The Americans with Disabilities Act (ADA) is Changing: Are you ready?

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In July 2010 President Obama announced the most significant changes to the Americans with Disabilities Act (ADA) since it became law in 1991. While the new requirements are more evolutionary than revolutionary, the new design and construction requirements will affect most commercial real estate in at least some fashion when
they take effect in March 15, 2012. All areas on premises used by the public—as well as many employee-use areas—inside and outside a facility will be impacted.

Among those most affected will be retail establishments, especially those with multiple public areas and locations such as hotels, bank branches and retail chains. Buildings with large areas used by the public such as healthcare facilities, schools and libraries also face major consequences from new ADA regulations. But owners and occupiers of virtually any large commercial real estate space used by the public or several employees must be ready for the new ADA requirements.

Since the new rules will not be requirements for more than a year, corporate real estate (CRE) professionals and other stakeholders have a grace period for compliance. Any new development or remodeling completed using the current ADA standards before the new law becomes effective will be “grandfathered” as compliant with the ADA,
so organizations have a choice: Work that will be completed prior to the effective date can be built to either the new or existing standards. This allows them to choose the standard that will be most advantageous. If existing standards are more advantageous they may want to accelerate some projects so they can utilize those standards.

What changes, what doesn’t

The ADA, which marked its 20th anniversary this summer, is generally considered successful at meeting the goals it set in 1991. The new legislation introduces minor, rather than sweeping, changes to current accessibility standards. While the variations to existing ADA laws are not extreme, they will touch in some way almost every commercial real estate property. Here are a few examples:
• The side reach range of equipment in accessible areas has been reduced
to be no higher than 48 inches (instead of 54 inches) and no lower than
15 inches (instead of 9 inches). Construction tolerances for dimensions of
equipment (such as grab bars) stated as a range will be eliminated.
• In single-user toilet rooms, the water closet now must provide clearance for both a forward and a parallel approach and, in most instances, the lavatory cannot overlap the required clear space around water closets.
• Increased requirements for accessible routes within buildings
• More stringent slope requirements for clear floor space at accessible
elements
• New requirements for bookings ranging from venue tickets to hotel rooms

Who is affected most?

The changes to Title III of the ADA regulations apply to areas of a property that are available for public access, plus employee common use areas such as restrooms and lunchrooms. Limited requirements also apply to employee work areas. Existing public-facing spaces currently in compliance with current ADA regulations are not affected. Any work that will be finished prior to March 15, 2012 can be constructed to either standard.

Once new standards become law, among those most affected by the changed ADA regulations for new development and remodeling will be:
Lodging facilities: Hotels, motels and other lodging will not only have to make sure their “accessible” rooms meet the new requirements, but they must increase access to guest amenities such as fitness areas and pools, and adhere to stricter policies regarding reservations by disabled persons and availability of accessible rooms.
Large corporate facilities with several common-use workrooms, restrooms, dining areas, lounges and other areas.
Multi-location bank branches and retail outlets: Changes that may not add up to a large expense in a single location can be significant if multiplied by the dozens, even hundreds at fast-growing banks, retail store or restaurant chains.
Malls: Beyond tenant-operated spaces with ADA compliance requirements, large mall-operated areas such as parking lots, entrances, corridors and restrooms will be affected.
Entertainment venues: Besides accessible seating, restrooms and other areas, venues such as movie theaters, sports stadiums and concert arenas face recently-tightened ticketing policies and procedures regarding disabled users.
Healthcare facilities: Hospitals, clinics and other healthcare locations may already contain many patient-related accessible features, but they also
must address their many reception, waiting, dining and other public areas.
Public institutions: Properties from educational facilities and museums to government buildings and airports will encounter change requirements for their large areas used by the public.

Why ADA compliance matters

Once new ADA rules take effect they will be requirements, with strong potential penalties for those judged to be in non-compliance. Offenders can be fined up to $55,000 for the first violation and $110,000 for the second.
In some cases, organizations have paid much larger additional amounts to compensate individuals involved in lawsuits. And following litigation, courts often dictate remediation schedules, removing control from the organization and often resulting in greater overall expense. Consider these examples:
• Quik Trip was recently found in violation of some requirements of the present ADA act and has not only been fined $55,000, but is required to set up a $1.5 million compensatory damages fund for aggrieved individuals making valid claims to the U.S. Justice Department. The convenience store chain must also make required improvements in areas ranging from parking spaces to fuel dispensers at its more than 550 locations over the next three years.
• NPC International, the largest franchisee of Pizza Hut restaurants, must make accessible improvements to dining and counter service areas, restrooms, entrances and parking areas at approximately 800 locations.
• JoAnn Stores entered into an agreement to, under ADA supervision, survey and address barriers involving entrances, aisles, merchandise displays, cutting areas and checkout counters at its 840 U.S. fabric stores. The company must also incorporate ADA compliance into its personnel training.
• A group of 48 hotels in Manhattan’s Theater District were reviewed for ADA compliance. To date, 17 have entered into settlement agreements to provide accessible rooms across all levels and take steps such as making entrances usable for disabled people and service animals, and installing accessible service counters with telecommunications capabilities for the hearing-impaired at the front desk.

Compliance is also good business. Many associations publish guides and rating systems that evaluate businesses such as hotels and retailers according to accessibility for disabled persons. Being perceived as proactive in enabling access for everyone builds a positive image among users of all ability levels.

A strategic approach to compliance

Before addressing any upcoming ADA regulations, CRE should survey their entire applicable portfolio for compliance with the present (1991) regulations. Any potential compliance gaps should be addressed immediately. Such examination and implementation requires a thorough knowledge of ADA requirements, and how to execute them in the most cost-effective manner.

For both existing compliance issues and considerations for planned new development or renovation, CRE should also understand the upcoming ADA revisions and how they differ from current requirements. Since they
have a choice between now and March 2012 of which set of ADA standards to meet, they should compare how differing requirements will affect cost, facility out-of-service time and other important factors. They can then
decide which set of laws to meet for immediate remediation needs, and prioritize new construction projects for facilities that will benefit most under the 1991 standards.

Conversely, in cases where there is little difference to the organization between meeting 1991 and 2012 regulations, complying with the newer requirements may generate increased goodwill among users.

Expertise is key

ADA regulations are a very specialized set of rules not well understood by typical CRE. Developing and performing adequate surveys, designing and implementing effective solutions—sometimes across hundreds of properties—requires expertise in ADA-related architectural design and project management. For maximum cost efficiency and risk mitigation, organizations should consider engaging third-party experts with deep experience in making portfolios accessible and ADA compliant.