With the ongoing and enormous attention enforcement agencies are devoting to access to emerging technology, it is easy to assume that facilities access in no longer a significant compliance concern for colleges and universities. However, one need only examine recent OCR rulings and court decisions addressing charges of denial of facility access to discover that postsecondary institutions are still guilty of violating what many would assert are basic and clear compliance mandates. The Department of Justice’s 2010 ADA Standards for Accessible Design (effective March 15, 2012) coupled with the upcoming revision to the Section 504 regulations to formally adopt the 2010 Title II ADA standards in lieu of Uniform Federal Accessibility Standards (UFAS) will likely spark renewed interest in the accessibility and usability of college and university facilities. Therefore, now would be a good time to take a look at the compliance areas that seem to present the greatest challenges for colleges and universities, as reflected in recent agency rulings and judicial decisions. The next several editions of Salome Says will be devoted to facilities access issues beginning with Parking and Accessible Paths of Travel.
The majority of parking issues arise in the following areas: the number and size of accessible spaces; signage; the enforcement of parking restrictions; and the path of travel from the parking area to adjacent facilities. The cases reviewed reflect that institutions consistently fail to ensure that parking areas contain a) the minimum number of accessible spaces required pursuant to ADAAG and/or UFAS standards, as well as b) spaces 96 inches wide that are necessary to accommodate vans (See University of Maryland, No. 03102046 (OCR 06/2010) and University of Mississippi, No. 06102080 (OCR 09/2010); and Gadsden State Community College, No. 07-09-2006 (01/2010)).
The signage cases generally involve the symbols identifying accessible spaces being mounted on the ground rather than at the required height of at least 60 inches or otherwise being obstructed. (Remington College, No. 15-10-2107 (OCR 12/2010) and Clayton State University, No. 04-09-2088 (OCR 09/2009)) Enforcement cases involved institutions failing to take action against those parking in spaces without proper credentials, as well as, maintenance staff that either obstruct access to spaces during snow removal or fail to keep spaces clear during winter weather. (See University of Mississippi, supra and Remington College, supra).
It is important that routes from designated accessible parking spaces be “located closest to the nearest accessible entrance on an accessible route.” (UFAS 4.5.1). The surface of accessible routes must be stable, firm, slip-resistant and not impede the travel of those with physical disabilities. Additionally, accessible entrances to building should be clearly identified and marked with signage directing individuals from non-accessible entrances to the accessible entrance. Generally path of travel cases involve:
(See Remington College, supra; Gadsden State Community College, No. 07-09-2006 (OCR 2010); Clayton State University, supra and Our Lady of the Lake University, No. 06082171 (OCR 2009)). However, the most significant recent cases involving path of travel violations, raise some unique issues.
In Montgomery College (Rockville), et.al, No. DKC 09-2278 (D. Md. 2011), a student who had difficulty getting to her classes because the closest accessible parking was eliminated by construction, was injured walking from her class when the College refused to provide transportation back to her vehicle. The court ruled that the College’s refusal to address the obvious access problems caused by the construction meant that the College was at risk of being found to have “intentionally violated the ADA and the Rehabilitation Act by demonstrating a deliberate indifference when they had notice of the potential risk of their decision… .” The court ruled that the College arguably had a duty to accommodate the student’s known disability, i.e., her difficulty walking, by providing her transportation.
In a second case, Shasta-Tehama-Trinity Joint Community College District, No. 09-09-2068 (OCR 2009), the College moved all accessible spaces following the recommendation of a consultant. As a result, a student with a disability, who previously had easy access to an adjacent walkway leading to her destination, was denied access because the walking distance from the new placement of accessible spaces was doubled and too far for her to walk. OCR ruled that the College’s obligation under the law was not satisfied merely because the new spaces were arguably ADAAG-compliant and additional steps were necessary. OCR specifically ruled that “[I]n any individual case, in order to achieve program access, absent a fundamental alteration or undue burden defense, something more or different from ADAAG compliance may be necessary for a recipient to accommodate a particular disabled person”. In this particular case, OCR suggested that the College either reserve a space near the specific entrance for the student or work out another mutually agreeable alternative with her.
NOTE: For guidance in developing a plan for evaluating facilities access, subscribers to DisabilityDirectResponse.com should consult the Assessment Blueprint in the Compliance Library.