January 2, 2012
ADA Compliance: March 15, 2012 is a Starting Line, not a Deadline
As we get closer to the March 15, 2012 compliance date for the 2010 ADA Standards, the National Center on Accessibility staff continues to field questions from practitioners. Many questions are rooted in misinformation. There has been an influx of product advertisements warning facility operators to come into ADA compliance by March 15. The date has been falsely advertised in a sense as a "deadline" with statements to the effect that your facility must be retrofitted by this date or you run the risk of ADA litigation.
March 15, 2012 is not a deadline. If anything, the March 15, 2012 date should be viewed as a starting line. This is the date designated by DOJ as the compliance date where all entities covered by Title II and Title III must begin using the new (2010) accessibility standards. From March 15 forward, all new construction and alterations to existing facilities should begin utilizing the new standards. From this point back to when the new regulations were issued in September 2010, entities had an interim choice to use either the new standards or the existing ADA Accessibility Guidelines (ADAAG). Beginning March 15, the interim choice to still use ADAAG has been eliminated and the 2010 ADA Standards will become the new accessibility standards of the land.
Yet, many myths to the new ADA regulations still exist, including the misperception that all existing facilities must be "fixed" (made accessible) and transition plans must be completed by March 15, 2012. Reality is that facility "fixes" and transition plans for Title II entities were required to be completed 17-20 years ago. Title II of the regulations, applicable to state and local government, actually required that structural changes in facilities necessary to achieve program access be completed by January 26, 1995 – 17 years ago (Section 35.150(c). Yes, structural changes necessary to achieve program access under Title II of the ADA were required to be completed 17 years ago, or as expeditiously as possible. Additionally, where structural changes where necessary to achieve program access, public entities with more than 50 employees were required to complete transition plans by July 26, 1992. Yes, transition plans by state and local governments should have been completed 20 years ago. Those transition plans were required to be on file to the public for three years or until such time that all structural changes had been made.
Stress from agencies and practitioners appear to be occurring for many reasons from high-pressured sales calls for "accessible" products to budget constraints in lean economic times. Some agencies may have conducted a transition plan 20 years ago only to put it on the shelf, while others are discovering no current plan for barrier removal exists.
So what can a public entity do to prepare for March 15, 2012?
1. View the March 15, 2012 date as a starting line. Make this the date your agency re-commits to structural changes in facilities to achieve program access and full inclusion of people with disabilities. Make this the date to commit to using the new 2010 ADA Standards and, whenever possible, go beyond the minimum standards using the principles of universal design.
2. Re-visit your agency transition plan. Much has happened in the last 20 years. Staff has changed. Facilities have changed. Some barriers may have been removed, while others may have been constructed. Use this time to update your transition plan, identify structural and communication barriers to programs and develop an aggressive timeline for barrier removal.
3. Evaluate your accessibility management program. Do you have an accessibility coordinator and accessibility team? What accomplishments have been made? What challenges still exist? Are people with disabilities included in the planning process? What are they saying about your agency efforts thus far?
4. Lastly, be wary of pressure from sales reps and consultants. Realistically, an effective transition plan is not going to be developed in the next 75 days. An effective plan takes time to develop. Deficiencies must be identified. Corrective actions must be agreed upon. Citizen input should be sought. Lead staff should be assigned and funding will have to be secured. This will take time, but it must be done for any accessibility management program to be effective. Moreover, it is required of all Title II entities with 50 or more employees and it will serve as the documentation to demonstrate a good faith effort in the event an ADA complaint is filed.