Tuesday, October 2, 2012

Does the ADA have a "Grandfather Clause?"

How many times have you gone to a restaurant or store that contained many barriers to your access and when you advised the business of these barriers you were told, "we're grandfathered in."  This is simply not true.  There is no grandfather clause in the ADA. 

To the contrary, 28 CFR 36.304 states: "A public accommodation shall remove architectural barriers in existing facilities...where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense."

However, while there never was a grandfather clause in the ADA and still is not, there is now a "safe harbor" brought about by the 2010 ADA Accessibility Guidelines that went into effect on March 15, 2012.  Basically, an existing facility that fully complies with the 1991 Guidelines that were in force until March 15th, 2012, is not required to comply with the 2010 Guidelines, except with regard to new areas of coverage not previously addressed in the 1991 Guidelines (such as swimming pools, amusement rides, golf facilities, etc).

In my opinion, this is most likely to affect wheelchair users in situations where an accessible single user toilet room compliant with Figure 28 of the 1991 Guidelines is provided as the only accessible toilet room.  In that configuration, only 18 inches is required between the center line of a water closet and the near edge of a lavatory such that parallel wheelchair transfer space is not provided and a diagonal transfer is often necessary as a result of having the lavatory so close to the water closet.  As many wheelchair users lack the ability to make a diagonal transfer, this has created a situation where the "accessible" toilet room provided is simply not usable by many wheelchair users.  The new 2010 Guidelines do not allow such a configuration for new construction and require at least 42 inches of clear space adjacent to a water closet which is measured from the center line of the water closet (and this is a lot more than a mere 18 inches!).  Regardless, an existing facility with a compliant Figure 28 toilet room would not be required to modify it to create parallel transfer space that complies with the 2010 Guidelines.

Saturday, August 11, 2012

What does "Readily Achievable" mean?

A public accommodation in an existing facility (that is, a facility constructed prior to the effective date of the ADA and/or the current ADA Standards) is required to comply with those ADA Standards to the extent it is readily achievable to do so.   The regulations list many modifications that are typically readily achievable:

1) Installing ramps;
2) Making curb cuts in sidewalks and entrances;
3) Repositioning shelves;
4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
5) Repositioning telephones;
6) Adding raised markings on elevator control buttons;
7) Installing flashing alarm lights;
8) Widening doors;
9) Installing offset hinges to widen doorways;
10) Eliminating a turnstile or providing an alternative accessible path;
11) Installing accessible door hardware;
12) Installing grab bars in toilet stalls;
13) Rearranging toilet partitions to increase maneuvering space;
14) Insulating lavatory pipes under sinks to prevent burns;
15) Installing a raised toilet seat;
16) Installing a full-length bathroom mirror;
17) Repositioning the paper towel dispenser in a bathroom;
18) Creating designated accessible parking spaces;
19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
20) Removing high pile, low density carpeting; or
21) Installing vehicle hand controls.

"Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense.  It is a less stringent standard than that which applies to new construction (when access can be provided in the design for no greater expense).  According to the Technical Assistance manual promulgated by the Department of Justice (at III-4.4200):

Determining if barrier removal is readily achievable is necessarily a case-by-case judgment. Factors to consider include:
1) The nature and cost of the action;

2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;

3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
If the public accommodation is a facility that is owned or operated by a parent entity that conducts operations at many different sites, the public accommodation must consider the resources of both the local facility and the parent entity to determine if removal of a particular barrier is "readily achievable. " The administrative and fiscal relationship between the local facility and the parent entity must also be considered in evaluating what resources are available for any particular act of barrier removal.

Saturday, August 4, 2012

Making Sense of New Simming Pool Regulations

The 2010 ADA Accessibility Guidelines (hereafter "Standards") include a requirement that all newly constructed or altered swimming pools subject to Title III of the ADA,  such as hotels and motels, health clubs, recreation centers, public country clubs, and other businesses that have swimming pools, wading pools, and spas, provide accessible means of entry.  These provisions have caused a lot of confusion insofar as existing swimming pools are concerned.  Intially, readily achievable modifications to comply with these provisions were due to be completed by March 15, 2012.  However, the Department of Justice has now extended that deadline until January 31, 2013. 

The 2010 Standards require a newly constructed or altered pool to have one, and in some cases two, accessible means of entry and exit. Section 242 provides that large pools (pools with 300 linear feet of pool wall or more) must have two accessible means of entry and exit. One means of entry/exit must be a fixed pool lift or sloped entry; the other entry can be a transfer wall, transfer system, or pool stairs. Small pools (pools with less than 300 linear feet of pool wall) must provide at least one accessible means of entry/exit, which must be either a fixed pool lift or a sloped entry.  Additional information can be found here about the accessibility requirements for newly constructed pools: 
http://www.ada.gov/qa_existingpools_titleIII.htm

Compliance with the new Standards in existing pools is only required to the extent it is readily achievable to do so.  My understanding is that the most cost-effective method of providing access is by providing a pool lift.  However, there has been confusion over whether that lift must be "fixed" or whether it may be "portable."  In order to allay concerns of business owners who attempted to comply with the guidelines and purchased portable lifts prior to March 15, 2012, these business owners will not be required to provide a fixed lift.  I understand that the Standards indicate lifts are required to be fixed.  However, what remains unclear to me is whether portable lifts that can be "fixed while in use" are sufficient, provided they are so fixed while the pools are open to the public.  This appears to be the standard that will be applied to businesses that purchased a portable lift prior to March 15, 2012.  Hopefully further clarification will be forthcoming soon. 

