Accessibility News & Review

As part of the administration’s commemoration of the 20th anniversary of the Americans with Disabilities Act (ADA), President Obama announced yesterday (July 26, 2010) the publication of two final rules that will amend the Department of Justice’s regulations implementing Title II and Title III of the ADA. These two rules will be published concurrently in the Federal Register.

The Department of Justice also issued the same notice to the public. While I have not seen it published in the fedral register yet, it appears that the publishing of such is imminent. This “final rule” will be effective six months from the date of publication in the federal register.

Here is a portion of the notice from DOJ:
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The Department of Justice (Department) is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board” (Access Board), 42 U.S.C. 12186(c), and to update or amend certain provisions of the title III regulation so that they comport with the Department´s legal and practical experiences in enforcing the ADA since 1991.

The Department has conducted the periodic review that is required by the Regulatory Flexibility Act and has made a regulatory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996.

This rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (2004 ADA/ABA Guidelines), which were published by the Access Board on July 23, 2004, and are codified at 36 CFR part 1191, app. B and D (2009). Because the Department is adopting ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 ADA Standards for Accessible Design (2010 Standards), on the effective date of the final rule, these guidelines will cease to be mere guidance and instead will have legal effect.

Concurrently with the publication of the final rule for title III, the Department is publishing a final rule amending its ADA title II regulation. The title II regulation covers State and local government entities, adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as its standards for title II entities, makes amendments to the title II regulation for consistency with the title III regulation, and makes amendments that reflect the Department´s experience of years of enforcement of the ADA.

The Justice Department also announced that it will publish four new ADA proposals addressing the accessibility of websites, the provision of captioning and video description in movies shown in theaters, accessible equipment and furniture, and the ability of 9-1-1 centers to take text and video calls from individuals with disabilities. The proposals were in the form of advance notices of proposed rulemaking published on July 26, 2010 (the anniversary of the signing of the ADA) which provide information on these ADA issues and ask questions seeking comments and information from the public.

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The Department of Justice (DOJ) is moving to issue final rules that would update its ADA regulations, including standards governing the construction and alteration of facilities covered by the law. On April 26, DOJ submitted final rules to the Office of Management and Budget (OMB) for approval. If cleared within OMB’s standard 90-day review period, DOJ may publish the updated regulations in late July or early August. In my previous post regarding these new guidelines, I suggested that DOJ was shooting for the July 26th anniversary date of the ADA.

DOJ’s new rules will update its ADA regulations for state and local governments under title II and those for public accommodations and commercial entities covered by title III. The pending regulations will implement new ADA standards for title II and title III facilities that are closely based on updated guidelines previously issued by the Board. This final rule will also establish an effective date for compliance with the new guidelines. [When the original ADAAG was published on July 26, 1991 (a year after the ADA became law), it established an effective date for public entities of January 26, 2002, a six-month window.]

The final rules will also revise or supplement other sections of DOJ’s regulations, including those covering existing facilities, service animals, policies and programs, maintenance of accessible features, auxiliary aids and services, and effective communication. DOJ had planned to issue the regulations in early 2009 but delayed publication in order to give officials of the incoming Obama Administration an opportunity to review them.

For more information, visit DOJ’s website. Visitors to the site can subscribe to email updates from DOJ on this and other Department activities.

DOJ’s standards apply to all facilities covered by the ADA except transportation facilities, which are subject to standards issued by the Department of Transportation (DOT). DOT has already implemented updated ADA standards for transportation facilities. Similar standards are also in place under the Architectural Barriers Act (ABA) for most federally funded facilities. Housing facilities covered by the ABA currently remain subject to earlier standards pending the adoption of new standards by the Department of Housing and Urban Development. Further information on the status of ADA and ABA standards is available on the Board’s website .

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This post is part of a series of articles on the new ADAAG-R guidelines. I will be exploring some of the more notable changes from the current version of the ADA Accessibility Guidelines for Buildings & Facilities (ADAAG). You can find a complete copy of the new ADA/ABA Accessibility Guidelines (ADAAG-R) on the Access Board’s website.
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Let me begin by saying that, even before the ADA/ABA standards become enforceable, incorporating some of the new requirements into design standards now (or at least having them at the ready) may be prudent.  In Texas, some of these differences may be reasonable bases for requesting variances.

This first segment will deal with scoping requirements, since these are generally what drive compliance.

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213.2 Toilet Rooms and Bathing Rooms. Where toilet rooms are provided, each toilet room shall comply with 603. Where bathing rooms are provided, each bathing room shall comply with 603.

