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The Americans with Disabilities Act: are you prepared?

By the end of January, virtually every public and commercial facility in America will be required to alter its policies and practices in light of comprehensive new legislation designed to protect individuals with disabilities.

The Americans with Disabilities Act, or ADA, was signed into law by President Bush on July 6, 1990. It is a sweeping measure that prohibits all employers, state and local government services, transportation systems public accommodations, and telecommunications providers from discrimination against people with disabilities. By definitions, the disabled population encompasses all Americans with mobility, sensory, and cognitive impairments.

Final regulations for the ADA were issued by the U.S. Department of Justice on July 26 of this year. Most of the regs are scheduled to take effect on January 26, 1992.

The ADA comprises five titles, each of which has its own regulations and scheduled for compliance. Property managers and other real state professionals will be most interested in Title III of the law, which focuses on accessibility in public accommodations.

Title III prohibits any private entity that owns, leases, or operates a place of public accommodation from discriminating against an individual on the basis of disability. Loosely translated, this means that managers will be required to ensure, with very few exceptions, that their building are accessible to anyone who wishes to use them - regardless of a user's physical limitations. Title III covers all commercial and public facilities, including office buildings, hotels, restaurants, retail establishments, day care centers, and medical buildings.

Beginning in January, all of these properties must be "readily accessible" and usable for individuals with disabilities. Thus, the space must be free of any architectural or communication barriers; these include curbs and stairwells, intercom or telephone systems placed too high for wheelchair-level access, and any other features that make the facility inaccessible to handicapped individuals.

The ADA covers three types of property: existing facilities, new construction, and renovations. It includes specific regulations and compliance deadlines for each type of property.

For existing properties, management must remove architectural and other barriers or make available alternative methods of access, unless it can show that the modification would present undue expense or difficulty.

For example, building management may be required to take any of the following steps to remove barriers: installing wheelchair ramps, making curb cuts, repositioning water fountains and telephones, adding raised markings to elevator buildings, modifying toilet stalls, and creating designated accessible parking spaces.

The ADA regulations state specifically that managers must remove barriers when such a move is "readily achievable." If not, they may be required to provide additional accessibility aids - unless they can prove that doing so would present an "undue burden."

The regulations define readily achievable measures as those that the "easily accomplishable and able to be carried out without much difficulty or expense." Factors to be considered in determining achievability include: "the nature and cost of the action the overall financial resources of the [entity]; the effect on expenses and resources; legistimate safety requirements necessary for safe operation, including crime prevention measures."

The ADA's most rigorous accessability requirements apply to new construction and renovations to existing facilities. All new buildings ready for "first occupancy" after January 26, 1993, must be disigned to allow a high degree of accesibility and accommodation to people with disabilities. Only those builders who can demonstrate that such features are structurally impractical will be exempt.

Specifically, the regulations state: "Full compliance withe this section is not required where are entity can demostrate that it is structurally impractical.... Full compliance will be considered structurally impractical only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features." Even in those cases, however, the law requires that" any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impractical."

Building owners planning alterations to an area of "primary use" after January 26, 1992, will have to provide accessibility, "to the maximum extent feasible," within the renovated area, unless the cost of doing so is disproportionate to the cost of the entire renovation. The regulations define an alteration as a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or any part thereof."

In addition, when alterations affect a primary function area, managers must ensure that the "paths of travel" to both the area being worked on and the bathrooms, telephones, drinking fountains, and other key facilities remain open and readily accessible. Minor repairs, alterations, and maintenance work are not subject to the restrictions, nor are alterations in non-primary areas of a building, such as a basement storage area or boiler room.

Experts at District Design, a Washington, D.C. consulting firm that addresses barrier-free design, are estimating that the cost of compliance with the ADA regulations for new construction should total about 0.5 percent of the total building cost. However, retrofitting an existing structure to comply with the ADA could be an expensive proposition. For this reason, managers are encouraged to prioritize their lists of modifications, to ensure that they provide access to the most important areas of a facility.

The regulations list ADA compliance priorities as follows:

First, a public accommodation should "provide access from public sidewalks. parking, or public transportation." The measures include "installing an entrance ramp, widening entrances, and providing accessible parking spaces."

Second, managers should provide access to "areas where goods and services are made available to the public. These measures include rearranging tables, providing Braille and raised character signage, and installing ramps."

Third, access should be provided to restroom, which includes removing obstructions, widening doors and toilet stalls, and installing grab bars.

Fourth, the public accommodations "should take any other steps necessary to provide access to goods, services, facilities, privileges, or accommodations."

Although the cost of compliance will vary significantly among facilities, managers can expect the cost of certain, specific items to remain relatively constant. Below are some of the accessibility aids that many managers will be buying, along with an estimated cost for each.
Cement ramps with handrails $3,500
Defined parking spaces 300
Handicapped-accessible toilet stall 1,000
Sink relocation 450
Enlarged doorway 1,500

On the positive side, property owners are allowed tax credits for expenditures incurred in removing barriers to the handicapped. These credits are included in the Internal Revenue Services Code Section 44, which permits, with certain eligibility criteria, firms to recoup expenses from ADA compliance; and in IRS Code Section 190, which permits deduction of barrier removal expenses incurred by small business.

(Managers should note, however, that modifications made after the enactment of the Omnibus Reconciliation Act of 1990 are not eligible for the tax credit.)

Without a doubt, the ADA is a piece of landmark legislation for the disabled. However, it was not meant to impose significant expense or difficulty on property owners. Instead, it mandates the creation of a barrier-free facility through the incorporation of common design features, such as ramps and curb cuts, lower-level water fountains and light switches, and easy-to-operate doors and other hardware.

As in most government regulations, the real determination of what is and is not required by the ADA will be made in the courts, as lawsuit concerning accessibility and discrimination are filed and settled. In the meantime, because of the sweeping nature of the legislation, managers would be well advised to invest in an early ADA compliance assessment of their property, in order to save themselves time and effort in the long run.

William L. Wilkoff is a barrier-free-design consultant for District Design, a Washington, D.C. consulting firm. He is a Fellow of the American Society of Interior Designers and a professional member of the Institute of Business Designers. He works with such organizations as the District of Columbia Building Code Advisory Board, the National Center for a Barrier Free Environment, the American National Standards Institute, and the President's Committee on Employment of People with Disabilities.
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Title Annotation:Legal Issues
Author:Wilkoff, William L.
Publication:Journal of Property Management
Date:Nov 1, 1991
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