On September 15, 2010, the United States Department of Justice (“DOJ”) published revised regulations implementing Title II (state and local government services) and Title III (public accommodations and commercial facilities) (“2010 Regulations”) of the Americans with Disabilities Act (“ADA”). The stated purposes of the revisions are to address issues that have arisen in the 20 years since the original enactment of the ADA and to modernize accessibility standards through adoption of the 2010 ADA standards for accessible design (“2010 Standards”). As public entities providing programs, activities, and services, most Colorado special districts will be subject to the 2010 Regulations and 2010 Standards to one extent or another.
This Article provides Part III of a three-part analysis of the 2010 Regulations and 2010 Standards. This Article addresses some of the specific design, construction, and equipment requirements for program accessibility required by the 2010 Standards, including those for sports courts, exercise equipment, restrooms, showers, dressing rooms, and assembly areas. Part II of this Article, published in the August 2011 issue of the SDA News, addressed other design, construction, and equipment requirements, including those for swimming pools, play areas, golf facilities, and fishing piers. Part I, published in the July 2011 issue of the SDA News, provided an overview of the 2010 Regulations, including revisions to policies and procedures, construction and alteration, and program accessibility.
Compliance Dates for 2010 Standards and the Program Accessibility Standard
Compliance Dates for the 2010 Standards and the “program accessibility standard” are discussed in greater detail in Part II of this Article. Readers are encouraged to review Part II, as it includes important additional information regarding these issues.
In general, however, the 2010 Standards will apply to all physical construction and alterations commenced by a public entity on or after March 15, 2012.1 While the 2010 Regulations provide a limited “safe harbor” for certain elements in existing facilities, the safe harbor does not apply to certain elements, including exercise machines and equipment, play areas, swimming pools, fishing piers, golf facilities, and accessible routes in court sports facilities.2 In evaluating the changes that a district will need to make in order to bring these elements into compliance, the district should bear in mind the “program accessibility” standard discussed below.
Public entities are generally held to a standard of “program accessibility” that will allow districts some flexibility in satisfying the particular technical and scoping requirements provided by the 2010 Standards.3
The program accessibility standard requires a public entity to operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and useable by individuals with disabilities.4 Thus, a district will not necessarily be required to make each existing facility accessible to and useable by individuals with disabilities if the district’s programs as a whole meet the program accessibility standard.5 In choosing among available methods for meeting the program accessibility requirement, a district must give priority to those methods that offer services, programs, and activities in the most integrated setting appropriate.6
Additionally, a district is not required to take any action that would result in undue financial and administrative burdens.7 If a district believes that a particular action would result in undue financial or administrative burdens, it must take other actions to ensure that individuals with disabilities receive the benefits or services it provides.8 Finally, a district is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with the public accessibility standard.9
Sports Courts, Fields, and Other Areas of Sport Activity
Under the 2010 Standards, sports courts, fields, and other areas of sport activity are required to be on an accessible route. Specifically, an accessible route must connect to the boundary of each area of sport activity, including, for example, soccer fields, basketball courts, baseball fields, and running tracks.10 If more than one sports court or field of the same type is provided, there must be an accessible route to each court or field.11 For sports courts, an accessible route must directly connect both sides of the court.12
Additionally, team or player seating areas must be accessible for individuals using wheelchairs. Accordingly, the team or player seating area must be on an accessible route, which may include platform lifts.13 The team or player seating area must include at least one wheelchair space that complies with the 2010 Standards.14
Exercise Machines and Equipment
Under the 2010 Standards, at least one of each type of exercise machine and equipment must be on an accessible route.15 In general, “accessible routes” are routes consisting of flat walking surfaces, doorways, ramps, elevators, and platform lifts, which allow persons using mobility devices to navigate from one location to another.16 Each machine that provides a different exercise experience is a different “type” of machine.17 For example, biceps curl machines and cable-cross-over machines are different types, even though both machines exercise the biceps.18 Similarly, stationary bicycles and treadmills are different types, even though they both provide cardiovascular exercises.19
The 2010 Standards specify minimum requirements for clear floor space adjoining each machine or piece of equipment that is meant to be accessible, which must be positioned to allow persons using wheelchairs to transfer onto the machines.20 The same area of clear floor space may be shared between two pieces of exercise equipment.21
Restrooms and Showers Restrooms
