Americans with Disabilities Act

Title III Technical Assistance Manual 1994 Supplement

The following pages contain material to be aded to the Americans with Disabilites Act Title III Technical Assistance Manual (Nov. 1993 edition.) These supplements are to be inserted, as appropriate, at the end of each chapter of the Manual.

III-1.0000 COVERAGE

III-1.1000 General.

[Insert the following text at the end of this section, p. 1. ]

Are continuing education courses sponsored by a State bar association subject to title III? Yes. Continuing education courses sponsored by a State bar association are related to licensing, certification, and credentialing of attorneys, and therefore are covered by title III's special requirements for certain examinations and courses, whether or not they are mandatory. Independent of these requirements, if a continuing education course is offered by a private entity that owns, operates, leases, or leases to a place of public accommodation, the entity offering that course would have to meet all of the requirements generally applicable to public accommodations.

III-1.2000 Public Accommodations.

A. [Insert before the question, "What if a private entity . . . ?", p. 3. ]

What does it mean for a facility's operations to "affect commerce"? The phrase "affect commerce" is a constitutional law concept frequently used in Federal statutes enacted pursuant to Congress' power to regulate interstate commerce. Some factors to examine in determining whether a facility's operation affects commerce are:

(a) Whether the facility is open to out-of-State visitors;

(b) Whether the products it exhibits or sells originated out of State, or have travelled through other States;

(c) Whether facilities of this kind, in the aggregate, would affect interstate commerce.

ILLUSTRATION: A private restaurant, located near an interstate highway, serves customers who come from other States and offers food that contains ingredients grown or processed in a different State. This restaurant's operations affect commerce because of any one of the following factors, independently: (a) it serves out-of-State customers; (b) it serves products that originated out of State; or (c) the restaurant industry as a whole affects interstate commerce.

B. [Insert the following text before the question, "Is a bank . . . ?" p. 3. ]

If the owner of a building is not covered by the ADA, is it possible for a private tenant to still have title III responsibilities? Yes. The fact that a landlord in a particular case is not covered by the ADA does not necessarily negate title III's coverage of private entities that lease or operate places of public accommodation within the facility.

ILLUSTRATION: A Federal Executive agency owns a building in which several spaces are rented to retail stores. Although Federal executive agencies are not covered by the ADA, the private entities that rent and operate the retail stores, which are places of public accommodation, are covered by title III.

C. [Insert the following text before the question, "Does title III apply . . . ?" p. 4. ]

Are nursing homes, congregate care facilities, independent living centers, and retirement communities covered as places of public accommodation? Some may be. Nursing homes are expressly covered in the title III regulation as social service center establishments. Similar residential facilities, such as congregate care facilities, independent living centers, and retirement communities, are covered by title III, if they provide a significant enough level of social services that they can be considered social service center establishments. Social services in this context include medical care, assistance with daily living activities, provision of meals, transportation, counseling, and organized recreational activities. No one of these services will automatically trigger ADA coverage. Rather, the determination of whether a private entity provides a significant enough level of social services will depend on the nature and degree of the services.

If a facility provides a significant enough level of social services such that it can be considered a social service center establishment, all of those portions of the facility that are used in the provision of the social services are covered by the ADA. For example, if the social services are provided throughout the facility, including in the individual housing units, then the entire facility is a place of public accommodation, covered by title III.

Are group homes covered by title III? Sometimes. Like congregate care facilities and the other dual residential/social service facilities discussed above, group homes are covered by title III if they provide a significant enough level of social services to be considered social service center establishments. The homes are not subject to title III if they simply provide family-like living arrangements without significant social services. Foster care provided by a family in its own home is not covered.

