Welcome, everyone, to the 2003 ADA Distance Learning series which is a joint effort of the 10 regional disability and business technical assistance centers. As always, we would encourage you to contact your regional ADA center with your ADA-related questions or to get more information about upcoming distance learning sessions, including the July 15th session, which is always the one of the most popular distance learning sessions and on July 15th we will have John Wodatch from the Department of Justice disability rights section joining us as well as Sharon Rennert, a senior attorney with the Equal Employment Opportunity Commission. John and Sharon will be providing an enforcement update as well as a policy initiative update regarding those two federal agencies. On August 19th we will again be pleased to bring you Betty Siegel from the John F. Kennedy center for performing arts. Last year Betty joined us to look at the issue of ticketing policies. This year Betty will be joining us on the 19th of August to discuss effective communications, interpreters, closed captioning, and providing materials in alternative format. To get that additional information on those upcoming sessions or any questions that you may have, you can contact your regional ADA center at 1-800-949-4232. As well today, the session is currently being real timed captioned on the Great Lakes ADA website. You can find that at www.adagreatlakes.org. You can also find an audio archive as well as a transcript archive of past distance learning sessions. All right. On to bigger and better things in today''s session. We are very pleased to have with us today Jim Pecht from the Access Board. He is an accessibility specialist and librarian with the U.S. Access board. Jim is currently working on the committee that is part of the ADAAG/UFAS revisions and the combining of those two documents. Jim is a technical assistance specialist providing technical assistance to the building industry as well as to federal and state entities, as well to individuals with disabilities regarding the accessibility standards that the U.S. Access Board handles and designs. Jim is also in charge of the access board''s over 5200 large technical assistance library, material library. So today''s session, Jim is going to give us an update or overview of how the accessibility standards interplay, how ADAAG, UFAS and fair housing standards interplay with each other. What applies where and how they interact with each other. After that, we will open up the phones and hope to answer as many questions as we can during the 90-minute session. So without further ado, I would like to introduce Jim Pecht from the U.S. Access board.
Good afternoon. I am going to be talking primarily this afternoon about four laws. The Architectural Barriers Act of 1968, the Rehabilitation Act of 1973, Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. Starting with the Architectural Barriers Act, this is an act that has been around for quite some years. Basically anything designed, constructed, altered or leased by or on behalf of the United States. Any time the federal government designs, builds, alters or leasing and to some minor degree giving grants, but that is a very specialized part of it, it is required to be accessible. The Architectural Barriers Act although it looks like a civil rights statute it is basically a federal government building standard issue, if you will. It basically has requirements for the federal government when the federal government builds something. It is basic covered or implemented by the regulations put out by the general service administration and be the department of housing and urban development and in the construction requirements by the department of defense and the U.S. Postal Service. The standard for compliance with that law is the old uniform federal accessibility standards, which came out in 1984 and has not really been updated since then. There are some federal agencies that have a policy currently. Now, this is not the legal requirement, but the policy within their specific agencies, that they will use either the old uniform federal accessibility standards or the newer ADA accessibility guidelines, which I will talk about in a minute. Whichever is more stringent. Currently it is general services administration, department of defense and department of the interior. The Architectural Barriers Act is enforced by my agency, the Access Board primarily through a complaint process. Unlike some of the other civil rights statutes, which we will talk about, there are waivers and variances available under the Architectural Barriers Act and it is primarily for facilities where you are doing an alteration and there is something you really cannot do or for some reason the federal government cannot do what is required and they are allowed to go and seek a waiver, but there are not very many waivers given out. But it is something that is available. The next law is the rehabilitation act. I am going to talk primarily about section 504, the Rehabilitation Act. Which basically says when you have a federally assisted program or a federally conducted program, that that program, the program services and activities, have to be accessible to persons with disabilities. Obviously a federally assisted program is any time the federal government gives out federal or financial assistance to state and local government, or cities or even sometimes private entities, there are strings attached with that money. Basically it is basically whatever you are doing with that federal money, the program you are providing has to be accessible to individuals with disabilities. It is also covering federally conducted programs. In other words, my agency conducts a program, we put out technical assistance, that technical assistance has to be accessible, the program itself, as far as section 504 is concerned. The regulations that pretty much implement section 504 are basically put out by each individual agency. An agency like mine who does not give out federal financial assistance will just have a federally conducted program section in their code of federal regulations, but the larger agencies, like the department of defense and department of transportation and Department of Justice will have both a federally conducted program section and a federally assisted program section in their cfr which spells the requirements out that those particular requirements have to meet in section 504 rehab act. Now, in getting to providing access to a program, there may be certain times where you may have to do an alteration or even new construction to achieve program accessibility. When you do that, the standard that is then sort of heavily-what is the word I am looking for, proposed, I guess, by the Department of Justice is the federal uniform accessibility standards. Again, it is making it sort of a little more coherent across the federal government that you use the same standards. Most of the agencies have adopted that when you do alterations or new construction. Section 504 requirements are basically enforced through complaints with the federal agencies that are providing the funding. Ultimately through the department of defense. Excuse me, the Department of Justice, I am sorry, misspoke there, because the Department of Justice being the federal government''s law firm, if you will, they basically to all the litigation if it ever comes to that. But complaints are usually investigated through each individual federal agency through a 504 or some EEO or equal opportunity office in that agency. The next law is the Fair Housing Amendments Act of 1988. I am not as familiar with this act as some of my other colleagues. Primarily it covers multi family housing, which