ADA Scoping and Tech Requirements

ADA Scoping and Technical Requirements: Two Birds of a Different Color

By Rick Hinrichs, President, Compliance Support Associates, Inc.

With the passage of the ADA in 1991, the U.S. Access Board issued the original set of accessibility guidelines known as the 1991 American’s with Disabilities Act Accessibility Guidelines, (1991 ADAAG). These standards were then codified into law as the 1991 ADA Standards for Accessible Design (28 C.F.R. Part 36, Appendix A). In the years following, the 1991 ADAAG standards quickly became outdated when compared to faster moving developments in the model building code industry, particularly the ICC A117.1 Standards for Accessible and Usable Buildings and Facilities, which are referenced by the International Building Code (IBC).

It wasn’t long before the need for harmonization was realized. By the end of the decade, restructuring of the 1991 ADAAG began and later came to fruition when the U.S. Access Board issued a revised set of guidelines in 2004 (aka, 2004 ADAAG), containing some 68 changes. However, it would take another eight years and some 20 years after the original enactment of the ADA for Congress to finally place the 2004 ADAAG into law as the newly revised 2010 ADA Standards for Accessible Design. The revised 2010 Standards became effective on March 15, 2012. With this official move by Congress, the ADA is now more harmonized than ever before with the model building code industry.

One consistent theme throughout both sets of ADA Standards has been the application and use of separate scoping and technical provisions. The 1991 ADA Standards accomplishes this in scoping section 4.1 and technical sections 4.2 through 4.35 (including special application sections 5 through 10). Similar to model building code, the 2010 ADA Standards provides scoping information specifically in Chapter 2 (Scoping Requirements) and further technical provisions in Chapters 3 through 10.

A common error is for design professionals to concentrate solely on the technical requirements without determining first what the general “scoping” provisions are for a particular element design. ‘‘Scoping’’ is a term used to describe requirements that prescribe which elements and spaces—and, in some cases, how many—must comply with the technical specifications. Once this is accomplished and an initial scoping determination is made, technical requirements then tell the designer how the accessible element should be constructed and what finished specifications need to be applied in order to meet the stated objective criteria for access and overall use of the element. Simply put, scoping is the “what,” technical is the “how.”

For a design professional or ADA consultant to be truly accurate in determining building compliance, it is important that the specific scoping criteria be researched, understood and correctly applied to an accessible element prior to proceeding with other technical aspects of design. When determining whether scoping was correctly applied in older buildings, this can mean researching original construction dates and reviewing design standards in force at time of construction. For example, when performing a facility ADA review, designers or consultants may find themselves applying the technical requirements to just one accessible building entrance, when scoping provisions in the 1991 ADA Standards requires at least 50 percent of a buildings entrances meet the technical provisions. The 2010 ADA standards now require at least 60 percent of building entrances to be accessible, including at least one restricted entrance, previously viewed as exempt under the 1991 ADA Standards.

In the years to come, compliance with the American with Disabilities Act may only get more complex as universal design theories and inclusive philosophies focus on the central belief that all spaces should be inherently accessible for all users. As for now, designers and access consultants would do well by focusing on correctly identifying and applying both aspects of the ADA scoping and technical provisions to ensure that each newly constructed building and facility is constructed according to current ADA guidelines and in the most beneficial way to ensure disabled access.

Design Plans

Is it Worth Getting Design Plans Reviewed by an ADA/FHA Expert?

When a developer looks to construct a new large multi-family residential housing project, it’s very likely the project will be subject to both the FHA and ADA design and construction guidelines. This means the property must meet seven federal design requirements. The property must have: 1) an accessible building entrance on an accessible route; 2) accessible and usable public and common use areas; 3) usable door; 4) accessible route into and through the covered dwelling unit; 5) light switches, electrical outlets, thermostats and other environmental controls in accessible locations; 6) reinforced walls for grab bars; and 7) usable kitchens and bathrooms.

During initial planning, owners and developers will look to their architect and/or civil engineer to interpret what particular features of the project will need to be compliant under each of the seven required design criteria. This typically involves an extensive plan review process in order to verify compliance. At CSA, we work alongside your design professional during this critical phase of review to determine the correct scoping and technical requirement for each applicable design standard. If a state or local building code indicates a lower level of compliance than applicable federal law, the stricter federal guideline must be followed. Other considerations such as whether federal funding is involved could also directly impact the number of accessible elements and features required for the project. One common mistake we see is for designers to rely on local building departments plan submittal process as a pseudo plan approval process. This can often be a poor course of action because local building departments only review to enforce building codes and not applicable federal guidelines. When new construction or renovation to a building is being undertaken, developers typically will submit plans to the building department, the department decides whether to issue a permit, and then inspectors employed by the building department verify building code compliance. Building departments also decide whether to issue occupancy permits. Except in certain circumstances, such as when a building is significantly renovated or altered or there is a change in the building’s use, buildings are only required to comply with the code requirements that were in effect when the building was designed and constructed. In other words, the law does not generally require already-constructed buildings to be improved whenever the code changes. For these reasons, building officials cannot be held responsible for ensuring whether or not each aspect of the ADA or FHA accessibility design laws and standards are met.

CSA believes that in view of today’s legal landscape, developers and design professionals must be accountable to ensure their own compliance. When first approaching a project, design professionals should take a more proactive and specialized approach towards plan review and periodic inspections. Failure to do so could not only expose the project owner, developer and design professional to expensive litigation, but even the general contractor and parties involved.

At CSA, we trust the specialized technical assistance we offer will work to minimize the overall risk for design and construction liability associated with the ADA, FHA and Section 504 requirements. Whether you’ve just completed construction or are about to construct or purchase this type of residential housing property, understand that you may be at risk for a Fair Housing Act complaint. With this uncertainty, CSA recommends, as part of your due diligence process, you have a plan evaluation performed that includes both an Americans with Disabilities Act and Fair Housing Act Design and Construction compliance review.

FHA Design Requirements

There’s a Cost to Not Complying with the Federal Fair Housing Act Design Requirements

Over the past decade, one of the most overlooked aspects of federal accessibility law has been adherence to the federal Fair Housing Act design and construction guidelines. For example, in May 2013 the DOJ settled a case concerning violations of the Guidelines for a total of $925,000. This settlement arose out the defendants’ violations of the Guidelines in the design and construction of number of multifamily housing complexes in Louisiana, Mississippi, and Tennessee. As recently as this month, Legal Aid of North Carolina (LANC) announced settling a housing discrimination lawsuit against the architects, builders, and owners of five apartment complexes located in the Triad area of North Carolina. The five complaints filed with the U.S. Department of Housing and Urban Development (HUD), alleged that the respondents failed to design and construct the complexes to make them accessible and usable to persons with disabilities in compliance with the federal Fair Housing Act. The action resulted in a conciliation agreement signed by the parties and approved by HUD on October 5, 2020. Through the agreement, accessibility modifications will be made in 325 ground floor units, as well as in common areas in each of the properties. The respondents have estimated the cost of the modifications will be $1.3 million.