EXCEPTIONS: 1. In alterations where it is technically infeasible to comply with 603, altering existing toilet or bathing rooms shall not be required where a single unisex toilet room or bathing room complying with 213.2.1 is provided and located in the same area and on the same floor as existing inaccessible toilet or bathing rooms.

The notable change here is that a single-user toilet room is now explicitly allowed during alterations in lieu of altering existing toilet rooms where doing so would be technically infeasible. The option is available so long as the single-user toilet room is on the same floor and in the same area as the existing nonaccessible toilet rooms. Of course, in Texas one will still need to secure a variance to do this, so we won’t see anything effectively changing at TDLR because of this exception. Please note though that this option is NOT available in new construction.

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213.2.1 Unisex (Single-Use or Family) Toilet and Unisex Bathing Rooms. Unisex toilet rooms shall contain not more than one lavatory, and two water closets without urinals or one water closet and one urinal. Unisex bathing rooms shall contain one shower or one shower and one bathtub, one lavatory, and one water closet. Doors to unisex toilet rooms and unisex bathing rooms shall have privacy latches.

We presume the logic behind defining Unisex toilet and bathing rooms by fixture count is to prevent owners from simply re-labeling existing multi-user toilet rooms as “Unisex” to avoid altering both toilet rooms in a pair, especially in light of the exception just noted in 213.2 above.  Plumbing code disallows a reduction in fixture count below current code requirements during alterations, so the tendency might be for some owners to leave all existing fixtures in place, claim technical infeasibility and alter only one of the toilet rooms, re-label it “Unisex” and thereby avoid the expense of making the second toilet room accessible.

Remember, Texas accessibility laws are far more proactive than those in most other states. The variance process in Texas makes it difficult for an owner to simply claim technical infeasibility, making this definition for us more academic than effectual.

This definition is also consequential in occupancies where plumbing code may only require one toilet room (for example, where the occupancy is under 15), or where plumbing code explicitly allows single-user toilet rooms (assembly and mercantile occupancies, for example).

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213.3.1 Toilet Compartments. Where toilet compartments are provided, at least one toilet compartment shall comply with 604.8.1. In addition to the compartment required to comply with 604.8.1, at least one compartment shall comply with 604.8.2 where six or more toilet compartments are provided, or where the combination of urinals and water closets totals six or more fixtures.

This change is huge. We are all familiar with the requirement to provide an ambulatory toilet compartment (by the way, stalls are now referred to as “compartments”) when the number of toilet compartments in a toilet room exceeds five, but now the basis for requiring an ambulatory compartment is when the combination of urinals and water closets exceeds five.

Consider the men’s toilet room with four urinals and two toilet compartments: in the new ADA/ABA, each of the toilet compartments would have to be accessible, one as a standard accessible compartment, and one as an ambulatory compartment. This is a change worth knowing if you are planning a large renovation and your building have multiple toilet rooms on each floor.

So, what exactly is a toilet compartment? The following Advisory clarifies this issue and offers some other helpful definitions.

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Advisory 213.3.1 Toilet Compartments. A toilet compartment is a partitioned space that is located within a toilet room, and that normally contains no more than one water closet. A toilet compartment may also contain a lavatory. A lavatory is a sink provided for hand washing. Full-height partitions and door assemblies can comprise toilet compartments where the minimum required spaces are provided within the compartment.

Note first that a toilet compartment is something that is “…located within a toilet room”. Next, note that a toilet compartment can be comprised of full-height walls and a standard 3’-0” door. This might seem to some like a toilet room within a toilet room, but according to this advisory, it is not because it is “located within a toilet room”. Notice also that this toilet compartment “…may contain a lavatory” and “…normally contains no more than one water closet.”

I’m not sure of too many scenarios where a toilet compartment would need more than one water closet, but I’m going to venture a guess here.  I have seen scenarios where a special toilet compartment designed for special needs students was placed within a toilet room. The compartment included two water closets, one with grab bars and one without, and could have easily included a lavatory had they chosen to install one. I evaluated it according to the standards for toilet rooms, since it looked and qualified as a room in its own right. But now, with this advisory, I know that this space only needs to comply with the requirements for toilet compartments.

A notable difference is that in toilet rooms, a turning space is required; in stalls or compartments, one is not. [Visual Alarms are required in all common-use rooms and spaces, so a separate visual alarm would be required in a toilet “compartment” with full-height walls if audible alarms are present.]