is basically any sort of building with four or more dwelling units in it. It can cover privately owned facilities, state or local government facilities. It also covers federal facilities. Any time there is a building that is built that has four or more dwelling units and is considered multi family housing, it is covered by the fair housing act. The fair housing act is primarily a new construction requirement. It really does not go to existing buildings. It basically covers anything that is built after March 13th of 1991. And really does not have a prescribed standard that has to be followed. The department of housing and urban development puts out basically two sort of what they call safe harbor. They call the-they put out a set of guidelines called fair housing act guidelines, which they in a lot of their technical assistance materials have said the guidelines are not mandatory nor do they prescribe specific requirements which must be met. But they do give sort of a safe harbor if you design a building to meet the guidelines, you will be in compliance with the law. The other safe harbor that they have recently sort of basically adopted, if you will, I guess, is the best way to put it is the American national standard institutes document, ANSI A117.1, 1998 version. That is basically a document that talks about accessible and usable buildings and facilities. It is used by a lot of the private industry. We will talk about that in a little bit. And again, fair housing act is enforced through complaints through the department of housing and urban development and ultimately by the Department of Justice if it goes to litigation. The next law is the Americans with Disabilities Act of 1990. It covers, first of all, state and local government services, programs and activities under the Title II regulation. And under Title II, the justice department, which wrote Title II and Title III, provide a choice for state and local governments to choose a standard for new construction and alteration. They can either use the ADA accessibility standards, which is basically an early version of the ADAAG, or they can use the older uniform federal accessibility standards. The thinking behind that choice was that at that time the access board had not written specific guidelines for Title II facilities, state and local governments, and there were certain things that you will find in ADAAG or you will find in UFAS that you will not find in ADAAG. Since state and local governments were already-many of them were already receiving federal financial assistance and were covered by the Rehabilitation Act, section 504, and already using uniform federal accessibility standards, it was deemed it was all right for them to continue using that document until the justice department updated their standards. Now, one of the main differences between the ADA standards and UFAS is the ADA standard does not have a specific section in it for housing facilities, for dwelling units. It has a transient lodging section for hotels but it does not have a residential portion, if you will. UFAS, uniform federal accessibility standards does. It does have a specific section for housing and a specific technical requirements for dwelling units. Now, justice has said in their technical assistance materials with regard to when do you pick one over the other and can you mix the two documents, the answer is really no. They say that each new facility or project must follow one standard completely and that all alterations, when you do alterations in the same building, must be done in accordance with the same standards. So you basically pick one standard and go with it. You cannot sort of mix and match. You cannot do ADAAG on one floor and UFAS on one floor. It just does not work that way. The second part we are dealing with is Title III, which covers privately owned commercial facilities and places of public accommodation. Title III does not cover privately owned residential facilities. Basically the only residential facilities that are covered under the ADA are anything that is a state or local government facility under Title II. If it is privately owned, strictly residential building like an apartment house, it is not covered by the Americans with Disabilities Act. And again under Title III, which is the regulation implementing that section of the ADA, the standard for compliance is the ADA accessibility standards, which is again a copy of the standard accessibility guidelines. Both Title II and Title III are enforced by the Department of Justice. Now, since I have talked about standards and guidelines, I am going to go briefly into what my agency does and what the Department of Justice does. My agency is charged under the Architectural Barriers Act and the Americans with Disabilities Act with setting minimum guidelines. Just guidelines. They are not enforceable. It is up to the standard-setting agencies under the different law to use those guidelines as the basis or the bottom line, if you will, the bar, if you will, for accessibility for their standards, which are the enforceable documents. As far as the Architectural Barriers Act, which we also do minimum guidelines for, the standard setting agencies are HUD, dod and the postal service. They took our minimum guidelines, added to them a great deal and put out the standard and that is the enforceable standard. The Department of Justice and department of transportation as far as the Americans with Disabilities Act is concerned are the standard setting agencies under the ADA and they basically are required to set standards that are consistent with the minimum guidelines set by the board. So, again, we set the bar below which you cannot go and be considered accessible as far as the standards are concerned. Now, in all cases, the standard-setting agencies can set a stricter standard, but under the ADA that has not really happened at this point in time. We have, however, set several final guidelines as far as my agency is concerned for recreational facilities, play facilities, children''s and state and local governments which as of yet have not been adopted by the Department of Justice and department of transportation as part of the enforceable standards. So they are not enforceable at this time but only for design practice. Lastly, the only thing I want to talk about briefly is the other thing that is out there that architects have to be dealing with is local building codes and accessibility laws. Primarily in this day and age what you are going to be looking at is the international building code in conjunction with the American national standard institute''s document, the A117.1 document. The ANSI document is basically a privately consensus document put together by people in the industry and people representing persons with disabilities and people representing state codes and other organizations of that kind. The ANSI document is a strictly technical document. There is no scoping in the ANSI document. Scoping tells you how many and which things have to be accessible and the technical document tells you what they have to look like. The scoping provisions are currently in the international building code, the IBC 2000 and 2003 currently. That is primarily what most people are moving to with regard to state and local governments when they adopt local building codes. With that I will turn it back to Peter and we can open it up for questions.
Thanks, Jim. I will bring Michael back right now to provide everyone with instructions on how they can get in line to ask questions of Jim.
Go ahead, Rick.
Peter. The initial question, I do not know if we can ask this but I thought I would go ahead and try. Are we ever going to see exterior door tension standards?