Under the 2010 Standards, all restrooms, and their components and fixtures, must be accessible. A great number of regulations specify the technical and scoping standards for restrooms; the following represent only a few of the more general requirements for restrooms intended primarily for adult use:
- Where toilets are provided, at least one must be wheelchair accessible.22 Likewise, where urinals are provided, at least one must be accessible.23 Urinals may be only “stall type” or “wall hung type”.24
- Where toilet stalls are provided, at least one stall must be wheelchair accessible, and if there are six or more toilets and/or urinals in a restroom, at least one toilet stall must be accessible for persons using a walker or crutches.25
- Flush controls for both toilets and urinals must be hand operated or automatic, and, if hand operated, must not require tight grasping, pinching, or twisting of the wrist.26 Toilet paper dispensers must not be of a type that controls delivery or does not allow continuous paper flow.27
- At least one sink and one mirror, must be accessible.28 Faucets, soap, and towel dispensers must be within specific reach ranges, must be operable with one hand, and must not require tight grasping, pinching, or twisting of the wrist.29
- Additional regulations for restroom components and fixtures relate to coat hooks, shelves, toilet stall doors, toilet paper dispensers, sanitary napkin disposal units, and baby changing tables.30
Showers
As with restrooms, the 2010 Standards include a number of regulations governing showers. In general, however, if showers are provided, at least one shower must be accessible.31 Accessible showers may be either “transfer type” or “roll-in type”.32 A folding or non-folding seat must be provided in transfer type showers.33 A seat is not required to be provided in roll-in type showers, but if provided, it must be a folding seat.34 Enclosures for shower compartments must not obstruct controls, faucets, and shower spray units, or obstruct transfer from wheelchairs onto shower seats.35
A shower spray unit with a hose that can be used both as a fixed-position showerhead and as a hand-held shower must be provided.36 Controls, faucets, and shower spray units must be operable with one hand, and must not require tight grasping, pinching, or twisting of the wrist.37
Drinking Fountains and Vending Machines
If drinking fountains are provided, there must be at least two.38 One of the two must meet specific requirements for accessibility by persons using wheelchairs, while the other must meet specific requirements for accessibility by persons who are standing.39 If more than two drinking fountains are provided, 50% must comply with the requirements for the former fountain, and 50% must comply with the requirements for the latter fountain.40
Vending machines must have operable parts, including key pads, money slots, coin dispensers, and food/beverage dispensers that are within specific reach ranges, are operable with one hand, and do not require tight grasping, pinching, or twisting of the wrist.41
Dressing and Locker Rooms
Under the 2010 Standards, 5%, or at least one, of each type of dressing and locker room provided must be accessible.42 Partitions and doors in dressing rooms should be designed to ensure that persons using accessible dressing and locker rooms have privacy equivalent to that of other users; however, persons using accessible dressing and locker rooms do not have to be provided greater privacy than is provided to others.43
One bench within the accessible dressing or locker room also must be accessible.44 Accessible bench seats must provide back support or be affixed to a wall.45 Likewise, if coat hooks and shelves are provided in the dressing or locker room, at least one accessible coat hook and shelf must be provided in the accessible dressing or locker room.46
Where lockers are provided, 5%, or at least one, of each type of locker must be accessible.47 “Types” of lockers include full-size and half-size lockers, and any lockers designed specifically to hold certain types of sports equipment.48 The accessible lockers must have operable parts, such as locks and latches, that are within specific reach ranges, can be operated with one hand, and do not require tight grasping, pinching, or twisting of the wrist.49
Wheelchair Seating in Assembly Areas
Under the 2010 Standards, an “assembly area” is defined as “[a] building or facility, or portion thereof, used for the purpose of entertainment, educational or civic gatherings, or similar purposes.”50 Many of the 2010 Standards addressing wheelchair seating in assembly areas contemplate large venues with fixed, immovable seating, such as movie theaters, concert halls, and stadiums.51 These regulations likely will be of limited applicability for districts that provide only small venues with immovable seating, or none at all. However, any district that provides temporary seating for large gatherings (for example, meeting rooms, classrooms, or wedding spaces) should bear these regulations in mind when preparing for an event. Specifically, a district should consider the number of wheelchair spaces and companion seats required, the location of such spaces, and the views and other amenities provided for such spaces.52
Additional Regulations
Parts II and III of this Article are intended to provide an overview of those 2010 Standards that address specific amenities commonly provided by districts, such as swimming pools and play areas. However, the 2010 Regulations include numerous other requirements for the amenities discussed above, as well as for other types of amenities that may be provided by districts, such as amusement rides, boating facilities, saunas and steam rooms, stadiums, and amphitheaters.