More importantly, this definition clarifies the misunderstanding that a toilet compartment becomes a toilet room just because it has full-height walls. If it is in a toilet room, it is a compartment.

Before I move on, let me also point out that lavatories are clearly defined as those fixtures used for hand-washing, and this differentiates them from sinks (which are designed or intended to be used for other uses in addition to washing hands.)

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213.3.3 Urinals. Where more than one urinal is provided, at least one shall comply with 605.

Basically, if there is only one urinal, it no longer must be a compliant urinal.

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213.3.4 Lavatories. Where lavatories are provided, at least one shall comply with 606 and shall not be located in a toilet compartment.

In the Texas Accessibility Standards (TAS 4.22.6), this restriction has always been present, so for us in Texas the change is of little consequence.

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213.3.7 Coat Hooks and Shelves. Where coat hooks or shelves are provided in toilet rooms without toilet compartments, at least one of each type shall comply with 603.4. Where coat hooks or shelves are provided in toilet compartments, at least one of each type complying with 604.8.3 shall be provided in toilet compartments required to comply with 213.3.1. Where coat hooks or shelves are provided in bathing facilities, at least one of each type complying with 603.4 shall serve fixtures required to comply with 213.3.6.

Accessible shelves are newly specified, as heretofore they generally fell into the storage category and were simply required to be located on an accessible route within accessible reach ranges. The new requirement specifies a minimum location above the finish floor of 40 inches.

Well, that is all for this segment. Next time we will look at some of the specific dimensional requirements for the elements within toilet and bathing rooms. Let me know if you have any insights into today’s article. If I’ve missed or misinterpreted something, I would like to clean it up right away.

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The Access Board held an audio presentation today regarding sidewalks and intersections, and during the call someone asked if there was any word on a date for adoption of the new ADA-ABA guidelines (ADAAG-R).

One of the presenters commented that talk around the water cooler in DC has the Department of Justice targeting July 26th (the anniversary of the ADA) to issue a notice adopting the new guidelines.  Of course, this is unofficial and pure speculation, but its speculation from individuals fairly close to the situation.

If this indeed happens, these new standards may become enforceable before the end of the year.

I will let you know as more information is released.

Ken

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On Monday, December 7, 2009 the US Department of Justice (DOJ) issued its Statement of Regulatory Priorities for 2010.  In that Regulatory Plan, DOJ stated that it “is planning to revise its regulations implementing titles II and III of the Americans With Disabilities Act (ADA). ”

The Plan went on to state:

In June 2008, the Department has published proposed rules to revise its regulations implementing titles II and III of the ADA to amend the ADA Standards for Accessible Design (28 CFR part 36, appendix A) to be consistent with the revised ADA accessibility guidelines published by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board) on July 23, 2004.  During FY 2010, the Department expects to complete its work on these regulations and to further amend the Department’s regulations to implement the ADA Amendments Act of 2008, which took effect on January 1, 2009.

The timetable associated with this action indicates “Final Action” in March of 2010.  While this is not a mandatory deadline and should be seen as a projection only, it offers some degree of hope to all who have been awaiting something more definitive in regards to adoption of the new ADA/ABA Guidelines.

I guess one can officially hold their breath and cross their fingers now!  And while you are at it, you may want to call Otten Consulting Group and schedule yourself for one of our AIA approved CE seminars on Accessibility (I would recommend the seminar covering The New ADAAG-R Guidelines).

(800) 776-4ADA
(713) 975-1029

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This post is part of a series of articles on the new ADAAG-R guidelines.  I will be exploring some of the more notable changes from the current version of the ADA Accessibility Guidelines for Buildings & Facilities (ADAAG).  You can find a complete copy of the new ADA/ABA Accessibility Guidelines (ADAAG-R) on the Access Board’s website.

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Reach Range

Historically, dimensions for reach range have been different depending upon the approach.  Because someone in a wheelchair can reach higher when approaching an object from the side as opposed to directly in front of them, side reach range is currently allowed to be up to 54 inches Above the Finished Floor (AFF) or ground.  Forward reach range is a maximum of 48 inches AFF or ground.  The ADAAG-R limits side reach to 48 inches, the same as the limitation on front reach.

308.3 Side Reach.

308.3.1 Unobstructed.  Where a clear floor or ground space allows a parallel approach to an element and the side reach is unobstructed, the high side reach shall be 48 inches (1220 mm) maximum and the low side reach shall be 15 inches (380 mm) minimum above the finish floor or ground.