You mean pounds of force requirements?
Yeah.
We are not planning on doing anything with regards to that in the upcoming proposed final draft that we are working on now. I know ANSI has looked at the issue but I do not believe that the issue has been looked at with any strength. I think quite frankly there has to be a whole lot more research done before that can be sort of nailed down, if you will. There are so many other things that affect an exterior door that do not affect an interior door, such as wind loading and vacuums created by vestibules or HVAC systems and generally it is a bigger door and heavier door. At this point in time we do not have anything in the guidelines and I do not think we intend to at this point in time. It does not preclude us possibly from doing research down the road, but at this point in time I do not know that we are planning anything.
Thank you. I have got one other member here with a question.
I had two questions. One is as far as city buses, which of the guidelines would they have to fall into in order to be in compliance?
We are talking municipality Title II entity buses?
Yes.
They would have to follow the department of transportation''s regulations under the ADA, which basically cover both private and public transportation. We set the minimum guidelines for those type of vehicles and they are incorporated into the department of transportation''s regulations as part of their enforceable standards. It sort of depending on the type of bus and how big it is and all that kind of good stuff as to what standard you have to comply with. But it would be our guidelines as the DOT''s standard in their regulations, which is 49 CFR parts 27, 37 and 38. That is the DOT regulations which would do it. I think it is part 37 and 38 that deal primarily with the vehicles.
And then the second question is earlier you said something about that the minimum guidelines are not enforceable. Could you explain what you meant by that?
My agency does not write a document which is enforceable. It is basically the regulation that people have to comply with and the standard for compliance with that regulation. We do not set standards under the Americans with Disabilities Act, we set minimum guidelines. Basically what the law told us to do is to set minimum architectural guidelines for buildings, facilities and some transit vehicles. It then told the folks that are going to write the enforceable regulations, DOJ and DOT with regards to buildings and vehicles, to, first of all, it is their regulation that has to comply with it. Obviously the regulations have a whole lot more things in them people have to comply with, not just construction issues. Obviously there are policy issues and operational issues also in the regulation. But basically they have to set standards for compliance with those regulations. The regulation says when you build a new building, it has to be accessible. I have to give you a standard that you can look at to see what means accessible. They are the standard-setting agencies. It is their standard that is the enforceable document. Now, what ties the two-our two agencies or three agencies together is there is a little statement in the ADA that says when the justice department and department of transportation set standards for compliance with their regulations, those standards must be consistent with the minimum guidelines set by the board. In other words, their standards cannot go below the minimum guidelines set by the board. But basically what is happened is the justice department and department of transportation has just basically adopted our guidelines and that is what we assume they will continue to do but I cannot speak for them. So what happens is our guidelines, the department of transportation''s standards and the Department of Justice''s standards are published in three different places in the CFR so it is a little confusing. But as far as what my agency is charged with is setting minimum guidelines and those guidelines are not enforceable until they become part of a enforceable standard, which is done by DOJ and DOT. So it is basically a two-step process that congress set up, that my agency does rule making to put out a proposed rule, get public comment, modify the document and then put out a final rule. But then at that point in time or in conjunction with it in some cases, Department of Justice and department of transportation also have to do rule making, saying we are now going to change our standard to adopt the minimums or the minimums plus y, x and z, whichever we want to do. It has to go out for public comment. They have to then make changes based on public comment and come back and say, okay, this is the final standard. Once that happens, that standard then becomes the enforceable document not our guidelines.
Right. And something that Title II and Title III entities have to be aware of, while you had mentioned earlier the children''s play area guidelines, which the access part of that is back in 2000 and then last summer, last fall the recreation facility guidelines, while those are still not enforceable standards, the Department of Justice has not adopted those, as Jim just explained, they are the best guidelines out there to provide a minimal level of access. So, you know, especially for Title II entities that have that obligation to provide programatic access. The guidelines are not enforceable but these are the best guidelines available.
We basically consider them to be good design practice at this point in time.
Right. Can we have our next question, please.
Hi. My name is Dan Folder. I know you have said that the guidelines are not enforceable, but taking the example that you gave on the playground equipment, if we have built playground equipment and we have an obligation as a county government to provide program access and we are sued by a private party for failure to provide program access, would not they still use those guidelines that have been approved by the access board as the-to determine the level of what accessibility should be there?
You are asking me kind of a legal question, which I am really not in a position to sort of give you a definitive answer. Because it is really what you are asking me is what happens in a court of law given the fact that the justice department has not adopted those specific guidelines as part of the standards. I know in justice''s technical assistance material when they say if there is not a specific standard for whatever it is you are doing, you use the part of the accessibility standards that fits closest to it. If it is something that is not scoped, use a reasonable number but at least one. That is about the best information I can get you from justice and it is sort of what I would look at as-I really cannot say that legally you are required to comply with the standard. If there is no standard, then it is up to you to determine what program accessibility is. Obviously, I would say that our guidelines are a very good, at this point in time, gauge for accessibility for certain things that have not been adopted into the standard. But legally I cannot tell you one way or the other whether or not in a court of law somebody is going to say yes or no or maybe this is okay and that is not.
Right. An entity that does not do anything to provide that programmatic access.
They are going to have problem.
But an entity that follows the guidelines would be in far better shape than someone who did nothing to provide that access, minimal level of access.
Can you tell me if the Department of Justice received that complaint, how they would determine what program access was if there are existing guidelines?