Friday, July 27, 2012

Tax Benefits of ADA Compliance

To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audio tape; making available a sign language interpreter or a reader for customers or employees; and for purchasing certain adaptive equipment. The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations. To learn more about the tax credit and tax deduction provisions, contact the DOJ ADA Information Line (at 800-514-0301 (voice); 800-514-0383 (TTY).

Thursday, July 26, 2012

22 years old and still under attack--the ADA

The business community has long been seeking to require that they be given some notice before their failure to comply with federal accessibility law results in accountability.  The first such attempt was the “ADA Notification Act.” See H.R. 3590, 106th Cong., 2d Sess. (2000); S. 3122, 106th Cong., 2d Sess. (2000); H.R. 914, 107th Cong., 1st Sess. (2001); S. 782, 107th Cong., 1st Sess. (2001); H.R. 728, 108th Cong., 1st Sess. (2003).  Thankfully, it never got anywhere.

However, the attacks keep coming, the latest from Rep. Lungren, a Republican from California who has proposed the ironically named "ACCESS" Act.  The acronym is for "ADA Compliance for Customer Entry to Stores and Services."  You can read the text here:  http://www.opencongress.org/bill/112-h3356/text

It simply seeks to require folks with disabilities, who have encountered barriers to their access to businesses, to give such businesses notice of the 22-year-old ADA and an "opportunity" to comply with it before they utilize their private right of action to enforce the ADA.  Cleary, 22 years is not nearly enough time to figure out how to stripe a parking lot, or to ramp an entry.

The Judiciary Committee held hearings in connection with this proposed legislation on June 27, 2012, and I've not heard any updates regarding it since.  Let's hope this one dies quickly. To make sure of it, write your member of congress!

The 22nd Anniversary of the Americans with Disabilities Act

Today is a special day.  This month marks my tenth year in a law practice that is primarily dedicated to representing clients with disabilities.  Today also marks the 22nd anniversary of the ADA.  Earlier today, President Obama proclaimed the following in honor of the 22nd anniversary of the ADA:

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

Since our earliest days, America has measured its progress not only by the growth of our borders and the breadth of our economy, but also by how far we reach toward fully realizing the fundamental rights, protections, and freedoms afforded to each of us by our Nation's founding documents. For generations, many Americans with disabilities lived as second-class citizens who were denied those most basic opportunities. Not content to accept the world as it was, they marched and organized and testified, coupling quiet acts of persistence and perseverance with vocal acts of advocacy. And step by step, progress was won. Protections were put into law. And a wave of change swept across our country, tearing down the barriers that kept persons with disabilities from securing their fullest measure of happiness.

Today, we mark the 22nd anniversary of the Americans with Disabilities Act (ADA) -- a historic piece of civil rights legislation that affirmed Americans with disabilities are Americans first. When many wrongfully doubted that people with disabilities could participate in our society, contribute to our economy, or support their families, the ADA asserted that they could. Under this landmark law, America became the first Nation to comprehensively declare equality for its citizens with disabilities -- an accomplishment that continues to guide our country toward fulfilling its most essential promises not just for some, but for all.

Yet, despite the gains we have made, independence and freedom from discrimination remain out of reach for too many individuals with disabilities. That is why my Administration continues to build on the legacy set forth by the ADA. Thanks to the Affordable Care Act, insurance companies can no longer deny coverage to children with disabilities because of pre-existing conditions, medical history, or genetic information -- a provision that will be extended to all Americans in 2014. We have fought to protect and strengthen Medicare and Medicaid by improving benefits and opposing proposals that would shift costs to seniors and persons with disabilities. And earlier this year, we established the Administration for Community Living at the Department of Health and Human Services to help ensure people with disabilities have the support they need to live with respect and dignity in their communities, and to be fully included in our national life.

Because every American deserves access to a world-class education, we have worked to make learning environments safer and more inclusive. Last September, the Department of Education implemented new standards for the Individuals with Disabilities Education Act that will help measure and improve outcomes for infants and toddlers with disabilities. Moving forward, we will continue to take action to help all children learn, develop, and participate in instructional programs that equip them with the tools for success in school and beyond.

As we mark this milestone and reflect on the barriers that remain, we also pay tribute to the courageous individuals and communities who have made progress possible. Because so many advocates understood injustice from the depths of their own experience, they also knew that by allowing injustice to stand, we were depriving our Nation and our economy of the full talents and contributions of tens of millions of Americans with disabilities. Today, those Americans are leaders not only in every field and throughout every part of our national life, but also in the journey to bring the American dream within reach for our next generation. On this anniversary of the ADA, we celebrate the contributions Americans with disabilities have made to our Nation, and we rededicate ourselves to empowering every individual with those most American principles of equal access and equal opportunity.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim July 26, 2012, the Anniversary of the Americans with Disabilities Act. I encourage Americans across our Nation to celebrate the 22nd anniversary of this civil rights law and the many contributions of individuals with disabilities.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of July, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty-seventh.

BARACK OBAMA

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