Assignment 1 Accessibility Code

Accessibility

Many design projects are affected by a range of federal, state and local laws and requirements that are intended to provide access to public and commercial facilities to individuals with disabilities. Failure to comply with these regulations can mean expensive lawsuits as well as stiff fines and penalties. Two U.S. federal laws, the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), are particularly significant to architects and engineers. In Canada, governments on the federal and provincial level have begun to enact legislation and regulations that will affect design firms.

The Americans with Disabilities Act (ADA)

The ADA, federal legislation aimed at providing those with disabilities full and equal access to employment and to goods and services in commercial and public facilities, was first signed into law in 1990.

The Act is civil rights legislation that carries with it the full weight of the United States Department of Justice (DOJ). Anyone who believes he or she has been discriminated against can submit a complaint with an appropriate federal agency or file a civil lawsuit against the party who owns, leases or operates a facility. The court can levy stiff penalties against a building owner or operator and can order the facilities be made accessible. (Under most state laws, an aggrieved person with disabilities is also entitled to damages.)

Title III of the ADA mandates accessibility in structures pre-existing its enactment and in structures altered or newly constructed thereafter. Specifically, Title III requires that, as of January 1992, existing privately owned or operated “places of public accommodation” remove architectural and communication barriers that block accessibility by those with disabilities. Further, alterations made to places of public accommodation and to any commercial facility must be designed and constructed to be readily accessible to and usable by individuals with disabilities. Finally, all newly constructed commercial facilities and places of public accommodation must be readily accessible to and usable by disabled individuals.

The DOJ publishes ADA Standards for Accessible Design (“Standards”), which was updated in 2010 as part of the agency’s revisions to the ADA regulations. The 2010 Standards “sets minimum requirements—both scoping and technical [1] —for newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.” [2] It identifies what features need to be accessible, sets forth the number of those features that need to be made accessible, and then provides the specific measurements, dimensions and other technical information needed to make the feature accessible.

The broad array of places to which the Act applies includes privately owned or operated restaurants, theaters, sports arenas, stores, professional offices, other service establishments, galleries and lodgings. The ADA does not affect single or multifamily housing, unless such housing also contains a place of public accommodation. If so, the Act pertains to the spaces used by that accommodation. There are other exceptions, too, generally including private clubs, private schools and religious institutions.

According to the Act, removal of access barriers in previously existing places of public accommodation is required to the “maximum extent possible” if it is readily achievable, defined as “easily accomplished and able to be carried out without much difficulty or expense.” What is “readily achievable” is supposed to be determined on a case-by-case basis by weighing a variety of factors, including the nature and cost of the modifications against the financial resources of the facility. [3] If immediate barrier removal proves too difficult for some public accommodations, the development of an action plan for compliance and a proven effort to implement it may be considered a demonstration of a good-faith endeavor. In these cases, the ADA then recommends a certain order of priority in the removal of barriers.

Newly constructed and occupied places of public accommodation and commercial facilities are considered readily accessible to and usable by those with disabilities only if built in strict conformity with the ADA’s accessibility standards unless “structurally impracticable.”

The Fair Housing Act (FHA)

The Fair Housing Act (FHA) is intended to prohibit discrimination in the sale, rental and financing of multifamily dwellings based on race, color, religion, sex or national origin. In 1988, Congress enacted the Fair Housing Act Amendments (FHAA), which expanded these protections to include individuals with disabilities and set forth accessibility requirements for designers and builders, enforceable by both the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ).

The FHAA applies to multifamily housing with four or more units designed for first occupancy after March 13, 1991 as well as to additions of four or more units in existing buildings. The regulations apply to all units in elevator-equipped buildings and to ground-floor units in non-elevator-equipped buildings. Dormitories, timeshares, even homeless shelters are included. [4]

Canadian Accessibility Laws

The Canadian Human Rights Act protects people in Canada, including the disabled, from discrimination when they are employed by or receive services from the federal government, First Nations governments or private companies that are regulated by the federal government (such as banks, trucking companies, broadcasters and telecommunications companies). But provincial and territorial human rights laws protect people from discrimination in areas of provincial and territorial jurisdiction, such as restaurants, stores, schools, housing and most workplaces. [5]

Accessibility laws and regulations impact design professionals in several ways. Architects and engineers should have already evaluated their own offices to make certain they conform to relevant accessibility guidelines. Next, they should make sure that when their scope of services includes compliance with the pertinent accessibility regulations, these services have in fact been performed in compliance with the applicable laws, codes and regulations. Finally, architects and engineers, depending on where they practice, will need to keep current with what may continue to be significant changes to state, provincial and local codes as they are brought up to federal standards.