Well, again, I really cannot speak to what the justice department would or would not do because I do not work for them. We are talking about a complaint process with regards to program accessibility which can be anything under the sun with regards to achieving access, not necessarily a bricks and mortar new construction or alteration kind of situation, which I am more dealing with. I guess the best example is for years and years the question has always been, okay, I am required to have access to the locker room, to the front office, to the entrance and accessible route to the pool and the pool deck, but there is nothing in the standard or in the guidelines that tells you how to get somebody from the pool deck into the pool. The justice department has said pretty specifically in their technical assistance materials since there is nothing in the standard, if you build a pool without a lift, we are not going to fight you for being out of compliance with the standard because it is not in the standard. We have since added stuff to the guidelines that tells you stuff, so I think there is some really good sort of direction, if you will, and guidance, if you look at it that way, as to how to get into a pool now with regards to access. But whether the justice department is actually going to, you know, go after somebody in a complaint form because they did one thing and did not do another because it is not in their standard, I cannot really tell you. My gut reaction is, no, they will not because it is not in their enforceable standard.
Right. That is a good question to post to John next month. Can we get our next question, please.
Hi. I was checking, we had an instance where a private university was told that they needed to follow the UFAS , and I would have thought it would have been ADAAG and I wondered if you had a comment on that.
If it is a private university, not a state or local government and therefore covered by Title III, the only choice they get with regards to new construction or alteration is the ADA accessibility standard. They do not get UFAS as a choice. Only state or local governments currently get UFAS as a choice.
So in essence they were misguided then.
Correct.
And are there any checklists that you are aware of that give you UFAS in a quick-look kind of way?
We have a UFAS checklist, but it is such an old document I sort of hesitate to bring it up, because it is not the best document. It has been around for ages and it is not one of my favorites. But there is that sort of document out there. I believe it is probably on our website. I could not tell you for sure. It may be that it is so horrendously bad that it is not even on our website. Give me two seconds and I can take a quick look. It is on our website.
Okay. And if they receive federal funds, would they be covered under section 504?
Yes.
Maybe that is why they covered UFAS ?
Correct.
Okay.
That could be. Any entity receiving-this is probably something I did not really go into previously. A lot of these laws are going to overlap each other and you have to deal with all of them at the same time. The worst case scenario is house. That is where they really start adding up pretty quickly. But if you have a private university which is building a new building, they are going to be covered by Title III or the ADA. But if they are getting federal financial assistance they are covered by section 504 and would have to comply with UFAS as well, so they have to comply with both basically, whichever is more stringent.
Could we have our next question, please.
Good afternoon. This may be a question best addressed to HUD, but it is a fair housing question. If you have a private housing development that was built after ''91 yet they ignored the fair housing guidelines and you have a complaint or, you know, concern with a common are element that you want to make accessible, is there any recourse there? Is there any enforcement of that? Or is it still left up to the individual to pay for those modifications?
If it is something that should have met new construction requirements, that is something somebody could file a complaint with HUD about as far as I am concerned. If the building was built after March 13th of 1991, they should have met HUD''s construction requirements, whatever those are. It should have been built to be accessible or adaptable, I guess that is the phrase HUD uses for fair housing. But again, in a common area, probably the safe harbor of the ANSI document is probably the best thing to look at. But again I think it is like any other new construction requirement. If you do not meet the new construction requirements, you will be liable to have a complaint filed against you with HUD. HUD will investigate.
Thank you.
Next question, please.
Yes, hi. Jim, I just wanted to offer two very quick corrections to information you provided, Fair Housing Amendments Act. One is that instead of two safe harbors, there are actually seven safe harbors that HUD has adopted at this time. And that information is actually very readily available at a HUD-funded project called fair housing accessibility first.
Excellent.
And it would provide a lot of that information for you. The second thing is that the design and construction requirements apply not only to buildings built after March 13th, 1991, but new construction for first occupancy after that time. So something could have been built, you know, three months prior to that but first occupancy was after March 13th, 1991, and that would also be covered by the design and construction requirements of fair housing.
Thank you for that correction. Like I say, I am not as up on fair housing as I am on some of the other stuff.
Can we have our next question, please. Go ahead. Hello?
Hi, can you hear me?
Yes, go ahead, Sandra.
Okay, hi. I am just asking in regards to ADA-I am in Wisconsin and we are-we have adopted the IBS. We adopted ADA first, now we went to the IBC. One of the things that we have had a common concern with in regards to is bathroom accessibility for urinals, floor mount urinals. Are they looking into that at all? We have just worked with the packers stadium here, Lambeau field and new rec center here in Green Bay. When they do banks of urinals, are they looking at having at least one floor mount because everybody does wall mount.
I believe the current language and I think the language we are going for in the new document says either wall-hung or stall type. Stall types are basically the floor mount ones, as I understand them. I believe for a while the building codes banned them, but I think they are starting to come back into the codes. So as far as I know, if whatever you are providing, if there is going to be-currently if there is at least one, it has to be accessible. I think that the proposed language has to do with uping it to at least two, then one has to be accessible. But I believe we have always said stall-type and will continue to do so. Stall-type is the one that basically goes all the way to the floor, sort of like a trench drain almost is what you are talking about.
Yeah, that is what I am talking about. Because primarily what happens here is they will put all the wall mounts in and not a drain, so there is nothing for the elimination from a leg bag. So we address it in the area of just health issues that we are getting. So are you saying that that is something that is in already that they should be putting the stall in at least one?