D. [Insert the following text at the end of this section, p. 5. ]

Are privately owned ships covered by title III? Yes. Ships operated by a private entity that is primarily engaged in the business of providing transportation are subject to ADA requirements established by the U.S. Department of Transportation (see III-4.4700). (Ships registered under foreign flags that operate in United States ports may be subject to domestic laws, such as the ADA, unless there are specific treaty prohibitions that preclude enforcement.) If a ship, or portion of a ship, functions as one of the twelve categories of places of public accommodation, the ship is also subject to the title III requirements for places of public accommodation.

ILLUSTRATION: A cruise ship is owned and operated by a private entity whose primary business is to operate cruise ships. On the ship are places of lodging, restaurants, bars, a health club, and a nightclub. The private entity is a public accommodation and must comply with the applicable requirements of title III.

Places of public accommodation aboard ships must comply with all of the title III requirements, including removal of barriers to access where readily achievable. Currently, however, a ship is not required to comply with specific accessibility standards for new construction or alterations, because specific accessibility standards for new construction or alteration of cruise ships have not yet been developed.

III-1.3000 Commercial Facilities.

[Insert the following text at the end of this section, p. 5. ]

ILLUSTRATION: A manufacturing company has an extensive customer services operation, which takes customer complaints and provides other services in connection with the retail sales of the company's products. The customer services operation is a "service establishment," and is thus separately covered as a place of public accommodation under the ADA. The manufacturing operation is covered as a commercial facility.

A commercial facility, such as a manufacturing facility, is not a place of public accommodation solely by virtue of its being open to vendors, salespersons, or job applicants. However, under title I of the ADA, the private entity operating a commercial facility may have accessibility obligations regarding its job applicants.

III-1.7000 Relationship to title II.

[Insert the following text after ILLUSTRATION 3, p. 8. ]

ILLUSTRATION 4: If an existing commercial facility is owned by a private entity covered by title III and rented to a public entity covered by title II, the private landlord does not become subject to the public entity's title II program access requirement by virtue of the leasing relationship. The private landlord only has title III obligations. These extend to the commercial facility as a whole and to any places of public accommodation contained in the facility. The governmental entity is responsible for ensuring that the governmental programs and services offered in its rented space meet the requirements of title II.

III-1.8000 Relationship to other laws.

III-1.8200 Other Federal and State laws.

[Insert the following text at the end of this section, p. 8. ]

ILLUSTRATION: A restaurant has constructed a new facility that is subject to both local building code accessibility requirements and the requirements of the ADA. With respect to some building features, the local code contains more stringent technical requirements than the ADA; with respect to others, the ADA has the stronger standard. Each building element should comply with the requirement (local or ADA) that provides the greatest degree of accessibility.

Which law applies if the ADA provides broader remedies, but the other applicable law provides more stringent technical requirements? Both. An aggrieved individual may file a lawsuit under both the ADA and another law where both apply, but the ADA's remedies would be applicable only to the ADA claim, because the ADA enforcement process may be used only to enforce the requirements of the ADA. The ADA would not preempt the other law's requirements or remedies.

III-3.0000 GENERAL REQUIREMENTS

III-3.8000 Direct threat.

[Insert the following text at the end of this section, p. 19. ]

ILLUSTRATION 2: Denial of health club membership to an individual who is infected with HIV would be a violation, because current medical evidence indicates that the HIV virus cannot be contracted through casual contact, perspiration, or urine in an exercise room, sauna room, or pool.

ILLUSTRATION 3: Refusal to provide dental services to an individual who is infected with HIV because of the patient's HIV-positive status would be a violation. Current medical evidence indicates that the risk of HIV transmission from a patient to other patients and/or the dental staff is infinitesimal, and can be even further reduced by the use of universal precautions (infection control procedures that prevent the transmission of all infectious diseases, including HIV).

III-4.0000 SPECIFIC REQUIREMENTS

III-4.1000 Eligibility criteria.

[Insert the following text after Illustration 4, p. 22. ]

ILLUSTRATION 5: A retail store has a policy of permitting only customers with driver's licenses to write checks for purchases. Customers without driver's licenses must complete credit applications before their checks will be accepted. This policy places an unnecessary burden on persons who have disabilities that prevent them from obtaining driver's licenses. The store must therefore allow customers who cannot obtain driver's licenses due to disability to present state identification cards for check- verification purposes.