The Problem

These various accessibility acts and regulations pose a number of challenges to design professionals. First, because the U.S. ADA and FHAA are civil rights laws and not building codes, the courts—not legislators or building code officials—have emerged as their true authors. In striving for the goals of equality and accessibility rather than technical design compliance, Congress used language that was vague and indefinite compared to that used in building codes. While the new ADA Standards are far more specific than previously, the scopes of the ADA and the FHAA continue to be determined through the process of administrative interpretation and litigation, case by painful case.

Additionally, and as to the ADA, while its language clearly applies to those who own and operate places of public accommodation and commercial facilities, it is not yet evident that the Act and its civil penalties can be directly enforced against the designers of such places. Indeed, the question of direct design professional liability under the ADA has not been fully settled, as courts in different jurisdictions have arrived at conflicting opinions.

However, even if you cannot be directly named, your client can—and probably will—seek a defense and indemnity from you should a complaint be filed against him or her. [6] But the difference between direct and indirect actions against you could be significant: a direct civil rights action against you seeking fines and penalties is not insurable under most professional liability policies written today.

There is—and may continue to be—much uncertainty and confusion surrounding requirements under the Americans with Disabilities Act. As a body of published interpretations, standards, regulations and case law evolves, your obligations and the extent of your liability remains unpredictable.

As to the FHAA, there seems to be less ambiguity about a designer’s liability. Under the FHAA, you can be sued directly, not only by someone who believes he or she has been discriminated against, but by the U.S. Attorney General. Worse, such claims can be very difficult to defend. In an FHAA case, if the design does not comply, the designer has no defense. The professional standard of care does not come into play, as the matter is one of strict statutory liability. Thus, the only issue is whether your design complies with the FHAA. If it does not, you are liable, and the penalties can be enormous…and uninsurable.

Finally, there can be significant differences between these federal acts and their accessibility standards, and between each of them and local, state and provincial laws and requirements. The result: a lot of confusion among all the codes and regulations and about which accessibility standards apply to which projects. What’s more, while most design professionals are familiar with their state and local accessibility codes, many are unaware of their obligations under federal accessibility regulations and don’t realize that, for many projects, more than one act or standard of accessibility may apply. One almost needs to be a lawyer to figure out if the ADA or FHAA requirements apply. Keep in mind that they most certainly do apply more often than you’d think.

Here are some examples. Although the ADA does not generally apply to residential housing, ADA issues arise regarding the accessibility of common-use areas (such as lobbies, community rooms, pools and restrooms) in residential developments if the facilities are open to persons other than owners, residents and their guests. Next, FHAA codes may also apply in mixed retail and residential developments. Sometimes the federal civil rights acts and their related accessibility standards conflict with local or state building codes. Then there are jurisdictions in which state accessibility requirements may only pertain to a small percentage of the units in a development, while the ADA or FHAA standards apply to all of the units.

Local building officials aren’t responsible for interpreting or enforcing the ADA, FHAA or other federal accessibility requirements; their building departments and inspectors can only enforce state and local accessibility codes or laws. Thus, you can’t rely on the building codes contained in local municipal ordinances or on the existence of a building permit and certificate of occupancy as protection from, say, an FHAA-related claim. Furthermore, building codes and interpretations by local building officials are not binding for ADA purposes unless the code has been “certified” by the Department of Justice; buildings designed and constructed in compliance with state codes could still be found in violation of the ADA. [7] (Thus far, only a few states’ building codes have been certified under the ADA.)

Because there is no regularly and consistently implemented ADA or FHAA plan-review and approval process at the federal level, designers and owners have no place to turn for clarification or binding interpretation. A design is always subject to later challenge by someone who feels he or she has been denied adequate accessibility. Keep in mind, too, that there is no process by which to obtain a variance from the requirements of these federal acts, as with typical local and state building codes.

