Program Accessibility
Many people with disabilities are unable to take advantage of public entities’ programs, services, or activities because of steps at entrances, small toilet rooms, lack of accessible play areas and other inaccessible features. Public entities must ensure that people with disabilities are not excluded from programs, services, or activities because facilities are inaccessible. There is no “grandfather” clause that exempts old facilities. Programs, services, and activities, when “viewed in their entirety” must be readily accessible to and usable by people with disabilities. This is known as program accessibility. Think broadly, program access applies to everything a public entity does from county prison services to state park swimming pools to getting a municipal wedding license. If it’s something that’s offered to the public (even unwillingly, like prison services) people with disabilities have a right to participate and benefit.
Title II Regulations 28 § 35.149
Discrimination prohibited:
Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
In many situations altering facilities and constructing new accessible facilities is the most efficient method of providing program accessibility. However the ADA permits a public entity flexibility by allowing both structural and nonstructural methods of achieving program accessibility.
Examples
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A legislator’s local office is on the second floor of a building that doesn’t have an elevator. The legislator can meet a person with a disability at another accessible location.
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A town holds its annual town meeting in an inaccessible location, the second floor of the town hall that has no elevator. The town council considers installing an elevator, but determines it’s too costly. Instead, the town holds the town meetings, as well as other public meetings where large numbers of the public are expected to attend, in the high school auditorium. The officials move smaller meetings, which are held on the second floor of the town hall, to the auditorium, when they receive a request within 24 hours of a meeting.
People with disabilities must have comparable access to programs and services.
Examples
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A community college counselor meets with students in a private office on the third floor of a building without an elevator. The alternate accessible location must provide the same degree of privacy. The cafeteria on the first floor is not acceptable.
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A city department of health holds classes for parents on surviving adolescence. Group interaction is an essential aspect of the class. If the class is in an inaccessible facility, it is not acceptable to provide a one-on-one class for a person with a mobility disability as a method to assure program accessibility.
A program will be “viewed in its entirety” for purposes of program accessibility standard. A public entity is not necessarily required to make each of its existing facilities accessible if alternative, accessible locations are available.
Examples
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A school district has six elementary schools. Four are accessible and two are not accessible. All programs in the inaccessible school are provided at the accessible schools. The travel time from the homes of people with disabilities to the accessible schools is comparable to the travel time of people without disabilities to the inaccessible schools. The school district has provided program accessibility.
When structural change is the method chosen to provide program accessibility, the alterations must comply with the 2010 ADA Standards for Accessible Design, unless it is technically infeasible to do so. When full compliance is not technically feasible, the alteration must follow the Standards to the maximum extent feasible. For example, if there is not enough space to install a ramp with a slope no steeper than 1:12, a public entity may install a ramp with a slightly steeper slope. However, deviations from the Standards must not pose a significant safety risk.
Structural changes may include combining two toilet compartments to create an accessible toilet compartment, lowering a section of a service counter, installing a ramp at a building entrance and lowering a mirror in a toilet room. Although automatic door openers are not required under the ADA they can be usedl to ensure appropriate maneuvering clearances at doors so that people who use wheelchairs and other mobility devices can get in and out of a building.
Title II Regulations 28 § 35.150
Existing facilities:
(b) Methods. (1) General. A public entity may comply with the requirements of this section through such means as redesign or acquisition 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. A public entity, in making alterations to existing buildings, 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.
Safe Harbor
The 2010 ADA Standards are, for most building elements, the same as the 1991 ADA Standards and the Uniform Federal Accessibility Standards. But requirements for some elements have changed.
Examples
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The 1991 Standards required one van-accessible space for every eight accessible spaces. The 2010 Standards require one van-accessible space for every six accessible spaces.
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The 2010 Standards for assembly areas contain revised requirements for dispersion of accessible seating, sightlines over standing spectators, and companion seating.
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The 2010 Standards reduced scoping requirements for accessible seating in large assembly areas.
If a facility was in compliance with the 1991 Standards or UFAS as of March 15, 2012, the facility is not required to be altered to meet the 2010 Standards. This provision is referred to as “safe harbor.”
Examples
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A public university library built in 1998 has light switches at 53 inches above the floor. The 1991 Standards permitted controls to be 54 inches maximum above the floor. The 2010 Standards specify controls to be 48 inches maximum above the floor. The university does not have to lower the light switches. Safe harbor status applies. If the university alters or replaces the light switches they will need to be 48 inches maximum above the floor.
The safe harbor status does not apply to elements that are new in the 2010 ADA Standards and did not exist in the 1991 ADA Standards. Those include the following:
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Residential facilities dwelling units
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Amusement rides
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Recreational boating facilities
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Exercise machines and equipment
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Fishing piers and platforms
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Golf facilities
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Miniature golf facilities
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Play areas
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Saunas and steam rooms
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Swimming pools, wading pools, and spas
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Shooting facilities with firing positions
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Miscellaneous.
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Team or player seating
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Accessible route to bowling lanes, section
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Accessible route in court sports facilities
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Public entities need to make structural changes to these recreational elements and to their residential dwelling units to ensure that people with disabilities can participate in those programs, services and activities. Not all recreation areas must necessarily be made accessible. If a county has multiple play areas and limited resources, it can decide which play areas to make accessible based on factors such as the geographic distribution of the sites, public transportation, the hours of operation and the types of activities at each site so that the play program as a whole is accessible to people with disabilities.
Examples
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A municipal recreation department has one swimming pool. The 2010 ADA Standards require that pools have either a sloped entry or an independently operable lift. The municipality needs to provide either a sloped entry or an independently operable lift to make sure that its swimming program is accessible.
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A state Department of Parks has twenty fishing piers scattered around the state. Fishing piers in various locations must be made accessible to ensure program accessibility.
Title II Regulations 28 § 35.150
Existing facilities:
(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––(lists the recreation elements and residential facilities.)
Undue Burden
As with the effective communications obligation, there are limitations on the program accessibility requirement. A public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. This determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion. The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.
Title II Regulations 28 § 35.150
Existing facilities:
(a) ... This paragraph does not- (3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.
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