9/4/2015
DOJ Perspective
on Design...
Title II and Title III
ADA Regulations and
the
h 2010 ADA
Standards
James A. Bostrom
Deputy Chief
Disability Rights Section
U. S. Department of Justice
Coverage
Access to programs, services,
or activities...
activities
Access to goods or services...
Facilities...
Title II and III Regulations
ADA Title II and III
Regulations
Nondiscrimination Provisions
2010 Standards for Accessible
Design -- part of the regulations...
General Prohibitions
Against Discrimination
§35.130
(title II)
and §36.201
(title III)
No qualified individual with a disability
shall, on the basis of disability, be
excluded from participation in or be
denied the benefits of the services,
programs, or activities...
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DOJʼs 2010 ADA
Standards
2010 Standards at ADA.gov
Appendices B and D
to 36 CFR part 1191
(2009) -- 2004 ADA
Guidelines...
and the requirements
contained in § 35.151
and subpart D of 28
CFR part 36
2010 Standards
Applies...
• New Construction
• Alterations
• State and local government facilities -Physical Changes for Program
Accessibility
• Public accommodations -- Readily
DOJ Regulations -- 28 CFR
Part 35 Nondiscrimination
on the Basis of Disability in State and Local
Government Services
(as amended by the final rule published on September 15, 2010)
Part 36 Nondiscrimination
on the Basis of Disability in Public
Accommodations and Commercial Facilities
(as amended by the final rule published on September 15, 2010)
Achievable Barrier Removal
New Construction
35.151(a) -designed and
constructed in such
manner that the
facility or part of
the facility is readily
accessible to and
usable by
individuals with
disabilities...
Alterations
35.151(b) -Each facility or part of a
facility altered by, on behalf of,
or for the use of a public entity
in a manner that affects or
could affect the usability of the
facility or part of the facility
shall, to the maximum extent
feasible, be altered in such
manner that the altered
portion of the facility is readily
accessible to and usable by
individuals with disabilities...
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Alteration?
Existing Facilities and
Program Accessibility
Title II
Program Access
No qualified individual with a
disability shall, because a
public entityʼs facilities
are inaccessible or unusable,
Be excluded from participation;
Be denied benefits of programs;
Be subjected to discrimination.
Existing Facilities
Operate each service or
activity so that, when viewed
in its entirety, it is accessible
to and usable by people with
disabilities.
Applies to ALL facilities.
Program Access -Alterations
Integration
Exceptions:
Must give priority to methods
that provide services,
programs, and activities in
the most integrated setting
appropriate.
✓
fundamental alteration in the nature of the
service, program, or activity
✓
undue financial and administrative burdens.
✓
BUT, public entities must take any other
action that would ensure that individuals with
disabilities receive the benefits or services.
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Self-Evaluations and
Transition Plans
&
The Importance of the ADA
Coordinator
Built or Altered to 1991
Standards or UFAS...
Title III: Barrier Removal
Title III (private entities): Remove barriers in
existing facilities to extent readily achievable…
• Per building
g analysis
y
• “Readily achievable” means “easily
accomplishable and able to be carried out
without much difficulty or expense”
• Safe harbor may apply
• Ongoing obligation
Safe Harbor and
Maintenance...
• Designed or altered AND complies
with 1991 Standards or UFAS
• Maintain access
• May reduce access to comply with
2010 Standards...
Safe Harbor:
Existing Facilities
Elements
El
t that
th t comply
l with
ith th
the
corresponding requirements for those
elements in the 1991 Standards or
UFAS do not need to be modified to
meet the 2010 Standards unless they
are altered on or after March 15, 2012.
Not Subject to Safe Harbor
§35.150(b)(2)(ii) and §36.304(d)(2)(iii)
(A) Residential facilities and dwelling
units
((B)) Amusement rides
(C) Recreational boating facilities
(D) Exercise machines and equipment
(E) Fishing piers and platforms
(F) Golf facilities
(G) Miniature golf facilities
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Not Subject to Safe Harbor
§35.150(b)(2)(ii) and §36.304(d)(2)(iii)
(H) Play areas
Dining and Work Surfaces
Safe Harbor?
