Overview of Title II ADA Requirements for Buildings and Facilities


Title II 2010 ADA Standard requires state and local governmental entities to ensure Program Access and to make all new construction, additions, and alterations comply with the 2010 ADA Standard accessibility guidelines (and prior to 2012 with the ADAAG).

EXISTING FACILITIES AND PROGRAM ACCESS


2010 ADA Standard section 35 makes the following requirements for Program Access in existing buildings and facilities:
a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not –
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) Require a public entity to take any action that would threaten or destroy the historic significance of a historic property; or
(3) Require a public entity to take any action that can demonstrate what would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.
(b) (1) Methods. A public entity may comply with the requirements of this section through means such as the redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. In the making of alterations to existing buildings, a public entity shall meet the accessibility requirements of {35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.
(b) (2) (i) Safe Harbor. Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101–19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.
(ii) The safe harbor provided in § 35.150(b)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows––
(A) Residential facilities dwelling units.
(B) Amusement rides.
(C) Recreational boating facilities.
(D) Exercise machines and equipment.
(E) Fishing piers and platforms.
(F) Golf facilities,.
(G) Miniature golf facilities.
(H) Play areas.
(I) Saunas and steam rooms.
(J) Swimming pools, wading pools, and spas.
(K) Shooting facilities with firing positions.
(L) Miscellaneous.
(1) Team or player seating.
(2) Accessible route to bowling lanes.
(3) Accessible route in court sports facilities.
(b) (3) Historic preservation programs. In meeting the requirements of {35.150(a) in historic preservation programs, a public entity shall give priority to methods that provide physical access to individuals with disabilities. In cases when a physical alteration to a historic property is not required because of paragraph (a)(2) or (a)(3) of this section, alternative methods of achieving program accessibility include –
(i) Using audio-visual materials and devices to depict those portions of a historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.”

NEW CONSTRUCTION OR ALTERATIONS


The 2010 ADA Standard section 35.15 makes the following requirements for new construction and alterations of buildings and facilities:
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.
(b) Alteration. (1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.
2) The path of travel requirements of § 35.151(b)(4) shall apply only to alterations undertaken solely for purposes other than to meet the program accessibility requirements of § 35.150.
(3) Alterations to historic properties shall comply, to the maximum extent feasible, with the provisions applicable to historic properties in the design standards specified in § 35.151(c). If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be provided pursuant to the requirements of § 35.150.
(4) Path of travel. An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration.”

ACCESSIBILITY STANDARDS


The 2010 ADA Standard section 35.515 provides the following requirements for the applicable accessibility standards for new construction and alterations of buildings and facilities:
“If physical construction or alterations commence on or after September 15, 2010, and before March 15, 2012, then new construction and alterations subject to this section may comply with one of the following: the 2010 Standards, UFAS, or the 1991 Standards except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of the 1991 Standards shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.”
“If physical construction or alterations commence on or after March 15, 2012, then new construction and alterations subject to this section shall comply with the 2010 Standards.”
The Department of Justice made specific revisions and additions to the US Access Board’s 2004 ADA Accessibility for social services establishments, housing at places of education, assembly areas, medical care facilities, curb ramps, facilities with residential dwelling units for sale to individual owners, and detention and correction facilities

LEASED BUILDINGS


Department of Justice’s ADA Title II Technical Assistance provides the following technical assistance for Title II entities who lease buildings or facilities:

“II-6.4000 Public entities are encouraged, but not required, to lease accessible space. The availability of accessible private commercial space will steadily increase over time as the title III requirements for new construction and alterations take effect. Although a public entity is not required to lease accessible space, once it occupies a facility, it must provide access to all of the programs conducted in that space (see II-5.0000). Thus, the more accessible the space is to begin with, the easier and less costly it will be later on to make programs available to individuals with disabilities and to provide reasonable accommodations for employees who may need them.”