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ADA Certification of State and Local Accessibility Requirements

Newly Constructed and Altered Buildings and Facilities

Title III of the ADA authorizes the Department of Justice to certify that State laws, local building codes, or similar ordinances meet or exceed the ADA Standards for Accessible Design for new construction and alterations. Title III applies to public accommodations and commercial facilities, which include most private businesses and non-profit service providers. Examples of covered businesses are restaurants, banks and commercial lending institutions, movie theaters, stadiums, grocery and convenience stores, health care facilities and professional medical offices to name a few.

Congress, by authorizing the certification of State and local accessibility requirements under title III, recognized the important role that state and local building codes and standards may play in achieving compliance with the building-related aspects of accessibility. State and local building officials who are involved in plan approval and construction inspection processes may provide important assistance to construction and design professionals through their oversight of the accessibility requirements of a certified State or local code.

And, in any legal challenge that might be brought under the ADA to facilities constructed in compliance with an ADA certified code, compliance with the certified code constitutes rebuttable evidence of compliance with title III of the ADA. The benefits of certification are not limited, however, to potential ADA lawsuits.

Why is Certification Important?

Voluntary compliance is an important component of an effective strategy for implementing title III of the ADA. Private businesses that voluntarily comply with ADA accessibility requirements help to promote the broader objectives of the ADA by increasing access for persons with disabilities to the goods, services, and facilities available in our respective communities. Certification facilitates voluntary ADA compliance by assuring that certified State and local accessibility requirements meet or exceed ADA requirements. In this regard, business owners, builders, developers, architects, and others in the design and construction industry are benefitted because, once a code is certified, they can refer to certified code requirements and rely upon them for equivalency with the ADA.

Certification of a state or local accessibility code also allows business owners, builders, developers, and architects to rely on their state or local plan approval and building inspection processes for assistance with ADA compliance through the implementation of certified accessibility requirements. Should a mistake occur in the design or initial construction phase of a project, the mistake can be identified early through the plan approval and inspection processes and corrected at a time when adjustments can easily be made and the costs for doing so remain low. In this manner, State and local building code officials in jurisdictions with an ADA-certified code can play an important role in checking to determine whether accessibility requirements have been met. Finally, jurisdictions that provide accessibility “check points” such as those described above through the implementation of a certified code provide a significant benefit to private industry and an incentive for growth and development.

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Overview of the Certification Process

Technical Assistance For State and Local Governments
The Department of Justice provides technical assistance to jurisdictions that are in the process of adopting or amending their accessibility requirements and would like our views regarding the extent to which the proposed requirements comply with or exceed ADA accessibility requirements. To obtain technical assistance, the jurisdiction should submit a written request to the Department along with the proposed accessibility requirements and any appropriate supporting materials (for example, information concerning any model code or statute on which the proposed requirements are based; copies of any statute, standard, or regulation referenced in the proposed requirements; and any relevant manuals, guides, or other interpretive information about the proposed code or about provisions of the proposed code that are carried over from a pre-existing code or requirement).

The same Department of Justice staff who review certification requests for finally enacted accessibility requirements will undertake a review of the proposed code for technical assistance purposes only. ADA certification, however, can only be granted for finally enacted codes and requirements that are capable of administration under State or local law.

Technical Assistance For Model Code Organizations
The implementing regulations at 28 C.F.R. 36.608 provide for requests from model code organizations for guidance from the Department of Justice regarding the consistency of model codes with ADA accessibility requirements. The ADA does not authorize the Department, however, to certify model codes and standards.

Certification Requests From State and Local Governments
Throughout the certification review process, Department of Justice staff provide assistance and guidance to representatives of State and local governments that request certification of their accessibility requirements. Upon receipt of a complete certification submission, a team of experienced staff (architects, accessibility specialists and attorneys) undertake a detailed comparison of the submitted accessibility code to the title III requirements for the design, construction, and alteration of buildings and facilities, including the ADA Standards for Accessible Design. The staff may contact submitting officials during this process to gain additional information about the correct interpretation and application of the submitted code. Prior to making a preliminary certification determination, the Department often provides written technical assistance to submitting jurisdictions. In its technical assistance letter, the Department could point out provisions of the submitted code that raise concerns or questions about equivalency with the ADA, and may suggest possible changes or revisions to achieve compliance with the ADA. Once a preliminary determination is made that a submitted code meets or exceeds ADA requirements, the submitting jurisdiction is notified, members of the public, including persons with disabilities, are notified, and the public is provided an opportunity to comment. If the preliminary determination of equivalency is sustained, the Department will issue a certification of equivalency.

How to Request Certification

To request certification, a jurisdiction should provide the Department with a written request that complies with the specifications in the title III implementing regulations, subpart F at 28 C.F.R. 36.601 et. seq.