III-4.2000 Reasonable modifications.

III-4.2100 General.

A. [Insert the following text at the end of Illustration 2, p. 24. ]

Also, if the motel's only available accessible rooms were offered at higher rates than the room initially requested, it may be a reasonable modification of policy for the hotel to make the more expensive rooms available at the lower rate.

B. [Insert the following text after Illustration 3, p. 24. ]

ILLUSTRATION 4: An individual requires assistance in order to use toilet facilities and his only companion is a person of the opposite sex. Permitting a person of the opposite sex to assist an individual with a disability in a toilet room designated for one sex may be a required reasonable modification of policy.

ILLUSTRATION 5: A car rental company has a policy that customers who wish to secure car rentals with cash must have been employed at their present jobs for a year or more. A responsible, cash-paying customer with other sources of income, who is unemployed due to a disability, applies to rent a car and is rejected. The ADA requires the car rental company to reasonably modify its procedures to permit rentals by individuals with other adequate sources of income, including disability-related sources of income such as SSI, SSDI, Veteran's Administration disability benefits, or employer's disability benefits.

ILLUSTRATION 6: An individual is unable to wait in a long line for an amusement park ride because of a disability that carries with it a heightened sensitivity to heat. Another individual cannot wait in line because the line moves along an inaccessible path. In both cases the park may be required to modify its policy requiring all patrons to wait in line for attractions. For example, the amusement park could make available a marker to hold an individual's place in line.

ILLUSTRATION 7: A movie theater has a policy prohibiting patrons from consuming food and beverages purchased outside the theater. The theater may be required to make an exception to permit a parent to bring in appropriate food for a child with diabetes.

III-4.2300 Service animals.

[Insert the following text at the end of this section, p. 25. ]

This regulation also acknowledges that in rare circumstances, if the nature of the goods and services provided or accommodations offered would be fundamentally altered or the safe operation of a public accommodation jeopardized, a service animal need not be allowed to enter.

ILLUSTRATION: A showing by appropriate medical personnel that the presence or use of a service animal would pose a significant health risk in certain designated areas of a hospital may serve as a basis for excluding service animals in those areas.

III-4.3000 Auxiliary aids.

III-4.3200 Effective communication.

A. [Substitute the following text for ILLUSTRATION 1, p. 27. ]

ILLUSTRATION 1: H, an individual who is deaf, uses sign language as his primary means of communication and also communicates by writing. He is shopping for film at a camera store. Exchanging notes with the sales clerk would be adequate to ensure effective communication.

B. [Insert the following text after ILLUSTRATION 2, p. 27. ]

ILLUSTRATION 2a: H goes to his doctor for a bi-weekly check-up, during which the nurse records H's blood pressure and weight. Exchanging notes and using gestures are likely to provide an effective means of communication at this type of check-up.

BUT: Upon experiencing symptoms of a mild stroke, H returns to his doctor for a thorough examination and battery of tests and requests that an interpreter be provided. H's doctor should arrange for the services of a qualified interpreter, as an interpreter is likely to be necessary for effective communication with H, given the length and complexity of the communication involved.

C. [Insert the following text before the question, "Who is a qualified . . . ?" p. 28. ]

ILLUSTRATION 2: S, who is blind, goes to the corner laundromat. Displayed on the laundry machine controls are written instructions for operating the machines. The company that owns and operates the laundromat could make the machines accessible to S by Brailling the instructions onto adhesive labels and placing the labels (or a Brailled template) on the machines. Alternatively, the laundromat company could arrange for a laundry room attendant to read the instructions printed on the machines to S. Any one particular method is not required, so long as effective communication is provided.

III-4.3420 Outgoing calls by customers, clients, patients or participants.