Yet, architects and engineers are increasingly the targets of accessibility-related claims. These claims can be expensive to defend and can impose extraordinary remedial costs in fixing the noncompliant components. Once a tenant or user files a claim with the DOJ, for example, that agency takes over and uses its staff to minutely inspect the premises for deviations. Not surprisingly, they often find them, and, in turn, the facility owner or operator files a claim against the design team.

The Solution

Fortunately, there are some measures you can take to lessen the likelihood of an accessibility-related claim:

  • First, familiarize yourself with the provisions of the ADA and FHAA as well as provincial, state, local and other federal guidelines for accessibility. Many state and national organizations offer seminars on design compliance, especially those representing the interests of the disabled, veterans and older persons. Check with your professional society, too. In addition, both the ADA and FHA agencies have produced publications that outline compliance requirements, and their websites provide other resources. (See Other Resources .) Just as important, you’ll need to stay informed. As the body of published interpretations, regulations and case law evolves, your obligations and the extent of your liability may change. Talk to an attorney who is knowledgeable about accessibility-related issues.
  • Underscore to your client that compliance with the Americans with Disabilities Act is a legal and economic challenge, not a specifically determinable architectural or engineering issue. Strongly recommend that he or she retain an accessibility consultant. If that isn’t an option, you may have to retain the consultant yourself, but make sure it is adequately insured and agrees by contract to fully indemnify you for its negligent acts, errors or omissions.
  • If the client insists that you inspect a property for ADA or FHAA conformance, limit your services to an identification of apparent areas of noncompliance, noting that ultimately the federal government’s interpretation of what is accessible or nondiscriminatory may differ from your own through no negligence or lack of care on your part. You should not provide recommendations as to whether barrier removal is “readily achievable… in light of the resources available.” Nor should you decide the priority or phasing of compliance measures, as all of these assessments rely on financial considerations. These are issues that should be addressed only by the owner and the owner’s attorney and accountant. You are not licensed or insured to provide legal or accounting advice to your clients. For these reasons, you should seek contractual protection by way of disclaimers, waivers and indemnities relating to compliance with these federal acts. (See Estimates of Probable Construction Costs for a related discussion.)
  • Make certain your client understands his or her responsibilities; both of you are required to uphold the law, but it is the owner who has ultimate control over the design and use of the project.
  • Delete any client-written provision that requires you to provide a certification, guarantee or warranty that a building is in full compliance with the ADA or FHAA or similar provincial statutes and regulations. You need to explain to your client why you cannot certify or guarantee that your design is in compliance. Since compliance is determined on a case-by-case basis, you cannot know for certain whether your design or recommended modifications conform to the regulations. What’s more, design professionals provide services, not products, and thus are not in a position to furnish warranties, certifications or guarantees (which also may well not be insurable). (See Certifications, Guarantees and Warranties .)
  • Delete any client-written contract language that requires you to strictly comply with “all laws, codes, standards and regulations.” (See Code Compliance and Lenders’ Requirements .)
  • Don’t assume your project is not affected. Get help from an attorney who is knowledgeable about construction claims and accessibility-related issues and, if necessary, suggest that the owner retain an accessibility consultant to review the design.
  • Document your efforts. Your goal is to be able to demonstrate that you made a reasonable, professional effort to comply with applicable state, local and federal laws. At a minimum, keep written records of your research and design decisions.
  • If the client or a local building official wants things done a certain way and you don’t agree, put your objections in writing to your client or the official. If you are overruled, protect yourself by having this decision confirmed in writing, too.

