How To Navigate The Changing Road Of ADA Compliance
Why you could be using dollars if your center isn’t up to par with ADA.
Joan W. Stein

The Americans with Disabilities Act (ADA) is a federal civil rights law that has been in effect since January 26, 1992. After more than 17 years, one might think that all aspects of the law settled into place and that ADA compliance has been integrated into the normal course of business for the millions of businesses it affects across the United States. But that’s not the case.

Many find the law and its regulations vague and confusing. That is primarily due to attempts to make the ADA a building code. The ADA is a federal civil rights law, not a building code.

Let’s begin with several basic principles of the ADA — that more than 17 years after it’s enactment — many people still do not understand.

1.  The ADA is a complaint-driven law. Although the Department of Justice (DOJ) initiates some investigations, most complaints are generated by individuals with disabilities and/or family or organizations. Additionally, private lawsuits (more than 200 from February 1 – March 2, 2009) can be filed directly in federal courts by those who feel that their civil rights have been violated. Unlike other federal regulations (EPA, OSHA), the ADA does not have an “inspection” mechanism. It has relied on entities to comply with the requirements proactively.

2.  Many believe the myth that any building built before the implementation of the ADA in 1990 are grandfathered in. This is not accurate. Owners and managers of buildings built before the ADA were required to start on January 26, 1992 to begin to perform “readily-achievable barrier removal.” This is a process that was to be ongoing. These activities may well come before what organizations plan for in renovations or alterations. They include items such as installing a ramp to an entrance, widening doors; enlarging toilet stalls and installing grab bars, etc. Whether an item is “readily-achievable” is based on the organization’s resources and the built environment.

3. Many design professionals (those who owners, developers and managers rely upon for their professional expertise) look at the ADA as a building code. It is a civil rights law, and there are some sustentative differences between the two; differences that are worth a distinction. This unfortunately is exacerbated by the fact that building inspectors and other officials review and sign off on plans using the International Building Code (IBC) and its technical standards, ANSI. So, design professionals believe that since the plans have been approved, that the project is compliant. Many times, that assumption leads to ADA issues that can result in a federal lawsuit. These can start with something as seemingly “minor” as the lack of accessible parking (including the access aisle and signage), displays and cash wraps in stores,  to the more serious issues of rest rooms, sleeping rooms (hotels and residence halls in higher education).

4. The last piece of the knowledge curve is the assumption that the “latest is the best” when it comes to accessibility requirements.

In July 2004, the U.S. Access Board developed the final guidelines for the revised 2004 ADA/ABA Accessibility Standards. Many believed that since these were called “final” that they could be used immediately. The U.S. Department of Justice is the agency that reviews, adopts and enforces Title III of the ADA. Although they began the review process in 2004, it has yet to be completed.

On January 21, 2009, the new administration notified the Department of Justice to suspend its review and finalization of the 2004 ADA Standards until the new team could be put in place. What does that mean for you?zҐ If you have been performing renovations, alterations or new construction and have continued to use the enforceable standards (Americans with Disabilities Act Standards for Accessible Design – 1994), then your renovations or new construction projects should be in compliance.

Ґ If your design professionals proceeded with using the 2004 Guidelines, there will be a significant delay in the review of these guidelines, and a calculated chance that changes will be made as a result of the forthcoming reviews by the new administration’s team. I would recommend that those plans be reviewed immediately for differences between the two sets of requirements.  If a complaint is filed against your business by an individual with a disability, or you are visited by the DOJ, they will review your facility based on the 1994 enforceable standards, not the 2004 Final Guidelines or any other building code.

Now that your eyes are dancing and you’re not sure where to go, take a moment and read some basic tips to help you figure this all out.

1. If you haven’t done an ADA evaluation yet, it’s still not too late. Seek good professional guidance to identify the barriers to individuals with visual, hearing, cognitive and mobility impairments – it’s about more than just wheelchair access.

2. If you did an ADA review and then put it on a shelf – throw it away! If the DOJ or the courts ask you what you’ve done and all you have to show is a report with no action, that’s worse than doing nothing at all.

3. Begin (or continue) the process of barrier removal. Integrate it into your financial and strategic planning for your operations. Document all of your efforts.

4. If you are an eligible small business, tell your accountant or tax preparer to submit for the IRS Tax Credits under Section 90 or Section 44 of the IRS tax code.

5. Ensure that all renovations, alterations and new construction are designed and constructed using the enforceable 1994 ADA Standards for Accessible Design. If you perform a side-by-side of the ADA requirements with the IBC/ANSI building codes, you will find that following the ADA requirements will, for the most part, provide full compliance with building codes. Make sure that your contracted professionals (architects, engineers and contractors) are fully versed in the ADA requirements.

6. Have a professional review done of the design documents before they go out for bid. Finding issues on plans is more cost-effective than change orders in the field.

7. Have a professional review performed during the punch list phase. This will ensure that the contractor followed all of the details on the plans.

These items have focused primarily on the built environment, as that is what is most costly when it comes to ADA compliance. Let’s talk for a moment about the other side of the issue — reaching your customers, satisfying them and having them return. Poor customer service for people with disabilities can be the most costly mistake a business can make. The way a customer is greeted and treated by your staff can make the most accessible facility seem like the worse business in the world. Conversely, respectful treatment can overcome a number of physical barriers.

Why is this important? 

• There are more than 50 million Americans with disabilities — 18 percent of the population — are potential customers for businesses of all types across the United States.

• This group has $175 billion in discretionary spending power, according to the U.S. Department of Labor. That figure is more than twice the spending power of American teenagers and almost 18 times the spending power of the American “tweens” market.

• Accessibility attracts not only people with disabilities but also their families and friends. Like others, these customers often visit stores, restaurants, movie theaters, and other businesses accompanied by family or friends. This expands the potential market exponentially!

Annually, people with disabilities and their families spend more than:

• $35 billion dining out

• $13.6 billion in travel a year, including

• $3.3 billion on air travel and

• $4.2 billion on lodging, according to The New York Times

• 4 million Americans turn 50 each year and those over 50 spend $400 billion a year, according to AARP.

• 75 percent of people with disabilities report dining outside their home at least once a week. Serving customers with disabilities has become a business necessity.

This market is growing fast. By 2030, 71.5 million Baby Boomers will be over the age of 65 and demanding products, services and environments that address their age-related physical changes.

Do you want to lose out on this customer base?

By removing the architectural and attitudinal barriers in your business, you will have the opportunity to welcome everyone into your business. An accessible business works for parents pushing strollers, individuals using wheelchairs or seniors using walkers or canes. They all have one thing in common — they want to come into your business to spend their money. Don’t disappoint them.

Joan W. Stein is the President and CEO of Accessibility Development Associates, Inc., (ADA, Inc.) a national ADA consulting firm based in Pittsburgh. Stein is a nationally recognized expert on the ADA and speaks to a wide array of professional organizations across the United States. For questions, contact her at jwstein@adaconsults.com.

©2009 France Publications, Inc. Duplication or reproduction of this article not permitted without authorization from France Publications, Inc. For information on reprints of this article contact Barbara Sherer at (630) 554-6054.