrofit such elements to reflect incremental changes in
the 2010 Standards solely because of an alteration to a primary
function area served by that path of travel.
A substantial number of commenters objected to the Department’s
creation of a safe harbor for alterations to required elements of a
path of travel that comply with the current 1991 Standards. These
commenters argued that if a public accommodation already is in the
process of altering its facility, there should be a legal
requirement that individuals with disabilities are entitled to
increased accessibility provided by the 2004 ADAAG for path of
travel work. These commenters also stated that they did not believe
there was a statutory basis for “grandfathering” facilities that
comply with the 1991 Standards. Another commenter argued that the
updates incorporated into the 2004 ADAAG provide very substantial
improvements for access, and that since there already is a 20
percent cost limit on the amount that can be expended on path of
travel alterations, there is no need for a further limitation.
Some commenters supported the safe harbor as lessening the
economic costs of implementing the 2004 ADAAG for existing
facilities. One commenter also stated that without the safe harbor,
entities that already have complied with the 1991 Standards will
have to make and pay for compliance twice, as compared to those
entities that made no effort to comply in the first place. Another
commenter asked that the safe harbor be revised to include pre-ADA
facilities that have been made compliant with the 1991 Standards to
the extent “readily achievable” or, in the case of alterations,
“to the maximum extent feasible,” but that are not in full
compliance with the 1991 Standards.
The final rule retains the safe harbor for required elements of
a path of travel to altered primary function areas for private
entities that already have complied with the 1991 Standards with
respect to those required elements. As discussed with respect to
Sec. 36.304, the Department believes that this safe harbor strikes
an appropriate balance between ensuring that individuals with
disabilities are provided access to buildings and facilities and
mitigating potential financial burdens on existing places of public
accommodation that are undertaking alterations subject to the 2010
Standards. This safe harbor is not a blanket exemption for
facilities. If a private entity undertakes an alteration to a
primary function area, only the required elements of a path of
travel to that area that already comply with the 1991 Standards are
subject to the safe harbor. If a private entity undertakes an
alteration to a primary function area and the required elements of a path of travel to the altered area do not comply with
the 1991 Standards, then the private entity must bring those
elements into compliance with the 2010 Standards.
§ 36.405 Alterations: Historic Preservation
In the 1991 rule, the Department provided guidance on making
alterations to buildings or facilities that are eligible for listing
in the National Register of Historic Places under the National
Historic Preservation Act or that are designated as historic under
State or local law. That provision referenced the 1991 Standards.
Because those cross-references to the 1991 Standards are no longer
applicable, it is necessary in this final rule to provide new
regulatory text. No substantive change in the Department’s approach
in this area is intended by this revision.
§ 36.406 Standards for New Construction and Alterations
Applicable standards. Section 306 of the ADA, 42 U.S.C. 12186,
directs the Attorney General to issue regulations to implement title
III that are consistent with the guidelines published by the Access
Board. As described in greater detail elsewhere in this Appendix,
the Department is a statutory member of the Access Board and was
involved significantly in the development of the 2004 ADAAG.
Nonetheless, the Department has reviewed the standards and has
determined that additional regulatory provisions are necessary to
clarify how the Department will apply the 2010 Standards to places
of lodging, social service center establishments, housing at a place
of education, assembly areas, and medical care facilities. Those
provisions are contained in Sec. 36.406(c)-(g). Each of these
provisions is discussed below.
Section 36.406(a) adopts the 2004 ADAAG as part of the 2010
Standards and establishes the compliance date and triggering events
for the application of those standards to both new construction and
alterations. Appendix B of this final rule (Analysis and Commentary
on the 2010 ADA Standards for Accessible Design) provides a
description of the major changes in the 2010 Standards (as compared
to the 1991 ADAAG) and a discussion of the public comments that the
Department received on specific sections of the 2004 ADAAG. A number
of commenters asked the Department to revise certain provisions in
the 2004 ADAAG in a manner that would reduce either the required
scoping or specific technical accessibility requirements. As
previously stated, the ADA requires the Department to adopt
standards consistent with the guidelines adopted by the Access
Board. The Department will not adopt any standards that provide less
accessibility than is provided under the guidelines contained in the
2004 ADAAG because the guidelines adopted by the Access Board are
“minimum guidelines.” 42 U.S.C. 12186(c).
In the NPRM, the Department specifically proposed amending Sec.
36.406(a) by dividing it into two sections. Proposed Sec.
36.406(a)(1) specified that new construction and alterations subject
to this part shall comply with the 1991 Standards if physical
construction of the property commences less than six months after
the effective date of the rule. Proposed Sec. 36.406(a)(2)
specified that new construction and alterations subject to this part
shall comply with the proposed standards if physical construction of
the property commences six months or more after the effective date
of the rule. The Department also proposed deleting the advisory
information now published in a table at Sec. 36.406(b).
Compliance date. When the ADA was enacted, the compliance dates
for various provisions were delayed in order to provide time for
covered entities to become familiar with their new obligations.
Titles II and III of the ADA generally became effective on January
26, 1992, six months after the regulations were published. See 42
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under
title II and alterations under either title II or title III had to
comply with the design standards on that date. See 42 U.S.C. 12131
note; 42 U.S.C. 12183(a)(2). For new construction under title III,
the requirements applied to facilities designed and constructed for
first occupancy after January 26, 1993–18 months after the 1991
Standards were published by the Department. See 42 U.S.C.
12183(a)(1).
The Department received numerous comments on the issue of
effective date, many of them similar to those received in response
to the ANPRM. A substantial number of commenters advocated a minimum
of 18 months from publication of the final rule to the effective
date for application of the standards to new construction,
consistent with the time period used for implementation of the 1991
Standards. Many of these commenters argued that the 18-month period
was necessary to minimize the likelihood of having to redesign
projects already in the design and permitting stages at the time
that the final rule is published. According to these commenters,
large projects take several years from design to occupancy, and can
be subject to delays from obtaining zoning, site approval, third-
party design approval (i.e., architectural review), and governmental
permits. To the extent the new standards necessitate changes in any
previous submissions or permits already issued, businesses might
have to expend significant funds and incur delays due to redesign
and resubmission.
Some commenters also expressed concern that a six-month period
would be hard to implement given that many renovations are planned
around retail selling periods, holidays, and other seasonal
concerns. For example, hotels plan renovations during their slow
periods, retail establishments avoid renovations during the major
holiday selling periods, and businesses in certain parts of the
country cannot do any major construction during parts of the winter.
Some commenters argued that chain establishments need additional
time to redesign their “master facility” designs for replication
at multiple locations, taking into account both the new standards
and applicable State and local accessibility requirements.
Other commenters argued for extending the effective date from
six months to a minimum of 12 months for many of the same reasons,
and one commenter argued that there should be a tolling of the
effective date for those businesses that are in the midst of the
permitting process if the necessary permits are delayed due to legal
challenges or other circumstances outside the business’s control.
Several commenters took issue with the Department’s
characterization of the 2004 ADAAG and the 1991 Standards as two
similar rules. These commenters argued that many provisions in the
2004 ADAAG represent a “substantial and significant” departure
from the 1991 Standards and that it will take a great deal of time
and money to identify all the changes and implement them. In
particular, they were concerned that small businesses lacked the
internal resources to respond quickly to the new changes and that
they would have to hire outside experts to assist them. One
commenter expressed concern that regardless of familiarity with the
2004 ADAAG, since the 2004 ADAAG standards are organized in an
entirely different manner from the 1991 Standards, and contain, in
the commenter’s view, extensive changes, it will make the shift from
the old to the new standards quite complicated.
Several commenters also took issue with the Department’s
proffered rationale that by adopting a six-month effective date, the
Department was following the precedent of other Federal agencies
that have adopted the 2004 ADAAG for facilities whose accessibility
they regulate. These commenters argued that the Department’s title
III regulation applies to a much broader range and number of
facilities and programs than the other Federal agencies (i.e.,
Department of Transportation and the General Services
Administration) and that those agencies regulate accessibility
primarily in either governmental facilities or facilities operated
by quasi-governmental authorities.
Several commenters representing the travel, vacation, and golf
industries argued that the Department should adopt a two-year
effective date for new construction. In addition to many of the
arguments made by commenters in support of an 18-month effective
date, these commenters also argued that a two-year time frame would
allow States with DOJ-certified building codes to have the time to
amend their codes to meet the 2004 ADAAG so that design
professionals can work from compatible codes and standards.
Several commenters recommended treating alterations differently
than new construction, arguing for a one-year effective date for
alterations. Another commenter representing building officials
argued that a minimum of a six-month phase-in for alterations was
sufficient, since a very large percentage of alteration projects
“are of a scale that they should be able to accommodate the phase-
in.”
In contrast, many commenters argued that the proposed six-month
effective date should be retained in the final rule.
The Department has been persuaded by concerns raised by some of
the commenters that the six month compliance date proposed in the
NPRM for application of the 2010 Standards may be too short for
certain projects that are already in the midst of the design and permitting process. The Department has determined that
for new construction and alterations, compliance with the 2010
Standards will not be required until 18 months from the date the
final rule is published. This is consistent with the amount of time
given when the 1991 regulation was published. Since many State and
local building codes contain provisions that are consistent with
2004 ADAAG, the Department has decided that public accommodations
that choose to comply with the 2010 Standards as defined in Sec.
36.104 before the compliance date will still be considered in
compliance with the ADA. However, public accommodations that choose
to comply with the 2010 Standards in lieu of the 1991 Standards
prior to the compliance date described in this rule must choose one
or the other standard, and may not rely on some of the requirements
contained in one standard and some of the requirements contained in
the other standard.
Triggering event. In the NPRM, the Department proposed using the
start of physical construction as the triggering event for applying
the proposed standards to new construction under title III. This
triggering event parallels that for the alterations provisions
(i.e., the date on which construction begins), and would apply
clearly across all types of covered public accommodations. The
Department also proposed that for prefabricated elements, such as
modular buildings and amusement park rides and attractions, or
installed equipment, such as ATMs, the start of construction means
the date on which the site preparation begins. Site preparation
includes providing an accessible route to the element.
The Department’s NPRM sought public comment on how to define the
start of construction and the practicality of applying commencement
of construction as a triggering event. The Department also requested
input on whether the proposed definition of the start of
construction was sufficiently clear and inclusive of different types
of facilities. The Department also sought input about facilities
subject to title III for which commencement of construction would be
ambiguous or problematic.
The Department received numerous comments recommending that the
Department adopt a two-pronged approach to defining the triggering
event. In those cases where permits are required, the Department
should use “date of permit application” as the effective date
triggering event, and if no permit is required, the Department
should use “start of construction.” A number of these commenters
argued that the date of permit application is appropriate because
the applicant would have to consider the applicable State and
Federal accessibility standards in order to submit the designs
usually required with the application. Moreover, the date of permit
application is a typical triggering event in other code contexts,
such as when jurisdictions introduce an updated building code. Some
commenters expressed concern that using the date of “start of
construction” was problematic because the date can be affected by
factors that are outside the control of the owner. For example, an
owner can plan construction to start before the new standards take
effect and therefore use the 1991 Standards in the design. If
permits are not issued in a timely manner, then the construction
could be delayed until after the effective date, and then the
project would have to be redesigned. This problem would be avoided
if the permit application date was the triggering event. Two
commenters expressed concern that the term “start of construction”
is ambiguous, because it is unclear whether start of construction
means the razing of structures on the site to make way for a new
facility or means site preparation, such as regrading or laying the
foundation.
One commenter recommended using the “signing date of a
construction contract,” and an additional commenter recommended
that the new standards apply only to “buildings permitted after the
effective date of the regulations.”
One commenter stated that for facilities that fall outside the
building permit requirements (ATMs, prefabricated saunas, small
sheds), the triggering event should be the date of installation,
rather than the date the space for the facility is constructed.
The Department is persuaded by the comments to adopt a two-
pronged approach to defining the triggering event for new
construction and alterations. The final rule states that in those
cases where permits are required, the triggering event shall be the
date when the last application for a building permit application or
permit extension is certified to be complete by a State, county, or
local government, or in those jurisdictions where the government
does not certify completion of applications, the date when the last
application for a building permit or permit extension is received by
the State, county, or local government. If no permits are required,
then the triggering event shall be the “start of physical
construction or alterations.” The Department has also added
clarifying language related to the term “start of physical
construction or alterations” to make it clear that “start of
physical construction or alterations” is not intended to mean the
date of ceremonial groundbreaking or the date a structure is razed
to make it possible for construction of a facility to take place.
Amusement rides. Section 234 of the 2010 Standards provides
accessibility guidelines for newly designed and constructed
amusement rides. The amusement ride provisions do not provide a
“triggering event” for new construction or alteration of an
amusement ride. An industry commenter requested that the triggering
event of “first use” as noted in the Advisory note to section
234.1 of the 2004 ADAAG be included in the final rule. The Advisory
note provides that “[a] custom designed and constructed ride is new
upon its first use, which is the first time amusement park patrons
take the ride.” The Department declines to treat amusement rides
differently than other types of new construction and alterations and
under the final rule, they are subject to Sec. 36.406(a)(3). Thus,
newly constructed and altered amusement rides shall comply with the
2010 Standards if the start of physical construction or the
alteration is on or after 18 months from the publication date of
this rule. The Department also notes that section 234.4.2 of the
2010 Standards only applies where the structural or operational
characteristics of an amusement ride are altered. It does not apply
in cases where the only change to a ride is the theme.
Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec. 36.304(d)(2) has no effect
on new or altered elements in existing facilities that were subject
to the 1991 Standards on the date that they were constructed or
altered, but do not comply with the technical and scoping
specifications for those elements in the 1991 Standards. Section
36.406(a)(5) of the final rule sets forth the rules for noncompliant
new construction or alterations in facilities that were subject to
the requirements of this part. Under those provisions, noncomplying
new construction and alterations constructed or altered after the
effective date of the applicable ADA requirements and before March
15, 2012 shall, before March 15, 2012, be made accessible in
accordance with either the 1991 Standards or the 2010 Standards. Noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and
before March 15, 2012, shall, on or after March 15, 2012, be made
accessible in accordance with the 2010 Standards.
§ 36.406(b) Application of Standards to Fixed Elements
The final rule contains a new Sec. 36.406(b) that clarifies
that the requirements established by this section, including those
contained in the 2004 ADAAG, prescribe the requirements necessary to
ensure that fixed or built-in elements in new or altered facilities
are accessible to individuals with disabilities. Once the
construction or alteration of a facility has been completed, all
other aspects of programs, services, and activities conducted in
that facility are subject to the operational requirements
established elsewhere in this final rule. Although the Department
has often chosen to use the requirements of the 1991 Standards as a
guide to determining when and how to make equipment and furnishings
accessible, those coverage determinations fall within the
discretionary authority of the Department.
The Department is also clarifying that the advisory notes,
appendix notes, and figures that accompany the 1991 and 2010
Standards do not establish separately enforceable requirements
unless otherwise specified in the text of the standards. This
clarification has been made to address concerns expressed by ANPRM
commenters who mistakenly believed that the advisory notes in the
2004 ADAAG established requirements beyond those established in the
text of the guidelines (e.g., Advisory 504.4 suggests, but does not
require, that covered entities provide visual contrast on stair
tread nosings to make them more visible to individuals with low
vision). The Department received no comments on this provision in
the NPRM.
§ 36.406(c) Places of Lodging
In the NPRM, the Department proposed a new definition for public
accommodations that are “places of lodging” and a new Sec.
36.406(c) to clarify the scope of coverage for places of public
accommodation that meet this definition. For many years the
Department has received inquiries from members of the public seeking
clarification of ADA coverage of rental accommodations in
timeshares, condominium hotels, and mixed-use and corporate hotel
facilities that operate as places of public accommodation (as that
term is now defined in Sec. 36.104). These facilities, which have
attributes of both residential dwellings and transient lodging
facilities, have become increasingly popular since the ADA’s
enactment in 1990 and make up the majority of new hotel construction
in some vacation destinations. The hybrid residential and lodging
characteristics of these new types of facilities, as well as their
ownership characteristics, complicate determinations of ADA
coverage, prompting questions from both industry and individuals
with disabilities. While the Department has interpreted the ADA to
encompass these hotel-like facilities when they are used to provide
transient lodging, the regulation previously has specifically not
addressed them. In the NPRM, the Department proposed a new Sec.
36.406(c), entitled “Places of Lodging,” which was intended to
clarify that places of lodging, including certain timeshares,
condominium hotels, and mixed-use and corporate hotel facilities,
shall comply with the provisions of the proposed standards,
including, but not limited to, the requirements for transient
lodging in sections 224 and 806 of the 2004 ADAAG.
The Department’s NPRM sought public input on this proposal. The
Department received a substantial number of comments on these issues
from industry representatives, advocates for persons with
disabilities, and individuals. A significant focus of these comments
was on how the Department should define and regulate vacation rental
units in timeshares, vacation communities, and condo-hotels where
the units are owned and controlled by individual owners and rented
out some portion of time to the public, as compared to traditional
hotels and motels that are owned, controlled, and rented to the
public by one entity.
Scoping and technical requirements applicable to “places of
lodging.” In the NPRM, the Department asked for public comment on
its proposal in Sec. 36.406(c) to apply to places of lodging the
scoping and technical requirements for transient lodging, rather
than the scoping and technical requirements for residential dwelling
units.
Commenters generally agreed that the transient lodging
requirements should apply to places of lodging. Several commenters
stated that the determination as to which requirements apply should
be made based on the intention for use at the time of design and
construction. According to these commenters, if units are intended
for transient rentals, then the transient lodging standards should
apply, and if they are intended to be used for residential purposes,
the residential standards should apply. Some commenters agreed with
the application of transient lodging standards to places of lodging
in general, but disagreed about the characterization of certain
types of facilities as covered places of lodging.
The Department agrees that the scoping and technical standards
applicable to transient lodging should apply to facilities that
contain units that meet the definition of “places of lodging.”
Scoping for timeshare or condominium hotels. In the NPRM, the
Department sought comment on the appropriate basis for determining
scoping for a timeshare or condominium-hotel. A number of commenters
indicated that scoping should be based on the usage of the facility. Only those units used for short-term stays should be counted for
application of the transient lodging standards, while units sold as
residential properties should be treated as residential units not
subject to the ADA. One commenter stated that scoping should be
based on the maximum number of sleeping units available for public
rental. Another commenter pointed out that unlike traditional hotels
and motels, the number of units available for rental in a facility
or development containing individually owned units is not fixed over
time. Owners have the right to participate in a public rental
program some, all, or none of the time, and individual owner
participation changes from year to year.
The Department believes that the determination for scoping
should be based on the number of units in the project that are
designed and constructed with the intention that their owners may
participate in a transient lodging rental program. The Department
cautions that it is not the number of owners that actually exercise
their right to participate in the program that determines the
scoping. Rather it is the units that could be placed into an on-site
or off-site transient lodging rental program. In the final rule, the
Department has added a provision to Sec. 36.406(c)(3), which states
that units intended to be used exclusively for residential purposes
that are contained in facilities that also meet the definition of
place of lodging are not covered by the transient lodging standards. Title III of the ADA does not apply to units designed and
constructed with the intention that they be rented or sold as
exclusively residential units. Such units are covered by the Fair
Housing Act (FHAct), which contains requirements for certain
features of accessible and adaptable design both for units and for
public and common use areas. All units designed and constructed with
the intention that they may be used for both residential and
transient lodging purposes are covered by the ADA and must be
counted for determining the required number of units that must meet
the transient lodging standards in the 2010 Standards. Public use
and common use areas in facilities containing units subject to the
ADA also must meet the 2010 Standards. In some developments, units
that may serve as residential units some of the time and rental
units some of the time will have to meet both the FHAct and the ADA
requirements. For example, all of the units in a vacation
condominium facility whose owners choose to rent to the public when
they are not using the units themselves would be counted for the
purposes of determining the appropriate number of units that must
comply with the 2010 Standards. In a newly constructed condominium
that has three floors with units dedicated to be sold solely as
residential housing and three floors with units that may be used as
residences or hotel units, only the units on the three latter floors
would be counted for applying the 2010 Standards. In a newly
constructed timeshare development containing 100 units, all of which
may be made available to the public through an exchange or rental
program, all 100 units would be counted for purposes of applying the
2010 Standards.
One commenter also asked the Department for clarification of how
to count individually owned “lock-off units.” Lock-off units are
units that are multi-bedroom but can be “locked off” into two
separate units, each having individual external access. This
commenter requested that the Department state in the final rule that
individually owned lock-off units do not constitute multiple guest
rooms for purposes of calculating compliance with the scoping
requirements for accessible units, since for the most part the lock-
off units are used as part of a larger accessible unit, and portions
of a unit not locked off would constitute both an accessible one-
bedroom unit or an accessible two-bedroom unit with the lock-off
unit.
It is the Department’s view that lock-off units that are
individually owned that can be temporarily converted into two units
do not constitute two separate guest rooms for purposes of
calculating compliance with the scoping requirements.
One commenter asked the Department how developers should scope
units where buildings are constructed in phases over a span of
years, recommending that the scoping be based on the total number of
units expected to be constructed at the project and not on a
building-by-building basis or on a phase-by-phase basis. The
Department does not think scoping should be based on planned number
of units, which may or may not be actually constructed over a period
of years. However, the Department recognizes that resort
developments may contain buildings and facilities that are of all
sizes from single-unit cottages to facilities with hundreds of
units. The Department believes it would be appropriate to allow
designers, builders, and developers to aggregate the units in
facilities with 50 or fewer units that are subject to a single
permit application and that are on a common site or that are
constructed at the same time for the purposes of applying the
scoping requirements in table 224.2. Facilities with more than 50
units should be scoped individually in accordance with the table.
The regulation has been revised to reflect this application of the
scoping requirements.
One commenter also asked the Department to use the title III
regulation to declare that timeshares subject to the transient
lodging standards are exempt from the design and construction
requirements of the FHAct. The coverage of the FHAct is set by
Congress and interpreted by regulations issued by the Department of
Housing and Urban Development. The Department has no authority to exempt anyone from
coverage of the FHAct.
Application of ADA to places of lodging that contain
individually owned units. The Department believes that regardless of
ownership structure for individual units, rental programs (whether
they are on- or off-site) that make transient lodging guest rooms
available to the public must comply with the general
nondiscrimination requirements of the ADA. In addition, as provided
in Sec. 36.406(c), newly constructed facilities that contain
accommodations intended to be used for transient lodging purposes
must comply with the 2010 Standards.
In the NPRM, the Department asked for public comment on several
issues related to ensuring the availability of accessible units in a
rental program operated by a place of lodging. The Department sought
input on how it could address a situation in which a new or
converted facility constructs the required number of accessible
units, but the owners of those units choose not to participate in
the rental program; whether the facility has an obligation to
encourage or require owners of accessible units to participate in
the rental program; and whether the facility developer, the
condominium association, or the hotel operator has an obligation to
retain ownership or control over a certain number of accessible
units to avoid this problem.
In the NPRM, the Department sought public input on how to
regulate scoping for a timeshare or condominium-rental facility that
decides, after the sale of units to individual owners, to begin a
rental program that qualifies the facility as a place of lodging,
and how the condominium association, operator, or developer should
determine which units to make accessible.
A number of commenters expressed concerns about the ability of
the Department to require owners of accessible units to participate
in the rental program, to require developers, condo associations, or
homeowners associations to retain ownership of accessible units, and
to impose accessibility requirements on individual owners who choose
to place inaccessible units into a rental program after purchase. These commenters stated that individuals who purchase accessible
vacation units in condominiums, individual vacation homes, and
timeshares have ownership rights in their units and may choose
lawfully to make their units available to the public some, all, or
none of the time. Commenters advised the Department that the
Securities and Exchange Commission takes the position that if
condominium units are offered in connection with participation in a
required rental program for any part of the year, require the use of
an exclusive rental agent, or impose conditions otherwise
restricting the occupancy or rental of the unit, then that offering
will be viewed as an offering of securities in the form of an
investment (rather than a real estate offering). SEC Release No. 33-
5347, Guidelines as to the Applicability of the Federal Securities
Laws to Offers and Sales of Condominiums or Units in a Real Estate
Development (Jan. 4, 1973). Consequently, most condominium
developers do not impose such restrictions at the time of sale.
Moreover, owners who choose to rent their units as a short-term
vacation rental can select any rental or management company to lease
and manage their unit, or they may rent them out on their own. They
also may choose never to lease those units. Thus, there are no
guarantees that at any particular time, accessible units will be
available for rental by the public. According to this commenter,
providing incentives for owners of accessible units to place their
units in the rental program will not work, because it does not
guarantee the availability of the requisite number of rooms
dispersed across the development, and there is not any reasonable,
identifiable source of funds to cover the costs of such incentives.
A number of commenters also indicated that it potentially is
discriminatory as well as economically infeasible to require that a
developer hold back the accessible units so that the units can be
maintained in the rental program year-round. One commenter pointed
out that if a developer did not sell the accessible condominiums or
timeshares in the building inventory, the developer would be subject
to a potential ADA or FHAct complaint because persons with
disabilities who wanted to buy accessible units rather than rent
them each year would not have the option to purchase them. In
addition, if a developer held back accessible units, the cost of
those units would have to be spread across all the buyers of the
inaccessible units, and in many cases would make the project
financially infeasible. This would be especially true for smaller
projects. Finally, this commenter argued that requiring units to be
part of the common elements that are owned by all of the individual
unit owners is infeasible because the common ownership would result
in pooled rental income, which would transform the owners into
participants in a rental pool, and thus turn the sale of the
condominiums into the sale of securities under SEC Release 33-5347.
Several commenters noted that requiring the operator of the
rental program to own the accessible units is not feasible either
because the operator of the rental program would have to have the
funds to invest in the purchase of all of the accessible units, and
it would not have a means of recouping its investment. One commenter
stated that in Texas, it is illegal for on-site rental programs to
own condominium units. Another commenter noted that such a
requirement might lead to the loss of on-site rental programs,
leaving owners to use individual third-party brokers, or rent the
units privately. One commenter acknowledged that individual owners
cannot be required to place their units in a rental pool simply to
offer an accessible unit to the public, since the owners may be
purchasing units for their own use. However, this commenter
recommended that owners who choose to place their units in a rental
pool be required to contribute to a fund that would be used to
renovate units that are placed in the rental pool to increase the
availability of accessible units. One commenter argued that the
legal entity running the place of lodging has an obligation to
retain control over the required number of accessible units to
ensure that they are available in accordance with title III.
A number of commenters also argued that the Department has no
legal authority to require individual owners to engage in barrier
removal where an existing development adds a rental program. One
commenter stated that Texas law prohibits the operator of on-site
rental program from demanding that alterations be made to a
particular unit. In addition, under Texas law, condominium
declarations may not require some units and not others to make
changes, because that would lead to unequal treatment of units and
owners, which is not permissible.
One commenter stated that since it was not possible for
operators of rental programs offering privately owned condominiums
to comply with accessible scoping, the Department should create
exemptions from the accessible scoping, especially for existing
facilities. In addition, this commenter stated that if an operator
of an on-site rental program were to require renovations as a
condition of participation in the rental program, unit owners might
just rent their units through a different broker or on their own, in
which case such requirements would not apply.
A number of commenters argued that if a development decides to
create a rental program, it must provide accessible units. Otherwise
the development would have to ensure that units are retrofitted. A
commenter argued that if an existing building is being converted,
the Department should require that if alterations of the units are
performed by an owner or developer prior to sale of the units, then
the alterations requirements should apply, in order to ensure that
there are some accessible units in the rental pool. This commenter
stated that because of the proliferation of these type of
developments in Hawaii, mandatory alteration is the only way to
guarantee the availability of accessible units in the long run. In
this commenter’s view, since conversions almost always require
makeover of existing buildings, this will not lead to a significant
expense.
The Department agrees with the commenters that it would not be
feasible to require developers to hold back or purchase accessible
units for the purposes of making them available to the public in a
transient lodging rental program, nor would it be feasible to
require individual owners of accessible units to participate in
transient lodging rental programs.