Additionally, the 2010 Standards also include a great number of regulations that apply generally to all publicly owned or operated properties and facilities, such as circulation paths, entrances and doorways, elevators and stairways, fire alarms, signs, telephones, and reach ranges and clearances. Districts must be aware of and comply with these more general requirements as well as those specifically related to amenities.
Actions to Take
Considering the substantial revision to existing regulations included in the 2010 Standards and the development of new regulations where none existed previously, districts should consider developing a plan to audit facilities, programs, and services for compliance with the 2010 Standards. Districts should identify areas of noncompliance and develop an action plan for remedying each area of noncompliance. Districts may wish to separately identify those remedies that can be implemented quickly and easily or at low cost, and those that will need to be implemented over months or years.
Districts also should consider auditing their services and programs for compliance with the program accessibility standard. Such audits should focus on whether each of the district’s programs and services, when viewed in their entirety, are reasonably accessible to persons with disabilities. As above, districts should identify any areas of noncompliance, and develop an action plan for remedying each such area.
Finally, districts should carefully consider the impact that any planned or future construction or alteration of facilities may have on their obligation to bring such facilities into compliance with the 2010 Standards. Due to the exceptional breadth and detail of the 2010 Standards (much of which is beyond the scope of this Article), a district that is planning to construct or alter facilities should consider bringing in an architect or other contractor who is well-versed with the 2010 Standards to review the area of construction or alteration and to provide a detailed summary of the changes that will be required to comply with the 2010 Standards. Compliance with the 2010 Standards should be a requirement of any contract for design, construction, and/or alteration where the construction or alteration will commence on or after March 15, 2012.
For further information, please contact Dino Ross (dross@irelandstapleton.com) or Emily Powell (epowell@irelandstapleton.com) at Ireland Stapleton Pryor & Pascoe, PC.
This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.
Endnotes
1 2010 Regulations, 75 Fed. Reg. 178, § 35.151(c)(3).
2 2010 Regulations § 35.150(b).
3 Id. at Guidance on Subpt. D.
4 28 C.F.R. § 35.150(a).
5 2010 Regulations at Subpt. D.
6 28 C.F.R. § 35.150(b)(1).
7 Id.
8 2010 Regulations at Guidance on Subpt. D.
9 Id.
10 Id. at 56.
11 Id.
12 Id. at 60.
13 Id. at 64
14 Id. at 79.
15 Id. at 60, 97.
16 Id. at 117.
17 Id. at 97.
18 Id.
19 Id.
20 Id. at 233.
21 Id.
22 Id. at 70.
23 Id.
24 Id.
25 Id.
26 Id. at 116, 170.
27 Id. at 164.
28 Id. at 70, 160.
29 Id. at 116, 171.
30 See generally id. § 603.
31 Id. at 70.
32 Id. at 174-75.
33 Id. at 178.
34 Id. at 183.
35 Id. at 181.
36 Id. at 180.
37 Id. at 116, 178.
38 Id. at 68.
39 Id. at 159.
40 Id. at 68.
41 Id. at 88, 116.
42 Id. at 81.
43 Id. at 206.
44 Id.
45 Id. at 220.
46 Id. at 206.
47 Id. at 85.
48 Id. at 86.
49 Id. at 116, 218.
50 Id. at 45.
51 Id.
52 Id. at 78, 80, 202-03, 206.
