ADA: Proposed Final Regulations for Courthouses, Jails and Prisons.
When DOJ published the proposed rules for Title 11 facilities, it noted that the board would be supplementing ADAAG in the future to include the comments and suggestions for compliance requirements for justice facilities. In September 1998, DOJ published amendments for ADAAG as revised in the final rules that included Section 11 (courthouses) and Section 12 (correctional and detention facilities), along with other updates in definitions, accessible elements, restaurants and cafeterias, medical care facilities, business and mercantile facilities, libraries, transient lodging, transportation facilities, accessible residential housing and public rights-of-way. In so doing, the proposed rule would establish new ADA standards for facilities covered by DOJ's Title 11 regulations.
The law mandates reasonable accommodations and program accessibility for persons with disabilities (an estimated 43 million Americans) who must enter, exit and pass through a building. The number of inmates in state correctional and detention settings who have serious (full mobility-impaired) disabilities varies greatly from state to state. For example, in the Florida Department of Corrections, between 8 percent and 11 percent of the inmate population is seriously disabled. An additional 20 percent of the population has correctable disabilities (sight- and hearing-related disabilities). The national average for inmates with serious disabilities is between 1 percent and 3 percent. These numbers are growing, however, as a result of the aging of inmates, the amount of drive-by shooting injuries that occur prior to incarceration, and the number of cases of HIV and other debilitating diseases among inmates.
A U.S. Supreme Court decision in June 1999 stated that inmates with correctable disabilities are no longer covered by ADA. As a result, agencies that are responsible for incarcerating inmates are not required under ADA regulations to provide eyeglasses, hearing aids and other battery-operated aid devices to inmates with correctable disabilities. This decision does not change the requirements for agencies to address the needs of individuals in their charge who have serious disabilities.
A Statement of The Problem
The proposed final rules state that all detention and correctional facilities will comply with ADAAG requirements 4.1 through 4.35 (formerly the Title III ADA Guidelines requirements).
All common-use areas serving accessible cells or rooms and all public-use areas are required to be designed and constructed to comply with Section 4 of the ADAAG. Common-use areas include exercise yards, recreation areas, workshops, areas of instruction and vocational technical education, counseling centers, cafeterias, commissaries, medical facilities and any other rooms or spaces used by inmates.
If common-use areas are serving only accessible housing areas, then only those common-use areas need to be accessible. For example, dayrooms and recreation areas serving accessible housing would need to be accessible. However, this does not diminish responsibility for those areas used by the public or employees, which still are subject to the requirements for public use areas and employee work areas in sections 4.1 through 4.35.
One exception in the guidelines given to correctional facilities is a waiver of the requirements for "areas of rescue assistance" in minimum requirements for new construction. Therefore, paragraphs 4.1.3, , [111 ] do not apply. Compliance with the requirements for elevators and stairs also are not required in multilevel housing facilities in which accessible cells or rooms, and all common-use areas serving them, including public-use areas, are on an accessible route.
ADAAG Section 12 requires a percentage of prison cells on a mezzanine level to be accessible. However, an accessible route is not required to all cells (elevator and stair requirements exempted), including those that may be located on upper tiers accessed only by stairs. In the event that a dayroom level is different than the accessible housing, and space does not permit a ramp, a platform lift is allowable.
ADAAG 13 has been revised to allow platform lifts or wheelchair lifts to provide access to raised judges' benches, clerks' stations, jury boxes, witness stands, and to connect levels within individual housing units.
The board has adopted the recommendation for facilities, subject to Title 11 of ADA, to include all principal public entrances when meeting the 50 percent requirement for accessible entrances in ADAAG 4.1 .3(8)(a)(i).
In the final rule, the requirement for access through or around security systems included an exception for doors at such locations. Doors operated only by security personnel were exempt from the requirements for maneuvering clearance at doors, accessible door hardware, opening forces and specifications for automatic doors, if provided. This exception has been revised to apply to entrances used by the public and those used by inmates or detainees. However, where security requirements prohibit full compliance, the applicable specifications are to be met to the maximum extent feasible.
The requirements on building signage 4.l.3. only apply to public-use areas. The board did not make any provisions for government facilities to provide tactile or audible directories, audible signs or other "way-finding" devices. The board also confirmed that incised characters generally are not as readable and, therefore, do not provide an acceptable level of accessibility.
The current compliance language in ADAAG 4.1.2(7) and 4.1.3(16)(a) require that those permanent rooms or spaces that are designated by permanent signs must comply with ADAAG 4.30.-4.30.6.