The Department recognizes that places of lodging are developed
and financed under myriad ownership and management structures and
agrees that there will be circumstances where there are legal
barriers to requiring compliance with either the alterations
requirements or the requirements related to barrier removal. The
Department has added an exception to Sec. 36.406(c), providing that
in existing facilities that meet the definition of places of
lodging, where the guest rooms are not owned or substantially
controlled by the entity that owns, leases, or operates the overall
facility and the physical features of the guest room interiors are
controlled by their individual owners, the units are not subject to
the alterations requirement, even where the owner rents the unit out to the public through a transient lodging rental program.
In addition, the Department has added an exception to the barrier
removal requirements at Sec. 36.304(g) providing that in existing
facilities that meet the definition of places of lodging, where the
guest rooms are not owned or substantially controlled by the entity
that owns, leases, or operates the overall facility and the physical
features of the guest room interiors are controlled by their
individual owners, the units are not subject to the barrier removal
requirement. The Department notes, however, that there are legal
relationships for some timeshares and cooperatives where the
ownership interests do not convey control over the physical features
of units. In those cases, it may be the case that the facility has
an obligation to meet the alterations or barrier removal
requirements or to maintain accessible features.
§ 36.406(d) Social Service Center Establishments
In the NPRM, the Department proposed a new Sec. 36.406(d)
requiring group homes, halfway houses, shelters, or similar social
service center establishments that provide temporary sleeping
accommodations or residential dwelling units to comply with the
provisions of the 2004 ADAAG that apply to residential facilities,
including, but not limited to, the provisions in sections 233 and
809.
The NPRM explained that this proposal was based on two important
changes in the 2004 ADAAG. First, for the first time, residential
dwelling units are explicitly covered in the 2004 ADAAG in section
233. Second, the 2004 ADAAG eliminates the language contained in the
1991 Standards addressing scoping and technical requirements for
homeless shelters, group homes, and similar social service center
establishments. Currently, such establishments are covered in
section 9.5 of the transient lodging section of the 1991 Standards.
The deletion of section 9.5 creates an ambiguity of coverage that
must be addressed.
The NPRM explained the Department’s belief that transferring
coverage of social service center establishments from the transient
lodging standards to the residential facilities standards would
alleviate conflicting requirements for social service providers. The
Department believes that a substantial percentage of social service
providers are recipients of Federal financial assistance from the
Department of Housing and Urban Development (HUD). The Department of
Health and Human Services (HHS) also provides financial assistance
for the operation of shelters through the Administration for
Children and Families programs. As such, they are covered both by
the ADA and section 504. UFAS is currently the design standard for
new construction and alterations for entities subject to section
504. The two design standards for accessibility–the 1991 Standards
and UFAS–have confronted many social service providers with
separate, and sometimes conflicting, requirements for design and
construction of facilities. To resolve these conflicts, the
residential facilities standards in the 2004 ADAAG have been
coordinated with the section 504 requirements. The transient lodging
standards, however, are not similarly coordinated. The deletion of
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two
options: (1) Require coverage under the transient lodging standards,
and subject such facilities to separate, conflicting requirements
for design and construction; or (2) require coverage under the
residential facilities standards, which would harmonizes the
regulatory requirements under the ADA and section 504. The
Department chose the option that harmonizes the regulatory
requirements: coverage under the residential facilities standards.
In the NPRM, the Department expressed concern that the
residential facilities standards do not include a requirement for
clear floor space next to beds similar to the requirement in the
transient lodging standards; as a result, the Department proposed
adding a provision that would require certain social service center
establishments that provide sleeping rooms with more than 25 beds to
ensure that a minimum of 5 percent of the beds have clear floor
space in accordance with section 806.2.3 of the 2004 ADAAG.
The Department requested information from providers who operate
homeless shelters, transient group homes, halfway houses, and other
social service center establishments, and from the clients of these
facilities who would be affected by this proposed change. In the
NPRM, the Department asked to what extent conflicts between the ADA
and section 504 have affected these facilities and what the effect
would be of applying the residential dwelling unit requirements to
these facilities, rather than the requirements for transient lodging
guest rooms.
Many of the commenters supported applying the residential
facilities requirements to social service center establishments
stating that even though the residential facilities requirements are
less demanding, in some instances, the existence of one clear
standard will result in an overall increased level of accessibility
by eliminating the confusion and inaction that are sometimes caused
by the current existence of multiple requirements. One commenter
stated that the residential facilities guidelines were more
appropriate because individuals housed in social service center
establishments typically stay for a prolonged period of time, and
guests of a transient lodging facility typically are not housed to
participate in a program or receive services.
One commenter opposed to the proposed section argued for the
application of the transient lodging standards to all social service
center establishments except those that were “intended as a
person’s place of abode,” referencing the Department’s question
related to the definition of place of lodging in the title III NPRM.
A second commenter stated that the use of transient lodging
guidelines would lead to greater accessibility.
The Department continues to be concerned about alleviating the
challenges for social service providers that are also subject to
section 504 and that would likely be subject to conflicting
requirements if the transient lodging standard were applied. Thus,
the Department has retained the requirement that social service
center establishments comply with the residential dwelling
standards. The Department did not receive comments regarding adding
a requirement for bathing options, such as a roll-in shower, in
social service center establishments operated by public
accommodations. The Department did, however, receive comments in
support of adding such a requirement regarding public entities under
title II. The Department believes that social service center
establishments that provide emergency shelter to large transient
populations should be able to provide bathing facilities that are
accessible to persons with mobility disabilities who need roll-in
showers. Because of the transient nature of the population of these
large shelters, it will not be feasible to modify bathing facilities
in a timely manner when faced with a need to provide a roll-in
shower with a seat when requested by an overnight visitor. As a
result, the Department has added a requirement that social service
center establishments with sleeping accommodations for more than 50
individuals must provide at least one roll-in shower with a seat
that complies with the relevant provisions of section 608 of the
2010 Standards. Transfer-type showers are not permitted in lieu of a
roll-in shower with a seat, and the exceptions in sections 608.3 and
608.4 for residential dwelling units are not permitted. When
separate shower facilities are provided for men and for women, at
least one roll-in shower must be provided for each group. This
supplemental requirement to the residential facilities standards is
in addition to the supplemental requirement that was proposed in the
NPRM for clear floor space in sleeping rooms with more than 25 beds.
The Department also notes that while dwelling units at some
social service center establishments are also subject to FHAct
design and construction requirements that require certain features
of adaptable and accessible design, FHAct units do not provide the
same level of accessibility that is required for residential
facilities under the 2010 Standards. The FHAct requirements, where
also applicable, should not be considered a substitute for the 2010
Standards. Rather, the 2010 Standards must be followed in addition
to the FHAct requirements.
The Department also notes that while in the NPRM the Department
used the term “social service establishment,” the final rule uses
the term “social service center establishment.” The Department has
made this editorial change so that the final rule is consistent with
the terminology used in the ADA. See 42 U.S.C. 12181(7)(K).
§ 36.406(e) Housing at a Place of Education
The Department of Justice and the Department of Education share
responsibility for regulation and enforcement of the ADA in
postsecondary educational settings, including architectural
features. Housing types in educational settings range from
traditional residence halls and dormitories to apartment or
townhouse-style residences. In addition to title III of the ADA, universities and schools that are
recipients of Federal financial assistance also are subject to
section 504, which contains its own accessibility requirements
currently through the application of UFAS. Residential housing,
including housing in an educational setting, is also covered by the
FHAct, which requires newly constructed multifamily housing to
include certain features of accessible and adaptable design. Covered
entities subject to the ADA must always be aware of, and comply
with, any other Federal statutes or regulations that govern the
operation of residential properties.
Although the 1991 Standards mention dormitories as a form of
transient lodging, they do not specifically address how the ADA
applies to dormitories and other types of residential housing
provided in an educational setting. The 1991 Standards also do not
contain any specific provisions for residential facilities, allowing
covered entities to elect to follow the residential standards
contained in UFAS. Although the 2004 ADAAG contains provisions for
both residential facilities and transient lodging, the guidelines do
not indicate which requirements apply to housing provided in an
educational setting, leaving it to the adopting agencies to make
that choice. After evaluating both sets of standards, the Department
concluded that the benefits of applying the transient lodging
standards outweighed the benefits of applying the residential
facilities standards. Consequently, in the NPRM, the Department
proposed a new Sec. 36.406(e) that provided that residence halls or
dormitories operated by or on behalf of places of education shall
comply with the provisions of the proposed standards for transient
lodging, including, but not limited to, the provisions in sections
224 and 806 of the 2004 ADAAG.
Private universities and schools covered by title III as public
accommodations are required to make their programs and activities
accessible to persons with disabilities. The housing facilities that
they provide have varied characteristics. College and university
housing facilities typically provide housing for up to one academic
year, but may be closed during school vacation periods. In the
summer, they often are used for short-term stays of one to three
days, a week, or several months. Graduate and faculty housing often
is provided year-round in the form of apartments, which may serve
individuals or families with children. These housing facilities are
diverse in their layout. Some are double-occupancy rooms with a
shared toilet and bathing room, which may be inside or outside the
unit. Others may contain cluster, suite, or group arrangements where
several rooms are located inside a defined unit with bathing,
kitchen, and similar common facilities. In some cases, these suites
are indistinguishable in features from traditional apartments.
Universities may build their own housing facilities or enter into
agreements with private developers to build, own, or lease housing
to the educational institution or to its students. Academic housing
may be located on the campus of the university or may be located in
nearby neighborhoods.
Throughout the school year and the summer, academic housing can
become program areas in which small groups meet, receptions and
educational sessions are held, and social activities occur. The
ability to move between rooms–both accessible rooms and standard
rooms–in order to socialize, to study, and to use all public use
and common use areas is an essential part of having access to these
educational programs and activities. Academic housing also is used
for short-term transient educational programs during the time
students are not in regular residence and may be rented out to
transient visitors in a manner similar to a hotel for special
university functions.
The Department was concerned that applying the new construction
requirements for residential facilities to educational housing
facilities could hinder access to educational programs for students
with disabilities. Elevators generally are not required under the
2004 ADAAG residential facilities standards unless they are needed
to provide an accessible route from accessible units to public use
and common use areas, while under the 2004 ADAAG as it applies to
other types of facilities, multistory private facilities must have
elevators unless they meet very specific exceptions. In addition,
the residential facilities standards do not require accessible roll-
in showers in bathrooms, while the transient lodging requirements
require some of the accessible units to be served by bathrooms with
roll-in showers. The transient lodging standards also require that a
greater number of units have accessible features for persons with
communication disabilities. The transient lodging standards provide
for installation of the required accessible features so that they
are available immediately, but the residential facilities standards
allow for certain features of the unit to be adaptable. For example,
only reinforcements for grab bars need to be provided in residential
dwellings, but the actual grab bars must be installed under the
transient lodging standards. By contrast, the residential facilities
standards do require certain features that provide greater
accessibility within units, such as usable kitchens and an
accessible route throughout the dwelling. The residential facilities
standards also require 5 percent of the units to be accessible to
persons with mobility disabilities, which is a continuation of the
same scoping that is currently required under UFAS and is therefore
applicable to any educational institution that is covered by section
504. The transient lodging standards require a lower percentage of
accessible sleeping rooms for facilities with large numbers of rooms
than is required by UFAS. For example, if a dormitory has 150 rooms,
the transient lodging standards would require 7 accessible rooms,
while the residential standards would require 8. In a large
dormitory with 500 rooms, the transient lodging standards would
require 13 accessible rooms, and the residential facilities
standards would require 25. There are other differences between the
two sets of standards, including requirements for accessible
windows, alterations, kitchens, an accessible route throughout a
unit, and clear floor space in bathrooms allowing for a side
transfer.
In the NPRM, the Department requested public comment on how to
scope educational housing facilities, and it asked whether the
residential facilities requirements or the transient lodging
requirements in the 2004 ADAAG would be more appropriate for housing
at places of education and asked how the different requirements
would affect the cost of building new dormitories and other student
housing. See 73 FR 34508, 34545 (June 17, 2008).
The Department received several comments on this issue under
title III. One commenter stated that the Department should adopt the
residential facilities standards for housing at a place of
education. In the commenter’s view, the residential facilities
standards are congruent with overlapping requirements imposed by
HUD, and the residential facilities requirements would ensure
dispersion of accessible features more effectively. This commenter
also argued that while the increased number of required accessible
units for residential facilities as compared to transient lodging
may increase the cost of construction or alteration, this cost would
be offset by a reduced need later to adapt rooms if the demand for
accessible rooms exceeds the supply. The commenter also encouraged
the Department to impose a visitability (accessible doorways and
necessary clear floor space for turning radius) requirement for both
the residential facilities and transient lodging requirements to
allow students with mobility impairments to interact and socialize
in a fully integrated fashion. Another commenter stated that while
dormitories should be treated like residences as opposed to
transient lodging, the Department should ensure that “all floors
are accessible,” thus ensuring community integration and
visitability. Another commenter argued that housing at a place of
education is comparable to residential housing, and that most of the
housing types used by schools do not have the same amenities and
services or function like transient lodging and should not be
treated as such.
Several commenters focused on the length of stay at this type of
housing and suggested that if the facilities are subject to
occupancy for greater than 30 days, the residential standards should
apply. Another commenter supported the Department’s adoption of the
transient lodging standards, arguing this will provide greater
accessibility and therefore increase opportunities for students with
disabilities to participate. One commenter, while supporting the use
of transient lodging standards in this area, argued that the
Department also should develop regulations relating to the usability
of equipment in housing facilities by persons who are blind or
visually impaired. Another commenter argued that the Department
should not impose the transient lodging requirements on K-12 schools
because the cost of adding elevators can be prohibitive, and because
there are safety concerns related to evacuating students in
wheelchairs living on floors above the ground floor in emergencies
causing elevator failures.
The Department has considered the comments recommending the use
of the residential facilities standards and acknowledges that they require
certain features that are not included in the transient lodging
standards and that should be required for housing provided at a
place of education. In addition, the Department notes that since
educational institutions often use their academic housing facilities
as short-term transient lodging in the summers, it is important that
accessible features be installed at the outset. It is not realistic
to expect that the educational institution will be able to adapt a
unit in a timely manner in order to provide accessible
accommodations to someone attending a one-week program during the
summer.
The Department has determined that the best approach to this
type of housing is to continue to require the application of
transient lodging standards but, at the same time, to add several
requirements drawn from the residential facilities standards related
to accessible turning spaces and work surfaces in kitchens, and the
accessible route throughout the unit. This will ensure the
maintenance of the transient lodging standard requirements related
to access to all floors of the facility, roll-in showers in
facilities with more than 50 sleeping rooms, and other important
accessibility features not found in the residential facilities
standards, but also will ensure usable kitchens and access to all
the rooms in a suite or apartment.
The Department has added a new definition to Sec. 36.104,
“Housing at a Place of Education,” and has revised Sec. 36.406(e)
to reflect the accessible features that now will be required in
addition to the requirements set forth under the transient lodging
standards. The Department also recognizes that some educational
institutions provide some residential housing on a year-round basis
to graduate students and staff that is comparable to private rental
housing but contains no facilities for educational programming.
Section 36.406(e)(3) exempts from the transient lodging standards
apartments or townhouse facilities that are provided with a lease on
a year-round basis exclusively to graduate students or faculty and
that do not contain any public use or common use areas available for
educational programming; instead, such housing must comply with the
requirements for residential facilities in sections 233 and 809 of
the 2010 Standards.
The regulatory text uses the term “sleeping room” in lieu of
the term “guest room,” which is the term used in the transient
lodging standards. The Department is using this term because it
believes that for the most part, it provides a better description of
the sleeping facilities used in a place of education than “guest
room.” The final rule states in Sec. 36.406(e) that the Department
intends the terms to be used interchangeably in the application of
the transient lodging standards to housing at a place of education.
§ 36.406(f) Assembly Areas
In the NPRM, the Department proposed Sec. 36.406(f) to
supplement the assembly area requirements of the 2004 ADAAG, which
the Department is adopting as part of the 2010 Standards. The NPRM
proposed at Sec. 36.406(f)(1) to require wheelchair spaces and
companion seating locations to be dispersed to all levels of the
facility that are served by an accessible route. The Department
received no significant comments on this paragraph and has decided
to adopt the proposed language with minor modifications.
Section 36.406(f)(1) ensures that there is greater dispersion of
wheelchair spaces and companion seats throughout stadiums, arenas,
and grandstands than would otherwise be required by sections 221 and
802 of the 2004 ADAAG. In some cases, the accessible route may not
be the same route that other individuals use to reach their seats. For example, if other patrons reach their seats on the field by an
inaccessible route (e.g., by stairs), but there is an accessible
route that complies with section 206.3 of the 2004 ADAAG that could
be connected to seats on the field, wheelchair spaces and companion
seats must be placed on the field even if that route is not
generally available to the public.
Regulatory language that was included in the 2004 ADAAG
advisory, but that did not appear in the NPRM, has been added by the
Department in Sec. 36.406(f)(2). Section 36.406(f)(2) now requires
an assembly area that has seating encircling, in whole or in part, a
field of play or performance area, such as an arena or stadium, to
place wheelchair spaces and companion seats around the entire
facility. This rule, which is designed to prevent a public
accommodation from placing wheelchair spaces and companion seats on
one side of the facility only, is consistent with the Department’s
enforcement practices and reflects its interpretation of section
4.33.3 of the 1991 Standards.
In the NPRM, the Department proposed Sec. 36.406(f)(2), which
prohibits wheelchair spaces and companion seating locations from
being “located on (or obstructed by) temporary platforms * * *.”
73 FR 34508, 34557 (June 17, 2008). Through its enforcement actions,
the Department discovered that some venues place wheelchair spaces
and companion seats on temporary platforms that, when removed,
reveal conventional seating underneath, or cover the wheelchair
spaces and companion seats with temporary platforms on top of which
they place risers of conventional seating. These platforms cover
groups of conventional seats and are used to provide groups of
wheelchair seats and companion seats.
Several commenters requested an exception to the prohibition of
the use of temporary platforms for public accommodations that sell
most of their tickets on a season-ticket or other multi-event basis.
Such commenters argued that they should be able to use temporary
platforms because they know, in advance, that the patrons sitting in
certain areas for the whole season do not need wheelchair spaces and
companion seats. The Department declines to adopt such an exception.
As it explained in detail in the NPRM, the Department believes that
permitting the use of movable platforms that seat four or more
wheelchair users and their companions have the potential to reduce
the number of available wheelchair seating spaces below the level
required, thus reducing the opportunities for persons who need
accessible seating to have the same choice of ticket prices and
amenities that are available to other patrons in the facility. In
addition, use of removable platforms may result in instances where
last minute requests for wheelchair and companion seating cannot be
met because entire sections of accessible seating will be lost when
a platform is removed. See 73 FR 34508, 34546 (June 17, 2008). Further, use of temporary platforms allows facilities to limit
persons who need accessible seating to certain seating areas, and to
relegate accessible seating to less desirable locations. The use of
temporary platforms has the effect of neutralizing dispersion and
other seating requirements (e.g., line of sight) for wheelchair
spaces and companion seats. Cf. Independent Living Resources v.
Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding
that while a public accommodation may “infill” wheelchair spaces
with removable seats when the wheelchair spaces are not needed to
accommodate individuals with disabilities, under certain
circumstances “[s]uch a practice might well violate the rule that
wheelchair spaces must be dispersed throughout the arena in a manner
that is roughly proportionate to the overall distribution of
seating”). In addition, using temporary platforms to convert unsold
wheelchair spaces to conventional seating undermines the flexibility
facilities need to accommodate secondary ticket market exchanges as
required by Sec. 36.302(f)(7) of the final rule.
As the Department explained in the NPRM, however, this provision
was not designed to prohibit temporary seating that increases
seating for events (e.g., placing temporary seating on the floor of
a basketball court for a concert). Consequently, the final rule, at
Sec. 36.406(f)(3), has been amended to clarify that if an entire
seating section is on a temporary platform for a particular event,
then wheelchair spaces and companion seats may also be in that
seating section. However, adding a temporary platform to create
wheelchair spaces and companion seats that are otherwise dissimilar
from nearby fixed seating and then simply adding a small number of
additional seats to the platform would not qualify as an “entire
seating section” on the platform. In addition, Sec. 36.406(f)(3)
clarifies that facilities may fill in wheelchair spaces with
removable seats when the wheelchair spaces are not needed by persons
who use wheelchairs.
The Department has been responsive to assembly areas’ concerns
about reduced revenues due to unused accessible seating.
Accordingly, the Department has reduced scoping requirements
significantly–by almost half in large assembly areas–and
determined that allowing assembly areas to in-fill unsold wheelchair
spaces with readily removable temporary individual seats
appropriately balances their economic concerns with the rights of
individuals with disabilities. See section 221.1 of the 2010
Standards.
For stadium-style movie theaters, in Sec. 36.406(f)(4) of the
NPRM the Department proposed requiring placement of wheelchair seating spaces and
companion seats on a riser or cross-aisle in the stadium section of
the theater that satisfies at least one of the following criteria:
(1) It is located within the rear 60 percent of the seats provided
in the auditorium; or (2) It is located within the area of the
auditorium where the vertical viewing angles are between the 40th
and 100th percentile of vertical viewing angles for all seats in
that theater as ranked from the first row (1st percentile) to the
back row (100th percentile). The vertical viewing angle is the angle
between a horizontal line perpendicular to the seated viewer’s eye
to the screen and a line from the seated viewer’s eye to the top of
the screen.
The Department proposed this bright-line rule for two reasons:
(1) the movie theater industry petitioned for such a rule; and (2)
the Department has acquired expertise in the design of stadium-style
theaters during its litigation with several major movie theater
chains. See United States. v. AMC Entertainment, Inc., 232 F.
Supp.2d 1092 (C.D. Cal. 2002), rev’d in part, 549 F.3d 760 (9th Cir.
2008); United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir.
2003). Two industry commenters–at least one of whom otherwise
supported this rule–requested that the Department explicitly state
that this rule does not apply retroactively to existing theaters. Although this provision on its face applies to new construction and
alterations, these commenters were concerned that the rule could be
interpreted to apply retroactively because of the Department’s
statements in the NPRM and ANPRM that this bright line rule,
although newly articulated, is not a new standard but “merely
codifi[es] longstanding Department requirement[s],” 73 FR 34508,
34534 (June 17, 2008), and does not represent a “substantive change
from the existing line-of-sight requirements” of section 4.33.3 of
the 1991 Standards, 69 FR 58768, 58776 (Sept. 30, 2004).
Although the Department intends for Sec. 36.406(f)(4) of this
rule to apply prospectively to new construction and alterations,
this rule is not a departure from, and is consistent with, the line-
of-sight requirements in the 1991 Standards. The Department has
always interpreted the line-of-sight requirements in the 1991
Standards to require viewing angles provided to patrons who use
wheelchairs to be comparable to those afforded to other spectators.
Section 36.406(f)(4) merely represents the application of these
requirements to stadium-style movie theaters.
One commenter from a trade association sought clarification
whether Sec. 36.406(f)(4) applies to stadium-style theaters with
more than 300 seats, and argued that it should not since dispersion
requirements apply in those theaters. The Department declines to
limit this rule to stadium-style theaters with 300 or fewer seats;
stadium-style theaters of all sizes must comply with this rule. So,
for example, stadium-style theaters that must vertically disperse
wheelchair spaces and companion seats must do so within the
parameters of this rule.
The NPRM included a provision that required assembly areas with
more than 5,000 seats to provide at least five wheelchair spaces
with at least three companion seats for each of those five
wheelchair spaces. The Department agrees with commenters who
asserted that group seating is better addressed through ticketing
policies rather than design and has deleted that provision from this
section of the final rule.
§ 36.406(g) Medical Care Facilities
In the 1991 title III regulation, there was no provision
addressing the dispersion of accessible sleeping rooms in medical
care facilities. The Department is aware, however, of problems that
individuals with disabilities face in receiving full and equal
medical care when accessible sleeping rooms are not adequately
dispersed. When accessible rooms are not fully dispersed, a person
with a disability is often placed in an accessible room in an area
that is not medically appropriate for his or her condition, and is
thus denied quick access to staff with expertise in that medical
specialty and specialized equipment. While the Access Board did not
establish specific design requirements for dispersion in the 2004
ADAAG, in response to extensive comments in support of dispersion it
added an advisory note, Advisory 223.1 General, encouraging
dispersion of accessible rooms within the facility so that
accessible rooms are more likely to be proximate to appropriate
qualified staff and resources.
In the NPRM, the Department sought additional comment on the
issue, asking whether it should require medical care facilities,
such as hospitals, to disperse their accessible sleeping rooms, and
if so, by what method (by specialty area, floor, or other criteria).
All of the comments the Department received on this issue supported
dispersing accessible sleeping rooms proportionally by specialty
area. These comments from individuals, organizations, and a building
code association, argued that it would not be difficult for
hospitals to disperse rooms by specialty area, given the high level
of regulation to which hospitals are subject and the planning that
hospitals do based on utilization trends. Further, comments suggest
that without a requirement, it is unlikely that hospitals would
disperse the rooms. In addition, concentrating accessible rooms in
one area perpetuates segregation of individuals with disabilities,
which is counter to the purpose of the ADA.
The Department has decided to require medical care facilities to
disperse their accessible sleeping rooms in a manner that is
proportionate by type of medical specialty. This does not require
exact mathematical proportionality, which at times would be
impossible. However, it does require that medical care facilities
disperse their accessible rooms by medical specialty so that persons
with disabilities can, to the extent practical, stay in an
accessible room within the wing or ward that is appropriate for
their medical needs. The language used in this rule (“in a manner
that is proportionate by type of medical specialty”) is more
specific than that used in the NPRM (“in a manner that enables
patients with disabilities to have access to appropriate specialty
services”) and adopts the concept of proportionality proposed by
the commenters. Accessible rooms should be dispersed throughout all
medical specialties, such as obstetrics, orthopedics, pediatrics,
and cardiac care.
Analysis and Commentary on the 2010 ADA Standards for Accessible Design
Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible Design
The following is a
discussion of substantive changes in the scoping and technical requirements for
new construction and alterations resulting from the adoption of new ADA
Standards for Accessible Design (2010 Standards) in the final rules for title
II (28 CFR part 35) and title III (28 CFR part 36) of the Americans with
Disabilities Act (ADA). The full text of the 2010 Standards is available for
review at www.ada.gov.
In the Department´s
revised ADA title II regulation, 28 CFR 35.104 Definitions, the Department
defines the term “2010 Standards” to mean the 2010 ADA Standards for Accessible
Design. The 2010 Standards consist of the 2004 ADA Accessibility Guidelines
(ADAAG) and the requirements contained in 28 CFR 35.151.
In the Department´s
revised ADA title III regulation, 28 CFR 36.104 Definitions, the Department
defines the term “2010 Standards” to mean the 2010 ADA Standards for Accessible
Design. The 2010 Standards consist of the 2004 ADA Accessibility Guidelines
(ADAAG) and the requirements contained in 28 CFR part 36 subpart D.
This summary addresses selected
substantive changes between the 1991 ADA Standards for Accessible Design (1991
Standards) codified at 28 CFR part 36, app. A (2009) and the 2010 Standards. Editorial changes are not
discussed. Scoping and technical requirements are discussed together, where
appropriate, for ease of understanding the requirements. In addition, this
document addresses selected public comments received by the Department in
response to its September 2004 Advance Notice of Proposed Rulemaking (ANPRM)
and its June 2008 Notice of Proposed Rulemaking (NPRM).
The ANPRM and NPRM issued
by the Department concerning the proposed 2010 Standards stated that comments
received by the Access Board in response to its development of the ADAAG upon
which the 2010 Standards are based would be considered in the development of
the final Standards. Therefore, the Department will not restate here all of the
comments and responses to them issued by the Access Board. The Department is
supplementing the Access Board´s comments and responses with substantive
comments and responses here. Comments and responses addressed by the Access
Board that also were separately submitted to the Department will not be
restated in their entirety here.
