Gray areas of accessibility

Building Operating Management, May 2002 by Kessler, David

EVERYONE WANTS THEIR facility to meet accessibility guidelines. Often, however, the road to access appears to be through an inordinately confusing regulatory environment. There are numerous and often overlapping accessibility laws, regulations, codes and guidelines.

For example, stairs that are between levels that are also connected by a ramp or elevator are not required to comply with the Americans with Disability Act Accessibility Guideline 4.9 (ADAAG). However, in Massachusetts, all stairs must comply with state accessibility requirements.

Also, accessible parking spaces are required by ADAAG to be 8-feet wide with a 5-foot wide access aisle. Oregon's accessibility regulations require accessible parking spaces to be 9-feet wide with a 6-- foot access aisle.

Below are a few of the accessibility questions that frequently come up on projects around the country.

What accessibility regulations and codes apply to this project?

Answering this question requires an analysis of several factors: What type of facility is it? Who owns the facility? What are the funding sources? In which state is the project located? There are several federal laws or regulations that may apply to a project. Although these laws may reference standards that look like building codes, it is important to remember their civil rights context.

The standards establish a baseline for accessibility. However, the laws' prohibition against discrimination may require more than simple compliance with the standard. Failure to comply constitutes an act of discrimination.

Many states and cities have nondiscrimination laws similar to federal nondiscrimination laws. This is particularly true in the area of housing. In addition to nondiscrimination laws, all states and some cities have accessibility requirements for alterations and new construction of buildings. Unlike ADA, most of these design and construction requirements are part of local building codes. Enforcement and ramifications of noncompliance with state laws can be significantly different than federal requirements.

For example, Massachusetts's law (521 CMR) is incorporated by reference into the state building code. The first line of enforcement is the local inspection services department. Any person can file a complaint with the State Access Board. Non-- compliance with the law can result in fines of up to $1,000 a day per violation and the revocation of an occupancy permit.

The ADA specifically states that it does not replace or limit state accessibility laws. State or local accessibility laws, when more stringent than the ADA, take precedence.

Does compliance with ADAAG constitute compliance with the state code?

The short answer is no. Some states, however, have adopted ADAAG as their state accessibility code. In addition, Title III of the ADA authorizes the U.S. Department of justice (DOJ) to certify that state laws, local building codes or ordinances meet or exceed the accessibility requirements for new construction and alterations under Title III.

The DOJ states that once a code is certified, compliance with it provides evidence of compliance with Title III of the ADA. Certification also allows reliance on the local inspection and approval process, giving local building officials a role in enforcing the substance of the ADA.

To date, the DOJ has certified the accessibility requirements in Washington state, Texas, Maine and Florida as being equivalent to the ADA Standards for Accessible Design.

Eight other jurisdictions - New Mexico, Minnesota, New Jersey, Maryland, California, Indiana, North Carolina, and the County of Hawaii - have also submitted codes for certification review. In addition, DOJ is reviewing several model codes.

Can I rely on "ADA Certified" products?

While certification of state codes will make it easier to provide compliant buildings, another form of certification only adds to the confusion. Neither the DOJ nor the Architectural and Transportation Barriers Compliance Board (ATBCB), the agency that developed ADAAG, certify any products as being ADA compliant.

Building product catalogues of every variety include various statements about accessible products. International Symbols of Accessibility or statements regarding ADA certification can be useful in narrowing the search for compliant products. However, they cannot be relied upon. There are several "accessible" drinking fountains that do not meet ADAAG's requirement for the trajectory of the flow of water. Product specifications should be verified against ADAAG and state requirements.

Who is liable for noncompliance?

Even with the best of intentions, sometimes work is completed on projects that lack fully compliant accessibility. Sometimes the obstacles go unnoticed. However, when they are identified and mitigation is required, the issue of liability is raised. It is crucial that facility executives seek counsel to address specific questions of liability. In general, liability is related to the barrier and the law, regulation, code or standard in violation. Compliance with state and municipal building codes is the responsibility of the architect.