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The Gray Areas – What to do when you hit on one in the Access codes or ADA?

Janis Kent, Architect, FAIA, CASp © March 2016

While the ADA Standards for Accessible Design (ADAS) have a tremendous amount of information, they can not cover all specific items and occurrences…hence the gray areas. Presuming you have verified the Scoping Requirements in Chapter 2 which provides information on whether it applies to your specific facility, and additionally you have verified the definitions as listed in the Application and Administration provisions located in Chapter 1, which may better define specific words, and you still are at loss, there are other resources.

The Department of Justice (DOJ)  has a guidance book on the Standards both for Title II entities (public – considered local and state government or agencies) and for Title III entities (privately owned – available as a place of public accommodation, commerce, or test-taking). The two guidance documents are found on-line here.

They include a discussion of intent by the DOJ of how, and sometimes why the intended item is to be implemented. This addresses questions that came up in the public comments submitted in response to DOJ’s ‘Notice of Proposed Rulemaking’ (NPRM) to adopt the 2010 Standards, with DOJ’s response, thought process, and clarification of its decision and any modifications. These are meant as documents that are translated for everyone to use, not just attorneys.

While these guidance books are a good start, they still may not address your specific question – and do remember, they are guidance documents. But since DOJ is the enforcing agency for both Title II and Title III of the ADA, courts generally afford deference to the DOJ interpretations. However, this deference is not absolute. If your specific question is not addressed in the Guidance, you may need to delve into additional resources. These resources could include the actual implementing regulations 28 CFR Part 35 for public projects and 28 CFR Part 36 for private places of public accommodation, commerce, or testing. Again, both of these are available on-line here.

The implementing regulations contain supplemental requirements to those set forth in the 2010 ADA Standards as originally issued by the Access Board. They also address the general concepts regarding the prohibition of discrimination as well as obligations arising under the ADA. This does provide context for understanding the whats and whys of something that needs to be implemented and can provide insight into how DOJ or a court may approach an issue when the ADA Standards are not entirely clear. Now you are delving into the actual laws and regulations which require careful reading if you are not use to this type of document.

There are also the older Technical Assistance Manuals for the 1991 ADA Standards which might shed some light, although, some of this may have changed with the implementation of the 2010 ADAS. There is the original November 1993 edition of the Technical Assistance Manuals as well as the Supplements which came out in 1994. The Supplements provide illustrations in question and answer format (not diagrams). These are available online for both Title II and Title III as well.

If you still do not have your answer, you can do research on other preceding federal regulations such as the 1991 Fair Housing Accessibility Guidelines, Section 504 of the Rehabilitation Act, the Uniform Federal Accessibility Standards (UFAS), or the current Architectural Barriers Act (ABA) to see if your issue, or an analogous issue has ever been addressed under these other requirements. You can also check draft or proposed requirements such as the proposed Public Right of Way Guidelines. While these may not apply to your specific project and are not binding with respect to the ADA, they sometimes can help illustrate what the federal government has deemed to be “accessible and usable to individuals with disabilities” which assists with understanding of how DOJ might approach these grey areas.

Both the US Access Board and the Department of Justice have additional guidance documents on their websites. And they both have email addresses and hot-lines for technical support. Be aware that the US Access Board is providing an opinion and does not provide the final say on implementation. They also can not state how to combine both a state code with the federal regulation other than – the more restrictive providing greater access applies. The federal Department of Justice does have the final say on interpretation under the ADA but more often than not, it is difficult to get a definitive answer in writing which is what you would need, not the informal guidance from their hotline. The written guidance found on the US Access Board website has been vetted by both DOJ and the DOT.

There are also a number of court cases. Consulting attorneys specializing in access would be best moving forward to understanding such court cases and how they may or may not apply in your jurisdiction and to your specific project. Do remember, as I am sure everyone knows, these are not building codes but rather civil rights law which can have broad interpretations as opposed to many times the more concise technical requirements of a building code. Also be aware, that while local and state building departments can interpret their codes and make exceptions, they do not have the authority to do this for the ADA. So when you hit on a grey area, I would delineate your research to the owner and let them decide along with their legal counsel, since they are the ones taking the risk.

Be aware that your local City or County may have additional requirements that are more restrictive than the State or Federal requirements. Also, this article is an interpretation and opinion of the writer. It is meant as a summary – current original regulations should always be reviewed when making any decisions.

© Janis Kent, Architect, FAIA, CASp 2016