Section-by-Section Analysis
with Public Comments
Application and
Administration
102 Dimensions for
Adults and Children
Section 2.1 of the 1991
Standards stated that the specifications were based upon adult dimensions and
anthropometrics. The 1991 Standards did not provide specific requirements for
children´s elements or facilities.
Section 102 of the 2010
Standards states that the technical requirements are based on adult dimensions
and anthropometrics. In addition, technical requirements are also provided
based on children´s dimensions and anthropometrics for drinking fountains,
water closets and other elements located in toilet compartments, lavatories and
sinks, dining surfaces, and work surfaces.
103 Equivalent
Facilitation
This section acknowledges
that nothing in these requirements prevents the use of designs, products, or
technologies as alternatives to those prescribed, provided that the
alternatives result in substantially equivalent or greater accessibility and
usability.
A commenter encouraged
the Department to include a procedure for determining equivalent facilitation.
The Department believes that the responsibility for determining and demonstrating
equivalent facilitation properly rests with the covered entity. The purpose of
allowing for equivalent facilitation is to encourage flexibility and innovation
while still ensuring access. The Department believes that establishing
potentially cumbersome bureaucratic provisions for reviewing requests for
equivalent facilitation is inappropriate.
104 Conventions
Dimensions. Section 104.1
of the 2010 Standards notes that dimensions not stated as a “maximum” or
“minimum” are absolute. Section 104.1.1 of the 2010 Standards provides that all
dimensions are subject to conventional industry tolerances except where the
requirement is stated as a range with specific minimum and maximum end
points. A commenter stated that
the 2010 Standards restrict the application of construction tolerances only to
those few requirements that are expressed as an absolute dimension.
This is an incorrect
interpretation of sections 104.1 and 104.1.1 of the 2010 Standards.
Construction and manufacturing tolerances apply to absolute dimensions as well
as to dimensions expressed as a maximum or minimum. When the requirement states
a specified range, such as in section 609.4 where grab bars must be installed
between 33 inches and 36 inches above the finished floor, that range provides
an adequate tolerance. Advisory 104.1.1 gives further guidance about
tolerances.
Section 104.2 of the 2010
Standards provides that where the required number of elements or facilities to
be provided is determined by calculations of ratios or percentages and
remainders or fractions result, the next greater whole number of such elements
or facilities shall be provided. Where the determination of the required size
or dimension of an element or facility involves ratios or percentages, rounding
down for values less than one-half is permissible.
A commenter stated that
it is customary in the building code industry to round up rather than down for
values less than one-half. As noted here, where the 2010 Standards provide for
scoping, any resulting fractional calculations will be rounded to the next
whole number. The Department is retaining the portion of section 104.2 that
permits rounding down for values less than one-half where the determination of
the required size or dimension of an element or facility involves ratios or
percentages. Such practice is standard with the industry, and is in keeping
with model building codes.
105 Referenced
Standards
Section 105 lists the
industry requirements that are referenced in the 2010 Standards. This section
also clarifies that where there is a difference between a provision of the 2010
Standards and the referenced requirements, the provision of the 2010 Standards
applies.
106 Definitions
Various definitions have
been added to the 2010 Standards and some definitions have been deleted.
One commenter asked that
the term public right-of-way be defined; others asked that various terms and
words defined by the 1991 Standards, but which were eliminated from the 2010
Standards, plus other words and terms used in the 2010 Standards, be defined.
The Department believes
that it is not necessary to add definitions to this text because section 106.3
of the 2010 Standards provides that the meanings of terms not specifically
defined in the 2010 Standards, in the Department´s ADA regulations, or in
referenced standards are to be defined by collegiate dictionaries in the sense
that the context implies. The Department believes that this provision
adequately addresses these commenters´ concerns.
Scoping and
Technical Requirements
202 Existing
Buildings and Facilities
Alterations. Under section
4.1.6(1)(c) of the 1991 Standards if alterations to single elements, when
considered together, amount to an alteration of a room or space in a building
or facility, the entire room or space would have to be made accessible. This
requirement was interpreted to mean that if a covered entity chose to alter
several elements in a room there would come a point when so much work had been
done that it would be considered that the entire room or space would have to be
made accessible. Under section 202.3 of the 2010 Standards entities can alter
as many elements within a room or space as they like without triggering a
requirement to make the entire room or space accessible based on the alteration
of individual elements. This does not, however, change the requirement that if
the intent was to alter the entire room or space, the entire room or space must
be made accessible and comply with the applicable requirements of Chapter 2 of
the 2010 Standards.
Alterations to Primary Function Areas. Section 202.4 restates a current requirement under title
III, and therefore represents no change for title III facilities or for those
title II facilities that have elected to comply with the 1991 Standards. However,
under the revised title II regulation, state and local government facilities
that have previously elected to comply with the Uniform Federal Accessibility
Standards (UFAS) instead of the 1991 Standards will no longer have that option,
and thus will now be subject to the path of travel requirement. The path of
travel requirement provides that when a primary function area of an existing
facility is altered, the path of travel to that area (including restrooms,
telephones, and drinking fountains serving the area) must also be made
accessible, but only to the extent that the cost of doing so does not exceed
twenty percent (20%) of the cost of the alterations to the primary function
area. The UFAS requirements for a substantial alteration, though different, may
have covered some of the items that will now be covered by the path of travel
requirement.
Visible Alarms in Alterations to Existing
Facilities. The 1991 Standards, at sections
4.1.3(14) and 4.1.6(1)(b), and sections 202.3 and 215.1 of the 2010 Standards
require that when existing elements and spaces of a facility are altered, the
alterations must comply with new construction requirements. Section 215.1 of
the 2010 Standards adds a new exception to the scoping requirement for visible
alarms in existing facilities so that visible alarms must be installed only
when an existing fire alarm system is upgraded or replaced, or a new fire alarm
system is installed.
Some commenters urged the
Department not to include the exception and to make visible alarms a mandatory
requirement for all spaces, both existing and new. Other commenters said that
the exception will make the safety of individuals with disabilities dependent
upon the varying age of existing fire alarm systems. Other commenters suggested
that including this requirement, even with the exception, will result in
significant cost to building owners and operators.
The Department believes
that the language of the exception to section 215.1 of the 2010 Standards
strikes a reasonable balance between the interests of individuals with
disabilities and those of the business community. If undertaken at the time a
system is installed, whether in a new facility or in a planned system upgrade,
the cost of adding visible alarms is reasonable. Over time, existing facilities
will become fully accessible to individuals who are deaf or hard of hearing,
and will add minimal costs to owners and operators.
203 General
Exceptions
Limited Access Spaces and Machinery Spaces. The 1991 Standards, at section 4.1.1, contain an exception
that exempts “non-occupiable” spaces that have limited means of access, such as
ladders or very narrow passageways, and that are visited only by service
personnel for maintenance, repair, or occasional monitoring of equipment, from
all accessibility requirements. Sections 203.4 and 203.5 of the 2010 Standards
expand this exception by removing the condition that the exempt spaces be
“non-occupiable,” and by separating the other conditions into two independent
exceptions: one for spaces with limited means of access, and the other for
machinery spaces. More spaces are exempted by the exception in the 2010
Standards.
203, 206 and 215
Employee Work Areas
Common Use Circulation Paths in Employee Work
Areas. The 1991 Standards at section
4.1.1(3), and the 2010 Standards at section 203.9, require employee work areas
in new construction and alterations only to
be designed and constructed so that individuals with disabilities can approach,
enter, and exit the areas. Section 206.2.8 of the 2010 Standards requires
accessible common use circulation paths within employee work areas unless they
are subject to exceptions in sections 206.2.8, 403.5, 405.5, and 405.8. The
ADA, 42 U.S.C. 12112 (b)(5)(A) and (B), requires employers to make reasonable
accommodations in the workplace for individuals with disabilities, which may
include modifications to work areas when needed. Providing increased access in
the facility at the time of construction or alteration will simplify the
process of providing reasonable accommodations when they are needed.
The requirement for
accessible common use circulation paths will not apply to existing facilities
pursuant to the readily achievable barrier removal requirement. The Department
has consistently taken the position that barrier removal requirements do not
apply to areas used exclusively by employees because the purpose of title III
is to ensure that access is provided to clients and customers. See
Appendix B to the 1991 regulation implementing title III, 28 CFR part 36.
Several exceptions to
section 206.2.8 of the 2010 Standards exempt common use circulation paths in
employee work areas from the requirements of section 402 where it may be
difficult to comply with the technical requirements for accessible routes due
to the size or function of the area:
The 2010 Standards in
sections 403.5 and 405.8 also contain exceptions to the technical requirements
for accessible routes for circulation paths in employee work areas:
Commenters stated that
the requirements set out in the 2010 Standards for accessible common use
circulation paths in employee work areas are inappropriate, particularly in
commercial kitchens, storerooms, and behind cocktail bars where wheelchairs
would not be easily accommodated. These commenters further urged the Department
not to adopt a requirement that circulation paths in employee work areas be at least
36 inches wide, including those at emergency exits.
These commenters
misunderstand the scope of the provision. Nothing in the 2010 Standards
requires all circulation paths in non-exempt areas to be accessible. The
Department recognizes that building codes and fire and life safety codes, which
are adopted by all of the states, require primary circulation paths in facilities, including employee work areas, to be at least
36 inches wide for purposes of emergency egress. Accessible routes also are at
least 36 inches wide. Therefore, the Department anticipates that covered
entities will be able to satisfy the requirement to provide accessible
circulation paths by ensuring that their required primary circulation paths are accessible.
Individual employee work
stations, such as a grocery checkout counter or an automobile service bay
designed for use by one person, do not contain common use circulation paths and
are not required to comply. Other work areas, such as stockrooms that typically
have narrow pathways between shelves, would be required to design only one
accessible circulation path into the stockroom. It would not be necessary to
make each circulation path in the room accessible. In alterations it may be
technically infeasible to provide accessible common use circulation paths in
some employee work areas. For example, in a stock room of a department store
significant existing physical constraints, such as having to move walls to
avoid the loss of space to store inventory, may mean that it is technically
infeasible (see section 106.5 “Defined Terms” of the 2010
Standards) to make even the primary common use circulation path in that stock
room wide enough to be accessible. In addition, the 2010 Standards include
exceptions for common use circulation paths in employee work areas where it may
be difficult to comply with the technical requirements for accessible routes
due to the size or function of the areas. The Department believes that these
exceptions will provide the flexibility necessary to ensure that this
requirement does not interfere with legitimate business operations.
Visible Alarms. Section 215.3
of the 2010 Standards provides that where employee work areas in newly
constructed facilities have audible alarm coverage they are required to have
wiring systems that are capable of supporting visible alarms that comply with
section 702 of the 2010 Standards. The 1991 Standards, at section 4.1.1(3),
require visible alarms to be provided where audible fire alarm systems are
provided, but do not require areas used only by employees as work areas to be
equipped with accessibility features. As applied to office buildings, the 1991
Standards require visible alarms to be provided in public and common use areas
such as hallways, conference rooms, break rooms, and restrooms, where audible
fire alarm systems are provided.
Commenters asserted that
the requirements of section 215.3 of the 2010 Standards would be burdensome to
meet. These commenters also raised concerns that all employee work areas within
existing buildings and facilities must be equipped with accessibility features.
The commenters´ concerns
about section 215.3 of the 2010 Standards represent a misunderstanding of the
requirements applicable to employee work areas.
Newly constructed
buildings and facilities merely are required to provide wiring so that visible
alarm systems can be added as needed to accommodate employees who are deaf or
hard of hearing. This is a minimal requirement without significant impact.
The other issue in the
comments represents a misunderstanding of the Department´s existing regulatory
requirements. Employee common use areas in covered facilities (e.g.,
locker rooms, break rooms, cafeterias, toilet rooms, corridors to exits, and
other common use spaces) were required to be accessible under the 1991
Standards; areas in which employees actually perform their jobs are required to
enable a person using a wheelchair or mobility device to approach, enter, and
exit the area. The 2010 Standards require increased access through the
accessible common use circulation
path requirement, but neither the 1991 Standards nor the 2010 Standards require
employee work stations to be accessible.
Access to specific employee work stations is governed by title I of the ADA.
205 and 309 Operable
Parts
Section 4.1.3, and more
specifically sections 4.1.3(13), 4.27.3, and 4.27.4 of the 1991 Standards,
require operable parts on accessible elements, along accessible routes, and in
accessible rooms and spaces to comply with the technical requirements for
operable parts, including height and operation. The 1991 Standards, at section
4.27.3, contain an exception, ” * * * where the use of special equipment
dictates otherwise or where electrical and communications systems receptacles
are not normally intended for use by building occupants,” from the technical
requirement for the height of operable parts. Section 205.1 of the 2010
Standards divides this exception into three exceptions covering operable parts
intended only for use by service or maintenance personnel, electrical or
communication receptacles serving a dedicated use, and floor electrical
receptacles. Operable parts covered by these new exceptions are exempt from all
of the technical requirements for operable parts in section 309. The 2010 Standards
also add exceptions that exempt certain outlets at kitchen counters; heating,
ventilating and air conditioning diffusers; redundant controls provided for a
single element, other than light switches; and exercise machines and equipment
from all of the technical requirements for operable parts. Exception 7, in
section 205.1 of the 2010 Standards, exempts cleats and other boat securement
devices from the accessible height requirement. Similarly, section 309.4 of the 2010 Standards exempts gas
pump nozzles, but only from the technical requirement for activating force.
Reach Ranges. The 1991
Standards set the maximum height for side reach at 54 inches above the floor.
The 2010 Standards, at section 308.3, lower that maximum height to 48 inches
above the finish floor or ground. The 2010 Standards also add exceptions, as
discussed above, to the scoping requirement for operable parts for certain
elements that, among other things, will exempt them from the reach range
requirements in section 308.
The 1991 Standards, at
sections 4.1.3, 4.27.3, and 4.2.6, and the 2010 Standards, at sections 205.1,
228.1, 228.2, 308.3, and 309.3, require operable parts of accessible elements,
along accessible routes, and in accessible rooms and spaces to be placed within
the forward or side-reach ranges specified in section 308. The 2010 Standards
also require at least five percent (5%) of mailboxes provided in an interior
location and at least one of each type of depository, vending machine, change
machine, and gas pump to meet the technical requirements for a forward or a
side reach.
Section 4.2.6 of the 1991
Standards specifies a maximum 54-inch high side reach and a minimum 9-inch low
side reach for an unobstructed reach depth of 10 inches maximum. Section
308.3.1 of the 2010 Standards specifies a maximum 48-inch high side reach and a
minimum 15-inch low side reach where the element being reached for is
unobstructed. Section 308.3.1, Exception 1, permits an obstruction that is no
deeper than 10 inches between the edge of the clear floor or ground space and
the element that the individual with a disability is trying to reach. Changes
in the side-reach range for new construction and alterations in the 2010
Standards will affect a variety of building elements such as light switches,
electrical outlets, thermostats, fire alarm pull stations, card readers, and
keypads.
Commenters were divided
in their views about the changes to the unobstructed side-reach range.
Disability advocacy groups and others, including individuals of short stature,
supported the modifications to the proposed reach range requirements. Other
commenters stated that the new reach range requirements will be burdensome for
small businesses to comply with. These comments argued that the new reach range
requirements restrict design options, especially in residential housing.
The Department continues
to believe that data submitted by advocacy groups and others provides
compelling evidence that lowered reach range requirements will better serve
significantly greater numbers of individuals with disabilities, including
individuals of short stature, persons with limited upper body strength, and
others with limited use of their arms and fingers. The change to the side-reach
range was developed by the Access Board over a prolonged period in which there
was extensive public participation. This process did not produce any
significant data to indicate that applying the new unobstructed side-reach
range requirement in new construction or during alterations would impose a
significant burden.
206 and Chapter 4
Accessible Routes
Slope. The 2010 Standards provide, at
section 403.3, that the cross slope of walking surfaces not be steeper than
1:48. The 1991 Standards´ cross slope requirement was that it not exceed 1:50.
A commenter recommended increasing the cross slope requirement to allow a
maximum of 1/2 inch per foot (1:24) to prevent imperfections in concrete
surfaces from ponding water. The Department continues to believe that the
requirement that a cross slope not be steeper than 1:48 adequately provides for
water drainage in most situations. The suggested changes would double the
allowable cross slope and create a significant impediment for many wheelchair
users and others with a mobility disability.
Accessible Routes from Site Arrival Points and Within
Sites. The 1991 Standards, at sections
4.1.2(1) and (2), and the 2010 Standards, at sections 206.2.1 and 206.2.2,
require that at least one accessible route be provided within the site from
site arrival points to an accessible building entrance and that at least one
accessible route connect accessible facilities on the same site. The 2010
Standards also add two exceptions that exempt site arrival points and
accessible facilities within a site from the accessible route requirements
where the only means of access between them is a vehicular way that does not
provide pedestrian access.
Commenters urged the
Department to eliminate the exception that exempts site arrival points and
accessible facilities from the accessible route requirements where the only
means of access between them is a vehicular way not providing pedestrian
access. The Department declines to accept this recommendation because the
Department believes that its use will be limited. If it can be reasonably
anticipated that the route between the site arrival point and the accessible
facilities will be used by pedestrians, regardless of whether a pedestrian
route is provided, then this exception will not apply. It will apply only in
the relatively rare situations where the route between the site arrival point
and the accessible facility dictates vehicular access – for example, an
office complex on an isolated site that has a private access road, or a
self-service storage facility where all users are expected to drive to their
storage units.
Another commenter
suggested that the language of section 406.1 of the 2010 Standards is confusing
because it states that curb ramps on accessible routes shall comply with 406,
405.2 through 405.5, and 405.10. The 1991 Standards require that curb ramps be
provided wherever an accessible route crosses a curb.
The Department declines
to change this language because the change is purely editorial, resulting from
the overall changes in the format of the 2010 Standards. It does not change the
substantive requirement. In the 2010 Standards all elements on a required
accessible route must be accessible; therefore, if the accessible route crosses
a curb, a curb ramp must be provided.
Areas of Sport Activity. Section
206.2.2 of the 2010 Standards requires at least one accessible route to connect
accessible buildings, facilities, elements, and spaces on the same site.
Advisory section 206.2.2 adds the explanation that an accessible route must
connect the boundary of each area of sport activity (e.g., courts and playing
fields, whether indoor or outdoor). Section 206.2.12 of the 2010 Standards
further requires that in court sports the accessible route must directly
connect both sides of the court.
Limited-Use/Limited-Application Elevators, Destination-Oriented
Elevators and Private Residence Elevators. The
1991 Standards, at section 4.1.3(5), and the 2010 Standards, at sections 206.2
and 206.6, include exceptions to the scoping requirement for accessible routes
that exempt certain facilities from connecting each story with an elevator. If
a facility is exempt from the scoping requirement, but nonetheless installs an
elevator, the 1991 Standards require the elevator to comply with the technical
requirements for elevators. The 2010 Standards add a new exception that allows
a facility that is exempt from the scoping requirement to install a
limited-use/limited-application (LULA) elevator. LULA elevators are also
permitted in the 1991 Standards and the 2010 Standards as an alternative to
platform lifts. The 2010 Standards also add a new exception that permits
private residence elevators in multi-story dwelling and transient lodging
units. The 2010 Standards contain technical requirements for LULA elevators at
section 408 and private residence elevators at section 409.
Section 407.2.1.4 of the
2010 Standards includes an exception to the technical requirements for locating
elevator call buttons for destination-oriented elevators. The advisory at
section 407.2.1.4 describes lobby controls for destination-oriented elevator
systems. Many elevator manufacturers have recently developed these new
“buttonless” elevator control systems. These new, more efficient elevators are
usually found in high-rise buildings that have several elevators. They require
passengers to enter their destination floor on an entry device, usually a
keypad, in the elevator lobby. The system then sends the most efficient car
available to take all of the passengers going to the sixth floor, for example,
only to the sixth floor, without making stops at the third, fourth, and fifth
floors on the way to the sixth floor. The challenge for individuals who are
blind or have low vision is how to know which elevator car to enter, after they
have entered their destination floor into the keypad.
Commenters requested that
the Department impose a moratorium on the installation of destination-oriented
elevators arguing that this new technology presents wayfinding challenges for
persons who are blind or have low vision.
Section 407.2.1.5 of the
2010 Standards allows destination-oriented elevators to not provide call
buttons with visible signals to indicate when each call is registered and when
each call is answered provided that visible and audible
signals, compliant with 407.2.2 of the 2010 Standards, indicating which
elevator car to enter, are provided. This will require the responding elevator
car to automatically provide audible and visible communication so that the
system will always verbally and visually indicate which elevator car to enter.
As with any new
technology, all users must have time to become acquainted with how to use
destination-oriented elevators. The Department will monitor the use of this new
technology and work with the Access Board so that there is not a decrease in
accessibility as a result of permitting this new technology to be installed.
Accessible Routes to Tiered Dining Areas in Sports
Facilities. The 1991 Standards, at sections
4.1.3(1) and 5.4, and section 206.2.5 of the 2010 Standards require an
accessible route to be provided to all dining areas in new construction,
including raised or sunken dining areas. The 2010 Standards add a new exception
for tiered dining areas in sports facilities. Dining areas in sports facilities are typically integrated
into the seating bowl and are tiered to provide adequate lines of sight for
individuals with disabilities. The new exception requires accessible routes to
be provided to at least 25 percent (25%) of the tiered dining areas in sports
facilities. Each tier must have the same services and the accessible routes
must serve the accessible seating.
Accessible Routes to Press Boxes. The 1991 Standards, at sections 4.1.1(1) and 4.1.3(1),
cover all areas of newly constructed facilities required to be accessible, and
require an accessible route to connect accessible entrances with all accessible
spaces and elements within the facility. Section 201.1 of the 2010 Standards
requires that all areas of newly designed and constructed buildings and
facilities and altered portions of existing buildings and facilities be
accessible. Sections 206.2.7(1) and (2) of the 2010 Standards add two
exceptions that exempt small press boxes that are located in bleachers with
entrances on only one level, and small press boxes that are free-standing
structures elevated 12 feet or more above grade, from the accessible route
requirement when the aggregate area of all press boxes in a sports facility
does not exceed 500 square feet. The Department anticipates that this change
will significantly reduce the economic impact on smaller sports facilities,
such as those associated with high schools or community colleges.
Public Entrances. The
1991 Standards, at sections 4.1.3(8) and 4.1.6(1)(h), require at least fifty
percent (50%) of public entrances to be accessible. Additionally, the 1991
Standards require the number of accessible public entrances to be equivalent to
the number of exits required by applicable building and fire codes. With very
few exceptions, building and fire codes require at least two exits to be provided
from spaces within a building and from the building itself. Therefore, under
the 1991 Standards where two public entrances are planned in a newly
constructed facility, both entrances are required to be accessible.
Instead of requiring
accessible entrances based on the number of public entrances provided or the
number of exits required (whichever is greater), section 206.4.1 of the 2010
Standards requires at least sixty percent (60%) of public entrances to be
accessible. The revision is intended to achieve the same result as the 1991
Standards. Thus, under the 2010 Standards where two public entrances are
planned in a newly constructed facility, both entrances must be accessible.
Where multiple public
entrances are planned to serve different site arrival points, the 1991
Standards, at section 4.1.2(1), and section 206.2.1 of the 2010 Standards
require at least one accessible route to be provided from each type of site
arrival point provided, including accessible parking spaces, accessible
passenger loading zones, public streets and sidewalks, and public
transportation stops, to an accessible public entrance that serves the site
arrival point.
Commenters representing
small businesses recommended retaining the 1991 requirement for fifty percent
(50%) of public entrances of covered entities to be accessible. These
commenters also raised concerns about the impact upon existing facilities of
the new sixty percent (60%) requirement.
The Department believes
that these commenters misunderstand the 1991 Standards. As explained above, the
requirements of the 1991 Standards generally require more than fifty percent
(50%) of entrances in small facilities to be accessible. Model codes require
that most buildings have more than one means of egress. Most buildings have
more than one entrance, and the requirements of the 1991 Standards typically
resulted in these buildings having more than one accessible entrance. Requiring
at least sixty percent (60%) of public entrances to be accessible is not
expected to result in a substantial increase in the number of accessible
entrances compared to the requirements of the 1991 Standards. In some very large facilities this
change may result in fewer accessible entrances being required by the 2010
Standards. However, the Department believes that the realities of good
commercial design will result in more accessible entrances being provided for
the convenience of all users.
The 1991 Standards and
the 2010 Standards also contain exceptions that limit the number of accessible
entrances required in alterations to existing facilities. When entrances to an
existing facility are altered and the facility has an accessible entrance, the
entrance being altered is not required to be accessible, unless a primary
function area also is altered and then an accessible path of travel must be
provided to the primary function area to the extent that the cost to do so is
not disproportionate to the overall cost of the alteration.
Alterations to Existing Elevators. When a single space or element is altered, the 1991
Standards, at sections 4.1.6(1)(a) and (b), require the space or element to be
made accessible. When an element in one elevator is altered, the 2010
Standards, at section 206.6.1, require the same element to be altered in all
elevators that are programmed to respond to the same call button as the altered
elevator.
The 2010 Standards, at
sections 407.2.1 – 407.4.7.1.2, also contain exceptions to the technical
requirements for elevators when existing elevators are altered that minimize the
impact of this change.
Commenters expressed
concerns about the requirement that when an element in one elevator is altered,
the 2010 Standards, at section 206.6.1, will require the same element to be
altered in all elevators that are programmed to respond to the same call button
as the altered elevator. Commenters noted that such a requirement is burdensome
and will result in costly efforts without significant benefit to individuals
with disabilities.
The Department believes
that this requirement is necessary to ensure that when an individual with a
disability presses a call button, an accessible elevator will arrive. Without
this requirement, individuals with disabilities would have to wait
unnecessarily for an accessible elevator to make its way to them arbitrarily.
The Department also believes that the effort required to meet this provision is
minimal in the majority of situations because it is typical to upgrade all of
the elevators in a bank at the same time.
Accessible Routes in Dwelling Units with Mobility
Features. Sections 4.34.1 and 4.34.2 of the
UFAS require the living area, kitchen and dining area, bedroom, bathroom, and
laundry area, where provided, in covered dwelling units with mobility features
to be on an accessible route. Where covered dwelling units have two or more
bedrooms, at least two bedrooms are required to be on an accessible route.
The 2010 Standards at
sections 233.3.1.1, 809.1, 809.2, 809.2.1, and 809.4 will require all spaces
and elements within dwelling units with mobility features to be on an
accessible route. These changes exempt unfinished attics and unfinished
basements from the accessible route requirement. Section 233.3.5 of the 2010
Standards also includes an exception to the dispersion requirement that permits
accessible single-story dwelling units to be constructed, where multi-story
dwelling units are one of the types of units provided.
Location of Accessible Routes. Section 4.3.2(1) of the 1991 Standards requires accessible
routes connecting site arrival points and accessible building entrances to
coincide with general circulation paths, to the maximum extent feasible. The
2010 Standards require all accessible routes to coincide with or be located in
the same general area as general circulation paths. Additionally, a new
provision specifies that where a circulation path is interior, the required
accessible route must also be located in the interior of the facility. The change affects a limited number of
buildings. Section 206.3 of the 2010 Standards requires all accessible routes
to coincide with or be located in the same general area as general circulation
paths. Designing newly constructed interior accessible routes to coincide with
or to be located in the same area as general circulation paths will not typically
present a difficult design challenge and is expected to impose limited design
constraints. The change will have no impact on exterior accessible routes. The
1991 Standards and the 2010 Standards also require accessible routes to be
located in the interior of the facility where general circulation paths are
located in the interior of the facility. The revision affects a limited number
of buildings.