(I) Saunas and steam rooms
(J) Swimming pools, wading pools, and
spas
(K) Shooting facilities with firing positions
(L) Miscellaneous
(1) Team or player seating
(2) Accessible route to bowling lanes
(3) Accessible route in court sports facilities
Safe Harbor?
Dining and Work Surfaces
2010 Requirements
Lowered Section
35.133 & 36.211 Maintenance
of Accessible Features
Seating Options
Section 303.3
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Ramp Over Electrical Cover
Loose Tiles on Curb Ramp
35.133 & 36.211
Maintenance of Accessible
Features - Reduced...
§35.133 Maintenance...
If the 2010 Standards reduce the technical
requirements or the number of required
accessible elements below the number
required by the 1991 Standards, the technical
requirements or the number of accessible
elements in a facility subject to this part may
be reduced in accordance with the
requirements of the 2010 Standards.
Applying the ADA
Regulations and ADA
Standards...
Section 202.5
Alterations to Qualified Historic
Buildings and Facilities
Alterations to a qualified historic building
or facility shall comply with 202.3 and
202.4.
Read with 28 CFR 35.151and 28 CFR
36.405
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Historic Facilities
What Applies Here?
Signs and Access?
Alterations, Maintenance?
No Accessible Route?
Temporary Accessible Route...
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Accessible Route
206.3 Location? Safe Harbor?
206.3 Location
Accessible routes shall coincide with or be located
in the same area as general circulation paths.
Accessible Parking
Curb Ramp
Accessible Seating?
228
Scoping?
309
Operable
Parts?
Accessible?
Location?
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What About?
Automatic Flush Valve?
§ 35.160 General -Communications...
Security Check at Dorm Entry
(a)(1) A public entity shall take
appropriate steps to ensure that
communications with applicants,
participants, members of the public,
and companions with disabilities are
as effective as communications with
others.
Two-Way
Communications -Building Entry
Sections
230
and
708
Emergency Call Stations
Not on Accessible Route
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Emergency Call Stations
Charging and Work Stations
Point of Sale Devices
Statement of Interest
www.ada.gov/briefs/lucky_brand%20_soi.docx
...touch screen displays that customers must use to
key in their personal identification numbers (“PIN”)
when making a debit card transaction...
...the absence of specific technical
standards or regulatory provisions that
directly address a public accommodation’s
obligation to provide accessible POS
devices in no way establishes that the
accessibility of POS devices is outside the
scope of title III, especially where current
regulations incorporate specific obligations
for effective communication.
35.130(b)(7)
Reasonable Modification
Equipment -- Not Fixed
or Built
Built-In
In
A public entity shall make reasonable
policies,, p
practices,, or
modifications in p
procedures when the modifications are
necessary to avoid discrimination on the basis
of disability, unless the public entity can
demonstrate that making the modifications
would fundamentally alter the nature of the
service, program, or activity.
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Security Portals
Public Computers
Public Computers
Dining Tables
Pedestal in clear floor space
Self-Service Kiosks
Base of accessible table
Street Level
Pedestrian Walkways...
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§ 35.151(i) Curb Ramps
(i) Curb ramps.
(1) Newly constructed or altered streets, roads, and
highways
g
y must contain curb ramps
p or other sloped
p areas
at any intersection having curbs or other barriers to entry
from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian
walkways must contain curb ramps or other sloped areas
at intersections to streets, roads, or highways.
Detectable Warnings
No requirement
in 2010
Standards
Required by
DOT’s 504
Regulations...
Rights-of-Way...
Flared-Side Curb Ramp
Returned-Side Curb Ramp
Accessible?
Maintenance?
Program Access?
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Milling Pavement...
Temporary Fillet...
Program Access?
Program Access?
Public Rights-of-Way
Guidelines
Master Planning
www.access-board.gov/guidelines-and-standards/streets-sidewalks
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Campus Redevelopment
Elevation Matters...
Elevation and Routes
Whereʼs the Accessible
Route?
Ignoring Elevation...
CONTACT
Jim Bostrom
202 - 307 - 2584
jim.bostrom@usdoj.gov
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Questions
?
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