Whichever you provide, either wall-hung or stall-type, you have to meet whatever requirements are in. Whatever is in the guidelines currently or standards currently. I would have to grab the specific requirement.
I guess I am looking at most of them are putting on the wall mount now. Yeah, the wall mount because it is an option and it is cheaper. So we are suggesting that at least put in one floor mount, you know, but it is not anything that they have to do.
No. It is not something that is required. Also it is required in a plumbing code that I do not know about, and I kind of doubt that. The way we get to the leg bag issue is require it to be elongated. I believe the proposed document and the ANSI document coming out has a specific numerical dimension that is going to be required.
And is there anything in a woman''s bathroom required as far as drains or anything like that?
Not that I know of, no.
Okay. I have not read it. That is why I am wondering if that is something coming up. Okay. Thank you.
Thanks. Can we get our next question, please.
Let us try it this way. Can you hear me?
Yes.
All right. This is Judith Piper. You have sort of clarified something, but not quite. You said earlier that fair housing applies-that ADA, excuse me, does not apply to apartment buildings. But it does apply as far as we know to any common areas, like the laundry facilities, the central hallways, the outside areas, any gaming rooms, leasing offices and stuff like that.
That is not the way I understand it. The regulation says anything - let me find it here real quick. Hang on a second while I am looking.
The ADA would apply in private residential housing to any area considered a place of public accommodation, the leasing office, the renting office. If they have a clubhouse that is open to the public, if it is something that is not just available to residents and their guests, it would be considered one of the 12 categories under Title III then it has to comply with ADA. But if it is strictly a residential apartment complex with common use areas, the ADA does not apply.
It does not apply to anything that is only open to residents and their guests. It has to be open to the general public. So if the pool is only open to the residents and their guests, it is not covered by the ADA. It only gets covered by the ADA when you do something like you put out membership in the pool and open it up to the general public. Then it becomes a place of public accommodation under the ADA under Title III.
Thank you.
Could we get our next question, please.
Hello, Jim. Ben Garospi out of Honolulu. A couple of questions actually. One is-do you have any idea when the new ADAAG is going to be adopted?
Meaning adopted by justice or put out by final-
No, finalized by the access board.
I have learned through long experience never to say I know exactly when it is coming out, because even if we hope that it is coming out on a specific date, it never happens. All I can give you is we hope soon. I can give you that what is currently going on is-I mean the final text has been all voted on, pretty much everything with regards to the preamble, the appendix, the figures are pretty much done and finished. The only thing that is sort of in the works now is still being worked on and debated by the board is the regulatory assessment or the cost issues. They have been looking at that for the last couple of board meetings and I think for the next couple they are probably going to continue to be looking at them. We hope that they are going to vote on it sometime at the November meeting, we hope. Do not quote me on that because it may not happen. It may be later than that. But once it gets finalized by the board, and that is the sort of last piece of the puzzle, if you will, then it goes over to the office of management and budget for their review. They have 90 days to review it. Then it is up to them. They can do a bunch of different things. They can either pass it outright, in which case we will immediately publish it, or clear it outright and then we will immediately publish it as a final rule. Or they can have some questions and come back with us which we will either answer or it will have to go back to the board with specific things and there may be some text changes involved. I think the final most horrendous thing that could happen is they would reject it outright, which I do not want to think about, but that is a possibility. That is basically where we are at now.
Thanks, Jim. I have another question regarding the building codes, the IBC 2000, 2003. Is the access board involved in providing technical assistance towards the development of these codes?
We are members of both organizations. We are members of the ICC, we are members of the ANSI committee and we actually-we have a member that is-well, a staff member that sits on the ANSI committee. And actually is - participates in that consensus process.
Including the IBC?
Well, the ICC is the parent organization of the IBC and we are members of that. I know we have gone to the meetings and put forth proposals and some they have picked up and some they have not. It is sort of like any consensus document. Some people like something and some people do not. If they vote on it, sometimes it gets in, sometimes it does not. We have gotten a lot of things with regard to the scoping issues with ADAAG into the ICC. There are a few things that did not make it in. One of the reasons we sit on the ANSI committee is because we are trying very hard to harmonize our document with the ANSI document so the differences will be mostly cosmetic with regards to how you say something with regards to the meat of the issue. But there will be some differences just because they are two different documents. Obviously ADAAG does have scoping as ANSI does not. It is all in one package. It will be slightly different, the two documents. Yeah, we try to have a lot of input into both processes to sort of make it so that what comes out is as close to our document as we can get it.
We all appreciate your efforts towards that. Do you feel that once the 2003, the IBC is finalized, I am not sure if it is or not.
It is out.
Do you think that it is a code that could be certifiable by the DOJ? If a local entity wants to use it?
That I could not tell you. I know that it would have to be-first of all, adopted as a state code an then submitted to justice. Justice is not going to certify any model code. They just do not do that. They certify state and local codes. They do not certify model codes. In any process, usually there is some modification. State and local government can adopt a code and modify it. Choose to pick up some things. There are several things with regards to scoping as far as the IBC is concerned which is in the appendix and not really part of the enforceable document. Now, it is up to a local code, if they want to, to adopt that part of the appendix as part of their enforceable code. But again, that is sort of the option that is there. That is going to be on a case-by-case basis with justice. That is going to have to go-and you are going to have to wait until a state actually submits it to justice. Justice is not going to go out and ask you, you know, send us your codes for certification. They will wait until somebody actually submits it.
