NACo News


2010 ‘Final Rules for ADA’ go into effect March 15 By Jacqueline Byers


NACo Director of Research and Outreach


In July 2008, the U.S. Department of Jus- tice (DOJ) released proposed regulations for the amended Americans with Disabilities Act along with what is now known as the 2010 Americans with Disabilities Accessibility Guidelines. Te Americans with Disabilities Act, signed into law in 1990, under its Title II, provides the guidelines and requirements for accessibility of programs and services conducted by states and local governments, and at the same time it pro- hibits discrimination against any qualified per- son with a disability who wants to participate in these programs and activities. Following the signing of the act, the DOJ is-


sued its Americans with Disabilities Act Acces- sibility Guidelines (ADAAG). Tese guidelines apply to any new construction or alterations or renovations of existing structures, and also provide specific guidance for implementation of the ADA. During the next decade, the American Na- tional Standards Institute (ANSI) and Uni- form Federal Accessibility Standards (UFAS) were added to ADAAG as acceptable codes for construction or modification for accessibility. Guidelines for playgrounds were issued in 2000 and additional ADAAG changes and recom- mendations were issued in 2004. According to the ADA original regulations,


county governments were required to comply with most accessibility requirements of the act by the mid-1990s or make alternative ac- cess easily available unless it created an undue burden for the county or a fundamental altera- tion in the service or program. Counties were encouraged to appoint an ADA coordinator who would be responsible for developing and monitoring the county accessibility plan and who would also be available to the public to re- spond to inquiries about accessibility of county programs and services. At the time of the original act, many govern-


ments were concerned about the unfunded costs to them to make everything accessible in their programs and buildings, many of which were more than 50 years old, without specifically taking the time to look at the options available to them. Estimates for compliance were often quoted at millions of dollars, without the coun-


54


ties actually convening an advisory committee to help make an assessment, as the guidelines suggested. Although many county governments came into compliance with the ADA, others did not.


As the years passed, numerous complaints


were filed against county governments, most of which were settled through the DOJ mediation process. In nearly every case, counties were re- quired to make the necessary modifications for accessibility. Troughout the decade that fol- lowed, additional accessibility guidelines were released, including those for playground areas. In the mid 2000s, several disability advocacy groups stepped up their monitoring of com- pliance by county governments causing many counties that had failed to comply during the 1990s, or discontinued their compliance or as- pects of their compliance, to face complaints and investigations by DOJ.


Effective March 15, 2011 On Sept. 15, the Final Rules for ADA were published in the Federal Register and will be- come effective six months from that date on March 15, 2011. All new construction and al- terations to existing county government build- ings will be required to comply with the new standards 18 months after publication (March 15, 2012). In the interim period, all covered county government entities may decide wheth- er to follow the 1991 standards or the 2010 standards in new construction or alterations. Te rules also include lengthy commentary


that responds to the comments received to the proposed regulations. Tose that are of most importance to county governments include the following:


Safe Harbor: Tis provision would allow counties that have already complied with the 1991 standards to be in compliance with the new standards until they engage in new con- struction, alteration or renovation. Safe harbor status is also available for counties that provided an accessible path of travel, using the 1991 stan- dards, to an alternative program site that is also accessible.


Counties, however, will not be granted blan-


ket safe harbor status. Rather, safe harbor status will be awarded on a program-by-program ba- sis, or on an “element-by-element” basis, as the


regulations put it. Not eligible for safe harbor protections under any circumstances are play areas, swimming pools, wading pools, spas and golf facilities.


Definition of Mobility Device: Tis defini- tion has been expanded to provide for wheel- chairs and other power-driven mobility devices. Included in the second group are mobility de- vices that were not specifically designed for use by persons with mobility impairments but are being used for this purpose by some individuals. Te most controversial of these is the Segway- PT. Te new guidelines allow the use of these devices, thus requiring that government acces- sibility to programs and services accommodate these vehicles, but with some caveats. Te first caveat is that governmental enti- ties can require some proof (a valid state-issued placard, verbal assertion, etc.) that the person using the device in government programs, ac- tivities and facilities is disabled. Te second is that “a public entity may impose legitimate safety requirements necessary for the safe opera- tion of its services, programs, or activities.” Te third caveat is that “the burden of proof to dem- onstrate that such devices cannot be operated in accordance with legitimate safety requirements rests upon the public entity.” Te final caveat is that when assessing whether a power-driven mobility device can be allowed in a particular government facility, counties should take the following into consid- eration: • the type, size, weight, dimensions, and speed of the device, • the facility’s volume of pedestrian traffic (which may vary at different times, • the facility’s design and operational charac-


teristics, • whether legitimate safety requirements can be established to permit the safe operation of the device in the facility, and • whether the use of the device creates a sub- stantial risk of serious harm to the immediate environment or nature or cultural resources.


Definition of Service Animals: Te defini-


tion has been expanded from service dogs to in- clude service-trained miniature horses and oth-


Continued Page 56 >>> COUNTY LINES, WINTER 2011


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60