Location of Accessible Routes to Stages. The 1991 Standards at section 4.33.5 require an accessible
route to connect the accessible seating and the performing area.
Section 206.2.6 of the 2010
Standards requires the accessible route to directly connect the seating area
and the accessible seating, stage, and all areas of the stage, where a
circulation path directly connects the seating area and the stage. Both the
1991 Standards and the 2010 Standards also require an accessible route to
connect the stage and ancillary areas, such as dressing rooms, used by
performers. The 2010 Standards do not require an additional accessible route to
be provided to the stage. Rather, the changes specify where the accessible
route to the stage, which is required by the 1991 Standards, must be located.
207 Accessible Means
of Egress
General. The 1991
Standards at sections 4.1.3(9); 4.1.6(1)(g); and 4.3.10 establish scoping and
technical requirements for accessible means of egress. Section 207.1 of the
2010 Standards reference the International Building Code (IBC) for scoping and
technical requirements for accessible means of egress.
The 1991 Standards
require the same number of accessible means of egress to be provided as the
number of exits required by applicable building and fire codes. The IBC
requires at least one accessible means of egress and at least two accessible means
of egress where more than one means of egress is required by other sections of
the building code. The changes in the 2010 Standards are expected to have
minimal impact since the model fire and life safety codes, which are adopted by
all of the states, contain equivalent requirements with respect to the number
of accessible means of egress.
The 1991 Standards
require areas of rescue assistance or horizontal exits in facilities with
levels above or below the level of exit discharge. Areas of rescue assistance
are spaces that have direct access to an exit, stair, or enclosure where
individuals who are unable to use stairs can go to call for assistance and wait
for evacuation. The 2010 Standards incorporate the requirements established by
the IBC. The IBC requires an evacuation elevator designed with standby power
and other safety features that can be used for emergency evacuation of
individuals with disabilities in facilities with four or more stories above or
below the exit discharge level, and allows exit stairways and evacuation
elevators to be used as an accessible means of egress in conjunction with areas
of refuge or horizontal exits. The change is expected to have minimal impact
since the model fire and life safety codes, adopted by most states, already
contain parallel requirements with respect to evacuation elevators.
The 1991 Standards exempt
facilities equipped with a supervised automatic sprinkler system from providing
areas of rescue assistance, and also exempt alterations to existing facilities
from providing an accessible means of egress. The IBC exempts buildings
equipped with a supervised automatic sprinkler system from certain technical
requirements for areas of refuge, and also exempts alterations to existing
facilities from providing an accessible means of egress.
The 1991 and 2010
Standards require signs that provide direction to or information about
functional spaces to meet certain technical requirements. The 2010 Standards,
at section 216.4, address exit signs. This section is consistent with the
requirements of the IBC. Signs used for means of egress are covered by this
scoping requirement. The requirements in the 2010 Standards require tactile
signs complying with sections 703.1, 703.2 and 703.5 at doors at exit
passageways, exit discharge, and at exit stairways. Directional exit signs and
signs at areas of refuge required by section 216.4.3 must have visual
characters and features complying with section 703.5.
Standby Power for Platform Lifts. The 2010 Standards at section 207.2 require standby power
to be provided for platform lifts that are permitted to serve as part of an
accessible means of egress by the IBC. The IBC permits platform lifts to serve
as part of an accessible means of egress in a limited number of places where platform
lifts are allowed in new construction. The 1991 Standards, at 4.1.3 (5)
Exception 4 (a) through (d), and the 2010 Standards, at sections 206.7.1
through 206.7.10, similarly limit the places where platform lifts are allowed
in new construction.
Commenters urged the
Department to reconsider provisions that would require standby power to be
provided for platform lifts. Concerns were raised that ensuring standby power
would be too burdensome. The Department views this issue as a fundamental life
safety issue. Lift users face the prospect of being trapped on the lift in the
event of a power failure if standby power is not provided. The lack of standby
power could be life-threatening in situations where the power failure is
associated with a fire or other emergency. The use of a platform lift is
generally only one of the options available to covered entities. Covered
entities that are concerned about the costs associated with maintaining standby
power for a lift may wish to explore design options that would incorporate the
use of a ramp.
208 and 502 Parking
Spaces
General. Where parking
spaces are provided, the 1991 Standards, at sections 4.1.2 (5)(a) and (7) and
7(a), and the 2010 Standards, at section 208.1, require a specified number of
the parking spaces to be accessible. The 2010 Standards, at section 208,
include an exception that exempts parking spaces used exclusively for buses,
trucks, delivery vehicles, law enforcement vehicles, or for purposes of
vehicular impound, from the scoping requirement for parking spaces, provided
that when these lots are accessed by the public the lot has an accessible
passenger loading zone.
The 2010 Standards
require accessible parking spaces to be identified by signs that display the
International Symbol of Accessibility. Section 216.5, Exceptions 1 and 2, of
the 2010 Standards exempt certain accessible parking spaces from this signage
requirement. The first exception exempts sites that have four or fewer parking
spaces from the signage requirement. Residential facilities where parking
spaces are assigned to specific dwelling units are also exempted from the
signage requirement.
Commenters stated that
the first exception, by allowing a small parking lot with four or fewer spaces
not to post a sign at its one accessible space, is problematic because it could
allow all drivers to park in accessible parking spaces. The Department believes
that this exception provides necessary relief for small business entities that
may otherwise face the prospect of having between twenty-five percent (25%) and
one hundred percent (100%) of their limited parking area unavailable to their
customers because they are reserved for the exclusive use of persons whose
vehicles display accessible tags or parking placards. The 2010 Standards still require
these businesses to ensure that at least one of their available parking spaces
is designed to be accessible.
A commenter stated that
accessible parking spaces must be clearly marked. The Department notes that
section 502.6 of the 2010 Standards provides that accessible parking spaces
must be identified by signs that include the International Symbol of
Accessibility. Also, section 502.3.3 of the 2010 Standards requires that access
aisles be marked so as to discourage parking in them.
Access Aisle. Section
502.3 of the 2010 Standards requires that an accessible route adjoin each
access aisle serving accessible parking spaces. The accessible route connects
each access aisle to accessible entrances.
Commenters questioned why
the 2010 Standards would permit an accessible route used by individuals with
disabilities to coincide with the path of moving vehicles. The Department
believes that the 2010 Standards appropriately recognize that not all parking
facilities provide separate pedestrian routes. Section 502.3 of the 2010
Standards provides the flexibility necessary to permit designers and others to
determine the most appropriate location of the accessible route to the
accessible entrances. If all pedestrians using the parking facility are
expected to share the vehicular lanes, then the ADA permits covered entities to
use the vehicular lanes as part of the accessible route. The advisory note in
section 502.3 of the 2010 Standards, however, calls attention to the fact that
this practice, while permitted, is not ideal. Accessible parking spaces must be
located on the shortest accessible route of travel to an accessible entrance.
Accessible parking spaces and the required accessible route should be located
where individuals with disabilities do not have to cross vehicular lanes or
pass behind parked vehicles to have access to an accessible entrance. If it is
necessary to cross a vehicular lane because, for example, local fire engine
access requirements prohibit parking immediately adjacent to a building, then a
marked crossing running perpendicular to the vehicular route should be included
as part of the accessible route to an accessible entrance.
Van Accessible Parking Spaces. The 1991 Standards, at sections 4.1.2 (5)(b), 4.6.3, 4.6.4,
and 4.6.5, require one in every eight accessible parking spaces to be van
accessible. Section 208.2.4 of the 2010 Standards requires one in every six
accessible parking spaces to be van accessible.
A commenter asked whether
automobiles other than vans may park in van accessible parking spaces. The 2010
Standards do not prohibit automobiles other than vans from using van accessible
parking spaces. The Department does not distinguish between vehicles that are
actual “vans” versus other vehicles such as trucks, station wagons, sport
utility vehicles, etc. since many vehicles other than vans may be used by
individuals with disabilities to transport mobility devices.
Commenters´ opinions were
divided on this point. Facility operators and others asked for a reduction in
the number of required accessible parking spaces, especially the number of van
accessible parking spaces, because they claimed these spaces often are not
used. Individuals with disabilities, however, requested an increase in the
scoping requirements for these parking spaces.
The Department is aware
that a strong difference of opinion exists between those who use such spaces
and those who must provide or maintain them. Therefore, the Department did not
increase the total number of accessible spaces required. The only change was to
increase the proportion of spaces that must be accessible to vans and other
vehicles equipped to transport mobility devices.
Direct Access Entrances from Parking Structures. Where levels in a parking garage have direct connections for
pedestrians to another facility, the 1991 Standards, at section 4.1.3(8)(b)(i),
require at least one of the direct connections to be accessible. The 2010
Standards, at section 206.4.2, require all of these direct connections to be
accessible.
209 and 503 Passenger
Loading Zones and Bus Stops
Passenger Loading Zones at Medical Care and Long-Term
Care Facilities. Sections 6.1 and 6.2 of the 1991
Standards and section 209.3 of the 2010 Standards require medical care and
long-term care facilities, where the period of stay exceeds 24 hours, to
provide at least one accessible passenger loading zone at an accessible
entrance. The 1991 Standards also require a canopy or roof overhang at this
passenger loading zone. The 2010 Standards do not require a canopy or roof
overhang.
Commenters urged the
Department to reinstate the requirement for a canopy or roof overhang at
accessible passenger loading zones at medical care and long-term care
facilities. While the Department recognizes that a canopy or roof overhang may afford
useful protection from inclement weather conditions to everyone using a
facility, it is not clear that the absence of such protection would impede
access by individuals with disabilities. Therefore, the Department declined to
reinstate that requirement.
Passenger Loading Zones. Where
passenger loading zones are provided, the 1991 Standards, at sections 4.1.2(5)
and 4.6.6, require at least one passenger loading zone to be accessible.
Sections 209.2.1 and 503 of the 2010 Standards, require facilities such as
airport passenger terminals that have long, continuous passenger loading zones
to provide one accessible passenger loading zone in every continuous 100 linear
feet of loading zone space. The 1991 Standards and the 2010 Standards both
include technical requirements for the vehicle pull-up space (96 inches wide
minimum and 20 feet long minimum). Accessible passenger loading zones must have
an access aisle that is 60 inches wide minimum and extends the full length of
the vehicle pull-up space. The 1991 Standards permit the access aisle to be on
the same level as the vehicle pull-up space, or on the sidewalk. The 2010
Standards require the access aisle to be on the same level as the vehicle
pull-up space and to be marked so as to discourage parking in the access aisle.
Commenters expressed
concern that certain covered entities, particularly airports, cannot
accommodate the requirements of the 2010 Standards to provide passenger loading
zones, and urged a revision that would require one accessible passenger loading
zone located in reasonable proximity to each building entrance served by the
curb.
Commenters raised a
variety of issues about the requirements at section 503 of the 2010 Standards
stating that the requirements for an access aisle, width, length, and marking
of passenger loading zones are not clear, do not fully meet the needs of
individuals with disabilities, may run afoul of state or local requirements, or
may not be needed because many passenger loading zones are typically staffed by
doormen or valet parkers. The wide range of opinions expressed in these
comments indicates that this provision is controversial. However, none of these
comments provided sufficient data to enable the Department to determine that
the requirement is not appropriate.
Valet Parking and Mechanical Access Parking
Garages. The 1991 Standards, at sections
4.1.2(5)(a) and (e), and sections 208.2, 209.4, and 209.5 of the 2010 Standards
require parking facilities that provide valet parking services to have an
accessible passenger loading zone. The 2010 Standards extend this requirement
to mechanical access parking garages. The 1991 Standards contained an exception
that exempted valet parking facilities from providing accessible parking
spaces. The 2010 Standards eliminate this exception. The reason for not
retaining the provision is that valet parking is a service, not a facility
type.
Commenters questioned why
the exception for valet parking facilities from providing accessible parking
spaces was eliminated. The provision was eliminated because valet parkers may
not have the skills necessary to drive a vehicle that is equipped to be
accessible, including use of hand controls, or when a seat is not present to
accommodate a driver using a wheelchair. In that case, permitting the
individual with a disability to self-park may be a required reasonable
modification of policy by a covered entity.
210 and 504 Stairways
The 1991 Standards
require stairs to be accessible only when they provide access to floor levels
not otherwise connected by an accessible route (e.g., where the accessible route is provided by an
elevator, lift, or ramp). The 2010 Standards, at sections 210.1 and 504,
require all newly constructed stairs that are part of a means of egress to comply with the requirements for accessible stairs, which include
requirements for accessible treads, risers, and handrails. In existing
facilities, where floor levels are connected by an accessible route, only the
handrail requirement will apply when the stairs are altered. Exception 2 to
section 210.1 of the 2010 Standards permits altered stairs to not comply with
the requirements for accessible treads and risers where there is an accessible
route between floors served by the stairs.
Most commenters were in
favor of this requirement for handrails in alterations and stated that adding
handrails to stairs during alterations would be feasible and not costly while
providing important safety benefits. The Department believes that it strikes an
appropriate balance by focusing the expanded requirements on new construction.
The 2010 Standards apply to stairs which are part of a required means of
egress. Few stairways are not part of a means of egress. The 2010 Standards are
consistent with most building codes which do not exempt stairways when the
route is also served by a ramp or elevator.
211 and 602 Drinking
Fountains
Sections 4.1.3(10) and
4.15 of the 1991 Standards and sections 211 and 602 of the 2010 Standards
require drinking fountains to be provided for persons who use wheelchairs and
for others who stand. The 1991 Standards require wall and post-mounted
cantilevered drinking fountains mounted at a height for wheelchair users to
provide clear floor space for a forward approach with knee and toe clearance
and free standing or built-in drinking fountains to provide clear floor space
for a parallel approach. The 2010 Standards require drinking fountains mounted
at a height for wheelchair users to provide clear floor space for a forward
approach with knee and toe clearance, and include an exception for a parallel
approach for drinking fountains installed at a height to accommodate very small
children. The 2010 Standards also include a technical requirement for drinking
fountains for standing persons.
212 and 606 Kitchens,
Kitchenettes, Lavatories, and Sinks
The 1991 Standards, at
sections 4.24, and 9.2.2(7), contain technical requirements for sinks and only
have specific scoping requirements for sinks in transient lodging. Section
212.3 of the 2010 Standards requires at least five percent (5%) of sinks in
each accessible space to comply with the technical requirements for sinks. The
technical requirements address clear floor space, height, faucets, and exposed
pipes and surfaces. The 1991 Standards, at section 4.24, and the 2010 Standards,
at section 606, both require the clear floor space at sinks to be positioned
for a forward approach and knee and toe clearance to be provided under the
sink. The 1991 Standards, at section 9.2.2(7), allow the clear floor space at
kitchen sinks and wet bars in transient lodging guest rooms with mobility
features to be positioned for either a forward approach with knee and toe
clearance or for a parallel approach.
The 2010 Standards
include an exception that permits the clear floor space to be positioned for a
parallel approach at kitchen sinks in any space where a cook top or
conventional range is not provided, and at a wet bar.
A commenter stated that
it is unclear what the difference is between a sink and a lavatory, and that
this is complicated by requirements that apply to sinks (five percent (5%)
accessible) and lavatories (at least one accessible). The term “lavatory”
generally refers to the specific type of plumbing fixture required for hand
washing in toilet and bathing facilities. The more generic term “sink” applies
to all other types of sinks located in covered facilities.
A commenter recommended
that the mounting height of sinks and lavatories should take into consideration
the increased use of three-wheeled scooters and some larger wheelchairs. The
Department is aware that the use of three-wheeled scooters and larger
wheelchairs may be increasing and that some of these devices may require
changes in space requirements in the future. The Access Board is funding
research to obtain data that may be used to develop design guidelines that
provide access to individuals using these mobility devices.
213, 603, 604, and
608 Toilet and Bathing Facilities, Rooms, and Compartments
General. Where toilet
facilities and bathing facilities are provided, they must comply with section
213 of the 2010 Standards.
A commenter recommended
that all accessible toilet facilities, toilet rooms, and compartments should be
required to have signage indicating that such spaces are restricted solely for
the use of individuals with disabilities. The Department believes that it is
neither necessary nor appropriate to restrict the use of accessible toilet
facilities. Like many other facilities designed to be accessible, accessible
toilet facilities can and do serve a wide range of individuals with and without
disabilities.
A commenter recommended
that more than one wheelchair accessible compartment be provided in toilet
rooms serving airports and train stations because these compartments are likely
to be occupied by individuals with luggage and persons with disabilities often
take longer to use them. The Access Board is examining airport terminal
accessibility as part of an ongoing effort to facilitate accessibility and
promote effective design. As part of these efforts, the Access Board will
examine requirements for accessible toilet compartments in larger airport
restrooms. The Department declines to change the scoping for accessible toilet
compartments at this time.
Ambulatory Accessible Toilet Compartments. Section 213.3.1 of the 2010 Standards requires multi-user
men´s toilet rooms, where the total of toilet compartments and urinals is six
or more, to contain at least one ambulatory accessible compartment. The 1991
Standards count only toilet stalls (compartments) for this purpose. The 2010
Standards establish parity between multi-user women´s toilet rooms and
multi-user men´s toilet rooms with respect to ambulatory accessible toilet
compartments.
Urinals. Men´s toilet
rooms with only one urinal will no longer be required to provide an accessible
urinal under the 2010 Standards. Such toilet rooms will still be required to
provide an accessible toilet compartment. Commenters urged that the
exception be eliminated. The Department believes that this change will provide
flexibility to many small businesses and it does not alter the requirement that
all common use restrooms must be accessible.
Multiple Single-User Toilet Rooms. Where multiple single-user toilet rooms are clustered in a
single location, fifty percent (50%), rather than the one hundred percent
(100%) required by the 1991 Standards, are required to be accessible by section
213.2, Exception 4 of the 2010 Standards. Section 216.8 of the 2010 Standards
requires that accessible single-user toilet rooms must be identified by the
International Symbol of Accessibility where all single-user toilet rooms are
not accessible.
Hospital Patient Toilet Rooms. An exception was added in section 223.1 of the 2010
Standards to allow toilet rooms that are part of critical or intensive care
patient sleeping rooms to no longer be required to provide mobility features.
Water Closet Location and Rear Grab Bar. Section 604.2 of the 2010 Standards allows greater
flexibility for the placement of the centerline of wheelchair accessible and
ambulatory accessible water closets. Section 604.5.2, Exception 1 permits a
shorter grab bar on the rear wall where there is not enough wall space due to
special circumstances (e.g., when a lavatory or other recessed fixture is located
next to the water closet and the wall behind the lavatory is recessed so that
the lavatory does not overlap the required clear floor space at the water
closet). The 1991 Standards contain no exception for grab bar length, and
require the water closet centerline to be exactly 18 inches from the side wall,
while the 2010 Standards requirement allows the centerline to be between 16 and
18 inches from the side wall in wheelchair accessible toilet compartments and
17 to 19 inches in ambulatory accessible toilet compartments.
Water Closet Clearance. Section
604.3 of the 2010 Standards represents a change in the accessibility
requirements where a lavatory is installed adjacent to the water closet. The
1991 Standards allow the nearest side of a lavatory to be placed 18 inches
minimum from the water closet centerline and 36 inches minimum from the side
wall adjacent to the water closet. However, locating the lavatory so close to
the water closet prohibits many individuals with disabilities from using a side
transfer. To allow greater transfer options, including side transfers, the 2010
Standards prohibit lavatories from overlapping the clear floor space at water
closets, except in covered residential dwelling units.
A majority of commenters,
including persons who use wheelchairs, strongly agreed with the requirement to
provide enough space for a side transfer. These commenters believed that the
requirement will increase the usability of accessible single-user toilet rooms
by making side transfers possible for many individuals who use wheelchairs and
would have been unable to transfer to a water closet using a side transfer even
if the water closet complied with the 1991 Standards. In addition, many
commenters noted that the additional clear floor space at the side of the water
closet is also critical for those providing assistance with transfers and
personal care for persons with disabilities. Numerous comments noted that this
requirement is already included in other model accessibility standards and many
state and local building codes and its adoption in the 2010 Standards is a
important part of harmonization efforts. The Department agrees that the
provision of enough clear floor space to permit side transfers at water closets
is an important feature that must be provided to ensure access for persons with
disabilities in toilet and bathing facilities. Furthermore, the adoption of
this requirement closely harmonizes with the model codes and many state and
local building codes.
Other commenters urged
the Department not to adopt section 604.3 of the 2010 Standards claiming that
it will require single-user toilet rooms to be two feet wider than the 1991
Standards require, and this additional requirement will be difficult to meet.
Multiple commentators also expressed concern that the size of single-user
toilet rooms would be increased but they did not specify how much larger such
toilet rooms would have to be in their estimation. In response to these
concerns, the Department developed a series of single-user toilet room floor
plans demonstrating that the total square footage between representative
layouts complying with the 1991 Standards and the 2010 Standards are
comparable. The Department believes the floor plan comparisons clearly show
that size differences between the two Standards are not substantial and several
of the 2010 Standards-compliant plans do not require additional square footage
compared to the 1991 Standards plans. These single-user toilet room floor plans
are shown below.
Several commenters
concluded that alterations of single-user toilet rooms should be exempt from
the requirements of section 604.3 of the 2010 Standards because of the
significant reconfiguration and reconstruction that would be required, such as
moving plumbing fixtures, walls, and/or doors at significant additional
expense. The Department disagrees with this conclusion since it fails to take
into account several key points. The 2010 Standards contain provisions for
in-swinging doors, 603.2.3, Exception 2, and recessed fixtures adjacent to
water closets, 604.5.2, Exception 1. These provisions give flexibility to
create more compact room designs and maintain required clearances around
fixtures. As with the 1991 Standards, any alterations must comply to the extent
that it is technically feasible to do so.
The requirements at
section 604.3.2 of the 2010 Standards specify how required clearance around the
water closet can overlap with specific elements and spaces. An exception that
applies only to covered residential dwelling units permits a lavatory to be
located no closer than 18 inches from the centerline of the water closet. The
requirements at section 604.3.2 of the 2010 Standards increase accessibility
for individuals with disabilities. One commenter expressed concern about other
items that might overlap the clear floor space, such as dispensers, shelves,
and coat hooks on the side of the water closet where a wheelchair would be
positioned for a transfer. Section 604.3.2 of the 2010 Standards allows items
such as associated grab bars, dispensers, sanitary napkin disposal units, coat
hooks, and shelves to overlap the clear floor space. These are items that
typically do not affect the usability of the clear floor space.
Toilet Room Doors. Sections
4.22.2 and 4.22.3 of the 1991 Standards and Section 603.2.3 of the 2010
Standards permit the doors of all toilet or bathing rooms with in-swinging
doors to swing into the required turning space, but not into the clear floor
space required at any fixture. In single-user toilet rooms or bathing rooms,
Section 603.2.3 Exception 2 of the 2010 Standards permits the door to swing
into the clear floor space of an accessible fixture if a clear floor space that
measures at least 30 inches by 48 inches is provided outside of the door swing.
Several commenters
expressed reservations about Exception 2 of Section 603.2.3. Concerns were
raised that permitting doors of single-user toilet or bathing rooms with
in-swinging doors to swing into the clearance around any fixture will result in
inaccessibility to individuals using larger wheelchairs and scooters.
Additionally, a commenter stated that the exception would require an
unacceptable amount of precision maneuvering by individuals who use standard
size wheelchairs. The Department believes that this provision achieves
necessary flexibility while providing a minimum standard for maneuvering space.
The standard does permit additional maneuvering space to be provided, if
needed.
In the NPRM, the
Department provided a series of plan drawings illustrating comparisons of the
minimum size single-user toilet rooms. These floor plans showed typical
examples that met theminimum
requirements of the proposed ADA Standards. A commenter was of the opinion that
the single-user toilet plans shown in the NPRM demonstrated that the new
requirements will not result in a substantial increase in room size. Several
other commenters representing industry offered criticisms of the single-user
toilet floor plans to support their assertion that a 2010 Standards-compliant
single-user toilet room will never be smaller and will likely be larger than
such a toilet room required under the 1991 Standards. Commenters also asserted
that the floor plans prepared by the Department were of a very basic design
which could be accommodated in a minimal sized space whereas the types of
facilities their customers demand would require additional space to be added to
the rooms shown in the floor plans. The Department recognizes that there are
many design choices that can affect the size of a room or space. Choices to
install additional features may result in more space being needed to provide
sufficient clear floor space for that additional feature to comply. However,
many facilities that have these extra features also tend to have ample space to
meet accessibility requirements. Other commenters asserted that public
single-user toilet rooms always include a closer and a latch on the entry door,
requiring a larger clear floor space than shown on the push side of the door
shown in Plan 1B. The Department acknowledges that in instances where a latch
is provided and a closer is required by other regulations or codes, the minimum
size of a room with an out-swinging door may be slightly larger than as shown
in Plan 1C.