Thanks for the questions. Could we get our next question, please.
Yes, this is a question from Dr. Bob Spiegelman. His question is would it be possible to label requirements for accessible bathrooms such as putting up a sign saying giving preference to people with disabilities?
In new construction?
What he is asking for is that the cubicles be labeled because the public does not know. To give preference. To people with disabilities.
To the accessible stall?
Right.
There is nothing in the code that requires that.
No. We do not even require them to be labeled as such if it is new construction because we assume it is going to be accessible. I would probably say you might not want to go that way because the whole idea of the guidelines and the ADA is to sort of-the issue of not making something special but making something usable by everybody. The only time you really need to be labeling something is a parking space where you have specific things that sort of have to be reserved, if you will.
If they have 10 stalls and everybody always continues to take the accessible one because it is bigger, then I have to wait in line because that is the only one I can use.
That is basically what it boils down to at this point in time, yeah.
Okay, thank you.
Thanks for your question. You know, the accessible stall, you know, what you were alluding to, Jim, is the idea of universal design. That things are not-that ADA to aid in the integration of people with disabilities into society and not segregate specifically facilities for people with disabilities versus, you know, the able-bodied because, you know, the accessible stalls allow parents to take children in there with them and allow, you know, a whole host of uses. Next question, please.
Good afternoon. I was wondering which law do condos fall under when they are privately owned, however, they are rented out by the real estate company to the public. Is that ADA or Fair Housing?
Is it time share?
No, it is not time share.
Well, are they rented out as dwellings, as residences?
Well, just as the condos, yeah. They are rented out to the public.
What I am trying to find out, are they rented out as a form of transient lodging, like a time share would be. In other words, you only get maybe two weeks a year or a couple of days or is that where I live, that is my address.
However many days you want to stay, whatever. Like a hotel.
Well, if we are talking transient lodging like a time share, then we are talking both fair housing, I am assuming, unless it is one of the types of facilities that fair housing does not cover. But if it is considered multi family, four or more units, it is going to be covered by the fair housing act and it is going to be covered by justice''s Title III regulation because it is going to be transient lodging and considered a place of public accommodation. Time share is kind of a touchy issue because there are all sorts of different types of legal ways of-what is the word I am looking for. How the thing is deeded or titled or whatever. And it is very-it varies from different type to different type. I know justice has a specific technical assistance letter on their home page that really talks about, yeah, if it is-even though it is a condo and it is used for the most part as a dwelling facility for residential facilities, if there are units that are used as time shares or as transient lodging, if you will, they are covered by Title III of the ADA. To what extent you get into the common areas being covered, I have never really understood.
This would be specific rooms that were deemed accessible, but when rented out, then they were not accessible.
Well, again, we are talking the different level of accessibility, if you will, between the fair housing act, which is a level of adaptability, and the ADA, which is a level of full accessibility. You are going to require grab bars and clear floor space and knee clearance and faucets, pounds of force, all that kind of stuff, which in fair housing you might get some clear floor space and maybe reinforcement in the wall and that is about it. There are not a whole lot of requirements for door hardware or faucets or knee clearance under lavatories and things like that. So it is a different level that you have to look at. Again, fair housing covers-or requires that all units that are either, a, on the ground floor of a multi family housing facility or, b, served by an elevator in a multi-story housing facility to meet their requirements. The ADA or the Title III, if it is looked at as a transient lodging facility, it is going to be a percentage of the whole that is provided.
Okay. Thank you.
Thanks. Next question, please.
Actually this question-I am not exactly sure how to ask it. I have talked to some people from HUD. If you have multiple family units and there are multiple units in the-like it is a HUD building and they have like 8 to 10 complexes, are there any regulations or any requirements under the law that provide that at least one or two of those buildings need to be designated as like non-smoking or issues like that for people who are on oxygen or have multiple chemical sensitivities or anything like that? If not, are they looking at some provisions to address those kinds of issues.
There is nothing in the ADA that talks about smoking and non-smoking and multiple chemical sensitivities at this point in time. I doubt there is something in HUD''s regulations and I kind of doubting if there is anything in the section 504 requirements that talk about it either, but I do not know for a fact. And I do not know what they are considering over at HUD with regards to the issue.
It is just not multiple chemical sensitivity, it is also people who are using, you know, oxygen, other-have other severe medical...
To my knowledge, no. I would not know about it if HUD is doing something. I know we are not with regard to building requirements.
I would like to follow up with a separate question from this location and that is has any consideration been given to the potentially unnecessary and duplicative nature of UFAS and excluding it from the records as we advance from the ADAAG requirements?
