RD6.3 "Guidelines for Facilities Compliance with the Americans with Disabilities Act (ADA)," Assistant Vice President Bocchicchio, University of California, Office of the President, letter to Vice Chancellors, May 8, 1992.

May 8, 1992

Vice Chancellors - Administration
Vice Chancellor Blackman
Vice Chancellor Ralls

Dear Colleagues:

Guidelines for Facilities Compliance with the Americans with Disabilities Act (ADA)

As discussed at the Council of Vice Chancellors - Administration meeting in Irvine yesterday, I am pleased to enclose a copy of the Guidelines for implementing Title II of the ADA. These are designed to be used for the preparation of the Transition Plan and the Self-evaluation required by Title II.

A Draft University Policy on Facilities Compliance with the ADA was sent to you earlier for review and comment. We are currently in the process of reviewing the comments that were submitted. In the interim, these guidelines were written to assist the campuses, laboratories, and the Division of Agriculture and Natural Resources (DANR) in interpreting the requirements of Title II as they apply to the University, and in dealing with campus relationships with private entities covered under Title III of the ADA. The primary value of developing these guidelines is to help ensure consistent University-wide interpretation and compliance. As you know, the ADA is both an extension and expansion of Section 504 of the Rehabilitation Act of 1973. We recommend that each campus, laboratory and DANR begin compliance with the ADA by reviewing its Section 504 Self-evaluation and Transition Plan.

The guidelines are organized into two sections "Overview" and "Requirements and Calendar."

• The Overview section describes: the responsibilities of the Assistant Vice President of Facilities Administration for facilities compliance with the ADA; the functions of a University Advisory Committee in advising on the interpretation and clarification of facilities compliance; and the basic provisions of the law that concern facilities compliance.
• The Requirements and Calendar section describes which submittals are required, both by the ADA and by the Office of the President, to fully comply with Title II, Subpart A, of the ADA and the due dates.

There are two attachments: an example of a format that could be used for a Transition Plan; and an example of a certification statement for both the Transition Plan and the Self-evaluation stating that the required documentation is complete, has been reviewed by interested parties, and is on file for public inspection.

Please contact Senior Architect Ellie Ross at (510) 987-0981 if you have any questions, or if we can be of further assistance to you in this matter.

Sincerely,

/s/ [Pamela Kast for Michael J. Bocchicchio]
Michael J. Bocchicchio Sr., A.I.A.
Assistant Vice President -
Facilities Administration

Enclosure

cc: Senior Vice President Brady
General Counsel Holst
Associate Vice President Hershman
Assistant Vice President Levin
Assistant Vice President Smith
Director Adams
Director Carr
Director Estrada
Director Kast
Director Mathews
Manager Smith
Senior Architect Ross
Assistant Vice Chancellor Zwart
Special Assistant to the Chancellor Martin

May 8, 1992

1. Overview

The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against any "qualified individual with a disability" (hereinafter referred to as a "disabled person"). Under Title II, Subtitle A of the ADA, a public entity must make its programs, services, and activities accessible to and usable by a disabled person, unless doing so would result in a fundamental alteration in the nature of its programs, services, or activities, or would result in undue financial and administrative burdens.

The Assistant Vice President of Facilities Administration is responsible for the coordination of University facilities compliance and implementation of Title II, Subtitle A, of the ADA. The Assistant Vice President's responsibilities are as follows:

1. Review campus, laboratory, and DANR (all three are hereinafter referred to as "campus") Transition Plans.
2. Review Self-evaluations.
3. Request data, reports, and analyses, as needed, from the campuses concerning facilities compliance under Title II.

University Advisory Committee

A University Advisory Committee will advise the Assistant Vice President of Facilities Administration on compliance with Title II. Members will be selected from campuses, laboratories, Division of Agriculture and Natural Resources (DANR), Office of the President, and Office of the General Counsel. The committee will have the following responsibilities:

1. Provide interpretation and clarification, as necessary, to assist the campuses in complying with the ADA.
2. Recommend compliance guidelines as needed for campus implementation and compliance.
3. Assist with specific accessibility disputes that cannot be resolved by individual campuses.
4. Assist in determining whether proposed solutions constitute a fundamental alteration in the nature of a program, service, or activity or undue financial and administrative burdens.

The structure of campus accessibility compliance programs is similar to Section 504 of the Rehabilitation Act of 1973, which covers all programs receiving federal financial assistance. Refer to "University of California Policy Applying to Nondiscrimination on the Basis of Handicap (Section 504, Rehabilitation Act of 1973)," issued January 24, 1978. Many concepts and terms are used both in the ADA and Section 504. "Self-evaluation" is the review of campus programs, services, and activities for accessibility to disabled persons. "Transition Plan" is a list identifying physical barriers impeding accessibility, the solution to removing the physical barrier, the schedule for completion, and the identification of the person responsible for the implementation.

