Enforcement and Certification Efforts
What is ADA Certification of State Accessibility Requirements?
Title III of the Americans with Disabilities Act (ADA) authorizes the United States 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.
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 code.
Why is ADA Certification Important?
California Government Code Section 4459(c) indicates that the scope of accessibility regulations in the California Building Standards Code shall not be less than the application and scope of accessibility requirements of the federal Americans with Disabilities Act of 1990 as adopted by the United States Department of Justice. ADA certification by the Department of Justice provides the most effective, recognized, and legal method for demonstrating that the California Building Code meets or exceeds the ADA requirements.
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 accessibility requirements meet or exceed ADA requirements. In this regard, business owners, builders, developers, architects, and others in the design and construction industry are benefited because, once a code is certified, they can refer to certified code requirements and rely upon them for equivalency with the ADA.
Certification is advantageous for the following reasons:
- When an entity is designing, constructing, or altering a building in accordance with an applicable state code that has been certified by the Department of Justice, the designer or contractor will need to consult only that one code, in order to determine the applicable federal and state accessibility requirements.
- The covered entity will have some degree of assurance in advance of construction or alteration that the ADA requirements will be met.
- In a 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.
- A state or local agency enforcing a certified code is for practical, but not legal purposes, facilitating compliance with the ADA and helping to eliminate confusion and possible inconsistencies in standards.
- The amount of unnecessary litigation can be reduced, particularly if a state or local code agency has an administrative method of effectively handling complaints concerning violations of its code.
Certification of a state 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. Also, 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.
Overview of the Certification Process
The Department of Justice provides technical assistance to jurisdictions that are in the process of adopting or amending their accessibility requirements and would like the Department's views regarding the extent to which the proposed requirements comply with or exceed ADA accessibility requirements. To obtain technical assistance, the jurisdiction submits 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 law.
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 the submitting jurisdiction. 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.
State and Local Code Enforcement Efforts
There are thousands of code jurisdictions in the United States that enforce some combination of state building codes. Some, but not all of these include accessibility requirements. Although many are based on a model code, there are major variations among the state codes. Design and construction in accordance with these codes will not constitute compliance with the ADA, unless the codes impose requirements equal to or greater than those of the ADA.
The enforcement of these codes is the responsibility of state or local officials. They usually review building plans and inspect projects at specific intervals during construction to ensure that the construction complies with state law. State and local officials do not have the authority to enforce the ADA on behalf of the Federal government.
Architects, builders, and others involved with design and construction are accustomed to the state and local enforcement system, which lets them know prior to construction whether they need to make changes to their plans in order to achieve code compliance. The ADA relies on the traditional method of case-by-case civil rights enforcement in response to complaints. It does not contemplate federal ADA inspections similar to those done at the state or local level. ADA certification will help to moderate the effects of these differences in enforcement procedures and standards.
Certification of the California Building Code
In 2002, the Department of General Services, Division of the State Architect submitted the 2001 edition of the California Building Code along with a side-by-side analysis of the ADA Standards for Accessible Design to the United States Department of Justice. The side-by-side analysis contained proposed revisions and additions to California Building Code regulations that were considered necessary in order to establish equivalency with the ADA Standards for Accessible Design.
In October 2004, the Division of the State Architect received from the United States Department of Justice, an initial response to the request for certification that the California Building Code meets or exceeds the new construction and alterations requirements of Title III of the Americans with Disabilities Act of 1990, and the United States Department of Justice's regulation implementing Title III, including the ADA Standards for Accessible Design.
The Initial Response from the United States Department of Justice (October 1, 2004)
The links below provide public access to the initial response from the United States Department of Justice regarding the ADA certification of California Building Code. The response includes a cover letter, side-by-side analysis, and three attachments.
It should be understood that the initial response from the Department of Justice is preliminary. The process for ADA certification will undoubtedly take time; include public participation meetings, interaction with the United States Department of Justice, and rulemaking for building standards. It should therefore be assumed that the side-by-side analysis, including comment from the Department of Justice, is subject to revision. These documents are preliminary, are provided for informational purposes only, and should not be considered as final determinations by the United States Department of Justice and/or the Division of the State Architect.
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The publications above can also be made available in alternative formats as a reasonable accommodation. To request an alternate format, please contact the Division of the State Architect, Access Compliance Section at 916.445.8100.