The requirement that at least one public TTY (phone for the hearing-impaired) be provided in at least one secured area in a detention or correctional facility has been retained. ADAAG 4.1.3(17)(d) provides that if a bank of phones in a building contains three or more public pay phones (as typically might be found in a prison dayroom), at least one of the phones in each bank shall be equipped with a shelf and an outlet (for a TTY).
This provision contains an exception for the secured areas of a jail or prison in which outlets are prohibited for purposes of security or safety; ADAAG 4.31.9(3) includes a provision for equivalent facilitation that permits the use of portable devices.
Security barriers and equivalent adjacent path provisions were not changed in the final regulations. It was pointed out that weapon detection and screening devices are specifically designed to react to metal, as may be found in braces and wheelchairs. Since the screening devices would be rendered neutral by the metal in these devices, the use of handheld metal detector "wands" and hand searches were supported as an alternative method of delivery. The guidelines contain design and construction requirements for accessibility, but they do not cover equipment.
Lighting and Acoustics
The board was requested to adopt and develop lighting and acoustic standards. These are important issues that affect the accessibility of all facilities. However, the board did not adopt any guidelines in these areas and is seeking additional information. Professionals in the field, in conjunction with the Advisory Council on Corrections and Acoustics, prepared a response to the board with the recommendation that it adopt the Acoustics Design Guide for Corrections, published in August 1993.
Courthouse holding facilities are similar to satellite facilities for the jail. The final regulations have added language to clarify that at least one cell must be accessible in central holding cells not segregated by age or sex.
Grab Bar Design
There was considerable discussion on grab bar design, security concerns, and the potential for suicides in holding cells and correctional facilities. It was stated that grab bars in accessible cells do not pose any more of a suicide or security risk than other cell features, such as cell bar grilles, bed frames and heating and ventilation outlets.
There may be circumstances in an alteration to cells in which grab bars cannot be securely attached to meet security requirements. In such cases, the installation of grab bars would not be required because it would be technically infeasible. However, ADAAG 4.1.6(1)(j) requires that the alternative provide accessibility and compliance to the maximum extent feasible. In a related issue, an exception for the 36-inch length of the rear grab bar on high-security stainless steel combination toilet/sink units has been granted in new construction or alterations.
The board changed the visiting area requirements to include that at least 5 percent, but not less than one fixed cubicle, must be accessible on both sides. Accessibility includes knee clearance and communication devices. Because the secured side of visiting also functions as a common-use area for inmates, an exception has been added that only those common-use areas serving accessible cells or rooms must be accessible. Under this exception, noncontact visiting areas serving areas of the facility where no accessible cells or rooms are located are not required to have accessible cubicles on the inmate side.
Some correctional administrators noted that inmates with disabilities might present more of a threat to security since mobility aids may be used as weapons or to hide contraband. A study by the California Department of Corrections did not find that inmates with disabilities posed greater security risks. However, the department has found that inmates with disabilities, as a whole, cannot be considered less of a security risk. Rather, the degree of an individual inmate's security risk must be determined by classification on a case-by-case basis, taking into consideration all the normal classification criteria. Inmates with disabilities, though they may appear to be less of a security risk, have assaulted staff and other inmates.
Location of Accessible Cells
A provision was added in the final rule that requires accessible cells to be located in all categories or types of cells. However, this requirement does not specify the amount or percentage that must be provided in each category or security level. Dispersion is not required to be proportionate to the total number of cells in each category or security level. This provision does not require an increase in the minimum 2 percent compliance requirement specified for a facility overall.
For example, if a small jail is required under the 2 percent compliance to have one accessible cell, but has four holding classifications, only one accessible cell is required. The minimum number required for the facility overrides the requirement of dispersion among all classifications or types of cells. Likewise, it is now allowable to cluster accessible cells of the same classification level or category to facilitate sharing the same amenities and features and delivery of service.
Medical Care Facilities
Medical care facilities in detention and correctional facilities covered by ADAAG 12.1 are subject to the compliance requirements of ADAAG 6.1. This act requires that in general-purpose hospitals, psychiatric facilities and detoxification facilities, at least 10 percent of the patient bedrooms shall be accessible. Detention and correctional medical units are subject to these same recommendations.
ADAAG 6.4 requires accessible patient toilet rooms and bathrooms and references sections 4.22 and 4.23. These requirements do not preclude placement of toilet or bathing fixtures within patient cells if the requirements for toilets, bathrooms and maneuvering space are met.
Medical isolation Cells
A provision has been added stating that medical isolation cells required to be accessible under ADAAG 12.4.2 shall not be counted as part of the minimum number of patient cells required to be accessible under Guideline 6.1. Thus, if a medical care facility has both types of cells, at least one medical isolation cell must be accessible under ADAAG 12.4.2. This is in addition to the requirement for 10 percent of these cells being accessible by ADAAG 6.1. It is recommended that consideration be given to making all medical isolation cells accessible.
