Associate VP for Adminstration and Facilities Operations Responsibilities

These laws require program accessiblity.  If an existing facility is not accessible, redesign of equipment, reassignment of classes or other services to accessible buildings is an alternative to new construction.  Newly constructed facilities must be readily accessible to persons with disabilities.  Each facility or part of a facility which is altered 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 persons with disabilities.  

Standards for Existing Facilities: Title III of the ADA requires alterations to existing facilities if the modifications are readily achievable; that is, able to be accomplished easily without much difficulty or expense.[1] Section 504 requires that all federally assisted programs and activities be readily accessible to and usable by individuals with disabilities.[2]  Major structural changes to existing facilities are not necessary if other methods are effective in achieving compliance with the readily accessible standard. [3]   When removing barriers, a public accommodation may follow the order of priorities that the regulations set forth.[4]  First, it would enable individuals with disabilities to enter the facility from public sidewalks, public transportation, or parking.  Second, it would provide access to those areas where goods and services are made available to the public. Third, it would provide access to restrooms.  Fourth, it would remove any remaining barriers.  These priorities are not mandatory and may be used flexibly by a public accommodation.[5]   However, if a public accommodation can demonstrate that barrier removal is not readily achievable, it must make its services, facilities or accommodations available through alternative methods.[6]  These alternative methods are also governed by the readily achievable standard.[7]  Regarding seating in assembly areas, the regulations state that facilities must provide for certain accommodations if they are readily achievable.  For instance, facilities with seating in assembly areas should have a reasonable number of wheelchair seating spaces or a portable chair to allow a companion to sit with wheelchair bound individuals.[8]  

Standards for New Construction A newly constructed public accommodation is one built after Jan. 26, 1993.[9] The standard for new construction under the ADA is the facility must be readily accessible to and usable by individuals with disabilities in accordance with the standards to the maximum extent feasible.[10] The standards for design and construction for new facilities and buildings are set forth in detail at 28 CFR Part 36, Appendix A . These standards (“Accessibility Standards”) constitute legally binding regulations. [11] The 504 standard for new construction is set forth at 35 CFR § 104.23 (a), and contains the same phrase, i.e. “readily accessible.” [12]   Title III of the ADA also requires that the facility be made readily accessible to those with disabilities to the maximum extent feasible when alterations are made to an existing facility. [13] If a facility is modified, altered or expanded, it must be done in accord with the current Accessibility Standards and the ADA Accessibility Guidelines (ADAAG). Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access will still be provided. [14]  Funds must be set aside if necessary to create accessible paths of travel to the bathrooms, telephones and drinking fountains serving the area. Alterations must meet the standard unless there is a technical infeasibility. Similarly, the 504 standard which is triggered by alterations to an existing facility is that it must be accessible to the maximum extent feasible.[15] Technical and scoping requirements for alterations are sometimes less stringent than those for new construction.[16]   Thus, when reviewing compliance for purposes of new construction, one must look to the Accessibility Standards and other related guidelines, which are very specific.

Footnotes: [1]  See 28 CFR § 36.304(b) for examples of “readily achievable.”

[2] 34 CFR § 104.22 provides as follows: (b) Methods. A recipient may comply with the requirements of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of §104.23, or any other methods that result in making its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that serve handicapped persons in the most integrated setting appropriate.

[3] It is confusing that the standard for existing facilities for 504 is "readily accessible," which is the ADA standard for new construction and alterations, i.e. stricter than readily achievable.  One would think Congress would choose the terms carefully, and that there is an argument that entities receiving federal funds and thus subject to 504 as well as the ADA are subject to stricter standards. However, cases dealing with this issue seem to conflate the standards, and most simply refer to the ADA.  Laura Rothstein, author of Disabilities and the Law, 3rd Ed.  is an expert in the field. She does not believe (conversation spring 2008) that the cases support this argument that a stricter standard is imposed by 504 to existing buildings. So generally for existing buildings or structures. CUA's view is the "readily achievable" standard will apply.

[4] 28 C.F.R. § 36.304(c).

[5] U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Americans with Disabilities Act: Technical Assistance, August 1996.

[6] 28 C.F.R. § 36.305(a).

[7] Id.

[8] 28 C.F.R. § 36.308.

[9] 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.401(a).

[10] 42 USC § 12183(a).

[11] The Access Board promulgated guidelines entitled the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”). The ADAAG is not legally binding itself for ADA Title III purposes, but the DOJ adopted those guidelines and renamed them the Standards for Accessible Design. See Architectural Barriers under the ADA: An Answer to the Judiciary’s Struggle with Technical Non-Compliance. 39 Cal. W. L. Rev. 349 at 357., 2003.

[12] (a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by handicapped persons, if the construction was commenced after the effective date of this part.  

[13] 28 CFR § 35.151 (b)

[14] 28 CFR § 35.151 (c)

[15] 34 CFR § 104.23 (b) (b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this part 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 handicapped persons.

[16] Title III Highlights U.S. Dept. of Justice  http://www.ada.gov/t3hilght.htm  

Urban Forest Preservation Act (DC Law) The D.C. City Council passed legislation in 2002 that mandates that any property owner seeking to cut down a tree with a circumference of more than 55 inches must either pay a $35 fee per inch or plant replacement trees of equal or greater circumference. The responsibility for compliance with this law falls to the Associate VP for Adminstration and Facilities Operations Responsibilities.

Compliance Schedule: DC declaration of covenants dated March 28, 2006 re Dufour Athletic Center football field stormwater management quarterly inspections and annual maintenance requirements. This position is responsible for assuring that the quarterly inspections and annual maintenance are being properly completed and documented.  Regulations are in 21 DCMR Section 534.2 et seq. OGC file # 060793 for original declaration of covenants.  

Deals with the clean-up of hazardous waste sites.  The generator, transporter, and owner are all jointly and severally liable for the clean-up costs.  The strict liability policies of CERCLA and SARA make it important for universities to have an environmental assessment done before taking title to property either by purchase or by gift.

The Associate VP for Adminstration and Facilities Operations Responsibilities should be aware of this law when the university acquires new property to ensure an environmental assessment is requested if necessary.

Activities involving construction, acquisition, or modification of items on registry require coordination with historic preservation officer. The AVP is responsible for checking to see if a property is listed, and if so, to comply with the historic preservation requirements as necessary.

 Resources  

 DC web page with links to special tree removal application and permit process 

OCR Letter to University of Michigan (October 26, 2007) This letter addresses the accessibility of the University of Michigan football stadium by individuals with disabilities. Specifically, seven areas of concern are cited, and an action plan required. The seven areas are the number and location of seats designated for persons using wheelchairs; wheelchair accessible routes to and within the stadium, and the accessibility of stadium restroom facilities, concession stands, souvenir shops and parking.

links updated 6/3/08 rab text updated MLO 1/26/09 to clarify physical accessiblity requirements