Additional floor plans of
single-user toilet rooms are now included in further response to the commentary
received.
| COMPARISON OF SINGLE-USER TOILET ROOM LAYOUTS | |
| 1991 Standards Plan-1A: 1991 Standards Minimum with Out-Swinging Door 5’-0” x 7’-3” 36.25 Square Feet This plan shows a typical example of a single-user toilet room that meets the minimum requirements of the 1991 Standards. The size of this space is determined by the minimum width required for the water closet and lavatory between the side walls, the minimum wheelchair turning space, and the space required for the out-swinging door. A lavatory with knee space can overlap the clear floor space required for the water closet provided that at least 36 inches of clearance is maintained between the side wall next to the water closet and the lavatory (see section 4.16.2 and Fig. 28 of the 1991 Standards). A wheelchair turning space meeting section 4.2.3 of the 1991 Standards must be provided. The size of this room requires that the entry door swing out. The room would be larger if the door were in-swinging. | 2010 Standards Plan-1B: 2010 Standards Minimum with Out-Swinging Door 7’-0” x 5’-0” • 35.00 Square Feet This plan shows a typical example of a single-user toilet room that meets the minimum requirements of the 2010 Standards. Features include: five-foot minimum width between the side wall of the water closet and the lavatory; 60-inch minimum circular wheelchair turning space; and 36-inch by 48-inch clear maneuvering space for the out-swinging entry door. Section 604.3.1 of the 2010 Standards requires a floor clearance at a water closet that is a minimum of 60 inches wide by 56 inches deep regardless of approach. Section 604.3.2 prohibits any other plumbing fixtures from being located in this clear space, except in residential dwelling units. The 2010 Standards, at section 304.3, allows the turning space to extend into toe and knee space provided beneath fixtures and other elements. Required maneuvering space for the entry door (inside the room) must be clear of all fixtures. If the door had both a closer and latch, section 404.2.4.1 and Figure 404.2.4.1(c) require additional space on the latch side. This layout is three point five percent (3.5%) smaller than the accompanying Plan-1A: 1991 Standards Minimum with Out-Swinging Door example. |
| COMPARISON OF SINGLE-USER TOILET ROOM LAYOUTS | |
| 2010 Standards Plan-1C: 2010 Standards Minimum with Out-Swinging Door (entry door has both closer and latch) 7’-0” x 5’-6” 38.50 Square Feet This plan shows the same typical features of a single-user toilet room that meets the minimum requirements of the 2010 Standards as Plan-1B does except the entry door has both a closer and latch. Because the door has both a closer and latch, a minimum additional foot of maneuvering space is required on the latch side (see section 404.2.4.1 and Figure 404.2.4.1(c) of the 2010 Standards). This layout is six point two percent (6.2%) larger than the accompanying Plan-1A: 1991 Standards Minimum with Out-Swinging Door example. |
| COMPARISON OF SINGLE-USER TOILET ROOM LAYOUTS | |
| 1991 Standards Plan-2A: 1991 Standards Minimum with In-Swinging Door 5’-0” x 8’-6” 42.50 Square Feet This plan shows a typical example of a single-user toilet room that meets the minimum requirements of the 1991 Standards. Depending on the width of the hallway and other circulation issues, it can be preferable to swing the entry door into the toilet room. Businesses and public entities typically prefer to have an in-swinging door. The in-swinging door increases overall room size because it cannot swing over the required clear floor space at any accessible fixture, (see section 4.22.2 of the 1991 Standards). This increases the room depth from Plan-1A. The door is permitted to swing over the required turning space shown as a 60-inch circle. | 2010 Standards Plan-2B: 2010 Standards Minimum with In-Swinging Door 7’-0” x 6’-6” 45.50 Square Feet This plan shows a typical example of a single-user toilet room that meets the minimum requirements of the 2010 Standards when the entry door swings into the room. In the 2010 Standards an exception allows the entry door to swing over the clear floor spaces and clearances required at the fixtures if a clear floor space complying with section 305.3 (minimum 30 inches by 48 inches) is provided outside the arc of the door swing, section 603.2.3 exception 2. The required maneuvering space for the door, section 404.2.4.1 and Figure 404.2.4.1(a), also is a factor in room size. This clear space cannot be obstructed by the plumbing fixtures. Note that this layout provides more space for turning when the door is closed than Plan-1B. This layout is seven percent (7%) larger than the accompanying Plan-2A: 1991 Standards Minimum with In-Swinging Door example. |
| COMPARISON OF SINGLE-USER TOILET ROOM LAYOUTS | |
| 2010 Standards Plan-2C: 2010 Standards Minimum with In-Swinging Door 7’-0” x 6’-6” 40.00 Square Feet (plumbing chase not included) This plan shows the same typical features of a single-user toilet room that meets the minimum requirements of the 2010 Standards as Plan-2B when the entry door swings into the room. Note that this layout also provides more space for turning when the door is closed than Plan-1B. This layout is six point two five percent (6.25%) smaller than the accompanying Plan-2A: 1991 Standards Minimum with In-Swinging Door example. |
| COMPARISON OF SINGLE-USER TOILET ROOM LAYOUTS | |
| 1991 Standards and 2010 Standards Plan-3: Meets Both 1991 Standards and 2010 Standards 7’-0” x 5’-9” 40.25 Square Feet This plan shows an example of a single-user toilet room that meets the minimum requirements of both the 1991 Standards and 2010 Standards. A T-shaped turning space has been used (see Fig. 3(a) of the 1991 Standards and Figure 304.3.2 of the 2010 Standards) to maintain a compact room size. An out-swinging door also minimizes the overall layout depth and cannot swing over the required clear floor space or clearance at any accessible plumbing fixture. This layout is eleven percent (11%) larger than the Plan-1A: 1991 Standards Minimum with Out-Swinging Door example shown at the beginning of these plan comparisons. |
| COMPARISON OF SINGLE-USER TOILET ROOM “PAIRS” WITH FIXTURES SIDE-BY-SIDE | |
| 1991 Standards Plan-1A Pair: 1991 Standards with Out-Swinging Doors Two 5’-0” x 7’-3” Rooms– 72.50 Square Feet Total | 2010 Standards Plan-1B Pair: 2010 Standards with Out-Swinging Doors Two 7’-0” x 5’-0” Rooms- 70.00 Square Feet Total |
| These plans show men’s/women’s room configurations using Plans 1A and 1B. |
| COMPARISON OF SINGLE-USER TOILET ROOM “PAIRS” WITH FIXTURES SIDE-BY-SIDE | |
| 1991 Standards | 2010 Standards Plan-2C Pair: 2010 Standards with In-Swinging Doors Two 7’-2” x 6’-6” Rooms – 82.00 Square Feet Total This plan shows a men’s/women’s room configuration using Plan 2C. |
Toilet Paper Dispensers. The
provisions for toilet paper dispensers at section 604.7 of the 2010 Standards
require the dispenser to be located seven inches minimum and nine inches
maximum in front of the water closet measured to the centerline of the
dispenser. The paper outlet of the dispenser must be located 15 inches minimum
and 48 inches maximum above the finish floor. In the 1991 Standards the
location of the toilet paper dispenser is determined by the centerline and
forward edge of the dispenser. In the 2010 Standards the mounting location of
the toilet paper dispenser is determined by the centerline of the dispenser and
the location of the outlet for the toilet paper.
One commenter discussed
the difficulty of using large roll toilet paper dispensers and dispensers with
two standard size rolls stacked on top of each other. The size of the large
dispensers can block access to the grab bar and the outlet for the toilet paper
can be too low or too high to be usable. Some dispensers also control the
delivery of the toilet paper which can make it impossible to get the toilet
paper. Toilet paper dispensers that control delivery or do not allow continuous
paper flow are not permitted by the 1991 Standards or the 2010 Standards. Also,
many of the large roll toilet paper dispensers do not comply with the 2010
Standards since their large size does not allow them to be mounted 12 inches
above or 1 1/2 inches below the side grab bar as required by section 609.3.
Shower Spray Controls. In
accessible bathtubs and shower compartments, sections 607.6 and 608.6 of the
2010 Standards require shower spray controls to have an on/off control and to
deliver water that is 120¡F (49¡C) maximum. Neither feature was required by the
1991 Standards, but may be required by plumbing codes. Delivering water that is
no hotter than 120¡F (49¡C) will require controlling the maximum temperature at
each accessible shower spray unit.
Shower Compartments. The
1991 Standards at sections 4.21 and 9.1.2 and the 2010 Standards at section 608
contain technical requirements for transfer-type and roll-in shower
compartments. The 2010 Standards provide more flexibility than the 1991
Standards as follows:
Commenters raised
concerns that adding a new exception that permits a 2-inch maximum curb in
transfer-type showers in alterations to existing facilities, where recessing
the compartment to achieve a 1/2-inch curb will disturb the structural
reinforcement of the floor slab, will impair the ability of individuals with
disabilities to use transfer-type showers.
The exception in section
608.7 of the 2010 Standards permitting a 2-inch maximum curb in transfer-type
showers is allowed only in existing facilities where provision of a 1/2-inch
high threshold would disturb the structural reinforcement of the floor slab.
Whenever this exception is used the least high threshold that can be used
should be provided, up to a maximum height of 2 inches. This exception is
intended to provide some flexibility where the existing structure precludes
full compliance.
Toilet and Bathing Rooms. Section
213 of the 2010 Standards sets out the scoping requirements for toilet and
bathing rooms.
Commenters recommended
that section 213, Toilet Facilities and Bathing Facilities, of the 2010
Standards include requirements that unisex toilet and bathing rooms be provided
in certain facilities. These commenters suggested that unisex toilet and
bathing rooms are most useful as companion care facilities.
Model plumbing and building
codes require single-user (unisex or family) toilet facilities in certain
occupancies, primarily assembly facilities, covered malls, and transportation
facilities. These types of toilet rooms provide flexibility for persons needing
privacy so that they can obtain assistance from family members or persons of
the opposite sex. When these facilities are provided, both the 1991 Standards
and 2010 Standards require that they be accessible. The 2010 Standards do not
scope unisex toilet facilities because plumbing codes generally determine the
number and type of plumbing fixtures to be provided in a particular occupancy
and often determine whether an occupancy must provide separate sex facilities
in addition to single-user facilities. However, the scoping at section 213.2.1
of the 2010 Standards coordinates with model plumbing and building code
requirements which will permit a small toilet room with two water closets or
one water closet and one urinal to be considered a single-user toilet room
provided that the room has a privacy latch. In this way, a person needing
assistance from a person of the opposite sex can lock the door to use the
facility while temporarily inconveniencing only one other potential user. These
provisions strike a reasonable balance and impose less impact on covered
entities.
A commenter recommended
that in shower compartments rectangular seats as provided in section 610.3.1 of
the 2010 Standards should not be permitted as a substitute for L-shaped seats
as provided in 610.3.2.
The 2010 Standards do not
indicate a preference for either rectangular or L-shaped seats in shower
compartments. L-shaped seats in transfer and certain roll-in showers have been
used for many years to provide users with poor balance additional support
because they can position themselves in the corner while showering.
214 and 611 Washing
Machines and Clothes Dryers
Sections 214.2 (washing
machines) and 214.3 (clothes dryers) of the 2010 Standards specify the number
of each type of these machines required to be accessible (one to two depending
upon the total number of machines provided) and section 611 specifies the
technical requirements. An exception will permit the maximum height for the
tops of these machines to be 2 inches higher than the general requirement for
maximum high reach over an obstruction.
A commenter objected to
the scoping provision for accessible washing machines and clothes dryers
stating that the probability is low that more than one accessible machine would
be needed at the same time in the laundry facility of a place of transient
lodging.
The scoping in this
provision is based on the relative size of the facility. The Department assumes
that the size of the facility (and, therefore, the number of accessible
machines provided) will be determined by the covered entity´s assessment of the
demand for laundry facilities. The Department declines to assume that persons
with disabilities will have less use for accessible facilities in transient
lodging than in other public accommodations.
216 and 703 Signs
The following types of
signs, though they are not specifically subject to the 1991 Standards
requirement for signs, will now be explicitly exempted by sections 216 and 703
of the 2010 Standards. These types of signs include: seat and row designations
in assembly areas; occupant names, building addresses; company names and logos;
signs in parking facilities (except those identifying accessible parking spaces
and means of egress); and exterior signs identifying permanent rooms and spaces
that are not located at the door to the space they serve. This requirement also
clarifies that the exception for temporary signs applies to signs used for
seven days or less.
The 2010 Standards retain
the option to provide one sign where both visual and tactile characters are
provided or two signs, one with visual, and one with tactile characters.
217 and 704
Telephones
Drive-up Public Telephones. Where
public telephones are provided, the 1991 Standards, at section 4.1.3(17)(a),
and section 217.2 of the 2010 Standards, require a certain number of telephones
to be wheelchair accessible. The 2010 Standards add a new exception that
exempts drive-up public telephones.
Text Telephones (TTY). Section 4.1.3(17) of the 1991 Standards requires a public TTY to be provided
if there are four or more public pay telephones at a site and at least one is
in an interior location. Section 217.4.2 of the 2010 Standards requires that a
building or facility provide a public TTY on each floor that has four or more
public telephones, and in each telephone bank that has four or more telephones.
Additionally, section 217.4.4 of the 2010 Standards requires that at least one
public TTY be installed where four or more public pay telephones are provided
on an exterior site. Section 217.4.5 of the 2010 Standards also requires that a
public TTY be provided where at least one public pay telephone is provided at a
public rest stop, emergency roadside stop, or service plaza. Section 217.4.6 of
the 2010 Standards also requires that a public TTY be provided at each location
where at least one public pay telephone is provided serving a hospital
emergency room, a hospital recovery room, or a hospital waiting room. Section
217.4.7 of the 2010 Standards also requires that, in addition to the requirements
for a public TTY to be provided at each location where at least four or more
public pay telephones are provided at a bank of pay telephones and where at
least one public pay telephone is provided on a floor or in a public building,
where at least one public pay telephone serves a particular entrance to a bus
or rail facility at least one public TTY must serve that entrance. In airports,
in addition to the requirements for the provision of a public TTY at phone
banks, on floors, and in public buildings with pay phones, where four or more
public pay phones are located in a terminal outside the security areas, in a
concourse within the security areas, or a baggage claim area in a terminal at
least one public TTY must be provided. Section 217.4.8 of the 2010 Standards
also requires that a TTY be provided in at least one secured area where at
least one pay telephone is provided in a secured area used only by detainees or
inmates and security personnel in detention and correctional facilities.
Wheelchair Accessible
Telephones
Section 217.2 of the 2010
Standards requires that where public telephones are provided wheelchair
accessible telephones complying with section 704.2 must be provided in
accordance with Table 217.2.
A commenter stated that
requiring installation of telephones within the proposed reach range
requirements would adversely impact public and telephone owners and operators.
According to the commenter, individuals without disabilities will not use
telephones that are installed within the reach range requirements because they
may be inconvenienced by having to stoop to operate these telephones, and,
therefore, owners and operators will lose revenue due to less use of public
telephones.
This comment
misunderstands the scoping requirements for wheelchair accessible
telephones. Section 217.2 of the
2010 Standards provides that where one or more single units are provided, only
one unit per floor, level, or exterior site is required to be wheelchair
accessible. However, where banks of telephones are provided, only one telephone
in each bank is required to be wheelchair accessible. The Department believes
these scoping requirements for wheelchair accessible telephones are reasonable
and will not result in burdensome obligations or lost revenue for owners and
operators.
218 and 810
Transportation Facilities
Detectable Warnings. Detectable
warnings provide a distinctively textured surface of truncated domes. The 1991
Standards at sections 4.1.3(15), 4.7.7, 4.29.2, 4.29.5, 4.29.6, and 10.3.1(8) require
detectable warnings at curb ramps, hazardous vehicular areas, reflecting pools,
and transit platform edges. The 2010 Standards at sections 218, 810.5, 705.1,
and 705.2 only require detectable warnings at transit platform edges. The
technical specifications for the diameter and spacing of the truncated domes
have also been changed. The 2010 Standards also delete the requirement for the
material used to contrast in resiliency or sound-on-cane contact from adjoining
walking surfaces at interior locations.
The 2010 Standards apply
to detectable warnings on developed sites. They do not apply to the public
right-of-way. Scoping for detectable warnings at all locations other than
transit platform edges has been eliminated from the 2010 Standards. However, because
detectable warnings have been shown to significantly benefit individuals with
disabilities at transit platform edges, the 2010 Standards provide scoping and
technical requirements for detectable warnings at transit platform edges.
219 and 706 Assistive
Listening Systems
Signs. Section 216.10 of the 2010
Standards requires each covered assembly area to provide signs at each
auditorium to inform patrons that assistive listening systems are available.
However, an exception to this requirement permits assembly areas that have
ticket offices or ticket windows to display the required signs at the ticket
window.
A commenter recommended
eliminating the exception at 216.10 because, for example, people who buy
tickets through the mail, by subscription, or on-line may not need to stop at a
ticket office or window upon arrival at the assembly area. The Department
believes that an individual´s decision to purchase tickets before arriving at a
performance does not limit the discretion of the assembly operator to use the
ticket window to provide other services to its patrons. The Department retained
the exception at 216.10 to permit the venue operator some flexibility in
determining how to meet the needs of its patrons.
Audible Communication. The 1991 Standards, at section 4.1.3(19)(b), require assembly areas,
where audible communication is integral to the use of the space, to provide an
assistive listening system if they have an audio amplification system or an
occupant load of 50 or more people and have fixed seating. The 2010 Standards
at section 219 require assistive listening systems in spaces where
communication is integral to the space and audio amplification is provided and
in courtrooms.
The 1991 Standards
require receivers to be provided for at least four percent (4%) of the total
number of fixed seats. The 2010 Standards, at section 219.3, revise the
percentage of receivers required according to a table that correlates the
required number of receivers to the seating capacity of the facility. Small facilities
will continue to provide receivers for four percent (4%) of the seats. The
required percentage declines as the size of the facility increases. The changes
also require at least twenty-five percent (25%), but no fewer than two, of the
receivers to be hearing-aid compatible. Assembly areas served by an induction
loop assistive listening system will not have to provide hearing-aid compatible
receivers.
Commenters were divided
in their opinion of this change. The Department believes that the reduction in
the required number of assistive listening systems for larger assembly areas
will meet the needs of individuals with disabilities. The new requirement to
provide hearing-aid compatible receivers should make assistive listening
systems more usable for people who have been underserved until now.
Concerns were raised that
the requirement to provide assistive listening systems may have an adverse
impact on restaurants. This comment misunderstands the scope of coverage. The
2010 Standards define the term “assembly area” to include facilities used for
entertainment, educational, or civic gatherings. A restaurant would fall within
this category only if it is presenting programs to educate or entertain diners,
and it provides an audio amplification system.
Same Management or Building. The 2010 Standards add a new exception that allows multiple
assembly areas that are in the same building and under the same management,
such as theaters in a multiplex cinema and lecture halls in a college building,
to calculate the number of receivers required based on the total number of
seats in all the assembly areas, instead of each assembly area separately,
where the receivers are compatible with the assistive listening systems used in
each of the assembly areas.
Mono Jacks, Sound Pressure, Etc. Section 4.33.7 of the 1991 Standards does not contain
specific technical requirements for assistive listening systems. The 2010
Standards at section 706 require assistive listening systems to have standard
mono jacks and will require hearing-aid compatible receivers to have neck loops
to interface with telecoils in hearing aids. The 2010 Standards also specify
sound pressure level, signal-to-noise ratio, and peak clipping level. Currently
available assistive listening systems typically meet these technical
requirements.
220 and 707 Automatic
Teller Machines and Fare Machines
Section 707 of the 2010
Standards adds specific technical requirements for speech output, privacy,
tactilely-discernible input controls, display screens, and Braille instructions
to the general accessibility requirements set out in the 1991 Standards.
Machines shall be speech enabled and exceptions are provided that cover when
audible tones are permitted, when advertisements or similar information are
provided, and where speech synthesis cannot be supported. The 1991 Standards
require these machines to be accessible to and independently usable by persons
with visual impairments, but do not contain any technical specifications.
221 Assembly Areas
Wheelchair Spaces/Companion Seats. Owners of large assembly areas have historically complained
to the Department that the requirement for one percent (1%) of seating to be
wheelchair seating is excessive and that wheelchair seats are not being sold. At the same time, advocates have traditionally argued that persons who
use wheelchairs will increasingly participate in activities at assembly areas
once they become accessible and that at least one percent (1%) of seats should
be accessible.
The 1991 Standards, at
sections 4.1.3(19)(a) and 4.33.3, require assembly areas to provide wheelchair
and companion seats. In assembly areas with a capacity of more than five
hundred seats, accessible seating at a ratio of one percent (1%) (plus one
seat) of the number of traditional fixed seats must be provided. The 2010
Standards, at section 221.2, require assembly areas with 501 to 5000 seats to
provide at least six wheelchair spaces and companion seats plus one additional
wheelchair space for each additional 150 seats (or fraction thereof) between
501 through 5000. In assembly areas with more than 5000 seats at least 36
wheelchair spaces and companion seats plus one additional wheelchair space for
each 200 seats (or fraction thereof) more than 5000 are required. See sections
221.1 and 221.2 of the 2010 Standards.
Commenters questioned why
scoping requirements for large assembly areas are being reduced. During the
development of the 2004 ADAAG, industry providers, particularly those
representing larger stadium-style assembly areas, supplied data to the Access
Board demonstrating the current scoping requirements for large assembly areas
often exceed the demand. Based on the data provided to the Access Board, the
Department believes the reduced scoping requirements will adequately meet the
needs of individuals with disabilities, while balancing concerns of the
industry.
Commenters representing
assembly areas supported the reduced scoping. One commenter asked that scoping
requirements for larger assembly areas be reduced even further. Although the
commenter referenced data demonstrating that wheelchair spaces in larger
facilities with seating capacities of 70,000 or more may not be used by
individuals with disabilities, the data was not based on actual results, but
was calculated at least in part based on probability assumptions. The
Department is not convinced that further reductions should be made based upon
those projections and that further reductions would not substantially limit
accessibility at assembly areas for persons who use wheelchairs.
Section 221.2.1.3 of the
2010 Standards clarifies that the scoping requirements for wheelchair spaces
and companion seats are to be applied separately to general seating areas and
to each luxury box, club box, and suite in arenas, stadiums, and grandstands.
In assembly areas other than arenas, stadiums, and grandstands, the scoping
requirements will not be applied separately. Thus, in performing arts
facilities with tiered boxes designed for spatial and acoustical purposes, the
scoping requirement is to be applied to the seats in the tiered boxes. The
requisite number of wheelchair spaces and companion seats required in the
tiered boxes are to be dispersed among at least twenty percent (20%) of the
tiered boxes. For example, if a performing arts facility has 20 tiered boxes
with 10 fixed seats in each box, for a total of 200 seats, at least five
wheelchair spaces and companion seats must be provided in the boxes, and they
must be dispersed among at least four of the 20 boxes.
Commenters raised concerns
that the 2010 Standards should clarify requirements for scoping of seating
areas and that requiring accessible seating in each luxury box, club box, and
suite in arenas, stadiums and grandstands could result in no wheelchair and
companion spaces available for individuals with disabilities in the general
seating area(s). These comments appear to misunderstand the requirements. The
2010 Standards require each luxury box, club box, and suite in an arena,
stadium or grandstand to be accessible and to contain wheelchair spaces and
companion seats as required by sections 221.2.1.1, 221.2.1.2 and 221.3. In
addition, the remaining seating areas not located in boxes must also contain
the number of wheelchair and companion seating locations specified in the 2010
Standards based on the total number of seats in the entire facility excluding
luxury boxes, club boxes and suites.
Wheelchair Space Overlap in Assembly Areas. Section 4.33.3 of the 1991 Standards and the 2010
Standards, at sections 402, 403.5.1, 802.1.4, and 802.1.5, require walkways
that are part of an accessible route to have a 36-inch minimum clear width.
Section 802.1.5 of the 2010 Standards specifically prohibits accessible routes
from overlapping wheelchair spaces. This change is consistent with the
technical requirements for accessible routes, since the clear width of
accessible routes cannot be obstructed by any object. The 2010 Standards also
specifically prohibit wheelchair spaces from overlapping circulation paths. An
advisory note clarifies that this prohibition applies only to the circulation
path width required by applicable building codes and fire and life safety codes
since the codes prohibit obstructions in the required width of assembly aisles.
Section 802.1.5 of the
2010 Standards provides that where a main circulation path is located in front
of a row of seats that contains a wheelchair space and the circulation path is
wider than required by applicable building codes and fire and life safety
codes, the wheelchair space may overlap the”extra” circulation path width.
Where a main circulation path is located behind a row of seats that contains a
wheelchair space and the wheelchair space is entered from the rear, the aisle
in front of the row may need to be wider in order not to block the required
circulation path to the other seats in the row, or a mid-row opening may need
to be provided to access the required circulation path to the other seats.
Line of Sight and Dispersion of Wheelchair Spaces in
Assembly Areas. Section 4.33.3 of the 1991
Standards requires wheelchair spaces and companion seats to be an integral part
of any fixed seating plan in assembly areas and to provide individuals with
disabilities a choice of admission prices and lines of sight comparable to
those available to other spectators. Section 4.33.3 also requires wheelchair
spaces and companion seats to be dispersed in assembly areas with more than 300
seats. Under the 1991 Standards, sports facilities typically located some
wheelchair spaces and companion seats on each accessible level of the facility.
In 1994, the Department issued official guidance interpreting the requirement
for comparable lines of sight in the 1991 Standards to mean wheelchair spaces
and companion seats in sports stadia and arenas must provide patrons with
disabilities and their companions with lines of sight over standing spectators
to the playing field or performance area, where spectators were expected to
stand during events. See”Accessible Stadiums,” www.ada.gov/stadium.pdf. The
Department also interpreted the section 4.33.3 comparable lines of sight
requirement to mean that wheelchair spaces and companion seats in stadium-style
movie theaters must provide patrons with disabilities and their companions with
viewing angles comparable to those provided to other spectators.
Sections 221.2.3 and
802.2 of the 2010 Standards add specific technical requirements for providing
lines of sight over seated and standing spectators and also require wheelchair
spaces and companion seats (per section 221.3) to provide individuals with
disabilities choices of seating locations and viewing angles that are
substantially equivalent to, or better than, the choices of seating locations
and viewing angles available to other spectators. This applies to all types of assembly
areas, including stadium-style movie theaters, sports arenas, and concert
halls. These rules are expected to have minimal impact since they are
consistent with the Department´s longstanding interpretation of the 1991
Standards and technical assistance.
Commenters stated that
the qualitative viewing angle language contained in section 221.2.3 is not
appropriate for an enforceable regulatory standard unless the terms of such
language are defined. Other commenters requested definitions for viewing angles,
an explanation for precisely how viewing angles are measured, and an
explanation for precisely how to evaluate whether one viewing angle is better
than another viewing angle. The Department is convinced that the regulatory
language in the 2010 Standards is sufficient to provide a performance-based
standard for designers, architects, and other professionals to design
facilities that provide comparable lines of sight for wheelchair seating in
assembly areas, including viewing angles. The Department believes that as a
general rule, the vast variety of sizes and configurations in assembly areas
requires it to establish a performance standard for designers to adapt to the
specific circumstances of the venue that is being designed. The Department has
implemented more explicit requirements for stadium-style movie theaters in 28
CFR 36.406(f) and 35.151(g) of the final regulations based on experience and
expertise gained after several major enforcement actions.
Another commenter
inquired as to what determines whether a choice of seating locations or viewing
angles is better than that available to all other spectators. The answer to
this question varies according to each assembly area that is being designed,
but designers and venue operators understand which seats are better and that
understanding routinely drives design choices made to maximize profit and
successful operation of the facility, among other things. For example, an”equivalent or better” line of sight in a major league football stadium would
be different than for a 350-seat lecture hall. This performance standard is
based upon the underlying principle of equal opportunity for a good viewing
experience for everyone, including persons with disabilities. The Department
believes that for each specific facility that is designed, the owner, operator,
and design professionals will be able to distinguish easily between seating
locations and the quality of the associated lines of sight from those seating
locations in order to decide which ones are better than others. The wheelchair
locations do not have to be exclusively among the seats with the very best
lines of sight nor may they be exclusively among the seats with the worst lines
of sight. Rather, wheelchair seating locations should offer a choice of viewing
experiences and be located among the seats where most of the audience chooses
to sit.
Section 4.33.3 of the
1991 Standards requires wheelchair spaces and companion seating to be offered
at a choice of admission prices, but section 221.2.3.2 of the 2010 Standards no
longer requires wheelchair spaces and companion seats to be dispersed based on
admission prices. Venue owners and operators commented during the 2004 ADAAG
rulemaking process that pricing is not always established at the design phase
and may vary from event to event within the same facility, making it difficult
to determine where to place wheelchair seats during the design and construction
phase. Their concern was that a failure by the venue owner or operator to
provide a choice of ticket prices for wheelchair seating as required by the
1991 Standards governing new construction could somehow unfairly subject
parties involved in the design and construction to liability unknowingly.
Sections 221.2.3.2 and
221.3 of the 2010 Standards require wheelchair spaces and companion seats to be
vertically dispersed at varying distances from the screen, performance area, or
playing field. The 2010 Standards, at section 221.2.3.2, also require
wheelchair spaces and companion seats to be located in each balcony or
mezzanine served by an accessible route. The final regulations at 28 CFR
35.151(g)(1) and 36.406(f)(1) also require assembly areas to locate wheelchair
spaces and companion seats at all levels of the facility that include seating
and that are served by an accessible route. The Department interprets that
requirement to mean that wheelchair and companion seating must be provided in a
particular area even if the accessible route may not be the same route that
other individuals use to reach their seats. For example, if other patrons reach
their seats on the field by an inaccessible route (e.g., by stairs), but there is an accessible route that
complies with section 206.3 that could be connected to seats on the field,
accessible seats must be placed on the field even if that route is not
generally available to the public. The 2010 Standards, at section 221.2.3.2,
provide an exception for vertical dispersion in assembly areas with 300 or
fewer seats if the wheelchair spaces and companion seats provide viewing angles
that are equivalent to, or better than, the average viewing angle provided in
the facility.
Section 221.3 of the 2010
Standards requires wheelchair spaces and companion seats to be dispersed
horizontally. In addition, 28 CFR 35.151(g)(2) and 36.406(f)(2) require
assembly areas that have seating around the field of play or performance area
to place wheelchair spaces and companion seating all around that field of play
or performance area.