[Insert the following text at the end of this section, p. 29. ]

It is the hotel's or hospital's responsibility to monitor requests for TDD's to ensure that it has a sufficient supply of such devices. The facility should acquire what it reasonably predicts will be an adequate number of TDD's, and then acquire additional TDD's if experience shows that an increase is necessary to meet actual demand.

Newly constructed hotels must have a certain number of rooms that are accessible to persons who are deaf or hard of hearing (the exact number is dependent on the number of rooms in the hotel). This number of rooms is a useful reference point for a facility attempting to gauge the number of TDD's necessary for effective communication.

III-4.4000 Removal of barriers.

III-4.4200 Readily achievable barrier removal.

[Insert the following text at the end of this section, p. 34. ]

ILLUSTRATION 3: A small car rental office for a national chain is located in a rural community. Title III requires the company to install vehicle hand controls if it is readily achievable to do so. However, this procedure may not be readily achievable in a rural, isolated area, unless the company is provided adequate notice by the customer. What constitutes adequate notice will vary depending on factors such as the remoteness of the location, the availability of trained mechanics, the availability of hand controls, and the size of the fleet. For example, notice of an hour or less may be adequate at a large city site where it is readily achievable to stock hand controls and to have a mechanic always available who is trained to install them properly. On the other hand, notice of two days may be necessary for a small, rural site where it is not readily achievable to keep hand controls in stock and where there is only a part-time mechanic who has been trained in the proper installation of controls.

Does the requirement for readily achievable barrier removal apply to equipment? Yes. Manufacturers are not required by title III to produce accessible equipment. Public accommodations, however, have the obligation, if readily achievable, to take measures, such as altering the height of equipment controls and operating devices, to provide access to goods and services.

ILLUSTRATION: Although manufacturers of washing machines are not obligated under the ADA to produce machines of a particular design, laundromats or resort guest laundry rooms must do what is readily achievable to remove barriers to the use of existing machines.

III-4.5000 Alternatives to barrier removal.

[Insert the following text after ILLUSTRATION 4, p. 40. ]

ILLUSTRATION 5: A laundromat, if it is readily achievable to do so, must modify controls on existing washing machines to be within an accessible reach range. If modification is not readily achievable, then assistive devices or services must be provided, such as a wand, mechanical grabber, or assistance from an on-duty laundromat attendant, if it is readily achievable to do so.

ILLUSTRATION 6: A medical center that operates inaccessible mobile health care screening vans must consider readily achievable alternative methods of providing access to the van's services. Possible alternatives include providing equivalent services at an accessible site in the medical center, using the van to deliver services to persons with disabilities in their own homes, or transporting people with disabilities from their homes or the van site to an accessible facility where they can receive equivalent services.

III-5.0000 NEW CONSTRUCTION

III-5.3000 Application of ADAAG.

[Insert the following text at the end of this section, p. 47. ]

ILLUSTRATION 4: Although mobile health care screening vans are "facilities" subject to the requirements of title III, there are no specific ADAAG standards for newly constructed or altered vans. The vehicles are, however, subject to the other title III requirements including the obligation to provide equal opportunity and the duty to remove architectural, communication, and transportation barriers to the extent that it is readily achievable to do so, and if it is not readily achievable to do so, to provide alternative methods of access to the services offered through the mobile vans.

Does ADAAG apply to equipment that is not built in to the facility? No. Only equipment that is fixed or built in to the facility, is covered by the accessibility standards (e.g. , public pay telephones or built-in ATMs). Free-standing equipment is not covered by ADAAG, but public accommodations may be required to purchase accessible free-standing equipment in certain circumstances in order to provide equal opportunity. They may also be required to make existing free-standing equipment accessible to individuals with disabilities, if it is readily achievable to do so (see III-4.4200).

III-5.4200 Professional office of a health care provider.

