Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

Go to http://www.ada.gov/pools_2010.htm for more information, or contact the ADA National Network at 1-800-949-4232.

The revised ADA Title II regulations do not require state or local government entities to do a new or updated self-evaluation or transition plan.  However, the Department of Justice urges state or local governments to establish procedures for an ongoing assessment of their compliance with the ADA's obligation to ensure all programs are readily accessible to and usable by people with disabilities ( http://www.ada.gov/pcatoolkit/toolkitmain.htm ).  Regularly updating the self-evaluations and transition plans can help government entities monitor their compliance and stay on track with making changes to improve accessibility.

If a state and local government entity has not yet conducted a self-evaluation, it is recommended that they do so to identify any barriers to its programs, activities and services. A self-evaluation helps government entities identify areas of non-compliance and develop specific strategies to bring all policies and practices into compliance. Areas include but are not limited to:

• structural changes needed to provide access to programs, activities and services;
• policy modifications to ensure nondiscrimination; and
• providing public notice that includes (i) explanation of the application of the ADA to the state and local governments programs, activities, and services; (ii) contact information for the employee who is designated to address ADA compliance issues; and (iii) information on the grievance procedure.

The self-evaluation plan should identify strategies to remove barriers, prioritize strategies, and provide a timeline for implementation. As new programs, activities and services are developed, it is important to review facilities to ensure compliance with the 2010 ADA Standards. 

There are two types of accessible guest rooms, one type having “mobility features” and the other “communication features.”   The minimum number of accessible guest rooms in newly constructed facilities is provided in Tables 224.2 (mobility features) and 224.4 (communication features) of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.  Note that for rooms with mobility features, roll-in showers will be required where the total number of guest rooms provided exceeds 50. 

In alterations and additions, the minimum required number of accessible guest rooms required is based on the total number of guest rooms being altered or added instead of the total number of guest rooms provided in a facility. Note, that where guest rooms are altered, or added, the technical requirements stated in the 2010 ADA Standards apply only to those guest rooms being altered or added until the total number of accessible guest rooms in the entire hotel complies with the minimum number required for new construction as stated in the tables referred to above.

Accessible guest rooms must be dispersed among the various classes of guest rooms, and provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Typically, each alteration of a facility is limited to a particular portion of the facility. As accessible guest rooms are added as a result of subsequent alterations, the required degree of dispersion is more likely to be achieved if all of the accessible guest rooms are not provided in the same portion of the facility. 

Source: Section 224.1.1, and accompanying Advisory, of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

The ADA does not have a provision to "grandfather" a facility but it does have a provision called “safe harbor” in the revised ADA regulations for businesses and state and local governments. A "safe harbor" means that you do not have to make modifications to elements in an existing building that comply with the 1991 Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies so the altered elements must comply with the 2010 ADA Standards.

A “safe harbor” does not apply to elements that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. On or after March 15, 2012, public accommodations must remove architectural barriers to these elements listed above are subject to the new requirements in the 2010 Standards when it is readily achievable to do so.

Both tenants and landlords have obligations to ensure that facilities and operations are ADA compliant.  The lease may indicate how barrier removal responsibilities are shared but it is important to remember that the lease does not relieve either tenant or landlord from their individual obligations to comply with the ADA. 

The ideal time to address this issue is when you are leasing new space or renewing a lease.  A tenant should request that the landlord agree in the lease to modify those areas which are under the exclusive control of the landlord, such as parking, sidewalks, entrances, and rest rooms.  If the lease specifies that the tenant has control over these areas, then the tenant should request that a provision be added to the lease so that the tenant can make those alterations needed to comply with barrier removal requirements.

If the existing accessible parking spaces are in compliance with the 1991 ADA Standards, then the “safe harbor” provision applies and you do not have to make modifications to the accessible parking spaces even though the new 2010 ADA Standards have a few different requirements.  However, if your business chooses to alter the parking spaces, the safe harbor no longer applies and your accessible parking must comply with the 2010 ADA Standards.

For example: A business’ parking lot has a total of 250 parking spaces and, as required in the 1991 Standards, the lot includes seven accessible parking spaces, one of which is van-accessible. The 2010 Standards now require two van-accessible spaces even though the total minimum number of accessible spaces remains at seven.  The business does not have to modify its parking lot to provide the additional van-accessible space until the lot undergoes a planned alteration (re-striping, re-surfacing, etc.). 

If the existing accessible parking spaces are not in compliance with the 1991 ADA Standards, you must construct or alter accessible parking spaces in compliance with the 2010 ADA Standards if it is readily achievable to do so.

In a situation where the requirements of both a state or local building code and the 2010 ADA Standards need to be simultaneously considered, the code or Standard which results in greater accessibility takes precedence.  This interpretation is based on the concept of “equivalent facilitation” from section 103 of the 2010 ADA Standards which states that alternative standards for the use of designs, products, or technologies can be used as long as they result in substantially equivalent or greater accessibility and usability.  Thus, a state or local code can be used if it contains a requirement that provides a different but greater level of accessibility than the 2010 ADA Standards. 

If the use of a state or local code instead of the 2010 ADA Standard is challenged, the covered entity is responsible for defending the use of this code.  The ADA accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards. The governing principal to follow when Federal, State, or local codes differ is that the more stringent requirement applies.

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

• the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
• the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
• the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.