Well, that is mainly what we are doing with our proposed rule. We are not really combining the two documents completely because the statutes are different in certain situations. The standards that enforce those statutes would have to be slightly different as well. But what we are proposing is a document which has three parts. It has part a will be your scoping and application requirements under the Americans with Disabilities Act. The second part would be your scoping and application requirements under the architectural barriers act and the third part would be general technical requirements which would be applied to both. In other words, a toilet room is a toilet room is a toilet room, whether it is a Title II state and local government or shopping center or under Title III or a toilet room in a federal building. Since the statutes are different, the scoping provisions would have to be different. So what we envision when we publish this final document is that the standard-setting agency would adopt the two pieces that most-that would be most applicable to them. Justice would adopt the ADA scoping and technical requirements but GSA would adopt the architectural barriers scoping and the technical requirements and that would replace UFAS , if you will. By and large even the scoping are going to be fairly-almost identical, but there are differences between what is required for federal buildings and what is required under the ADA. Specific example would be ADA has an elevator exception in it, which is in the statute. The Architectural Barriers Act has no elevator exception. All buildings over one story have to have an elevator in it. Also the ADA has to what amounts to an exception for the employee work areas. The federal government does not have that. You are required currently to provide access to anywhere where somebody with a disability may be employed, so it is any employee work area is required to be fully accessible under the Architectural Barriers Act and UFAS . So you have got those two differences that will be different in the scoping. But for the most part the number of parking spaces is going to be the same, the number of van spaces is going to be the same, similar things like that and the number of toilet rooms and what you have to do in the toilet room will be the same with regards to your scoping requirements.
Jim, will the final ADAAG revisions address the work area the same way that it currently does, the approach, enter and exit.
No.
It will take-
We are probably going a little further but I cannot really speak about it because it is still in the works.
Okay, excellent. Thanks for the question. Can we get our next question, please.
Yes. In regard to nursing homes that have assisted living attached to them, which law does the assisted living fall under?
Okay. So the question regarding nursing homes that have assisted living units as part of the overall complex.
Yes.
I know they are probably going to be considered a place of public accommodation under Title III, but as to where justice has decided to pigeon hole them in their regulation, I really do not know and I do not know if they really know either. I know it is an issue that they are looking at and they may do something in the next generation of their regulations to be more clear about it, but I honestly do not know at this point in time how they are covered. They are covered in different ways in different states. Some states consider them transient lodging and medical facilities and require both sections of ADAAG to apply, which is a little bit nuts, but that is how it is happening. My gut reaction is they are providing some sort of service and probably will be at a minimum a service provider and covered by Title III. But again how they are specifically covered is unclear at this point in time.
We are talking about the assisted living portion. Right. Not the full-blown medical-
nursing home. That is clearly covered by ADAAG currently and the standard currently.
Thank you.
As a medical facility.
All right. Next question, please.
Hi. Is there any regulations under ADA that hotels should require having roll-in showers.
Yes. There is a-the current scoping in chapter 9 of the standard, the transient lodging section, says when you have a hotel that has more than 50 rooms, a certain number of the accessible rooms have to be rooms with roll-in showers under new construction and alteration requirements. There is a table in the guidelines in chapter 9, I think it is 9.1.2 is the scoping. Which is misread by a lot of people. The scoping is in addition to, not a part of, but you have to look at it to sort of understand what I am talking about.
Okay, thank you.
Jim, could you touch on the detectable warnings requirement for sidewalks that cross vehicular ways currently, what the status of that is.
Well, we are talking about the public rights of way as opposed to within a site. It is always been debatable as to how the guidelines or the standards covered anything within the public rights of way. The only thing that is really clear is the justice department''s Title II regulation for state and local governments says pretty clearly that if you have, you know, pedestrian routes that intersect roads at intersections and vice versa, you have to have curb ramps or other sloped areas, but that is pretty much all they say. They do not tell you that you have to go to the guidelines to get specific requirements for what those curb ramps look like. They just say you just have to have them. We are currently in the process of getting geared up to put out a proposed rule for public rights of way which will deal with the issue and there will be some proposals with regards to where and at what point that you put detectable warnings down in the public rights of way, but that is sort of still in the works at this point in time. I do know that the federal highway administration, which gives a boat load of money for people to build roads and things, has said in letters that if you are building curb ramps, you have to put detectable warnings in them. That is just something that they have required with regards to that federal money. That takes care of a lot of stuff that is out there. I am assuming you are alluding to the fact that the detectable warnings were suspended at one point in time and the suspension went away and expired and neither us nor the Department of Justice nor the department of transportation has done anything to extend it. So as far as I am concerned the requirement is back in and still part of the standard and I am assuming justice and dot is enforcing it. But, again, I cannot speak to them on this particular issue. I know that we are going to be, like I say, proposing specific things with regards to public rights of way in the future and the proposed guidelines, if you will. The only place in that document that you will find a requirement for detectable warning is at hazardous-excuse me, at vehicle platform drop-offs.
Transportation facilities.
I am sorry. Transportation facilities. Drop-offs at like subways and things.
Right, right. Which has always been a requirement and never suspended. Could we get our next question, please.
I have got a question regarding polling places. What covers a polling place in terms of accessibility requirements?
There is an old law that is on the books, I cannot remember the title of it, voting for the handicapped and elderly or something like that that talks about providing access at a polling place. It is primarily a temporary program accessibility kind of requirement that you have to sort of provide this, this, and this. Since the problem with polling places is they can be in pretty much any kind of facility that is out there, including somebody''s garage or somebody''s house. Those are really-some of those entities, like churches and somebody''s private home really are not covered in any way by the ADA or anything like that. Now, obviously state and local government facilities like schools and things like that that are used as polling places would have an obligation under Title II to be accessible but that would be a function of the fact that they are in a Title II facility and it is a program that is being provided there. But I think there has been a lot of legislation put in and I think there is a lot of stuff coming down the pike with regard to-again, I am not as familiar with that law, I think congress just passed it recently. And it is HHS that is providing a whole bunch of grant money for people to go out and do some modifications to polls places.
As part of the Help America Vote Act.