In its review of the new ADAAG-R, the Department of Justice (DOJ) observed that, from a cost perspective, it is no more expensive to place controls and operating mechanisms at 48 inches than at 54 inches. More importantly, harmonizing side and front reach ranges eliminates a good deal of confusion over what constitutes a permissible side approach. This is a crucial point. In terms of enforcement of the ADAAG in public accommodations, it is very common for the owner/operator of a restaurant or store to assert that a side approach is possible — and thus place an item or control at 54 inches — when in fact only a front approach is possible.

In addition, the fixed and moveable elements that govern whether a side or front approach is possible are often added to the design or even to the building itself, long after the height of the item in question is determined or the item is installed. With a uniform height for both side and front approach, both design and compliance will be simpler.

Furthermore, the Access Board (the agency that promulgates these guidelines) decided to require 48-inch reach ranges for both side and front approaches after extensive testimony supported the idea that this height limitation was necessary to permit use by people of short stature and many wheelchair-users with limited upper arm strength, as well as people with other types of disabilities and chronic illnesses.

Finally, the 48-inch limitation has been included in the ANSI standard for the past ten years, and harmonizing the requirements for reach ranges is consistent with the the goals of the new ADAAG-R.

The minimum Reach Range for side approach has also been changed to 15 inches AFF or ground, which is also consistent with the minimum Reach Range for forward approach.  The requirements for Reach Range over an obstruction for both approaches have remained essentially unchanged from the current ADAAG, and a discussion about those requirements will be addressed in a future post.  Again, you can view all the new requirements for Reach Range at the Access Board’s website for the new ADAAG-R.

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This post is part of a series of articles on the new ADAAG-R guidelines.  I will be exploring some of the more notable changes from the current version of the ADA Accessibility Guidelines for Buildings & Facilities (ADAAG).  You can find a complete copy of the new ADA/ABA Accessibility Guidelines (ADAAG-R) on the Access Board’s website.

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Access from Site Arrival Points & Between Buildings on a Site

The requirement that an accessible route be provided from public streets and transportation stops to an accessible building entrance is one that has caused much frustration over the years.  Likewise for the similar requirement that all buildings on a site be connected by an accessible route.  The language of ADAAG and TAS currently states:

4.1.2 (1) At least one accessible route complying with 4.3 shall be provided within the boundary of the site from public transportation stops, accessible parking spaces, passenger loading zones if provided, and public streets or sidewalks, to an accessible building entrance.

(2) At least one accessible route complying with 4.3 shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.

It is not difficult to ensure compliance with this accessible route requirement from parking and passenger loading zones: they are often in proximity to an accessible entrance.  It is not even too difficult to ensure compliance from more distant locations like public streets, sidewalks and transportation stops, especially when pedestrian routes are provided from these locations in the first place.

The problem with this requirement is that there is no exception for those instances when no pedestrian route is provided whatsoever from public transportation, sidewalks or streets.  Imagine a single building located a quarter mile from the public street.  The only thing connecting the public street to the parking area in front of the building is a quarter mile-long driveway with no adjacent pedestrian walkway.  According to the current guidelines, notwithstanding the absence of any pedestrian route, an accessible route for persons with disabilities would need to be provided.

Similarly, when no pedestrian route is provided between buildings on a site, the guidelines still require an accessible route between each building on a site.  This can be especially ominous when vehicular ways between some buildings can be exceptionally dangerous to any pedestrian, and more so to those with mobility impairments and other physical limitations.

The new ADA/ABA Accessibility Guidelines (ADAAG-R) restate the current requirement (using the term “Site Arrival Points”) and then provide the necessary exceptions:

206.2.1 Site Arrival Points.  At least one accessible route shall be provided within the site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve.

Exception 2.  An accessible route shall not be required between site arrival points and the building or facility entrance if the only means of access between them is a vehicular way not providing pedestrian access.

Similarly, in the case of access between buildings on the same site, an exception is made for those instances where pedestrian routes are not provided in the first place:

206.2.2 Within a Site.  At least one accessible route shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.

EXCEPTION:  An accessible route shall not be required between accessible buildings, accessible facilities, accessible elements, and accessible spaces if the only means of access between them is a vehicular way not providing pedestrian access.

There are several other key qualifications to these new requirements and their exceptions (for those instances where there are multiple bus stops serving a site, or multiple accessible entrances, or when the route provided to pedestrians is through a parking lot), so take the time to go to section 206 in the new ADAAG-R and read up on all the particulars.

