New Construction and Alterations in Title III ADA Trainer Network Module 6d New Construction and Alterations in Title III This module covers the responsibilities of Title III entities (places of public accommodation) to ensure physical accessibility. Trainer’s Name Trainer’s Title Phone Email/Website

Disclaimer Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. The Northeast ADA Center is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the ADA. The contents of this document were developed under a grant from the Department of Education, NIDRR grant number H133 A110020. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government.

Architectural Barriers and Communication Barriers that are Structural in Nature in Existing Facilities Must be Removed where Such Removal is Readily Achievable “Easily accomplishable and able to be carried out without much difficulty or expense” For all facilities, architectural barriers and communication barriers that are structural in nature in existing facilities must be removed where such removal is readily achievable. Architectural barriers are physical elements of a facility that impede access for people with disabilities. These barriers include obvious impediments such as steps and curbs; they can also include things like drinking fountains and paper towel dispensers that are mounted at a height that makes them inaccessible to people using wheelchairs. Conventional doorknobs and operating controls may impede access for people who have limited manual dexterity. Impediments caused by the location of temporary or movable structures, such as furniture, equipment, and display racks, are also considered architectural barriers. Communication barriers that are “structural in nature” are barriers that are an integral part of the physical structure of a facility. Examples include conventional signage, which generally is inaccessible to people who have vision impairments, and audible alarm systems, which are inaccessible to people with hearing impairments. Structural communication barriers also include the use of physical partitions that hamper the passage of sound waves between employees and customers, and the absence of adequate sound buffers in noisy areas that would reduce the extraneous noise that hinder communication for people who have limited hearing.

Barrier Removal Priorities Accessible approach and entrance Access to areas where goods and services are made available to the public Access to restroom facilities Other necessary measures #1 Examples: Designating accessible parking spaces, installing ramps, widening entrances #2 Examples: Adjusting the layout of display racks, rearranging tables, installing visual alarm devices, installing accessible signage with braille and raised characters, widening doors #3 Examples: Widening doors, providing accessible signage, enlargement of toilet stalls, installation of grab bars #4 Examples: Lowering public telephone, installing a paper cup dispenser adjacent to an inaccessible drinking fountain

Examples of Readily Achievable Barrier Removal Installing ramps Widening doorways Installing accessible door hardware Creating designated parking spaces Rearranging tables, repositioning shelves Installing flashing alarm lights Making curb cuts in sidewalks and entrances Installing grab bars in toilet stalls When a business looks at removing barriers, there are several things to keep in mind. First, how much will it cost to make the physical change and how involved or difficult will it be to accomplish and get it done. Next, consider what financial resources the company or organization has to draw on. When deciding on this, keep in mind how much money it makes, the number of its employees and locations, and whether or not it has a larger parent company to receive help from. Another factor to weigh is would providing this modification or making this physical alteration genuinely threaten any person’s safety. For this, you should look to provable facts and not just make a decision based on what you feel might be a risk. And finally, look at how providing this barrier removal might effect the overall functioning and running of the business or organization. Would it disrupt its operation and cause significant difficulties or would removing the barrier be just a temporary inconvenience?

If Removal of Barriers is NOT Readily Achievable Alternate Steps Must Be Taken to Make Goods and Services Accessible Examples: provide curb service or home delivery, relocate activities to accessible locations, retrieve merchandise from inaccessible shelves In some cases, removal of barriers is not readily achievable. In that case, alternative steps should be made to make goods and services accessible. For example, curb service, home delivery, relocation of activities to accessible locations, retrieve merchandise from inaccessible shelves or locations within a store. A public accommodation can not charge extra for these services. 6

All newly constructed places of public accommodation and commercial facilities must be readily accessible to and usable by individuals with disabilities Title III requires that new buildings be structurally accessible and usable by people with disabilities. This means that the business must be in strict compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG). This requirement covers all buildings constructed or first occupied after January 26, 1993. As of March 15, 2012 compliance with the 2010 Standards for Accessible Design is required. There were a number of changes to the 1991 standards in the 2010 Standards for Accessible Design. These changes are outlined in the Americans with Disabilities Act Title II and Title III Revised Regulations fact sheet series: Fact sheet number 9. Overview of the 2010 Standards for Accessible Design. There are many changes for recreation facilities in the new standards. If participants have specific questions about the 2010 Standards for Accessible Design, they should call the ADA National Network at 800.949.4232

