Americans with Disabilities Act, 2010 Standards

With the recent changes to the Americans with Disabilities Act of 1990 (1991 Standards), many CCIM members have been asking about how these revised regulations will impact them. This article offers a synopsis of the law as well as some important dates. The focal point will be largely on accessible design (barrier removal), but also has general information regarding the ADA revisions.

In 2010, to mark the 20th anniversary of the ADA, the Department of Justice issued final language altering the ADA regulations formed in 1991. These new standards deal with the accessibility standards to public properties under Title III of the ADA, including hotels, retail space, commercial real estate, museums, shopping malls, and numerous other facilities.

It is anticipated that in the coming months, there will be increased media coverage and potentially an increase in lawsuits in conjunction with the changes to the ADA. These new standards go into effect in March 2012, and may affect CCIM members. It is important that real estate managers and commercial real estate investors research the new revisions and be aware of any and all pertinent regulations. In particular, practitioners should pay close attention to the regulations that deal with accessibility issues at already existing properties as well as properties that are scheduled to be renovated in the near future. New construction will be held to the tightest standards of ADA regulations and will need to comply with all regulations.

One section of the new regulations that is particularly important to CCIM members is the accessibility standards as well as the increased emphasis on "barrier removal" standards for hotels, office buildings, and other commercial properties.

Three Phases of Accessible Design

There are three main levels of compliance with the ADA changes: barrier removal, new construction, and alterations. We will go through each phase and summarize.

• Level I - Barrier Removal: This applies to all public buildings and facilities and requires the removal of all physical barriers in existing properties, regardless of when the building was constructed. This includes all communication barriers. These structural changes and barrier removal must be done where it is "readily achievable" and easily accomplishable without much difficulty or expense to the company. These changes include: installing ramps, railings, and restroom-stall grab bars. The communication changes include: adding raised letters or Braille, fire warning signals, and devices for the hearing impaired. Essentially the ADA wants first priority of these changes to go to certain obstacles that prevent the disabled to "get in the front door."
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  Compliance Dates for Barrier Removal:
  
  
  • Before March 15, 2012: Elements that do not comply with the established requirements in the 1991 Standards must be adopted if readily achievable. (ADA 1991 or 2010 Standards)
  • On or after March 15, 2012: Elements that do not comply with the established requirements in the 1991 Standards, or that do not comply with the additional requirements (technical) to the 1991 Standards must be adopted if readily achievable. (ADA 2010 Standards)
  • Elements not altered after March 15, 2012: Elements that comply with the requirements of the 1991 Standards that do not need to be altered for the 2010 Standards. (Safe Harbor)

• Levels 2 and 3 - New Construction and Alterations: This level of compliance pays attention to newly constructed properties built between September 15, 2010 and March 15, 2012, in accordance with the 2010 Standards. These buildings are to comply with the most comprehensive requirements as required in the Americans with Disabilities Act Design Guidelines.

  The third and final level of compliance to ADA Standards deals with significant renovations (projects of significant cost and often over a period of several years) to a facility of public accommodation made between September 15, 2010, and March 15, 2012, in accordance with the 2010 Standards. The buildings will be required to achieve compliance and be at the same level of compliance as new construction. It is important to note that the actual start of the construction or renovations does not include the ceremonial groundbreaking; actual construction must have taken place.
  
  Compliance Dates for New Construction and Renovations:

  • On or after January 26, 1993, and before September 15, 2010 (building permit application must have been submitted before September 15, 2010) (1991 Standards)
  • On or after September 15, 2010, and before March 15, 2012 (building permit application must have been submitted on or after September 15, 2010) (1991 Standards or 2010 Standards)
  • On or after March 15, 2012 (building permit application must have been submitted on or after March 15, 2012) (2010 Standards)

Alterations to ADA 2010 Standards

After the revisions to the ADA 2010 Standards were adopted, there were several changes that took place regarding accessible design and construction features. A few are detailed below:

• Power-driven devices now include Segways and similar devices. They must be permitted unless the device interferes with a service provider's program or threatens the safety of others.
• Disabled persons must be able to make reservations at a hotel or resort during the same hours as a non-disabled person. This means that there must be sufficient information available (websites) to disabled persons that a room can meet their specific needs. Websites must also be updated to comply with these changes.
• Service animals include dogs and miniature horses and must be trained to provide specific assistance. These animals cannot have the sole purpose of providing "emotional support" (Note: the Fair Housing Act has broader definitions of service animals, including those that do provide "emotional support").
• Accessible routes must be in the same area as the other passage paths.
• Pools must have an accessible path of entry. This may require businesses to supply lifts, construct a sloped entry, or provide transfer walls.

Barrier Removal of Alteration Requirements

The 2010 Standards augment the barrier removal regulations subject to safe harbors. Certain elements that have not already been changed on or after March 15, 2012, and that comply with the corresponding requirements in the 1991 Standards do not need to be altered to comply with the requirement of the 2010 Standards.

Summary

The new ADA 2010 Standards have undergone much interpretation and scrutiny in recent months. Twenty years ago, it was presumed that the 1991 Standards would force buildings to comply as they engaged in major renovations; however, it seems that many structures were never subject to the alterations.

CCIM Institute encourages all members to read and understand the regulations so they may be protected. For more information and to read the language, please visit www.ADA.gov.