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Olson Engineering Supervisor CR/PL, Inc. P.O. Box 389 Nevada, Missouri 64772 Dear Mr. Olson: This letter responds to your letters to Irene Bowen, dated September 29, 1992, and December 1, 1992, asking a series of questions about the implementation of the Americans with Disabilities Act (ADA). It also confirms the information provided to you by the Public Access Section staff members who met with you and other industry representatives on December 15, 1992, about the issues raised in your letters. Please note that our responses to your inquiry will only address the application of the Department's regulation to private entities subject to title III of the ADA. You should be aware, however, that the ADA Standards for Accessible Design (Standards) may also be applied to the new construction of, or alterations to, public facilities subject to title II of the Act. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. This letter provides informal guidance to assist you to understand the ADA. However, this technical assistance does not constitute a determination by the Department of your rights or responsibilities under the ADA, and it is not binding on the Department. You have asked if the Department intends to adopt the proposed American National Standards Institute accessibility standard (CABO/ANSI A117.1-1992), which was published by the Council of American Building Officials in January 1993, as the standard for new construction and alterations under the ADA. The ADA Standards are published in Appendix A to the Department of Justice regulation implementing title III, 28
June 14, 1993
C.F.R. pt. 36. These Standards were originally published as the ADA Accessibility Guidelines by the Architectural and Transportation Barriers Compliance Board (Access Board) pursuant to section 504 of the ADA. The ADA requires the Department to issue accessibility standards that are consistent with the guidelines developed by the Access Board. Thus, the Department adopted the Board's Guidelines as the title III standards. The Department would on its own initiative only make changes to the Standards that are consistent with the Access Board's Guidelines and would, of course, only do so after allowing public comment. We would also only follow such a course of action in close coordination with the Access Board. If the Access Board itself changed its Guidelines, the Department would seek to amend the Standards to make them consistent with the Guidelines. At this time, the Access Board has not announced any plans to adopt the ANSI Standard. As a member of the ANSI A117.1 Committee, the Access Board is committed to working cooperatively with ANSI. The Board relied extensively on the 1980 and 1986 ANSI standards and early drafts of the new ANSI standard in developing the ADA Accessibility Guidelines. However, it is the Access Board, not the ANSI Committee, that is authorized to develop the Federal accessibility guidelines. In developing these guidelines, the Access Board must comply with the requirements of the Administrative Procedure Act, which establishes the formal requirements for the issuance of Federal regulations. The ANSI committee, like any other person or group, may petition the Access Board to consider changes in its Guidelines that could result in the adoption of new language based on ANSI recommendations; however, amendments to the ADA Accessibility Guidelines may only be made after the Access Board engages in a rulemaking proceeding that includes public notice, the opportunity for public comment, and the completion of any revisions to the proposal that are deemed to be required after public comment. The title III regulation provides that the Department may provide technical assistance to private sector organizations that develop model accessibility standards or codes, in order to assist them to determine if their models are consistent with the requirements of the ADA. At the request of CABO, which serves as the secretariat for the ANSI A117.1 Committee, the Department is now reviewing the ANSI standard to determine if it is consistent with the ADA requirements. It is premature for us to speculate as to whether the revised ANSI A117.1 standard will be determined to be consistent with the ADA requirements. Your letter indicates that you are having some difficulty applying the ADA Standards. To apply the Standards properly, you must understand that the ADA is Federal civil rights legislation,
not a building code. To eliminate discrimination in the built environment, the ADA required this Department to establish minimum standards for the design and construction of new buildings and for alterations to existing buildings. The Standards provide guidance to those in the building industry as to how to provide minimum levels of accessibility; the Standards do not constitute a strict formula for design, nor are they intended to constrain design innovations that provide equal or greater access. (See, e.g., ADA Standards 2.2 discussed below.) Title III of the ADA is enforced through compliance reviews, complaint investigations, and litigation initiated by the Department of Justice, and through litigation initiated by private parties. The ADA is not enforced by State or local building officials, and there is no Federal equivalent to the State code enforcement process. Neither the Department of Justice, nor any other Federal agency, functions as a "building department" to review plans, to issue building permits or occupancy certificates, or to provide "interpretations" of the Standards. The ADA, like all other Federal civil rights laws, requires each covered entity to use its best professional judgment to comply with the statute and the implementing regulations. For example, section 2.2 of the ADA Standards expressly provides that "[d]epartures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility." However, the ADA does not provide for a mechanism through which the Department of Justice, the Access Board, or any other entity may certify any specific variation from the standards as being "equivalent." Proposed alternate designs, when supported by available data, are not prohibited, but in any ADA investigation or lawsuit, the covered entity would bear the burden of proving that any alternative design provides equal or greater access. Sections 3.1, Graphic Conventions, and 3.2, Dimensional Tolerances, which you have questioned, are drawn directly from ANSI A117.1-1980 and ANSI A117.1-1986. They are not further defined in the regulation. Read together, they establish the principle that all of the technical requirements of the regulation must be followed in the design and construction of the elements of a facility that are required to be accessible, while recognizing that the idiosyncrasies of specific sites may result in minor variations from these technical specifications when the element is built or installed.