That is correct. GAO did a study-that showed there were some serious access issues prior to the last election. I think that is what jump started a lot of this. There has been a lot of this floating around in congress and this is what came out. I am not really familiar with it as to how it specifically covers polls places.
Even for the instances I think where you get into the polling location being held at a non-covered location, it is still a program of either a state or local government, the voting process itself, and there is still that Title II obligation to provide the programatic access.
Maybe you vote someplace else.
Right. But as part of the legislation, there is those moneys being made available so that hopefully 100% of polling locations are accessible so that someone with a disability will vote in the precinct where they reside with all of their neighbors.
A lot of the money that came through that law is also going not to the facility but also going to the voting machines, as I recall, as well.
Right. Making the entire process accessible.
Primarily to people with vision impairments and things like that.
Correct. Could we get our next question, please.
Does a ramp comply if the overall run or grade is one inch per every 12 inches long or is it out of compliance if there are segments of the ramp that are in excess of one inch up for every 12 inches long.
In other words, you have got concrete with a work plane in it?
Yes.
You know. That is a hard one to sort of pick because you have got - you have got the statement in the guidelines that says that everything within this document sort of fall under industry tolerances for field conditions. If that is the best you can get for a field condition for using that particular material, I am guessing that would probably comply. If it does not meet, you know, standard industry tolerances then you might have problematic issues with it. But we do not-I do not think we have ever talked about one way or the other whether a portion of the ramp has to be 1 to 12 all the time or whether you the entire ramp has to be 1 to 12, I do not think we have ever talked about that. Clearly you hope that somebody is, a, not designing right up to the maximum because that is problematic to begin with because you can always go a little bit over and be called into question about it. You probably want to design it to be slightly less of a slope where it should not be much of an issue.
Right.
Technically you do not want to have really huge changes in slope on a single ramp run. You do not want to change from 1 to 12 down to 1 to 10 suddenly and go back up to 1 to 12 and do something like that. I think for the most part it is a function of the material that ramp is made out of and what kind of tolerances are allowed for that kind of thing.
You know, the 1 to 12 is the minimum. Nothing prevents someone from providing a lesser slope and would ensure that if there were some type of issue with the tolerance, that it would not exceed that 1 in 12. In the worst case scenario
Correct.
Thanks, Rick. Do we have another question, please?
All right. This comes from one of our participants. How about unisex bathrooms, are they to be accessible?
I am not understanding, meaning new construction?
Yes.
Currently all toilet rooms are required to be accessible under the ADA. All toilet rooms under the Architectural Barriers Act are required to be accessible. The only time a toilet room is not required to be accessible if it is not a public or common use facility, if it is used by an individual as part of an office, specific office, like a vice president''s private toilet room or powder room, which is generally not public or common use. But any public or common use bathroom currently is required to be accessible. That means if-let us say for example the building has a fixture requirement by the plumbing code of 50 water closets. And they choose to make one men''s and one women''s, one men''s and one women''s have to be accessible. If they choose on the other hand to make 50 toilet rooms, currently all 50 have to be accessible under the current requirements. There are some things that we proposed I think with regards to medical facilities where you have a cluster of single users in a same area, only a certain percentage of those will be required to be accessible in the future, but again that is stuff that is proposed that we are going-may go forthwith or not. But at this point in time, any toilet room, men''s, women''s, single user, unisex, if it is a public or common use room, it has to be accessible.
Thanks, Martha. Next question, please. Jim, could you go ahead and just give us a brief glimpse of what rule making the access board is currently working on in addition to the ADA revisions?
Things we have in the works currently are, again, the public rights of way, which we put out an advanced draft and I think the next step in the process is notice of proposed rule making, a proposed rule. Also we are also doing passenger vessels and other things. We are doing rule making with regards to those types of vehicles. And I think we are in the process of getting ready to put out a proposed rule sometime in the new future on that. The other thing that we have got sort of in the works is outdoor developed areas, which basically means trails and campsites and things which are a little more undeveloped, if you will, than, say, a built toilet facility or something like that. That we had an advisory committee that gave us a report and currently we are looking at a lot of the cost issues. There is apparently a horrendous amount of cost issues with regards to what can be accessible and what is out there and what can be done and that kind of stuff. So we are looking at that. Hopefully somewhere in the future we hope to put out a proposed rule about those type of facilities. I am trying to think if there is anything else we have got coming down the pike. Let me take a look here. I think that is about it at the moment. We finished up recreation, that is final. We finished up play. We finished up state and local and children''s. Those are all final from us. The revised guidelines, ADA, ADA is hopefully going to be a final rule in the future. We are keeping our fingers crossed. And then outdoor developed areas, public rights of ways and passenger vessels are the next things coming up for proposed rule.
Okay, great. Well, Jim, I would like to thank you for joining us this afternoon. The access board has always been generous with its time and expertise regarding the accessibility standards and we appreciate you providing us with this time to ask you questions. Again, if you have any questions with regards to the accessibility standards or any requirements under the ADA, please contact your regional disability and business technical assistance center. You can contact your regional ADA center by calling 1-800-949-4232. And please call them to find out more information about the upcoming distance learning sessions. The July 15th session with John Wodach and Sharon Rennert where they have information on their enforcement efforts and on August 19th we will have Betty Siegel from the John F. Kennedy Center for Performing Arts where she will address effective communication issues in performing arts. So once again I would like to thank Jim for providing us with his expertise this afternoon. I would like to thank all of you for joining us and have a good afternoon. Thank you.