[Insert the following text after ILLUSTRATION 2, p. 49. ]

ILLUSTRATION 3: A newly constructed building intended for physical therapy offices will have two floors. The first floor will include patient treatment areas and the second floor will be reserved exclusively for private physician offices and storage space. Regardless of whether patients will receive treatment on each floor, both floors of the building together constitute the professional office of a health care provider, and an elevator must be installed to ensure that each floor is readily accessible to and usable by individuals with disabilities.

III-6.0000 ALTERATIONS

III-6.1000 General.

[Insert the following text before the question, "What does . . . ?" p. 51. ]

ILLUSTRATION 4: A parking lot is restriped. Because the restriping may affect the ability of individuals with disabilities to gain access to the facility, the restriping project would be considered an alteration and therefore must include accessible spaces and access aisles in the number required by ADAAG.

III-7.0000 THE AMERICANS WITH DISABILITIES ACT ACCESSIBILITY GUIDELINES (ADAAG)

III-7.1000 General.

A. [Insert the following text before the question, "How does ADAAG . . . ?" p. 57. ]

Does the ADA eliminate the accessibility provisions that State and local code officials now enforce? No. State and local code provisions remain in effect. However, if elements of a State or local code provide a lesser standard of access than the ADA requires, a public accommodation or commercial facility is still required to comply with the applicable ADA provision.

Who enforces ADAAG? The Department of Justice and private parties. ADAAG has been adopted as part of the Department's regulation implementing title III. Title III of the ADA is enforced through compliance reviews, complaint investigations, and litigation initiated by the Department of Justice, and through litigation initiated by private parties (see III-8.0000).

Can local building inspectors certify compliance with the ADA? No. The ADA is not enforced by State or local building inspectors. However, if a State or local accessibility code has been certified by the Department (see III-9.0000), compliance with that certified code will constitute rebuttable evidence of compliance with the ADA in any enforcement proceeding.

Will the Department review building plans for compliance with ADAAG? No. There is no Federal equivalent to the State code enforcement process. Neither the Department of Justice, nor any other Federal agency, functions as a "building department" to review plans, to issue building permits or occupancy certificates, or to provide interpretations of ADAAG during the building process.

B. [Insert the following text at the end of this section, p. 57. ]

Does the new CABO/ANSI A117.1 standard replace ADAAG? No. The ADA requires the Department of Justice to adopt regulations consistent with the guidelines for the design and construction of accessible buildings and facilities published by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board). The Department adopted ADAAG as the enforceable title III standard. The publication of the revised CABO/ANSI standard does not alter the legal obligation of a place of public accommodation or commercial facility to comply with ADAAG as published by the Department.

III-7.2000 General requirements/definitions.

III-7.2100 Equivalent facilitation.

[Insert the following text at the end of the first paragraph of this section, p. 57. ]

Will the Department tell me if my design is "equivalent"? No. The ADA, like all other Federal civil rights laws, requires each covered entity to use its best professional judgment to comply with the statute and the implementing regulations. The Department of Justice does not have a mechanism to certify any specific variation from the standards as being "equivalent. " Proposed alternative designs, when supported by available data, are not prohibited; but in any title III investigation or lawsuit, the covered entity would bear the burden of proving that any alternative design provides equal or greater access.

If a facility complies with a State or local building code, will it be considered in compliance with the ADA? Possibly. Compliance with a State or local code that has been certified by the Attorney General (see III-9.0000) to be equivalent will provide rebuttable evidence of compliance with the ADA. Compliance with a code that has not been certified will constitute ADA compliance only if it can be demonstrated that the specific code provision at issue provides accessibility that equals or exceeds the ADA requirement.

B. [Insert the following text at the end of this section, p. 58. ]

Is it permissible to deviate from the requirements for elements such as lavatories, operating controls and faucets, urinals, bathtubs, and shower stalls in order to follow State or local building code standards for these fixtures? Sometimes. Such deviations are permissible only if they provide access equal to or greater than that required by the ADA.

III-7.4000 Sites and exterior facilities.

III-7.4200 Accessible route.