Alterations and New Construction
ADAAG requires a minimum level of accessibility in alterations and new construction. Some administrators may question the practicality of making cells accessible as part of a facility alteration not intended to house inmates with disabilities. However, ADA recognizes alterations as opportunities for providing access, even if the altered element may not be made fully accessible to, or usable by, persons with disabilities.
While these requirements are the specific issues mentioned for correctional facilities, the implications for full compliance with ADAAG are made very clear by the recent U.S. Supreme Court ruling that does not grant exceptions to correctional facilities to comply with the law. This suggests that all areas, especially common-use areas, paths of travel, staff areas, public areas and program areas must comply fully with the law and all ADA accessibility guidelines. Accessibility for staff, inmates and the visiting public must be addressed in the design of all facilities.
The final rules require state and local government agencies that make alterations to existing facilities to comply with ADA "to the maximum extent feasible." If structural limitations or compliance would drastically alter the function of a program, service or activity, or pose a life safety hazard, then the agency must do the best it can. If there are areas that do not comply fully with ADAAG, then the agency should document which sections cannot be complied with and the reasons for noncompliance. This documentation should be kept on file in the event of litigation.
Section 35.105 of the ADA Rules and Regulations states that all public entities are required to do self-evaluations on current policies and to identify and correct any deficiencies that are not consistent with ADA requirements. In addition, agencies that employ more than 50 employees are required to maintain the self-evaluation documents on file for a period of three years. It is becoming more apparent with each court case that documentation is the key in agencies and owners preventing and defending against litigation regarding ADA issues.
Agencies must take the necessary steps toward full compliance with ADA requirements without exception. Plan for it and budget for it. The time to start is now.
Randall I. Atlas Ph.D., AIA, CPP, is vice president of Miami-based Atlas Safety and Security Design Inc. He is a registered architect and doctor of criminology, as well as a nationally recognized expert in accessibility issues for jails and prisons. Leonard Witke, AIA, is a principal with XCEL4 Associates Inc., a planning, design, architecture and construction management firm in Hartland, Wis., that specializes in public sector projects.
ADA COMPLIANCE CHECKLIST
Parking is in compliance with requirements.
* There must be at least one TTY in public-use areas.
* There must be at least one TTY in secured areas.
* There must be at least one accessible route through security screening checkpoints. If security equipment is not accessible, then an adjacent accessible route to such security screening devices must be made to facilitate an equivalent path.
* Fifty percent of all principal entrances must be accessible.
* Five percent or at least one visiting cubicle must be accessible from both sides. For noncontact visiting, accessibility requirements do not apply on the inmate side of the cubicle or counter, but are recommended.
* Two percent or at least one housing/holding cell must be accessible.
* Dispersion must be within all categories of housing or levels of security.
* Cells that are designed to be accessible must comply with ADAAG Section 4 requirements for barrier-free design.
* Doors and doorways on an accessible route must comply.
* At least one toilet must comply with ADAAG requirements.
* Privacy screens must not intrude on the clear floor space required for fixtures or accessible routes.
* Beds must have maneuvering space of at least 36 inches along one side.
* Where double beds occur, the maneuvering space at adjacent beds may overlap.
* At least one drinking fountain or water cooler must comply with ADAAG requirements.
* Two percent of housing/holding cells must be accessible to inmates with hearing disabilities if their cells are equipped with audible warning systems and/or permanent telephones. Where permanently installed telephones are provided within housing or holding cells, they shall have volume controls and comply with the reach requirements of ADAAG.
* Visual alarms and strobes are not required where inmates are not allowed an independent means of egress.
* Suicide-watch or prevention cells can be designed protrusion-free and are exempt from the requirements for grab bars at water closets.
* Ten percent of all patient rooms must be accessible in medical care facilities in jails or prisons.
* At least one medical isolation cell or special holding cell must be accessible.
* All fixed seating and tables must be accessible in inmate, staff and public areas.
* At least one fixed bench must be mounted 17 to 19 inches above the finished floor and provide back support.
* Fixed storage, cabinets, shelves, closets and drawers must comply with ADAAG reach requirements.
* All controls intended for operation by inmates must comply.
* All common-use areas serving accessible cells must be accessible.
* All public-use areas must comply with ADAAG Section 4.
* Requirements for areas of rescue assistance do not apply.
* Prison guard towers are exempt from the accessibility requirements of 4.1.1(5)(b).