Alterations Alterations, including those to public accommodations built before the ADA, must be readily accessible to and usable by individuals with disabilities to the maximum extent feasible. Alteration = any change that affects usability Title III requires that any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility. Occasionally, the structural nature of an existing facility makes it impossible to comply with all of the accessibility standards in the course of an alteration. In such a case, features must only be made accessible to the extent that it is technically feasible to do so. The fact that adding accessibility features during an alteration may increase costs does not mean compliance is technically unfeasible. Cost is not to be considered. Moreover, even when it may be technically infeasible to comply with standards for individuals with certain disabilities (for instance, those who use wheelchairs), the alteration must still comply with standards for individuals with other impairments. Normal maintenance, reroofing, painting, wallpapering, asbestos removal, and changes to electrical and mechanical systems are not "alterations," unless they affect usability.

Alterations: Path of Travel Alterations to a “primary function area” trigger an obligation to provide an accessible path of travel to the altered area Primary function area: Any area where a major activity takes place: Customer service areas Work areas Offices and work areas in commercial facilities “Path of travel" includes a continuous, unobstructed way for people to get to the accessible entrance to a building the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility. An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements. For the purposes of this part, the term "path of travel" also includes the restrooms, telephones, and drinking fountains serving the altered area. 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. Disproportionate costs are those that exceed 20 percent of the cost of the original alteration to the primary function area. The Regulations establish a priority order in the event of disproportionate costs: (i) An accessible entrance; (ii) An accessible route to the altered area; (iii) At least one accessible restroom for each sex or a single unisex restroom; (iv) Accessible telephones; (v) Accessible drinking fountains; and (vi) When possible, additional accessible elements such as parking, storage, and alarms. If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1991 Standards, the private entity is not required to retrofit such elements to reflect the incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel. Primary function. A "primary function" is a major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a primary function. Alterations to an area containing a primary function. (1) Alterations that affect the usability of or access to an area containing a primary function include, but are not limited to – (i) Remodeling merchandise display areas or employee work areas in a department store; (ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank; (iii) Redesigning the assembly line area of a factory; or (iv) Installing a computer center in an accounting firm.

Alterations In addition to the Path of travel requirements, there are two other important alteration issues outlined by the standards: Elevator Exemption Historic Preservation Elevator exemption: Installation of an elevator in an altered facility that is less than 3 stories or has less than 3,000 square feet per story is not required unless the facility houses a shopping center, a shopping mall, the professional office of a health care provider, a terminal, depot, or other station used for specified public transportation, or an airport passenger terminal. Historic Preservation: Alterations to historic properties must comply with the historic property provisions of ADAAG, to the maximum extent feasible. Under those provisions, alterations should be done in full compliance with the alterations standards for other types of buildings. However, if following the usual standards would threaten or destroy the historic significance of a feature of the building, alternative standards may be used. The decision to use alternative standards for that feature must be made in consultation with the appropriate advisory board designated in ADAAG, and interested persons should be invited to participate in the decision-making process. The alternative requirements provide a minimal level of access. For example -- 1) An accessible route is only required from one site access point (such as the parking lot). 2) A ramp may be steeper than is ordinarily permitted. 3) The accessible entrance does not need to be the one used by the general public. 4) Only one accessible toilet is required and it may be unisex. 5) Accessible routes are only required on the level of the accessible entrance. In the event that even these minimal alternative requirements would destroy the historic significance of a building, which is rare, structural changes need not be made. Rather, alternative methods can be used to provide access, such as providing auxiliary aids or modifying policies (i.e. providing a video presentation of the items in the museum).

Does the ADA Require Barrier Removal in Historic Buildings? YES…if it is readily achievable HOWEVER…the ADA takes into account the national interest in preserving significant historic structures. Barrier removal would not be considered “readily achievable” if it would threaten or destroy the historic significance of a building or facility that is designated as historic at the national, state, or local level. This slide clarifies the discussion about historic buildings presented on the last slide.

Employment and Disability Institute Northeast ADA Center Employment and Disability Institute Cornell University Dolgen Hall Room 201 Ithaca, New York 14853-3901 Toll-Free : 800.949.4232 (NY, NJ, PR, USVI) Telephone 607.255.6686 Fax 607.255.2763 TTY 607.255.6686 Email northeastada@cornell.edu Web www.northeastada.org The contents of this presentation were developed under a grant from the Department of Education, NIDRR grant number H133 A060088. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government. Conclude by reminding participants that the training materials were produced by the Northeast ADA Center in collaboration with the National ADA Network. Remind them of the free and confidential technical assistance and other services available from your local ADA Center and from the ADA Centers throughout the country.