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Who Administers ADA?

Despite its 10th year anniversary, there are still considerable misunderstandings concerning the Americans with Disability Act, also known as ADA. Two of the areas that we hear constant confusion about are:

• who is responsible for making sure buildings, sites and facilities are in compliance with ADA and
• who is responsible for administering ADA?

Here's the simple answer and then we'll explain - the facility owner is responsible for making sure their property is in full compliance ADA and the U.S. Department of Justice administers ADA.

That's right, in most situations (we'll explain the exception later) it is the facility owner's responsibility to make sure the facility is designed and built or remodeled in full compliance with ADA. It is not the responsibility of the building inspector who administer local building codes, nor the fire marshal who will also review plans and inspect the facility, nor the health department, nor childcare licensing, nor anyone else in government who reviews plans for permits or inspects buildings for occupancy.

ADA is different than building, fire and health codes and laws. It is Federal civil rights legislation, the most basic form of law that is the foundation of American democracy. ADA deals with discrimination by physical barriers and the free access and use of all public facilities, meaning business, educational, medical and other facilities that the public has access to. All citizens and non-citizens other than tribal nations are required to comply with civil rights laws, and that includes the owners of all childcare centers when it comes to ADA. Tribal nations are asked to follow the requirements but are so exempted from the law as a sovereign nation.

So what happens if you don't comply? Possibly nothing. However, there is a good risk that somewhere along the line someone may either file a discrimination lawsuit against you or file a complaint with the Department of Justice. Most times, complainants let the Department of Justice do all the work rather than hire their own attorney. In that case, the Department of Justice will conduct an ADA compliance audit of your facility, and you, not your designer or your builder, but YOU could be fined as well as required to renovate your facility, no matter what the cost, to bring it into full compliance.

During the early days of ADA, the Department of Justice was more forgiving of violations when ADA was gaining awareness. Today, they are much more aggressive in prosecuting violations. In our December 2003 issue, we ran a story on how AMC Theatres is being required to modify most of their new cinemas due to ADA violations (click to read). If you have any doubt about the Department of Justice's enforcement actions, just check our their ADA enforcement Web page www.usdoj.gov/crt/ada/enforce.htm that summarizes some of their recent actions.

So what is the best course of action to make sure your facility is developed in compliance with ADA? Hire a designer who is highly qualified with ADA and its technical requirements, which can get very complex. We are shocked how many architects don't thoroughly understand the requirements. Many only look at the architectural requirements. There are now additional rules dealing with children's buildings and children's playgrounds. The other option is to have your plans reviewed or your facility audited by firms that specialize in ADA compliance reviews.

There is one exception that we mentioned at the beginning of this article. ADA authorizes the Department of Justice to certify that State laws, local building codes, or similar ordinances meet or exceed ADA standards for new construction or alterations. If you are operating in a governmental jurisdiction that has had its building codes certified by the Department of Justice, then the local building inspector will be reviewing your plans for compliance with the requirements of ADA. The ADA law says compliance with an ADA certified code constitutes reputable evidence of compliance with ADA.

And just to make matters even more confusing, there are a number of states, cities and other governmental jurisdictions that have enacted their own disability access laws and codes, sometimes with provisions that exceed ADA, and in a few instances, that conflict with ADA.

The bottom line is that ADA is one area you shouldn't ignore or try to shortcut. It's the most powerful form of Federal law. Besides, its just good business to make your facility as usable by as many people as possible.

For more about ADA and to learn about the principal of universal design, see the article ADA & Universal Design in our February 2003 issue.

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