Stadium-Style Movie Theaters
Pursuant to 28 CFR
35.151(g) and 36.406(f), in addition to other obligations, stadium-style movie
theaters must meet horizontal and vertical dispersion requirements set forth in
sections 221.2.3.1 and 221.2.3.2 of the 2010 Standards; placement of wheelchair
and companion seating must be on a riser or cross-aisle in the stadium section
of the theater; and placement of such seating must satisfy at least one of the
following criteria: (i) it is located within the rear sixty percent (60%) of
the seats provided in the auditorium; or (ii) it is located within the area of
the auditorium where the vertical viewing angles are between the 40th and 100th
percentile of vertical viewing angles for all seats in that theater as ranked
from the first row (1st percentile) to the back row (100th percentile). The
line-of-sight requirements recognize the importance to the movie-going
experience of viewing angles, and the final regulations ensure that movie
patrons with disabilities are provided views of the movie screen comparable to
other theater patrons. Some commenters supported regulatory language that would
require stadium-style theaters to meet standards of accessibility equal to
those of non-stadium-style theaters, with larger theaters being required to
provide accessible seating locations and viewing angles equal to those offered
to individuals without disabilities.
One commenter noted that
stadium-style movie theaters, sports arenas, music venues, theaters, and
concert halls each pose unique conditions that require separate and specific
standards to accommodate patrons with disabilities, and recommended that the
Department provide more specific requirements for sports arenas, music venues,
theaters, and concert halls. The Department has concluded that the 2010
Standards will provide sufficient flexibility to adapt to the wide variety of
assembly venues covered.
Companion Seats. Section
4.33.3 of the 1991 Standards required at least one fixed companion seat to be
provided next to each wheelchair space. The 2010 Standards at sections 221.3
and 802.3 permit companion seats to be movable. Several commenters urged the
Department to ensure that companion seats are positioned in a manner that
places the user at the same shoulder height as their companions using mobility
devices. The Department recognizes that some facilities have created problems
by locating the wheelchair space and companion seat on different floor
elevations (often a difference of one riser height). Section 802.3.1 of the
2010 Standards addresses this problem by requiring the wheelchair space and the
companion seat to be on the same floor elevation. This solution should prevent
any vertical discrepancies that are not the direct result of differences in the
sizes and configurations of wheelchairs.
Designated Aisle Seats. Section
4.1.3(19)(a) of the 1991 Standards requires one percent (1%) of fixed seats in
assembly areas to be designated aisle seats with either no armrests or folding
or retractable armrests on the aisle side of the seat. The 2010 Standards, at
sections 221.4 and 802.4, base the number of required designated aisle seats on
the total number of aisle seats, instead of on all of the seats in an assembly
area as the 1991 Standards require. At least five percent (5%) of the aisle
seats are required to be designated aisle seats and to be located closest to
accessible routes. This option will almost always result in fewer aisle seats
being designated aisle seats compared to the 1991 Standards. The Department is
aware that sports facilities typically locate designated aisle seats on, or as
near to, accessible routes as permitted by the configuration of the facility.
One commenter recommended
that section 221.4, Designated Aisle Seats, be changed to require that aisle
seats be on an accessible route, and be integrated and dispersed throughout an
assembly area. Aisle seats, by their nature, typically are located within the
general seating area, and integration occurs almost automatically. The issue of
dispersing aisle seats or locating them on accessible routes is much more
challenging. During the separate rulemaking on the 2004 ADAAG the Access Board
specifically requested public comment on the question of whether aisle seats
should be required to be located on accessible routes. After reviewing the
comments submitted during the 2004 Access Board rulemaking, the Access Board
concluded that this could not be done without making significant and costly
changes in the design of most assembly areas. However, section 221.4 of the
2004 ADAAG required that designated aisle seats be the aisle seats closest to
accessible routes. The Department proposed the same provision and concurs in
the Access Board´s conclusion and declines to implement further changes.
Team or Player Seating Areas. Section 221.2.1.4 of the 2010 Standards requires that at
least one wheelchair space compliant with section 802.1 be provided in each
team or player seating area serving areas of sport activity. For bowling lanes,
the requirement for a wheelchair space in player seating areas is limited to
lanes required to be accessible.
Lawn Seating. The 1991
Standards, at section 4.1.1(1), require all areas of newly constructed
facilities to be accessible, but do not contain a specific scoping requirement
for lawn seating in assembly areas. The 2010 Standards, at section 221.5, specifically
require lawn seating areas and exterior overflow seating areas without fixed
seats to connect to an accessible route.
Aisle Stairs and Ramps in Assembly Areas. Sections 4.1.3 and 4.1.3(4) of the 1991 Standards require
that interior and exterior stairs connecting levels that are not connected by
an elevator, ramp, or other accessible means of vertical access must comply
with the technical requirements for stairs set out in section 4.9 of the 1991
Standards. Section 210.1 of the 2010 Standards requires that stairs that are
part of a means of egress shall comply with section 504´s technical
requirements for stairs. The 1991 Standards do not contain any exceptions for
aisle stairs in assembly areas. Section 210.1, Exception 3 of the 2010
Standards adds a new exception that exempts aisle stairs in assembly areas from
section 504´s technical requirements for stairs, including section 505´s
technical requirements for handrails.
Section 4.8.5 of the 1991
Standards exempts aisle ramps that are part of an accessible route from
providing handrails on the side adjacent to seating. The 2010 Standards, at
section 405.1, exempt aisle ramps adjacent to seating in assembly areas and not
serving elements required to be on an accessible route, from complying with all
of section 405´s technical requirements for ramps. Where aisle ramps in
assembly areas serve elements required to be on an accessible route, the 2010
Standards require that the aisle ramps comply with section 405´s technical
requirements for ramps. Sections 505.2 and 505.3 of the 2010 Standards provide
exceptions for aisle ramp handrails. Section 505.2 states that in assembly
areas, a handrail may be provided at either side or within the aisle width when
handrails are not provided on both sides of aisle ramps. Section 505.3 states
that, in assembly areas, handrails need not be continuous in aisles serving
seating.
222 and 803 Dressing,
Fitting, and Locker Rooms
Dressing rooms, fitting
rooms, and locker rooms are required to comply with the accessibility requirements
of sections 222 and 803 of the 2010 Standards. Where these types of rooms are
provided in clusters, five percent (5%) but at least one room in each cluster
must comply. Some commenters stated that clothing and retail stores would have
to expand and reconfigure accessible dressing, fitting and locker rooms to meet
the changed provision for clear floor space alongside the end of the bench.
Commenters explained that meeting the new requirement would result in a loss of
sales and inventory space. Other commenters also expressed opposition to the
changed requirement in locker rooms for similar reasons.
The Department reminds
the commenters that the requirements in the 2010 Standards for the clear floor
space to be beside the short axis of the bench in an accessible dressing,
fitting, or locker room apply only to new construction and alterations. The
requirements for alterations in the 2010 Standards at section 202.3 do not
include the requirement from the 1991 Standards at section 4.1.6(1)(c) that if
alterations to single elements, when considered together, amount to an
alteration of a room or space in a building or facility, the entire space shall
be made accessible. Therefore, under the 2010 Standards, the alteration
requirements only apply to specific elements or spaces that are being altered.
So providing the clear floor space at the end of the bench as required by the
2010 Standards instead of in front of the bench as is allowed by the 1991
Standards would only be required when the bench in the accessible dressing room
is altered or when the entire dressing room area is altered.
224 and 806 Transient
Lodging Guest Rooms
Scoping. The minimum
number of guest rooms required to be accessible in transient lodging facilities
is covered by section 224 of the 2010 Standards. Scoping requirements for guest
rooms with mobility features and guest rooms with communication features are
addressed at section 224.2 and section 224.4, respectively. Under the 1991
Standards all newly constructed guest rooms with mobility features must provide
communication features. Under the 2010 Standards, in section 224.5, at least
one guest room with mobility features must also provide communication features.
Additionally, not more than ten percent (10%) of the guest rooms required to
provide mobility features and also equipped with communication features can be
used to satisfy the minimum number of guest rooms required to provide
communication features.
Some commenters opposed
requirements for guest rooms accessible to individuals with mobility
disabilities stating that statistics provided by the industry demonstrate that
all types of accessible guest rooms are unused. They further
claimed that the requirements of the 2010 Standards are too burdensome to meet
in new construction, and that the requirements will result in a loss of living
space in places of transient lodging. Other commenters urged the Department to
increase the number of guest rooms required to be accessible. The number of
guest rooms accessible to individuals with mobility disabilities and the number
accessible to persons who are deaf or who are hard of hearing in the 2010
Standards are consistent with the 1991 Standards and with the IBC. The
Department continues to receive complaints about the lack of accessible guest
rooms throughout the country. Accessible guest rooms are used not only by
individuals using mobility devices such as wheelchairs and scooters, but also
by individuals with other mobility disabilities including persons who use
walkers, crutches, or canes.
Data provided by the
Disability Statistics Center at the University of California, San Francisco
demonstrated that the number of adults who use wheelchairs has been increasing
at the rate of six percent (6%) per year from 1969 to 1999; and by 2010, it was
projected that two percent (2%) of the adult population would use wheelchairs.
In addition to persons who use wheelchairs, three percent (3%) of adults used
crutches, canes, walkers, and other mobility devices in 1999; and the number
was projected to increase to four percent (4%) by 2010. Thus, in 2010, up to
six percent (6%) of the population may need accessible guest rooms.
Dispersion. The 2010
Standards, in section 224.5, set scoping requirements for dispersion in
facilities covered by the transient lodging provisions. This section covers
guest rooms with mobility features and guest rooms with communication features
and applies in new construction and alterations. The primary requirement is to
provide choices of types of guest rooms, number of beds, and other amenities
comparable to the choices provided to other guests. An advisory in section
224.5 provides guidance that “factors to be considered in providing an
equivalent range of options may include, but are not limited to, room size, bed
size, cost, view, bathroom fixtures such as hot tubs and spas, smoking and
nonsmoking, and the number of rooms provided.”
Commenters asked the
Department to clarify what is meant by various terms used in section 224.5 such
as “classes,” “types,” “options,” and “amenities.” Other commenters asked the
Department to clarify and simplify the dispersion requirements set forth in
section 224.5 of the 2010 Standards, in particular the scope of the term
“amenities.” One commenter expressed concern that views, if considered an
amenity, would further complicate room categories and force owners and
operators to make an educated guess. Other commenters stated that views should
only be a dispersion criteria if view is a factor for pricing room rates.
These terms are not to be
considered terms of art, but should be used as in their normal course. For
example, “class” is defined by Webster´s Dictionary as “a division by
quality.” “Type” is defined as “a
group of * * * things that share common traits or characteristics distinguishing
them as an identifiable group or class.” Accordingly, these terms are not
intended to convey different concepts, but are used as synonyms. In the 2010
Standards, section 224.5 and its advisory require dispersion in such a varied
range of hotels and lodging facilities that the Department believes that the
chosen terms are appropriate to convey what is intended. Dispersion required by
this section is not “one size fits all” and it is imperative that each covered
entity consider its individual circumstance as it applies this requirement. For
example, a facility would consider view as an amenity if some rooms faced
mountains, a beach, a lake, or other scenery that was considered to be a
premium. A facility where view was not marketed or requested by guests would
not factor the view as an amenity for purposes of meeting the dispersion
requirement.
Section 224.5 of the 2010
Standards requires that guest rooms with mobility features and guest rooms with
communication features “shall be dispersed among the various classes of guest
rooms, and shall provide choices of types of guest rooms, number of beds, and
other amenities comparable to the choices provided to other guests. When the
minimum number of guest rooms required is not sufficient to allow for complete
dispersion, guest rooms shall be dispersed in the following priority: guest
room type, number of beds and amenities.”
This general dispersion
requirement is intended to effectuate Congress´ directive that a percentage of
each class of hotel rooms is to be fully accessible to persons with
disabilities. See H.R. Rep. No. 101-485
(II) at 391. Accordingly, the promise of the ADA in this instance is that
persons with disabilities will have an equal opportunity to benefit from the
various options available to hotel guests without disabilities, from single
occupancy guest rooms with limited features (and accompanying limited price
tags) to luxury suites with lavish features and choices. The inclusion of
section 224.5 of the 2010 Standards is not new. Substantially similar language
is contained in section 9.1.4 of the 1991 Standards.
Commenters raised
concerns that the factors included in the advisory to section 224.5 of the 2010
Standards have been expanded. The advisory provides: “[f]actors to be considered
in providing an equivalent range of options may include, but are not limited
to, room size, bed size, cost, view, bathroom fixtures such as hot tubs and
spas, smoking and nonsmoking, and the number of rooms provided.”
As previously discussed,
the advisory materials provided in the 2010 Standards are meant to be
illustrative and do not set out specific requirements. In this particular
instance, the advisory materials for section 224.5 set out some of the common
types of amenities found at transient lodging facilities, and include common
sense concepts such as view, bathroom fixtures, and smoking status. The
intention of these factors is to indicate to the hospitality industry the sorts
of considerations that the Department, in its enforcement efforts since the
enactment of the ADA, has considered as amenities that should be made available
to persons with disabilities, just as they are made available to guests without
disabilities.
Commenters offered
several suggestions for addressing dispersion. One option included the
flexibility to use an equivalent facilitation option similar to that provided
in section 9.1.4(2) of the 1991 Standards.
The 2010 Standards
eliminated all specific references to equivalent facilitation. Since Congress
made it clear that each class of hotel room is to be available to individuals
with disabilities, the Department declines to adopt such a specific limitation
in favor of the specific requirement for new construction and alterations found
in section 224.5 of the 2010 Standards.
In considering the
comments of the hospitality industry from the ANPRM and the Department´s
enforcement efforts in this area, the Department sought comment in the NPRM on
whether the dispersion requirements should be applied proportionally, or
whether the requirements of section 224.5 of the 2010 Standards would be
complied with if access to at least one guest room of each type were to be
provided.
One commenter expressed
concern about requiring different guest room types to be proportionally
represented in the accessible guest room pool as opposed to just having each
type represented. Some commenters also expressed concern about accessible guest
rooms created in pre-1993 facilities and they requested that such accessible
guest rooms be safe harbored just as they are safe harbored under the 1991
Standards. In addition, one commenter requested that the proposed dispersion
requirements in section 224.5 of the 2010 Standards not be applied to pre-1993
facilities even when they are altered. Some commenters also offered a
suggestion for limitations to the dispersion requirements as an alternative to
safe harboring pre-1993 facilities. The suggestion included: (1) Guest rooms´
interior or exterior footprints may remain unchanged in order to meet the
dispersion requirements; (2) Dispersion should only be required among the types
of rooms affected by an alteration; and (3) Subject to (1) and (2) above and
technical feasibility, a facility would need to provide only one guest room in
each guest room type such as single, double and suites. One commenter requested
an exception to the dispersion criteria that applies to both existing and new
multi-story timeshare facilities. This requested exception waives dispersion
based on views to the extent that up to eight units may be vertically stacked
in a single location.
Section 224.1.1 of the
2010 Standards sets scoping requirements for alterations to transient lodging
guest rooms. The advisory to section 224.1.1 further explains that compliance
with 224.5 is more likely to be achieved if all of the accessible guest rooms
are not provided in the same area of the facility, when accessible guest rooms
are added as a result of subsequent alterations.
Some commenters requested
a specific exemption for small hotels of 300 or fewer guest rooms from
dispersion regarding smoking rooms. The ADA requires that individuals with
disabilities be provided with the same range of options as persons without
disabilities, and, therefore, the Department declines to add such an exemption.
It is noted, however, that the existence of this language in the advisory does
not require a place of transient lodging that does not offer smoking guest
rooms at its facility to do so only for individuals with disabilities.
Guest Rooms with Mobility Features. Scoping provisions for guest rooms with mobility features
are provided in section 224.2 of the 2010 Standards. Scoping requirements for
alterations are included in 224.1.1. These scoping requirements in the 2010
Standards are consistent with the 1991 Standards.
One commenter expressed
opposition to the new scoping provisions for altered guest rooms, which,
according to the commenter, require greater numbers of accessible guest rooms
with mobility features.
Section 224.1.1 of the
2010 Standards provides scoping requirements for alterations to guest rooms in
existing facilities. Section 224.1.1 modifies the scoping requirements for new
construction in section 224 by limiting the application of section 224
requirements only to those guest rooms being altered or added until the number
of such accessible guest rooms complies with the minimum number required for
new construction in section 224.2 of the 2010 Standards. The minimum required
number of accessible guest rooms is based on the total number of guest rooms
altered or added instead of the total number of guest rooms provided. These
requirements are consistent with the requirements in the 1991 Standards.
Language in the 2010 Standards clarifies the provision of section 104.2 of the
2010 Standards which requires rounding up values to the next whole number for
calculations of percentages in scoping.
Guest Rooms with Communication Features. The revisions at section 224.4 of the 2010 Standards effect
no substantive change from the 1991 Standards with respect to the number of
guest rooms required to provide communication features. The scoping requirement
is consolidated into a single table, instead of appearing in three sections as
in the 1991 Standards. The revised provisions also limit the overlap between
guest rooms required to provide mobility features and guest rooms required to
provide communication features. Section 224.5 of the 2010 Standards requires
that at least one guest room providing mobility features must also provide
communications features. At least one, but not more than ten percent (10%), of
the guest rooms required to provide mobility features can also satisfy the
minimum number of guest rooms required to provide communication features.
Commenters suggested that
the requirements for scoping and dispersion of guest rooms for persons with
mobility impairments and guest rooms with communication features are too
complex for the industry to effectively implement.
The Department believes
the requirements for guest rooms with communications features in the 2010
Standards clarify the requirements necessary to provide equal opportunity for
travelers with disabilities. Additional technical assistance will be made
available to address questions before the rule goes into effect.
Visible Alarms in Guest Rooms with Communication
Features. The 1991 Standards at sections
9.3.1 and 4.28.4 require transient lodging guest rooms with communication
features to provide either permanently installed visible alarms that are
connected to the building fire alarm system or portable visible alarms that are
connected to a standard 110-volt electrical outlet and are both activated by
the building fire alarm system and provide a visible alarm when the single
station smoke detector is activated. Section 215.4 of the 2010 Standards no
longer includes the portable visible alarm option and instead requires that
transient lodging guest rooms with communication features be equipped with a
fire alarm system which includes permanently installed audible and visible
alarms in accordance with NFPA 72 National Fire Alarm Code (1999 or 2002
edition). Such guest rooms with communication features are also required by
section 806.3.2 of the 2010 Standards to be equipped with visible notification
devices that alert room occupants of incoming telephone calls and a door knock
or bell.
The 2010 Standards add a
new exception for alterations to existing facilities that exempts existing fire
alarm systems from providing visible alarms, unless the fire alarm system
itself is upgraded or replaced, or a new fire alarm system is installed.
Transient lodging facilities that alter guest rooms are not required to provide
permanently installed visible alarms complying with the NFPA 72 if the existing
fire alarm system has not been upgraded or replaced, or a new fire alarm system
has not been installed.
Commenters representing
small providers of transient lodging raised concerns about the proposed changes
to prohibit the use of portable visible alarms used in transient lodging guest
rooms. These commenters recommended retaining requirements that allow the use
of portable visible alarms.
Persons who are deaf or
hard of hearing have reported that portable visible alarms used in transient
lodging guest rooms are deficient because the alarms are not activated by the
building fire alarm system, and the alarms do not work when the building power
source goes out in emergencies. The 2010 Standards are consistent with the
model building, fire, and life safety codes as applied to newly constructed
transient lodging facilities. One commenter sought confirmation of its
understanding of visible alarm requirements from the Department. This commenter
interpreted the exception to section 215.1 of the 2010 Standards and the
Department´s commentary to the NPRM to mean that if a transient lodging
facility does not have permanently installed visible alarms in its
communication accessible guest rooms, it will not be required to provide such
alarms until such time that its fire alarm system is upgraded or replaced, or a
new fire alarm system is installed. In addition, this commenter also understood
that, if a hotel already has permanently installed visible alarms in all of its
mobility accessible guest rooms, it would not have to relocate such visible
alarms and other communication features in those rooms to other guest rooms to
comply with the ten percent (10%) overlap requirement until the alarm system is
upgraded or replaced.
This commenter´s
interpretation and understanding are consistent with the Department´s position
in this matter. Section 215.4 of the 2010 Standards requires that guest rooms
required to have communication features be equipped with a fire alarm system
complying with section 702. Communication accessible guest rooms are required
to have all of the communication features described in section 806.3 of the
2010 Standards including a fire alarm system which provides both audible and
visible alarms. The exception to section 215.1 of the 2010 Standards, which
applies only to fire alarm requirements for guest rooms with communication
features in existing facilities, exempts the visible alarm requirement until
such time as the existing fire alarm system is upgraded or replaced, or a new
fire alarm system is installed. If guest rooms in existing facilities are altered
and they are required by section 224 of the 2010 Standards to have
communication features, such guest rooms are required by section 806.3 to have
all other communication features including notification devices.
Vanity Counter Space. Section
806.2.4.1 of the 2010 Standards requires that if vanity countertop space is
provided in inaccessible transient lodging guest bathrooms, comparable vanity
space must be provided in accessible transient lodging guest bathrooms.
A commenter questioned
whether in existing facilities vanity countertop space may be provided through
the addition of a shelf. Another commenter found the term “comparable” vague
and expressed concern about confusion the new requirement would cause. This
commenter suggested that the phrase “equal area in square inches” be used
instead of comparable vanity space.
In some circumstances,
the addition of a shelf in an existing facility may be a reasonable way to
provide a space for travelers with disabilities to use their toiletries and
other personal items. However, this is a determination that must be made on a
case-by-case basis. Comparable vanity countertop space need not be one
continuous surface and need not be exactly the same size as the countertops in
comparable guest bathrooms. For example, accessible shelving within reach of
the lavatory could be stacked to provide usable surfaces for toiletries and
other personal items.
Shower and Sauna Doors in Transient Lodging
Facilities. Section 9.4 of the 1991 Standards
and section 206.5.3 of the 2010 Standards both require passage doors in
transient lodging guest rooms that do not provide mobility features to provide
at least 32 inches of clear width. Congress directed this requirement to be
included so that individuals with disabilities could visit guests in other
rooms. See H.
Rept. 101-485, pt. 2, at 118 (1990);
S. Rept. 101-116, at 70 (1989). Section 224.1.2 of the 2010 Standards adds a
new exception to clarify that shower and sauna doors in such inaccessible guest
rooms are exempt from the requirement for passage doors to provide at least 32
inches of clear width. Two commenters requested that saunas and steam rooms in
existing facilities be exempt from the section 224.1.2 requirement and that the
requirement be made applicable to new construction only.
The exemption to the
section 224.1.2 requirement for a 32-inch wide clearance at doors to shower and
saunas applies only to those showers and saunas in guest rooms which are not
required to have mobility features. Showers and saunas in other locations,
including those in common use areas and guest rooms with mobility features, are
required to comply with the 32-inch clear width standard as well as other
applicable accessibility standards. Saunas come in a variety of types:
portable, pre-built, pre-cut, and custom-made. All saunas except for
custom-made saunas are made to manufacturers´ standard dimensions. The
Department is aware that creating the required 32-inch clearance at existing
narrower doorways may not always be technically feasible. However, the
Department believes that owners and operators will have an opportunity to
provide the required doorway clearance, unless doing so is technically
infeasible, when an alteration to an existing sauna is undertaken. Therefore,
the Department has retained these requirements.
Platform Lifts in Transient Lodging Guest Rooms and
Dwelling Units. The 1991 Standards, at section
4.1.3(5), exception 4, and the 2010 Standards, at sections 206.7 and 206.7.6,
both limit the locations where platform lifts are permitted to be used as part
of an accessible route. The 2010 Standards add a new scoping requirement that
permits platform lifts to be used to connect levels within transient lodging
guest rooms and dwelling units with mobility features.
806 Transient Lodging
Guest Rooms
In the NPRM, the
Department included floor plans showing examples of accessible guest rooms and
bathrooms designs with mobility features to illustrate how compliance with the
2010 Standards could be accomplished with little or no additional space
compared to designs that comply with the 1991 Standards.
Commenters noted that the
Department´s plans showing accessible transient lodging guest rooms compliant
with the 2010 Standards were not common in the transient lodging industry and
also noted that the plans omitted doors at sleeping room closets.
The Department agrees
that the configuration of the accessible bathrooms is somewhat different from
past designs used by the industry, but this was done to meet the requirements
of the 2010 Standards. The plans were provided to show that, with some
redesign, the 2010 Standards do not normally increase the square footage of an
accessible sleeping room or bathroom with mobility features in new
construction. The Department has also modified several accessible guest room
plans to show that doors can be installed on closets and comply with the 2010
Standards.
A commenter stated that
the Department´s drawings suggest that the fan coil units for heat and air
conditioning are overhead, while the typical sleeping room usually has a
vertical unit, or a packaged terminal air conditioning unit within the room.
The Department´s drawings are sample plans, showing the layout of the space,
relationship of elements to each other, and required clear floor and turning
spaces. It was not the intent of the Department to provide precise locations
for all elements, including heating and air conditioning units.
Commenters noted that in
guest rooms with two beds, each bed was positioned close to a wall, reducing
access on one side. Another commenter stated that additional housekeeping time
is needed to clean the room when beds are placed closer to walls. The 2010
Standards require that, when two beds are provided, there must be at least 36
inches of clear space between the beds. The plans provided in the NPRM showed
two bed arrangements with adequate clear width complying with the 1991
Standards and the 2010 Standards. Additional space can be provided on the other
side of the beds to facilitate housekeeping as long as the clear floor space
between beds is at least 36 inches wide.
Commenters stated that
chases in sleeping room bathrooms that route plumbing and other utilities can
present challenges when modifying existing facilities. In multi-story
facilities, relocating or re-routing these elements may not be possible,
limiting options for providing access. The Department recognizes that
relocating mechanical chases in multi-story facilities may be difficult or
impossible to accomplish. While these issues do not exist in new facilities,
altered existing facilities must comply with the 2010 Standards to the extent
that it is technically feasible to do so. When an alteration cannot fully
comply because it is technically infeasible to do so, the alteration must still
be designed to comply to the greatest extent feasible.
Commenters noted that on
some of the Department´s plans where a vanity is located adjacent to a bathtub,
the vanity may require more maintenance due to exposure to water. The
Department agrees that it would be advisable that items placed next to a
bathtub or shower be made of materials that are not susceptible to water
damage.