You have also asked whether the appendix to the ADA Standards is enforceable. The appendix, like the appendix to the ANSI standard, is not enforceable; it simply provides supplementary information to assist people in applying the Standards (see ADA Standards 3.3). Please note that the requirements of the ADA Standards apply only to new construction and alterations (as defined in the title III regulation). Facilities built or altered prior to the effective date of the ADA are considered to be existing facilities and they are not required to comply with the new construction requirements. Places of public accommodation in existing facilities are required to remove barriers in these existing facilities to the extent that it is readily achievable to do so; however, there is no requirement to retrofit existing facilities to new construction standards. This point is pertinent to your understanding of Ms. Bowen's remarks at the American Society of Plumbing Engineers (ASPE) meeting. Your letter correctly notes that section 4.16.3 of the ADA Standards requires that the height of an accessible toilet shall be between 17 and 19 inches, measured to the top of the toilet seat. In new construction, or when a toilet is being altered, this requirement must be followed strictly. The ADA regulation defines "new construction" as a building or facility that is designed and constructed for first occupancy after January 26, 1993. At the ASPE meeting, Ms. Bowen was asked to comment about the replacement of dozens of 19 1/2 inch high toilets in a building that was constructed before the date on which compliance with the ADA new construction standards was required. Because the construction preceded the effective date, the building would be considered to be an existing facility for purposes of an ADA analysis. If the building or facility is a place of public accommodation, the owner or operator of the building is required to remove architectural barriers only to the extent that it is readily achievable to do so; if the building is a commercial facility, there is no obligation to remove barriers. The ADA Standards provide a useful guide in identifying barriers for purposes of barrier removal in existing facilities. Barrier removal is "readily achievable" if it can be easily accomplished without much difficulty or expense. Given the congressional ADA policy in favor of limiting the retrofitting of existing facilities, a mere 1/2 inch deviation from the toiletheight requirement in the Standards would not necessitate barrier removal in an existing facility, particularly where the variations from the technical standards are minor, could only be corrected at substantial cost, and would not result in
significantly greater accessibility for persons with disabilities. Of course, in a facility with dozens of toilets, a private entity may determine that it is readily achievable to replace a smaller number of non-conforming elements. However, such a determination would depend on the facts of a particular case and could not be determined in the abstract based on the information available to us. You have asked specifically if you may follow section 18.104.22.168 of the proposed CABO/ANSI A117.1-1992 accessibility standard as the standard for leg clearances at accessible sinks and lavatories rather than requirements of the ADA regulation ( 4.19.2 and Fig. 31). Both the ADA Standards and the ANSI Standard require a knee clearance of at least 27 inches beneath sinks. The ADA requirement is absolute, but the ANSI standard would permit an entity to ignore the dip of the overflow valve on a lavatory when determining the knee and leg clearances on lavatories. We would not advise ignoring the "dip" because an obstruction into the knee space, even one of a small magnitude, could prevent clearance by some individuals. For example, an obstruction in the center of a lavatory could prevent its use by a person who uses a wheelchair and whose legs are held together by a brace. You have also asked for an explanation of the dimensions in Section 4.21.2, Shower Stalls. As we discussed in December, the dimension measurements for the 36 inch by 36 inch shower, the 36 inch by 60 inch (min) shower, and the 30 inch (min) by 60 inch (min) shower are interior dimensions. Section 9.1.2, applying to transient