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This post is part of a series of articles on the new ADAAG-R guidelines.  I will be exploring some of the more notable changes from the current version of the ADA Accessibility Guidelines for Buildings & Facilities (ADAAG).  You can find a complete copy of the new ADA/ABA Accessibility Guidelines (ADAAG-R) on the Access Board’s website.

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Urinals

Perhaps the most welcome change is the requirement that toilet rooms with only one urinal no longer require that the urinal be accessible.  Here’s how the Guidelines read:

213.3.3 Urinals.  Where more than one urinal is provided, at least one shall comply with 605.

Of course, where an accessible urinal is required (or if one elects to make a urinal accessible), it must comply with all of the requirements for accessible urinals:

1. Be on an accessible route;
2. Have adequate clear floor space for forward approach (remember that in Texas, the clear floor space will likely be require to be centered upon the fixture;
3. Must be stall-type (floor mounted) or wall-hung (if wall hung, the urinal rim must not be higher than 17 inches above the finished floor);
4. Have a tapered, elongated rim (now defined as being at least 13.5 inches from the wet wall);
5. Have operable automatic or hand-operated controls (if hand operated, controls must have adequate clear floor space and be within accessible reach ranges. Generally this will be max 48 inches AFF unless the depth of the urinal is more than 20″, in which case it must be max 44 inches AFF)

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For the past several years (and longer), I’ve been telling attendees to our Lunch & Learn sessions that we could expect a new version of the federal accessibility guidelines within about a year.  This has been the mantra from the Access Board (the agency that promulgates these guidelines), and one I have faithfully repeated.  If you were to ask me today when I believe the new guidelines will become effective, I would probably tell you, “In about a year”. 

President Bush directed the DOJ to amend the regulations and incorporated the new guidelines into the law.  As new administrtations often do, the Obama administration but a hold on that action in order to spend time reviewing the move themselves.  The released this memo:

On January 28, 2009, the US Department of Justice posted the following notice on their web site:

“Proposed ADA Regulations Withdrawn from OMB Review

On January 21, 2009, the Department of Justice notified the Office of Management and Budget (OMB) that the Department has withdrawn its draft final rules to amend the Department’s regulations implementing title II and title III from the OMB review process. This action was taken in response to a memorandum from the President’s Chief of Staff directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama. No final action will be taken by the Department with respect to these rules until the incoming officials have had the opportunity to review the rulemaking record. Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act.

Withdrawal of the draft final rules does not affect existing ADA regulations. Title II and title III entities must continue to follow the Department’s existing ADA regulations, including the ADA Standards for Accessible Design.”

Due to this change, and the amount of time it usually takes for the officials to take their places in the new administration and get their feet on the ground, it is unlikely that a final rule will come out until late 2009 or possibly 2010.

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Everyone knows by now that drinking fountains must not only be accessible to and usable by persons who use wheelchairs, but also to persons with difficulty bending and stooping. This is why both “high” and “low” units are specified in ADAAG and TAS.

Currently, 50% of drinking fountains must be the “low” variety for persons using wheelchairs (meaning they must have a spout that is 36″ maximum AFF and 27″ minimum knee clearance for cantilevered units). Of the remaining 50%, one unit must be at a height accessible to persons with difficulty bending or stooping. TDLR has stated that 42″ AFF is the approved height for compliance with TAS for the “high” unit (for adults).

[Note* The upcoming revised federal ADA/ABA guidelines (ADAAG-R) require that 50% be "low", and 50% be "high", with the spout height being from 38" to 43" AFF for compliance with the "high" unit. The new guidelines also no longer allow floor-mounted drinking fountains for persons using wheelchairs ("low" units), so all accessible "low" drinking fountains must be cantilevered and have adequate knee clearance (at least 27" AFF) for forward approach.]

Children’s Environments

According to TDLR, facilities used primarly by children (such as school, daycare and similar facilities) are not exempt from the requirements for the standard height (or “high”) drinking fountains (found at TAS 4.1.3(10)). While there are no explicit dimensions noted in TAS for the location of the spout in “high” drinking fountains used primarily by children, TDLR accepts 34″ AFF as the accessible spout height for “high” units based on TAS 4.1.1(1)(b)(ii). Since they don’t specify whether this is for elementary or middle school-age children, I interpret their guidance to apply to both age groups.

Of course, one may always apply for a variance from this requirement if they want to specify a different height.

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