Transient Lodging Guest Room Floor Plans and Related Text
The Department has
included the following floor plans showing application of the requirements of
the 2010 Standards without significant loss of guest room living space in
transient lodging compared to the 1991 Standards.
| Plan 1A: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Bathtub with a lavatory at the control end (section 607.2);Removable bathtub seat (section 607.3);Clearance in front of the bathtub extends its full length and is 30 inches wide min. (section 607.2);Recessed bathtub location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 1B: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Bathtub with a lavatory at the control end (section 607.2);Removable bathtub seat (section 607.3);Clearance in front of the bathtub extends its full length and is 30 inches wide min. (section 607.2);Recessed bathtub location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3); The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 2A: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Standard roll-in type shower with folding seat (section 608.2.2);Recessed roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2);Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 2B: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Alternate roll-in type shower with folding seat is 36 inches deep and 60 inches wide (section 608.2.3);Alternate roll-in shower has a 36-inch wide entry at one end of the long side of the compartment (section 608.2.3);Recessed alternate roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3) The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 3A: 12-Foot Wide Accessible Guest Room This drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards. Features include a bathtub with a seat, comparable vanity, open clothes closet, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Bathtub (section 607.2);Removable bathtub seat (section 607.3);Clearance in front of the bathtub extends its full length and is 30 inches wide min. (section 607.2);Recessed lavatory with vanity countertop permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 3B: 12-Foot Wide Accessible Guest Room This drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards. Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: The following accessible features are provided in the bathroom:Comparable vanity counter top space (section 806);Standard roll-in type shower with folding seat (section 608.2.2);Recessed lavatory with vanity counter top permits shorter rear grab bar at water closet (section 604.5.2);Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); and No other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 4A: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a standard roll-in shower with a seat, comparable vanity, clothes closet with swinging doors, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Standard roll-in type shower with folding seat (section 608.2.2);Clear floor space adjacent to shower min. 30 inches wide by 60 inches long (section 608.2.2);Recessed roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3).30-inch wide by 48-inch long minimum clear floor space provided beyond the arc of the swing of the entry door (section 603.2.3 exception 2). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). 13’-0” 7’-6” 15’-4 |
| Plan 4B: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Alternate roll-in type shower with folding seat is 36 inches deep and 60 inches wide (section 608.2.3);Alternate roll-in shower has a 36-inch wide entry at one end of the long end of the compartment (section 608.2.3);Recessed alternate roll-in shower location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Turning space includes knee and toe clearance at lavatory (section 304.3);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 309); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 5A: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a transfer shower, comparable vanity, clothes closet with swinging door, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Transfer shower (section 603.2);Shower seat (section 610.3);Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2);Recessed transfer shower location permits shorter rear grab bar at water closet (section 604.5.2);Circular turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: Circular turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 229); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 5B: 13-Foot Wide Accessible Guest Room This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards. Features include a transfer shower, comparable vanity, open clothes closet, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Transfer shower (section 603.2);Shower seat (section 610.3);Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2);Lavatory with vanity counter top recessed to permit shorter rear grab bar at water closet (section 604.5.2);T-shaped turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16-18 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 229); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 6A: 12-Foot Wide Accessible Guest Room This drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards. Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity, clothes closet with swinging door, and door connecting to adjacent guest room. Furnishings include a king bed and additional seating. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Transfer shower (section 603.2);Shower seat (section 610.3);Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2);Recessed lavatory with vanity counter top permits shorter rear grab bar at water closet (section 604.5.2);T-shaped turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: T-shaped turning space (section 304.3.2);Accessible route (section 402);Clear floor space on both sides of the bed (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 229); andAccessible controls for the heat and air conditioning (section 309). |
| Plan 6B: 12-Foot Wide Accessible Guest Room This drawing shows an accessible 12-foot wide guest room with features that comply with the 2010 Standards. Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity, wardrobe, and door connecting to adjacent guest room. Furnishings include two beds. | |
| The following accessible features are provided in the bathroom: Comparable vanity counter top space (section 806);Transfer shower (section 603.2);Shower seat (section 610.3);Clearance in front of the shower extends beyond the seat and is 36 inches wide min. (section 607.2);Recessed lavatory with vanity counter top permits shorter rear grab bar at water closet (section 604.5.2);T-shaped turning space in room (section 603.2.1);Required clear floor spaces at fixtures and turning space overlap (section 603.2.2);Water closet clearance is 60 inches at back wall and 56 inches deep (section 604.3);Centerline of the water closet at 16 inches from side wall (section 604.2); andNo other fixtures or obstructions located within required water closet clearance (section 604.3). The following accessible features are provided in the living area: Circular turning space (section 304.3.2);Accessible route (section 402);Clear floor space between beds (section 806.2.3);Maneuvering clearances at all doors (section 404.2);Accessible operable window (section 229); andAccessible controls for the heat and air conditioning (section 309). |
225 and 811 Storage
Section 225 of the 2010
Standards provides that where storage is provided in accessible spaces, at
least one of each type shall comply with the 2010 Standards. Self-service shelving is required to be
on an accessible route, but is not required to comply with the reach range
requirements. These requirements are consistent with the 1991 Standards.
Section 225.3 adds a new
scoping requirement for self-storage facilities. Facilities with 200 or fewer
storage spaces will be required to make at least five percent (5%) of the
storage spaces accessible. Facilities with more than 200 storage spaces will be
required to provide ten accessible storage spaces, plus two percent (2%) of the
total storage spaces over 200.
Sections 225.2.1 and 811
of the 2010 Standards require lockers to meet accessibility requirements. Where
lockers are provided in clusters, five percent (5%) but at least one locker in
each cluster will have to comply. Under the 1991 Standards, only one locker of
each type provided must be accessible.
Commenters recommended
that the Department adopt language requiring public accommodations to provide
access to all self-service shelves and display areas available to customers.
Other commenters opposed this requirement as too burdensome to retail and other
entities and claimed that significant revenue would be lost if this requirement
were to be implemented.
Other commenters raised
concerns that section 225.2.2 of the 2010 Standards scopes only self-service
shelving whereas section 4.1.3(12)(b) of the 1991 Standards applies to both
“shelves or display units.”
Although “display units”
were not included in the 2010 Standards under the belief that displays are not
to be touched and therefore by definition cannot be “self-service,” both the
2010 Standards and the 1991 Standards should be read broadly to apply to all
types of shelves, racks, hooks, and similar self-service merchandising
fittings, including self-service display units. Such fixtures are permitted to
be installed above or below the reach ranges possible for many persons with
disabilities so that space available for merchandising is used as efficiently
as possible.
226 and 902 Dining
Surfaces and Work Surfaces
Section 226.1 of the 2010
Standards require that where dining surfaces are provided for the consumption
of food or drink, at least five percent (5%) of the seating spaces and standing
spaces at the dining surfaces comply with section 902. Section 902.2 requires
the provision of accessible knee and toe clearance.
Commenters stated that
basing accessible seating on seating spaces and standing spaces potentially
represents a significant increase in scoping, particularly given the ambiguity
in what represents a “standing space” and urged a return to the 1991 Standard
of requiring accessible seating based on fixed dining tables. The scoping
change merely takes into account that tables may vary in size so that basing
the calculation on the number of tables rather than on the number of
individuals that may be accommodated by the tables could unnecessarily restrict
opportunities for persons with disabilities. The revised scoping permits
greater flexibility by allowing designers to disperse accessible seating and
standing spaces throughout the dining area. Human factors data, which is
readily available to designers, provides information about the amount of space
required for both eating and drinking while seated or standing.
227 and 904 Sales and
Service
Check-Out Aisles and Sales and Service Counters. The 1991 Standards, at section 7.2, and the 2010 Standards,
at section 904.4, contain technical requirements for sales and service counters.
The 1991 Standards generally require sales and service counters to provide an
accessible portion at least 36 inches long and no higher than 36 inches above
the finish floor. The nondiscrimination requirements of the ADA regulations
require the level of service provided at the accessible portion of any sales
and service counter to be the same as the level of service provided at the
inaccessible portions of the counter.
The 2010 Standards
specify different lengths for the accessible portion of sales and service
counters based on the type of approach provided. Where a forward approach is
provided, the accessible portion of the counter must be at least 30 inches long
and no higher than 36 inches, and knee and toe space must be provided under the
counter. The requirement that knee and toe space be provided where only clear
floor space for a forward approach to a sales and service counter is provided
is not a new requirement. It is a clarification of the ongoing requirement that
part of the sales and service counter be accessible. This requirement applies
to the entire accessible part of sales and service counters and requires that
the accessible clear floor or ground space adjacent to those counters be kept
clear of merchandise, equipment, and other items so that the accessible part of
the counter is readily accessible to and usable by individuals with
disabilities. The accessible part of the counter must also be staffed and
provide an equivalent level of service as that provided to all customers.
Where clear floor space
for a parallel approach is provided, the accessible portion of the counter must
be at least 36 inches long and no higher than 36 inches above the finish floor.
A clear floor or ground space that is at least 48 inches long x 30 inches wide must
be provided positioned for a parallel approach adjacent to the 36-inch minimum
length of counter.
Section 904.4 of the 2010
Standards includes an exception for alterations to sales and service counters
in existing facilities. It permits the accessible portion of the counter to be
at least 24 inches long, where providing a longer accessible counter will
result in a reduction in the number of existing counters at work stations or
existing mailboxes, provided that the required clear floor or ground space is
centered on the accessible length of the counter.
Section 904.4 of the 2010
Standards also clarifies that the accessible portion of the counter must extend
the same depth as the sales or service counter top. Where the counter is a
single-height counter, this requirement applies across the entire depth of the
counter top. Where the counter is a split-height counter, this requirement
applies only to the customer side of the counter top. The employee-side of the
counter top may be higher or lower than the customer-side of the counter top.
Commenters recommended
that the Department consider a regulatory alternative exempting small retailers
from the new knee and toe clearance requirement and retaining existing
wheelchair accessibility standards for sales and service counters. These
commenters believed that the knee and toe clearance requirements will cause a
reduction in the sales and inventory space at check-out aisles and other sales
and service counters.
Both the 1991 and the
2010 Standards permit covered entities to determine whether they will provide a
forward or a parallel approach to sales and service counters. So any facility
that does not wish to provide the knee or toe clearance required for a front
approach to such a counter may avoid that option. However, the Department
believes that permitting a forward approach without requiring knee and toe
clearance is not adequate to provide accessibility because the person using a
wheelchair will be prevented from coming close enough to the counter to see the
merchandise or to transact business with a degree of convenience that is
comparable to that provided to other customers.
A parallel approach to
sales and service counters also can provide the accessibility required by the
2010 Standards. Individuals using wheelchairs can approach sales and service
counters from the side, and, assuming the necessary elements, features, or
merchandise necessary to complete a business transaction are within the reach
range requirements for a side approach, the needs of individuals with
disabilities can be met effectively.
Section 227 of the 2010
Standards clarifies the requirements for food service lines. Queues and waiting
lines serving counters or check-out aisles, including those for food service,
must be accessible to individuals with disabilities.
229 Windows
A new requirement at
section 229.1 of the 2010 Standards provides that if operable windows are
provided for building users, then at least one window in an accessible space
must be equipped with controls that comply with section 309.
Commenters generally
supported this provision but some commenters asked whether the maximum
five-pounds (5 lbs.) of force requirement of section 309 applies to the window
latch itself or only to the force required to open the window. Section 309 applies to all controls and
operating mechanisms, so the latch must comply with the requirement to operate
with no more than five pounds of force (5 lbf).
230 and 708 Two-Way
Communication Systems
New provisions of the
2010 Standards at sections 230.1 and 708 require two-way communications systems
to be equipped with visible as well as audible signals.
231 and 808 Judicial
Facilities and Courtrooms
Section 231 of the 2010
Standards adds requirements for accessible courtrooms, holding cells, and
visiting areas.
Accessible Courtroom Stations. Sections 231.2, 808, 304, 305, and 902 of the 2010
Standards provide increased accessibility at courtroom stations. Clear floor
space for a forward approach is required for all courtroom stations (judges´
benches, clerks´ stations, bailiffs´ stations, deputy clerks´ stations, court
reporters´ stations, and litigants´ and counsel stations). Other applicable
specifications include accessible work surface heights and toe and knee
clearance.
Accessible Jury Boxes, Attorney Areas, and Witness
Stands. Section 206.2.4 of the 2010
Standards requires, in new construction and alterations, at least one
accessible route to connect accessible building or facility entrances with all
accessible spaces and elements within the building or facility that are
connected by a circulation path unless they are exempted by Exceptions 1 – 7 of
section 206.2.3. Advisory 206.2.4 Spaces and Elements Exception 1 explains that
the exception allowing raised courtroom stations to be used by court employees,
such as judge´s benches, to be adaptable does not apply to areas of the
courtroom likely to be used by members of the public such as jury areas,
attorney areas, or witness stands. These areas must be on an accessible route
at the time of initial construction or alteration.
Raised Courtroom Stations Not for Members of the
Public. Section 206.2.4, Exception 1 of
the 2010 Standards provides that raised courtroom stations that are used by
judges, clerks, bailiffs, and court reporters will not have to provide full
vertical access when first constructed or altered if they are constructed to be
easily adaptable to provide vertical accessibility.
One commenter suggested
that a sufficient number of accessible benches for judges with disabilities, in
addition to requiring accessible witness stands and attorney areas, be
required. The Department believes
that the requirements regarding raised benches for judges are easily adaptable to
provide vertical access in the event a judge requires an accessible bench.
Section 206.2.4 of the 2010 Standards provides that raised courtroom stations
used by judges and other judicial staff do not have to provide full vertical
access when first constructed or altered as long as the required clear floor
space, maneuvering space, and electrical service, where appropriate, is
provided at the time of new construction or can be achieved without substantial
reconstruction during alterations.
A commenter asserted that
there is nothing inherent in clerks´ stations, jury boxes, and witness stands
that require them to be raised. While it would, of course, be easiest to
provide access by eliminating height differences among courtroom elements, the
Department recognizes that accessibility is only one factor that must be
considered in the design process of a functioning courtroom. The need to ensure
the ability of the judge to maintain order, the need to ensure sight lines
among the judge, the witness, the jury, and other participants, and the need to
maintain the security of the participants all affect the design of the space.
The Department believes that the 2010 Standards have been drafted in a way that
will achieve accessibility without unduly constraining the ability of a
designer to address the other considerations that are unique to courtrooms.
Commenters argued that
permitting courtroom stations to be adaptable rather than fully accessible at
the time of new construction likely will lead to discrimination in hiring of
clerks, court reporters, and other court staff. The Department believes that
the provisions will facilitate, not hinder, the hiring of court personnel who
have disabilities. All courtroom work stations will be on accessible routes and
will be required to have all fixed elements designed in compliance with the
2010 Standards. Elevated work stations for court employees may be designed to
add vertical access as needed. Since the original design must provide the
proper space and electrical wiring to install vertical access, the change
should be easily accomplished.
232 Detention
Facilities and Correctional Facilities
Section 232 of the 2010
Standards establishes requirements for the design and construction of cells,
medical care facilities, and visiting areas in detention facilities and in correctional
facilities. Section 35.151(k) of the Department´s title II rule provides
scoping for newly constructed general holding cells and general housing cells
requiring mobility features compliant with section 807.2 of the 2010 Standards
in a minimum of three percent (3%) of cells, but no fewer than one cell.
Section 232.2 of the 2010 Standards provides scoping for newly constructed
cells with communications features requiring a minimum of two percent (2%) of
cells, but at least one cell, to have communication features.
The Department´s title II
rule at § 35.151(k) also specifies scoping for alterations to detention and
correctional facilities. Generally a minimum of three percent (3%), but no
fewer than one, of the total number of altered cells must comply with section
807.2 of the 2010 Standards and be provided within each facility. Altered cells with mobility features
must be provided in each classification level, including administrative and
disciplinary segregation, each use and service area, and special program. The
Department notes that the three percent (3%), but no fewer than one,
requirement is a minimum. As corrections systems plan for new facilities or
alterations, the Department urges planners to include in their population
estimates a projection of the numbers of inmates with disabilities so as to
have sufficient numbers of accessible cells to meet inmate needs.
233 Residential
Facilities
Homeless Shelters, Group Homes, and Similar Social
Service Establishments. Section 233 of the 2010 Standards
includes specific scoping and technical provisions that apply to new
construction and alteration of residential facilities. In the 1991 Standards
scoping and technical requirements for homeless shelters, group homes, and
similar social service establishments were included in section 9 Transient
Lodging. These types of facilities will be covered by section 233 of the 2010
Standards and by 28 CFR 35.151(e) and 36.406(d) and will be subject to
requirements for residential facilities rather than the requirements for
transient lodging. This approach will harmonize federal accessibility
obligations under both the ADA and section 504 of the Rehabilitation Act of
1973, as amended. In sleeping rooms with more than 25 beds that are covered by § 36.406(d) a minimum of five
percent (5%) of the beds must have clear floor space compliant with section
806.2.3 of the 2010 Standards. In large facilities with more than 50 beds, at
least one roll-in shower compliant with section 608.2.2 or section 608.2.3 of
the 2010 Standards must be provided. Where separate shower facilities are
provided for men and for women, at least one roll-in shower must be provided
for each gender.
Housing Operated By or On Behalf of Places of
Education. Housing at a place of education
includes: residence halls, dormitories, suites, apartments, or other places of
residence operated by or on behalf of places of education. Residence halls or
dormitories operated by or on behalf of places of education are covered by the
provisions in sections 224 and 806 of the 2010 Standards. The Department has
included in the title III rule at § 36.406(e) requirements that apply to
housing at places of education that clarify requirements for residence halls
and dormitories and other types of student housing. Requirements for housing at
a place of education covered by the title II rule are included at §
35.151(f).
Kitchens and Kitchenettes. Section
4.34.2 of the UFAS requires a clear turning space at least 60 inches in
diameter or an equivalent T-shaped turning space in kitchens. Section 4.34.6
requires a clearance between opposing base cabinets, counters, appliances, or
walls of at least 40 inches except in a U-shaped kitchen where the minimum
clearance is 60 inches.
Section 804 of the 2010
Standards provides technical requirements for kitchens and kitchenettes.
Section 804.2.1 requires that pass through kitchens, which have two entries and
counters, appliances, or cabinets on two opposite sides or opposite a parallel
wall, provide at least 40 inches minimum clearance. Section 804.2.2 requires
that U-shaped kitchens, which are enclosed on three continuous sides, provide
at least 60 inches minimum clearance between all opposing base cabinets,
countertops, appliances, or walls within kitchen work areas. Kitchens that do
not have a cooktop or conventional range are exempt from the clearance
requirements but still must provide an accessible route.
If a kitchen does not
have two entries, the 2010 Standards require the kitchen to have 60 inches
minimum clearance between the opposing base cabinets, counters, appliances, or
walls.
One commenter supported
the provisions of section 804 of the 2010 Standards but sought clarification
whether this section applies to residential units only, or to lodging and
office buildings as well. Section 212 makes section 804 applicable to all
kitchens and kitchenettes in covered buildings.
Residential Facilities. Section
4.1.4(11) of the UFAS contains scoping requirements for the new construction of
housing. Under the 1991 title II regulation, state and local governments had
the option of complying with the UFAS or the 1991 Standards. After the
compliance date for the 2010 Standards, state and local governments will no
longer have the option of complying with the UFAS, but will have to use the
2010 Standards for new construction and alterations.
Sections 233.1, 233.2,
233.3, 233.3.1, and 233.3.2 of the 2010 Standards differentiate between
entities subject to the United States Department of Housing and Urban
Development (HUD) regulations implementing section 504 of the Rehabilitation
Act of 1973 and entities not subject to the HUD regulations. The HUD
regulations apply to recipients of federal financial assistance through HUD,
and require at least five percent (5%) of dwelling units in multi-family
projects of five or more dwelling units to provide mobility features and at
least two percent (2%) of the dwelling units to provide communication features.
The HUD regulations define a project unique to its programs as “one or more residential
structures which are covered by a single contract for federal financial
assistance or application for assistance, or are treated as a whole for
processing purposes, whether or not located on a common site.” To avoid any
potential conflicts with the HUD regulations, the 2010 Standards require
residential dwelling units subject to the HUD regulations to comply with the
scoping requirements in the HUD regulations, instead of the scoping
requirements in the 2010 Standards.
For entities not subject
to the HUD regulations, the 2010 Standards require at least five percent (5%)
of the dwelling units in residential facilities to provide mobility features,
and at least two percent (2%) of the dwelling units to provide communication
features. The 2010 Standards define facilities in terms of buildings located on
a site. The 2010 Standards permit facilities that contain 15 or fewer dwelling
units to apply the scoping requirements to all the dwelling units that are
constructed under a single contract, or are developed as whole, whether or not
located on a common site.
Alterations to Residential Facilities. Section 4.1.6 of the UFAS requires federal, state, and
local government housing to comply with the general requirements for
alterations to facilities. Applying the general requirements for alterations to
housing can result in partially accessible dwelling units where single elements
or spaces in dwelling units are altered.
The 2010 Standards, at
sections 202.3 Exception 3, 202.4, and 233.3, contain specific scoping
requirements for alterations to dwelling units. Dwelling units that are not
required to be accessible are exempt from the general requirements for
alterations to elements and spaces and for alterations to primary function
areas.
The scoping requirements
for alterations to dwelling units generally are based on the requirements in
the UFAS:
As with new construction,
the 2010 Standards permit facilities that contain 15 or fewer dwelling units to
apply the scoping requirements to all the dwelling units that are altered under
a single contract, or are developed as a whole, whether or not located on a
common site. The 2010 Standards also permit a comparable dwelling unit to
provide mobility features where it is not technically feasible for the altered
dwelling unit to comply with the technical requirements.
234 and 1002
Amusement Rides
New and Altered Permanently Installed Amusement
Rides. Section 234 of the 2010 Standards
sets out scoping requirements and section 1002 sets out the technical
requirements for the accessibility of permanently installed amusement rides.
These requirements apply to newly designed and constructed amusement rides and
used rides when certain alterations are made.
A commenter raised
concerns that smaller amusement parks tend to purchase used rides more
frequently than new rides, and that the conversion of a used ride to provide
the required accessibility may be difficult to ensure because of the possible
complications in modifying equipment to provide accessibility.
The Department agrees
with this commenter. The Department notes, however, that the 2010 Standards
will require modifications to existing amusement rides when a ride´s structural
and operational characteristics are altered to the extent that the ride´s
performance differs from that specified by the manufacturer or the original
design. Such an extensive alteration to an amusement ride may well require that
new load and unload areas be designed and constructed. When load and unload
areas serving existing amusement rides are newly designed and constructed they
must be level, provide wheelchair turning space, and be on an accessible route
compliant with Chapter 4 of the 2010 Standards except as modified by section
1002.2 of the 2010 Standards.
Mobile or Portable Amusement Rides. The exception in section 234.1 of the 2010 Standards
exempts mobile or portable amusement rides, such as those set up for short
periods of time at carnivals, fairs or festivals, from having to comply with
the 2010 Standards. However, even though the mobile/portable ride itself is not
subject to the Standards, these facilities are still subject to the ADA´s general
requirement to ensure that individuals with disabilities have an equal
opportunity to enjoy the services and amenities of these facilities.
Subject to these general
requirements, mobile or portable amusement rides should be located on an
accessible route and the load and unload areas serving a ride should provide a
level wheelchair turning space to provide equal opportunity for individuals
with disabilities to be able to participate on the amusement ride to the extent
feasible.
One commenter noted that
the exception in Section 234.1 of the 2010 Standards for mobile or portable
amusement rides limits the opportunities of persons with disabilities to
participate on amusement rides because traveling or temporary amusement rides
by their nature come to their customers´ town or a nearby town rather than the
customer having to go to them and so are less expensive than permanent
amusement parks. While the Department understands the commenter´s concerns, the
Department notes that most amusement rides are too complex to be reasonably
modified or re-engineered to accommodate the majority of individuals with
disabilities and that additional complexities and safety concerns are added
when the rides are mobile or portable.
A commenter asked that
section 234 of the 2010 Standards make clear that the requirements for
accessible routes include the routes leading up to and including the loading
and unloading areas of amusement rides. Sections 206.2.9 and 1002.2 of the 2010
Standards clarify that the requirements for accessible routes include the
routes leading up to and including the loading and unloading areas of amusement
rides.
A commenter requested
that the final rule specifically allow for wheelchair access through the exit
or other routes, or alternate means of wheelchair access routes to amusement
rides. The commenter stated that the concept of wheelchair access through the
exit or alternate routes was a base assumption for the 2010 Standards. The
commenter noted that the concept is apparent in the signage and load/unload
area provisions in Section 216.12 (” * * * where accessible unload areas also
serve as accessible load areas, signs indicating the location of the accessible
load and unload areas shall be provided at entries to queues and waiting
lines”). The Department agrees with the commenter that accessible load and
unload areas may be the same where signs that comply with section 216.12 are
provided.
Wheelchair Space or Transfer Seat or Transfer
Device. Sections 234.3 and 1002.4 – 1002.6
of the 2010 Standards provide that each new and altered amusement ride, except
for mobile/portable rides and a few additional excepted rides, will be required
to provide at least one type of access by means of one wheelchair space or one
transfer seat or one transfer device (the design of the transfer device is not
specified).
Commenters urged the
Department to revise the requirements for wheelchair spaces and transfer seats
and devices because most amusement rides are too complex to be reasonably
modified or re-engineered to accommodate the majority of individuals with
disabilities. They argued that the experience of amusement rides will be
significantly reduced if the proposed requirements are implemented.
The 2004 ADAAG, which the
Department adopted as part of the 2010 Standards, was developed with the
assistance of an advisory committee that included representation from the
design staffs of major amusement venues and from persons with disabilities. The
Department believes that the resulting 2004 ADAAG reflected sensitivity to the
complex problems posed in adapting existing rides by focusing on new rides that
can be designed from the outset to be accessible.
To permit maximum design
flexibility, the 2010 Standards permit designers to determine whether it is
more appropriate to permit individuals who use wheelchairs to remain in their
chairs on the ride, or to provide for transfer access.
Maneuvering Space in Load and Unload Areas. Sections 234.2 and 1002.3 of the 2010 Standards require
that a level wheelchair turning space be provided at the load and unload areas
of each amusement ride. The turning space must comply with sections 304.2 and
304.3.
Signs Required at Waiting Lines to Amusement
Rides. Section 216.12 of the 2010
Standards requires signs at entries to queues and waiting lines identifying
type and location of access for the amusement ride.
235 and 1003
Recreational Boating Facilities
These sections require
that accessible boat slips and boarding piers be provided. Most commenters
approved of the requirements for recreational boating facility accessibility
and urged the Department to keep regulatory language consistent with those
provisions. They commented that the requirements appropriately reflect industry
conditions. Individual commenters and disability organizations agreed that the
2010 Standards achieve acceptable goals for recreational boating facility
access.
Accessible Route. Sections 206.2.10 and 1003.2 of the 2010 Standards require an
accessible route to all accessible boating facilities, including boat slips and
boarding piers at boat launch ramps. Section 1003.2.1 provides a list of
exceptions applicable to structures such as gangways, transition plates,
floating piers, and structures containing combinations of these elements that
are affected by water level changes. The list of exceptions specifies alternate
design requirements applicable to these structures which, because of water
level variables, cannot comply with the slope, cross slope, and handrail
requirements for fixed ramps contained in sections 403.3, 405.2, 405.3, 405.6,
and 405.7 of the 2010 Standards. Exceptions 3 and 4 in Section 1003.2.1, which
permit a slope greater than that specified in Section 405.2, are available for
structures that meet specified length requirements. Section 206.7.10 permits
the use of platform lifts as an alternative to gangways that are part of
accessible routes.
Commenters raised
concerns that because of water level fluctuations it may be difficult to
provide accessible routes to all accessible boating facilities, including boat
slips and boarding piers at boat launch ramps. One of the specific concerns
expressed by several commenters relates to the limits for running slope
permitted on gangways that are part of an accessible route as gangways may periodically
have a steeper slope than is permitted for a fixed ramp. The exceptions
contained in section 1003.2 of the 2010 Standards modify the requirements of
Chapter 4. For example, where the total length of a gangway or series of
gangways serving as an accessible route is 80 feet or more an exception permits
the slope on gangways to exceed the maximum slope in section 405.2.
Some commenters suggested
that permissible slope variations could be reduced further by introducing a
formula that ties required gangway length to anticipated water level
fluctuations. Such a formula would incorporate predictions of tidal level
changes such as those issued by the National Oceanographic and Atmospheric
Administration (NOAA) and the United States Geologic Survey (USGS). This
suggested approach would be an alternative to the gangway length exceptions and
limits in section 1003.2.1 of the 2010 Standards. These commenters noted that
contemporary building materials and techniques make gangways of longer length
and alternative configurations achievable. These commenters provided at least
one example of a regional regulatory authority using this type of formula.
While this approach may be successfully implemented and consistent with the
goals of the ADA, the example provided was applied in a highly developed area
containing larger facilities. The Department has considered that many
facilities do not have sufficient resources available to take advantage of the
latest construction materials and design innovations. Other commenters
supported compliance exceptions for facilities that are subject to extreme
tidal conditions. One commenter noted that if a facility is located in an area
with limited space and extreme tidal variations, a disproportionately long
gangway might intrude into water travel routes. The Department has considered a
wide range of boating facility characteristics including size, water surface
areas, tidal fluctuations, water conditions, variable resources, whether the
facility is in a highly developed or remote location, and other factors. The
Department has determined that the 2010 Standards provide sufficient
flexibility for such broad application. Additionally, the length requirement
for accessible routes in section 1003.2.1 provides an easily determinable compliance
standard.
Accessible Boarding Piers. Where
boarding piers are provided at boat launch ramps, sections 235.3 and 1003.3.2
of the 2010 Standards require that at least five percent (5%) of boarding
piers, but at least one, must be accessible.