lodging, permits the use of either of the roll-in showers with folding seats shown in figure 57. The stall sizes are consistent with other requirements contained in the ADA Standards. For example, the shower dimension of 30 inches (min) by 60 inches (min) ( 4.21.2 and Fig. 35 (b)) is consistent with the requirement for a 60 inch maneuvering clearance in an alcove deeper than 15 inches ( 22.214.171.124 and Fig. 4(e)). In the 36 inch by 60 inch shower ( 9.1.2 and Fig. 57 (b)), the 36 inch width is necessary to ensure that a wheelchair can make a turn into the shower from the 36 inch wide opening into the 36 inch wide space in front of the shower head. These dimensions are consistent with those required under the accessible route provisions ( 4.3.3 and Fig. 7(a)). As shown in Figure 35, the measurements of the 36 inch by 36 inch stall are absolute. The 36 inch width dimension is essential to allow the person seated on the seat to use grab bars and shower controls. The measurements of the 30 inch by 60 inch stall are minimum dimensions. As shown in Figure 57(b), the 36 inch dimension for the stall width is absolute. As in the 36
inch by 36 inch stall above, this width is necessary to allow a person seated on the folding seat to use the opposite grab bar for support. All other dimensions are minimums. As discussed above with respect to sections 3.1. and 3.2, all dimensions are subject to conventional building industry tolerances for field conditions, as provided in section 3.2. Similarly, as provided in section 4.26.2, the clearance between the grab bars and the wall is required to be 1 1/2 inches, an absolute dimension subject to dimensional tolerances allowed under section 3.2. Even close tolerances during construction or manufacture cannot ensure continued conformance to a given standard. Reliance on dimensional tolerances, however, is not an excuse for improper or deferred maintenance, or poor design or construction methods. Dimensional tolerances apply to the construction, manufacture or operation of a system, not to the design. In response to your question related to section 4.21.7, which prohibits curbs on roll-in showers, several approaches have been used to keep water in the shower area. Two examples that were discussed at your meeting with Department staff are: (1) having the floor of the room slope gently toward the drain in the shower, or (2) having a 1/2 inch beveled edge at the shower (as allowed under section 4.3.8) with the shower area sloping gently to the drain. You are correct that the issue of shower "curtains" and their location is not addressed in the Standards; therefore, there are no technical specifications that a shower curtain must meet. However, the ADA Standards do require that if bathtub enclosures are provided, they shall not obstruct the controls or transfer from wheelchairs ( 4.20.7). The provisions that apply to in-tub seats are contained in section 4.20.3. Figure 33(a) illustrates the placement of such seats in tubs and the required clear floor area. The illustration is simply representational. The figure contains no additional dimensions or requirements for in-tub seats. In contrast, figure 33(b) contains additional requirements for a built-in seat at the head of the tub showing not only where the seat should be located but also its required depth, 15 inches. We have discussed your questions on where measurements are to be taken with the Access Board and have been informed that the Board is currently investigating several issues related to the measurement of showers and shower seats. If you wish, we will arrange a meeting for you, or other representatives of your industry, with the Access Board staff, at which you may discuss your concerns.
I hope that this information is helpful to you. Sincerely,
John L. Wodatch Chief Public Access Section 1 The ADA permits the Department, upon the request of a State or local government, to certify that a State or local accessibility code meets or exceeds the requirements of the ADA. Compliance with a certified code is considered evidence of compliance with the ADA. If the certified code's technical requirements differ in some respect from the ADA standard, compliance with those code requirements may be considered "equivalent facilitation."
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