[Insert the following text after the first paragraph of this section, p. 60. ]

The ADA, however, does not require the provision of an accessible route in cases where there is no pedestrian route for the general public.

ILLUSTRATION 1: A developer would not be required to provide an accessible route between an accessible entrance to a retail store and a major highway bordering the site, if customers only have access to the store by driving to the parking lot (i.e. , where no pedestrian route exists from the highway to the store). An accessible route would have to be provided, however, for pedestrians to travel from the parking lot to the facility's entrance.

ILLUSTRATION 2: Where multiple accessible facilities are built on the same site, an accessible route between the facilities will be required only where a pedestrian route for the general public exists between the multiple facilities or where pedestrians typically walk between the facilities.

Whether a route for the general public exists within a site depends upon the unique characteristics of the site, including its geography and proximity to public transportation stops. Factors such as the presence of sidewalks, crosswalks, or significant pedestrian flow along a particular route should also be considered in determining whether a route for the general public exists. Creation of special accessible routes along paths not available to the general public is not required.

III-7.4300 Parking.

A. [Insert the following text before the first sentence of this section, p. 60. ]

If self-parking is provided for employees or guests of a public accommodation, accessible parking spaces must be provided in compliance with the ADA.

B. [Insert the following text before the paragraph beginning, "If valet parking . . . ?" p. 61. ]

Accessible parking spaces must be located on the shortest accessible route of travel to the facility's entrance. Accessible parking spaces and the required accessible route should be located where individuals with disabilities do not have to cross vehicular lanes or pass behind parked vehicles to have access to the entrance. If it is necessary to cross a vehicular lane because, for example, local fire engine access requirements prohibit parking immediately adjacent to a building, then a marked crossing should be used as part of the accessible route to the entrance.

III-7.5000 Buildings: New construction.

III-7.5170 Telephones.

[Insert the following text at the end of paragraph 3 of this section, p. 63. ]

Moreover, if any of the public pay telephones provided in these locations are coin-operated, then a TDD or text telephone that can be used with a coin-operated telephone must be provided. If all of the public pay telephones provided in these locations are card-operated only, then it is permissible to provide a TDD or text telephone that can be used only with card-operated telephones.

III-7.5180 Assembly areas.

[Insert the following text before the sentence beginning, "Finally, wheelchair seating . . . . " p. 64. ]

In addition to requiring companion seating and dispersion of wheelchair locations, ADAAG requires that wheelchair locations provide people with disabilities lines of sight comparable to those for members of the general public. Thus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheelchair locations must provide lines of sight over spectators who stand. This can be accomplished in many ways, including placing wheelchair locations at the front of a seating section, or by providing sufficient additional elevation for wheelchair locations placed at the rear of seating sections to allow those spectators to see over the spectators who stand in front of them.

III-7.8000 Special facility types.

III-9.0000 CERTIFICATION

III-9.2000 Relationship to State and local enforcement efforts.

[Insert the following text at the end of this section, at p. 73. ]

May code officials issue binding interpretations of ADA accessibility provisions at the local level? No. Code officials may not take any action that purports to relieve a public accommodation or commercial facility of its obligation to comply fully with the ADA.

May code officials be sued to challenge their implementation of a certified code? The certification process is not intended to impose greater liabilities on State or local officials toward private parties than they now have in carrying out their responsibilities under State law. Title III of the ADA does not alter the personal liability of State or local officials enforcing State or local laws. The Department of Justice anticipates that State and local officials enforcing a certified code will continue to enforce that code under the same standard of care that would apply if the code was not certified.

Why should code officials seek certification of local accessibility codes? If the code in a local jurisdiction is certified, the designers, contractors, and building owners will have some assurance that compliance with those regulations will also satisfy ADA requirements. Through knowledgeable and professional plan review and inspection services, a covered entity may benefit from the technical assistance available from the local code official. Also, if there is an effective procedure for handling complaints at the local level, litigation will be minimized.

May 15, 2008