Accessible Boat Slips. Sections
235.2 and 1003.3.1 of the 2010 Standards require that a specified number of
boat slips in each recreational boating facility meet specified accessibility
standards. The number of accessible boat slips required by the 2010 Standards is
set out in a chart in section 235.2. One accessible boat slip is required for
facilities containing 25 or fewer total slips. The number of required
accessible boat slips increases with the total number of slips at the facility.
Facilities containing more than one thousand (1000) boat slips are required to
provide twelve (12) accessible boat slips plus one for each additional one
hundred slips at the facility.
One commenter asserted
the need for specificity in the requirement for dispersion of accessible slips.
Section 235.2.1 of the 2010 Standards addresses dispersion and requires that
boat slips “shall be dispersed throughout the various types of boat slips
provided.” The commenter was concerned that if a marina could not put
accessible slips all on one pier, it would have to reconstruct the entire
facility to accommodate accessible piers, gangways, docks and walkways. The
provision permits required accessible boat slips to be grouped together. The
Department recognizes that economical and structural feasibility may produce
this result. The 2010 Standards do not require the dispersion of the physical
location of accessible boat slips. Rather, the dispersion must be among the
various types of boat slips offered by the facility. Section 235.2.1 of the 2010
Standards specifies that if the required number has been met, no further
dispersion is required. For example, if a facility offers five different ´types´ of boat slips but is only required to provide three according to the
table in Section 235.2, that facility is not required to provide more than
three accessible boat slips, but the three must be varied among the five ´types´ of boat slips available at the facility.
236 and 1004 Exercise
Machines and Equipment
Accessible Route to Exercise Machines and Equipment. Section 206.2.13 of the 2010 Standards requires an
accessible route to serve accessible exercise machines and equipment.
Commenters raised
concerns that the requirement to provide accessible routes to serve accessible
exercise machines and equipment will be difficult for some facilities to
provide, especially some transient lodging facilities that typically locate
exercise machines and equipment in a single room. The Department believes that
this requirement is a reasonable one in new construction and alterations
because accessible exercise machines and equipment can be located so that an
accessible route can serve more than one piece of equipment.
Exercise Machines and Equipment. Section 236 of the 2010 Standards requires at least one of
each type of exercise machine to meet clear floor space requirements of section
1004.1. Types of machines are generally defined according to the muscular
groups exercised or the kind of cardiovascular exercise provided.
Several commenters were
concerned that existing facilities would have to reduce the number of available
exercise equipment and machines in order to comply with the 2010 Standards. One
commenter submitted prototype drawings showing equipment and machine layouts
with and without the required clearance specified in the 2010 Standards. The
accessible alternatives all resulted in a loss of equipment and machines.
However, because these prototype layouts included certain possibly erroneous
assumptions about the 2010 Standards, the Department wishes to clarify the
requirements.
Section 1004.1 of the
2010 Standards requires a clear floor space “positioned for transfer or for use
by an individual seated in a wheelchair” to serve at least one of each type of
exercise machine and equipment. This requirement provides the designer greater
flexibility regarding the location of the clear floor space than was employed
by the commenter who submitted prototype layouts. The 2010 Standards do not
require changes to exercise machines or equipment in order to make them more
accessible to persons with disabilities. Even where machines or equipment do
not have seats and typically are used by individuals in a standing position, at
least one of each type of machine or equipment must have a clear floor space.
Therefore, it is reasonable to assume that persons with disabilities wishing to
use this type of machine or equipment can stand or walk, even if they use
wheelchairs much of the time. As indicated in Advisory 1004.1, “the position of
the clear floor space may vary greatly depending on the use of the equipment or
machine.” Where exercise equipment or machines require users to stand on them,
the clear floor space need not be located parallel to the length of the machine
or equipment in order to provide a lateral seat-to-platform transfer. It is
permissible to locate the clear floor space for such machines or equipment in
the aisle behind the device and to overlap the clear floor space and the
accessible route.
Commenters were divided
in response to the requirement for accessible exercise machines and equipment.
Some supported requirements for accessible machines and equipment; others urged
the Department not to require accessible machines and equipment because of the
costs involved. The Department believes that the requirement strikes an
appropriate balance in ensuring that persons with disabilities, particularly
those who use wheelchairs, will have the opportunity to use the exercise
equipment. Providing access to exercise machines and equipment recognizes the
need and desires of individuals with disabilities to have the same opportunity
as other patrons to enjoy the advantages of exercise and maintaining health.
237 and 1005 Fishing
Piers and Platforms
Accessible Route. Sections
206.2.14 and 1005.1 of the 2010 Standards require an accessible route to each
accessible fishing pier and platform. The exceptions described under
Recreational Boating above also apply to gangways and floating piers. All
commenters supported the requirements for accessible routes to fishing piers
and platforms.
Accessible Fishing Piers and Platforms. Sections 237 and 1005 of the 2010
Standards require at least twenty-five percent (25%) of railings, guards, or
handrails (if provided) to be at a 34-inch maximum height (so that a person
seated in a wheelchair can cast a fishing line over the railing) and to be
located in a variety of locations on the fishing pier or platform to give
people a variety of locations to fish. An exception allows a guard required to
comply with the IBC to have a height greater than 34 inches. If railings,
guards, or handrails are provided, accessible edge protection and clear floor
or ground space at accessible railings are required. Additionally, at least one
turning space complying with section 304.3 of the 2010 Standards is required to
be provided on fishing piers and platforms.
Commenters expressed
concerns about the provision for fishing piers and platforms at the exception
in section 1005.2.1 of the 2010 Standards that allows a maximum height of 42
inches for a guard when the pier or platform is covered by the IBC. Two
commenters stated that allowing a 42-inch guard or railing height for
facilities covered by another building code would be difficult to enforce. They
also thought that this would hinder access for persons with disabilities
because the railing height would be too high for a person seated in a
wheelchair to reach over with their fishing pole in order to fish. The
Department understands these concerns but believes that the railing height
exception is necessary in order to avoid confusion resulting from conflicting
accessibility requirements, and therefore has retained this exception.
238 and 1006 Golf
Facilities
Accessible Route. Sections
206.2.15, 1006.2, and 1006.3 of the 2010 Standards require an accessible route
to connect all accessible elements within the boundary of the golf course and,
in addition, to connect golf car rental areas, bag drop areas, teeing grounds,
putting greens, and weather shelters. An accessible route also is required to
connect any practice putting greens, practice teeing grounds, and teeing
stations at driving ranges that are required to be accessible. An exception
permits the accessible route requirements to be met, within the boundaries of
the golf course, by providing a “golf car passage” (the path typically used by
golf cars) if specifications for width and curb cuts are met.
Most commenters expressed
the general viewpoint that nearly all golf courses provide golf cars and have
either well-defined paths or permit the cars to drive on the course where paths
are not present, and thus meet the accessible route requirement.
The Department received
many comments requesting clarification of the term “golf car passage.” Some
commenters recommended additional regulatory language specifying that an
exception from a pedestrian route requirement should be allowed only when a
golf car passage provides unobstructed access onto the teeing ground, putting
green, or other accessible element of the course so that an accessible golf car
can have full access to those elements. These commenters cautioned that full
and equal access would not be provided if a golfer were required to navigate a
steep slope up or down a hill or a flight of stairs in order to get to the
teeing ground, putting green, or other accessible element of the course.
Conversely, another
commenter requesting clarification of the term “golf car passage” argued that
golf courses typically do not provide golf car paths or pedestrian paths up to
actual tee grounds or greens, many of which are higher or lower than the car
path. This commenter argued that if golf car passages were required to extend
onto teeing grounds and greens in order to qualify for an exception, then some
golf courses would have to substantially regrade teeing grounds and greens at a
high cost.
Some commenters argued
that older golf courses, small nine-hole courses, and executive courses that do
not have golf car paths would be unable to comply with the accessible route
requirements because of the excessive cost involved. A commenter noted that,
for those older courses that have not yet created an accessible pedestrian
route or golf car passage, the costs and impacts to do so should be considered.
A commenter argued that
an accessible route should not be required where natural terrain makes it
infeasible to create an accessible route. Some commenters cautioned that the
2010 Standards would jeopardize the integrity of golf course designs that
utilize natural terrain elements and elevation changes to set up shots and
create challenging golf holes.
The Department has given
careful consideration to the comments and has decided to adopt the 2010
Standards requiring that at least one accessible route connect accessible
elements and spaces within the boundary of the golf course including teeing
grounds, putting greens, and weather shelters, with an exception provided that
golf car passages shall be permitted to be used for all or part of required
accessible routes. In response to requests for clarification of the term “golf
car passage,” the Department points out that golf car passage is merely a
pathway on which a motorized golf car can operate and includes identified or
paved paths, teeing grounds, fairways, putting greens, and other areas of the
course. Golf cars cannot traverse steps and exceedingly steep slopes. A
nine-hole golf course or an executive golf course that lacks an identified golf
car path but provides golf car passage to teeing grounds, putting greens, and
other elements throughout the course may utilize the exception for all or part
of the accessible pedestrian route. The exception in section 206.2.15 of the
2010 Standards does not exempt golf courses from their obligation to provide
access to necessary elements of the golf course; rather, the exception allows a
golf course to use a golf car passage for part or all of the accessible
pedestrian route to ensure that persons with mobility disabilities can fully
and equally participate in the recreational activity of playing golf.
Accessible Teeing Grounds, Putting Greens, and
Weather Shelters. Sections 238.2 and 1006.4 of the
2010 Standards require that golf cars be able to enter and exit each putting
green and weather shelter. Where two teeing grounds are provided, the forward
teeing ground is required to be accessible (golf car can enter and exit). Where
three or more teeing grounds are provided, at least two, including the forward
teeing ground, must be accessible.
A commenter supported
requirements for teeing grounds, particularly requirements for accessible
teeing grounds, noting that accessible teeing grounds are essential to the full
and equal enjoyment of the golfing experience.
A commenter recommended
that existing golf courses be required to provide access to only one teeing
ground per hole. The majority of commenters reported that most public and
private golf courses already provide golf car passage to teeing grounds and
greens. The Department has decided that it is reasonable to maintain the
requirement. The 2010 Standards provide an exception for existing golf courses
with three or more teeing grounds not to provide golf car passage to the
forward teeing ground where terrain makes such passage infeasible.
Section 1006.3.2 of the
2010 Standards requires that where curbs or other constructed barriers prevent
golf cars from entering a fairway, openings 60 inches wide minimum shall be
provided at intervals not to exceed 75 yards.
A commenter disagreed
with the requirement that openings 60 inches wide minimum be installed at least
every 75 yards, arguing that a maximum spacing of 75 yards may not allow enough
flexibility for terrain and hazard placements. To resolve this problem, the
commenter recommended that the standards be modified to require that each golf
car passage include one 60-inch wide opening for an accessible golf car to
reach the tee, and that one opening be provided where necessary for an
accessible golf car to reach a green. The requirement for openings where curbs
or other constructed barriers may otherwise prevent golf cars from entering a
fairway allows the distance between openings to be less than every 75 yards.
Therefore, the Department believes that the language in section 1006.3.2 of the
2010 Standards allows appropriate flexibility. Where a paved path with curbs or
other constructed barrier exists, the Department believes that it is essential
that openings be provided to enable golf car passages to access teeing grounds,
fairways and putting greens, and other required elements. Golf car passage is
not restricted to a paved path with curbs. Golf car passage also includes
fairways, teeing grounds, putting greens, and other areas on which golf cars
operate.
Accessible Practice Putting Greens, Practice Teeing
Grounds, and Teeing Stations at Driving Ranges. Section
238.3 of the 2010 Standards requires that five percent (5%) but at least one of
each of practice putting greens, practice teeing grounds, and teeing stations
at driving ranges must permit golf cars to enter and exit.
239 and 1007
Miniature Golf Facilities
Accessible Route to Miniature Golf Course Holes. Sections 206.2.16, 239.3, and 1007.2 of the 2010 Standards
require an accessible route to connect accessible miniature golf course holes
and the last accessible hole on the course directly to the course entrance or exit.
Accessible holes are required to be consecutive with an exception permitting
one break in the sequence of consecutive holes provided that the last hole on
the miniature golf course is the last hole in the sequence.
Many commenters supported
expanding the exception from one to multiple breaks in the sequence of
accessible holes. One commenter noted that permitting accessible holes with
breaks in the sequence would enable customers with disabilities to enjoy the
landscaping, water and theme elements of the miniature golf course. Another
commenter wrote in favor of allowing multiple breaks in accessible holes with a
connecting accessible route.
Other commenters objected
to allowing multiple breaks in the sequence of miniature golf holes. Commenters
opposed to this change argued that allowing any breaks in the sequence of
accessible holes at a miniature golf course would disrupt the flow of play for
persons with disabilities and create a less socially integrated experience. A
commenter noted that multiple breaks in sequence would not necessarily
guarantee the provision of access to holes that are most representative of
those with landscaping, water elements, or a fantasy-like experience.
The Department has
decided to retain the exception without change. Comments did not provide a
sufficient basis on which to conclude that allowing multiple breaks in the
sequence of accessible holes would necessarily increase integration of
accessible holes with unique features of miniature golf courses. Some designs
of accessible holes with multiple breaks in the sequence might provide
equivalent facilitation where persons with disabilities gain access to
landscaping, water or theme elements not otherwise represented in a consecutive
configuration of accessible holes. A factor that might contribute to equivalent
facilitation would be an accessible route designed to bring persons with
disabilities to a unique feature, such as a waterfall, that would otherwise not
be served by an accessible route connecting consecutive accessible holes.
Specified exceptions are
permitted for accessible route requirements when located on the playing
surfaces near holes.
Accessible Miniature Golf Course Holes. Sections 239.2 and 1007.3 of the 2010 Standards require at
least fifty percent (50%) of golf holes on miniature golf courses to be
accessible, including providing a clear floor or ground space that is 48 inches
minimum by 60 inches minimum with slopes not steeper than 1:48 at the start of
play.
240 and 1008 Play
Areas
Section 240 of the 2010
Standards provides scoping for play areas and section 1008 provides technical
requirements for play areas. Section 240.1 of the 2010 Standards sets
requirements for play areas for children ages 2 and over and covers separate
play areas within a site for specific age groups. Section 240.1 also provides
four exceptions to the requirements that apply to family child care facilities,
relocation of existing play components in existing play areas, amusement
attractions, and alterations to play components where the ground surface is not
altered.
Ground Surfaces. Section
1008.2.6 of the 2010 Standards provides technical requirements for accessible
ground surfaces for play areas on accessible routes, clear floor or ground
spaces, and turning spaces. These ground surfaces must follow special rules,
incorporated by reference from nationally recognized standards for
accessibility and safety in play areas, including those issued by the American
Society for Testing and Materials (ASTM).
A commenter recommended
that the Department closely examine the requirements for ground surfaces at
play areas. The Department is
aware that there is an ongoing controversy about play area ground surfaces
arising from a concern that some surfaces that meet the ASTM requirements at the
time of installation will become inaccessible if they do not receive constant
maintenance. The Access Board is also aware of this issue and is working to
develop a portable field test that will provide more relevant information on
installed play surfaces. The Department would caution covered entities
selecting among the ground surfacing materials that comply with the ASTM
requirements that they must anticipate the maintenance costs that will be
associated with some of the products. Permitting a surface to deteriorate so
that it does not meet the 2010 Standards would be an independent violation of
the Department´s ADA regulations.
Accessible Route to Play Components. Section 206.2.17 of the 2010 Standards provides scoping
requirements for accessible routes to ground level and elevated play components
and to soft contained play structures. Sections 240.2 and 1008 of the 2010
Standards require that accessible routes be provided for play components. The
accessible route must connect to at least one ground level play component of
each different type provided (e.g., for different experiences such as rocking,
swinging, climbing, spinning, and sliding). Table 240.2.1.2 sets requirements
for the number and types of ground level play components required to be on accessible
routes. When elevated play components are provided, an accessible route must
connect at least fifty percent (50%) of the elevated play components. Section
240.2.1.2, provides an exception to the requirements for ground level play
components if at least fifty percent (50%) of the elevated play components are
connected by a ramp and at least three of the elevated play components
connected by the ramp are different types of play components.
The technical
requirements at section 1008 include provisions where if three or fewer entry
points are provided to a soft contained play structure, then at least one entry
point must be on an accessible route. In addition, where four or more entry
points are provided to a soft contained play structure, then at least two entry
points must be served by an accessible route.
If elevated play
components are provided, fifty percent (50%) of the elevated components are
required to be accessible. Where 20 or more elevated play components are
provided, at least twenty five percent (25%) will have to be connected by a
ramp. The remaining play components are permitted to be connected by a transfer
system. Where less than 20 elevated play components are provided, a transfer
system is permitted in lieu of a ramp.
A commenter noted that
the 2010 Standards allow for the provision of transfer steps to elevated play
structures based on the number of elevated play activities, but asserted that
transfer steps have not been documented as an effective means of access.
The 2010 Standards
recognize that play structures are designed to provide unique experiences and
opportunities for children. The 2010 Standards provide for play components that
are accessible to children who cannot transfer from their wheelchair, but they
also provide opportunities for children who are able to transfer. Children
often interact with their environment in ways that would be considered
inappropriate for adults. Crawling and climbing, for example, are integral
parts of the play experience for young children. Permitting the use of transfer
platforms in play structures provides some flexibility for creative playground
design.
Accessible Play Components. Accessible play components are required to be on accessible
routes, including elevated play components that are required to be connected by
ramps. These play components must also comply with other accessibility
requirements, including specifications for clear floor space and seat heights
(where provided).
A commenter expressed
concerns that the general requirements of section 240.2.1 of the 2010 Standards
and the advisory accompanying section 240.2.1 conflict. The comment asserts
that section 240.2.1 of the 2010 Standards provides that the only requirement
for integration of equipment is where there are two or more required ground
level play components, while the advisory appears to suggest that all
accessible components must be integrated.
The commenter
misinterprets the requirement. The ADA mandates that persons with disabilities
be able to participate in programs or activities in the most integrated setting
appropriate to their needs. Therefore, all accessible play components must be
integrated into the general playground setting. Section 240.2.1 of the 2010
Standards specifies that where there is more than one accessible ground level
play component, the components must be both dispersed and integrated.
241 and 612 Saunas
and Steam Rooms
Section 241 of the 2010
Standards sets scoping for saunas and steam rooms and section 612 sets
technical requirements including providing accessible turning space and an
accessible bench. Doors are not permitted to swing into the clear floor or
ground space for the accessible bench. The exception in section 612.2 of the
2010 Standards permits a readily removable bench to obstruct the required
wheelchair turning space and the required clear floor or ground space. Where
they are provided in clusters, five percent (5%) but at least one sauna or
steam room in each cluster must be accessible.
Commenters raised
concerns that the safety of individuals with disabilities outweighs the
usefulness in providing accessible saunas and steam rooms. The Department
believes that there is an element of risk in many activities available to the
general public. One of the major tenets of the ADA is that individuals with
disabilities should have the same opportunities as other persons to decide what
risks to take. It is not appropriate for covered entities to prejudge the
abilities of persons with disabilities.
242 and 1009 Swimming
Pools, Wading Pools, and Spas
Accessible Means of Entry to Pools. Section 242 of the 2010 Standards requires at least two
accessible means of entry for larger pools (300 or more linear feet) and at
least one accessible entry for smaller pools. This section requires that at
least one entry will have to be a sloped entry or a pool lift; the other could
be a sloped entry, pool lift, a transfer wall, or a transfer system (technical
specifications for each entry type are included at section 1009).
Many commenters supported
the scoping and technical requirements for swimming pools. Other commenters
stated that the cost of requiring facilities to immediately purchase a pool
lift for each indoor and outdoor swimming pool would be very significant
especially considering the large number of swimming pools at lodging
facilities. One commenter requested that the Department clarify what would be
an “alteration” to a swimming pool that would trigger the obligation to comply
with the accessible means of entry in the 2010 Standards.
Alterations are covered
by section 202.3 of the 2010 Standards and the definition of “alteration” is
provided at section 106.5. A physical change to a swimming pool which affects
or could affect the usability of the pool is considered to be an alteration. Changes
to the mechanical and electrical systems, such as filtration and chlorination
systems, are not alterations. Exception 2 to section 202.3 permits an altered
swimming pool to comply with applicable requirements to the maximum extent
feasible if full compliance is technically infeasible. “Technically infeasible”
is also defined in section 106.5 of the 2010 Standards.
The Department also
received comments suggesting that it is not appropriate to require two
accessible means of entry to wave pools, lazy rivers, sand bottom pools, and
other water amusements where there is only one point of entry. Exception 2 of
Section 242.2 of the 2010 Standards exempts pools of this type from having to
provide more than one accessible means of entry provided that the one
accessible means of entry is a swimming pool lift compliant with section
1009.2, a sloped entry compliant with section 1009.3, or a transfer system
compliant with section 1009.5 of the 2010 Standards.
Accessible Means of Entry to Wading Pools. Sections 242.3 and 1009.3 of the 2010 Standards require
that at least one sloped means of entry is required into the deepest part of
each wading pool.
Accessible Means of Entry to Spas. Sections 242.4 and 1009.2, 1009.4, and 1009.5 of the 2010
Standards require spas to meet accessibility requirements, including an
accessible means of entry. Where spas are provided in clusters, five percent
(5%) but at least one spa in each cluster must be accessible. A pool lift, a
transfer wall, or a transfer system will be permitted to provide the required
accessible means of entry.
243 Shooting
Facilities with Firing Positions
Sections 243 and 1010 of
the 2010 Standards require an accessible turning space for each different type
of firing position at a shooting facility if designed and constructed on a
site. Where firing positions are
provided in clusters, five percent (5%), but at least one position of each type
in each cluster must be accessible.
Additional Technical Requirements
302.1 Floor or Ground
Surfaces
Both section 4.5.1 of the
1991 Standards and section 302.2 of the 2010 Standards require that floor or
ground surfaces along accessible routes and in accessible rooms and spaces be
stable, firm, slip-resistant, and comply with either section 4.5 in the case of
the 1991 Standards or section 302 in the case of the 2010 Standards.
Commenters recommended
that the Department apply an ASTM Standard (with modifications) to assess
whether a floor surface is “slip resistant” as required by section 302.1 of the
2010 Standards. The Department declines to accept this recommendation since,
currently, there is no generally accepted test method for the slip-resistance
of all walking surfaces under all conditions.
304 Turning Space
Section 4.2.3 of the 1991
Standards and Section 304.3 of the 2010 Standards allow turning space to be
either a circular space or a T-shaped space. Section 304.3 permits turning
space to include knee and toe clearance complying with section 306. Section
4.2.3 of the 1991 Standards did not specifically permit turning space to
include knee and toe clearance. Commenters urged the Department to retain the
turning space requirement, but exclude knee and toe clearance from being
permitted as part of this space. They argued that wheelchairs and other mobility
devices are becoming larger and that more individuals with disabilities are
using electric three and four-wheeled scooters which cannot utilize knee
clearance.
The Department recognizes
that the technical specifications for T-shaped and circular turning spaces in
the 1991 and 2010 Standards, which are based on manual wheelchair dimensions,
may not adequately meet the needs of individuals using larger electric
scooters. However, there is no consensus about the appropriate dimension on
which to base revised requirements. The Access Board is conducting research to
study this issue in order to determine if new requirements are warranted. For
more information, see the Access Board´s website at
http://www.access-board.gov/research/current-projects.htm#suny. The Department
plans to wait for the results of this study and action by the Access Board
before considering any changes to the Department´s rules. Covered entities may
wish to consider providing more than the minimum amount of turning space in
confined spaces where a turn will be required. Appendix section A4.2.3 and Fig.
A2 of the 1991 Standards provide guidance on additional space for making a
smooth turn without bumping into surrounding objects.
404 Doors, Doorways,
and Gates
Automatic Door Break Out Openings. The 1991 Standards do not contain any technical requirement
for automatic door break out openings. The 2010 Standards at sections 404.1,
404.3, 404.3.1, and 404.3.6 require automatic doors that are part of a means of
egress and that do not have standby power to have a 32-inch minimum clear break
out opening when operated in emergency mode. The minimum clear opening width
for automatic doors is measured with all leaves in the open position. Automatic bi-parting doors or pairs of
swinging doors that provide a 32-inch minimum clear break out opening in
emergency mode when both leaves are opened manually meet the technical
requirement. Section 404.3.6 of the 2010 Standards includes an exception that
exempts automatic doors from the technical requirement for break out openings
when accessible manual swinging doors serve the same means of egress.
Maneuvering Clearance or Standby Power for Automatic
Doors. Section 4.13.6 of the 1991
Standards does not require maneuvering clearance at automatic doors. Section
404.3.2 of the 2010 Standards requires automatic doors that serve as an
accessible means of egress to either provide maneuvering clearance or to have
standby power to operate the door in emergencies. This provision has limited
application and will affect, among others, in-swinging automatic doors that
serve small spaces.
Commenters urged the
Department to reconsider provisions that would require maneuvering clearance or
standby power for automatic doors. They assert that these requirements would
impose unreasonable financial and administrative burdens on all covered
entities, particularly smaller entities. The Department declines to change
these provisions because they are fundamental life-safety issues. The
requirement applies only to doors that are part of a means of egress that must
be accessible in an emergency. If an emergency-related power failure prevents
the operation of the automatic door, a person with a disability could be
trapped unless there is either adequate maneuvering room to open the door
manually or a back-up power source.
Thresholds at Doorways. The
1991 Standards, at section 4.13.8, require the height of thresholds at doorways
not to exceed 1/2 inch and thresholds at exterior sliding doors not to exceed
3/4 inch. Sections 404.1 and 404.2.5 of the 2010 Standards require the height
of thresholds at all doorways that are part of an accessible route not to
exceed 1/2 inch. The 1991 Standards and the 2010 Standards require raised
thresholds that exceed ¼ inch in height to be beveled on each side with a
slope not steeper than 1:2. The 2010 Standards include an exception that
exempts existing and altered thresholds that do not exceed 3/4 inch in height
and are beveled on each side from the requirement.
505 Handrails
The 2010 Standards add a
new technical requirement at section 406.3 for handrails along walking
surfaces.
The 1991 Standards, at
sections 4.8.5, 4.9.4, and 4.26, and the 2010 Standards, at section 505,
contain technical requirements for handrails. The 2010 Standards provide more
flexibility than the 1991 Standards as follows:
A commenter noted that
handrail extensions are currently required at the top and bottom of stairs, but
the proposed regulations do not include this requirement, and urged the
Department to retain the current requirement. Other commenters questioned the
need for the extension at the bottom of stairs.
Sections 505.10.2 and
505.10.3 of the 2010 Standards require handrail extensions at both the top and
bottom of a flight of stairs. The requirement in the 1991 Standards that
handrails extend horizontally at least 12 inches beyond the width of one tread
at the bottom of a stair was changed in the 2004 ADAAG by the Access Board in
response to public comments. Existing horizontal handrail extensions that
comply with 4.9.4(2) of the 1991 Standards should meet or exceed the
requirements of the 2010 Standards.
Commenters noted that the
2010 Standards will require handrail gripping surfaces with a circular cross
section to have an outside diameter of 2 inches, and that this requirement
would impose a physical barrier to individuals with disabilities who need the
handrail for stability and support while accessing stairs.
The requirement permits
an outside diameter of 1 ¼ inches to 2 inches. This range allows flexibility
in meeting the needs of individuals with disabilities and designers and
architects. The Department is not aware
of any data indicating that an outside diameter of 2 inches would pose any
adverse impairment to use by individuals with disabilities.
Handrails Along Walkways. The
1991 Standards do not contain any technical requirement for handrails provided
along walkways that are not ramps. Section 403.6 of the 2010 Standards
specifies that where handrails are provided along walkways that are not ramps,
they shall comply with certain technical requirements. The change is expected
to have minimal impact.