Always address the accessibility issues in your contract with language that sets forth the client’s responsibilities and the possibility for contradictory interpretations. And always be sure to coordinate the Accessibility clause with other contract provisions concerning code and standards compliance. (See Code Compliance .) Consider the following sample contract provision, which you and your attorney can modify to reflect relevant federal and provincial statutes and regulations:

ACCESSIBILITY

The Client acknowledges that the requirements of the Americans with Disabilities Act (ADA), Fair Housing Act (FHA) and other federal, state and local accessibility laws, rules, codes, ordinances and regulations will be subject to various and possibly contradictory interpretations. The Consultant, therefore, will use its reasonable professional efforts and judgment to interpret applicable accessibility requirements in effect as of the date of [the execution of this Agreement, submission to building authorities, or other appropriate date] and as they apply to the Project. The Consultant, however, cannot and does not warrant or guarantee that the Client’s Project will comply with all possible interpretations of the accessibility requirements and/or the requirements of other federal, state and local laws, rules, codes, ordinances and regulations as they apply to the Project, and the Consultant shall, accordingly, not have any liability to the Client in connection with same.

Alternatively, you may prefer a more comprehensive provision that puts more emphasis on your client’s obligations. Understand, however, this provision may not protect you from a direct action by a disabled individual or the Federal Government under the ADA and/or FHA:

ACCESSIBILITY

It is recognized that the Client has certain obligations under local, state and federal accessibility laws and regulations that could affect the design of the Project. It is further recognized that federal accessibility laws and regulations are not part of, or necessarily compatible with, state or local laws, codes and regulations governing construction. Consequently, the Consultant will be unable to make recommendations or professional determinations that will ensure compliance with the federal accessibility laws and regulations, and the Consultant shall, accordingly, not have any liability to the Client in connection with same. The Consultant strongly advises the Client to obtain appropriate legal and financial counsel with respect to compliance with the appropriate disability access laws.

The Consultant will endeavor to design for accessibility by persons with disabilities in conformance with the provisions and references in applicable state or local building codes and the technical design requirements of the Americans with Disabilities Act (ADA) and/or the Fair Housing Act (FHA) in effect as of the date of completion of the design to the extent those statutes apply to the Project. The Client will determine the full extent of its obligations under the ADA and Fair Housing Act Amendments (FHAA), including whether the ADA and/or the FHAA apply to the Project, the extent that modifications are readily achievable under the ADA, and the extent that modifications to improve disability access are necessary during an alteration and provide the Consultant with such information.

In addition, you and your attorney might try adding the following language to your contract:

The Client acknowledges that it has been advised by the Consultant to retain a consultant (Accessibility Consultant) to review the project plans, specifications, and construction for compliance with the Americans with Disability Act, the Fair Housing Act, and other federal, state, and local accessibility laws, rules, codes, ordinances, and regulations (hereinafter referred to as “Accessibility Issues”).

If Client fails to retain an Accessibility Consultant, the Client agrees to release defend, indemnify and hold harmless the Consultant, its officers, directors, employees and subconsultants (collectively, Consultant) from any claim, damages, liabilities or costs arising out of or in any way connected with Accessibility Issues.

You might also add wording either in the General Conditions of the construction contract or on the face sheet of the construction drawings similar to the following:

The Client, Contractor and Subcontractor should immediately notify the Consultant of any conditions of the project that they believe do not comply with the current state of the ADA and/or FHAA.

Another possibility would be to have the contractor agree to “defend and indemnify the Client and the Consultant from that portion of any claim or judgment resulting from the Contractor’s failure to construct the Project according to those specifications or construction drawings that were intended to make the Project compliant with the provisions of the ADA and the FHA.”

As with any important aspect of your job, you need to educate yourself about your legal obligations under current state, local and federal accessibility codes, and to stay informed. [8] Things change, and when they do, your lack of awareness of new developments can hurt you. No matter how these codes and their interpretations evolve, however, a good-faith compliance effort by you and your client, along with a well-documented compliance plan, will probably be looked upon favorably by the courts in the event of legal action.

Other Resources

2010 ADA Standards for Accessible Design www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm

Canadian Heritage Human Rights and Disabilities http://www.pch.gc.ca/pgm/pdp-hrp/canada/abl-eng.cfm (Accessed February 2014)

Guidance on the 2010 ADA Standards for Accessible Design www.ada.gov/regs2010/2010ADAStandards/Guidance2010ADAstandards.htm

U.S. Department of Housing and Urban Development Accessibility Requirements for Buildings http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/accessibilityR (Accessed February 2014)

Fair Housing Accessibility First www.fairhousingfirst.org

 

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