UFAS vs. ADAAG vs. Title 24

All projects, whether alterations of existing facilities or new construction, shall be planned and constructed according to all applicable state building codes and federal regulations. The Uniform Federal Accessibility Standards (UFAS) are the guidelines still in effect and required for compliance with Section 504. Title II of the ADA allows the University a choice of two standards in complying with the ADA--UFAS or ADA Accessibility Guidelines for Title III (ADAAG). Sometimes UFAS may be more stringent than ADAAG. Always select whichever is the most stringent. The Department of Justice expects to publish the final facilities access regulations for Title II sometime in 1993. In the interim, the University recommends using ADAAG, because it is our understanding that the guidelines for Title II, to which the University will be subject, will be most similar to ADAAG. When using ADAAG, the University is not entitled to the elevator exemption, because the exemption only applies to private entities covered by Title III of the ADA. Title II requires that whichever access standard is used, that standard must be used in the entire facility or project.

Also, the Office of the State Architect (OSA) is using ADAAG as a guideline to write its disabled accessibility standards for Title 24 CCR, Chapter 31, Accessibility. OSA will be submitting the rewrite of Title 24, with its incorporation of ADA requirements, to the Department of Justice for certification. The certification is anticipated to happen in the Fall of 1992. If the Department of Justice certifies Title 24, the University can follow Title 24 requirements to be in full compliance with the ADA.

Existing Facilities

Title II of the ADA requires the University to make its programs, services, and activities accessible to a disabled person in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens. Neither a totally barrier-free environment, nor the removal architectural barriers in existing facilities is required. The ADA defines "facility" as all or any portion of a building, structure, site, complex, equipment, rolling stock or other conveyance, road, walk, passageway, parking lot, or other real or personal property, including the site where the building property, structure, or equipment is located. It includes both indoor and outdoor areas where human-constructed improvements, structures, equipment, or property have been added to the natural environment. Structural alterations, the term used in the ADA meaning barrier removal in existing facilities, will be a solution when administrative solutions are either not feasible or not preferable. In certain instances, a structural solution may be preferable for many reasons--cost, user demand, a need for a permanent solution, etc.

New Construction and Alterations

Title II requires that each facility, or part of a facility, constructed or altered by, on behalf of, or for the use of the University, shall be designed, constructed, or altered to be readily accessible to and usable by individuals with disabilities if that facility began construction by or went out to bid after January 26, 1992. In an alteration, the altered portion of the facility shall be readily accessible to and usable by the disabled. Alterations that affect a facility's primary function trigger a "path of travel" requirement. That requirement is to make the path of travel from the entrance to the altered area, and telephones, restrooms, and drinking fountains serving the altered area, accessible. The University is not required to spend more than 20% of the cost of the original alteration on making the path of travel accessible, even if this cost limitation results in less than full accessibility.

Alterations to Historic Properties

Title II requires that alterations to historic properties comply, to the maximum extent feasible, with Section 4.1.7 of UFAS or ADAAG, Accessible Buildings, Historical Preservation. If it is not feasible to provide access to an historic property without threatening or destroying its historic significance, alternate methods, such as program accessibility, shall be provided. The Technical Manual for Title II states that alternate standards may be used, but this decision must be made with the appropriate historic advisory board designated in ADAAG or UFAS, and interested persons should be invited to participate in the process. The Technical Manual defines alternate requirements as those that provide a minimum level of access and gives the following examples:

1. An accessible route is only required from one site access point (such as a parking lot).
2. A ramp may be steeper than is ordinarily permitted.
3. The accessible entrance does not need to be the one used by the public.
4. Only one accessible toilet is required and may be unisex.
5. Accessible routes are only required on the level of the accessible entrance.

Leased Facilities, Lease Options, and Purchase of Facilities or Sites

Facilities or sites being considered for lease or purchase shall be evaluated for accessibility. Under Title II, the University is encouraged to lease accessible space or purchase accessible sites. If such space or sites are not available, campuses must still ensure that all their programs, services, and activities are accessible. The more accessible the space is to begin with, the easier and less costly it will be later to make programs, services, and activities available to individuals with disabilities and to provide reasonable accommodations for employees who may need them.

If a facility currently leased by a campus is not accessible, the campus is still responsible for ensuring that its programs, services, and activities available only at that facility are accessible to a disabled person. When administrative solutions are not feasible or preferable, a campus may decide to make structural alterations to the facility. If a campus makes that decision, then it should investigate the lessor's obligation or willingness to either make the facility accessible or to contribute to the cost of making the facility accessible. Each campus is also responsible for conducting a cost/benefit analysis to determine whether, under the circumstances, it is in the best interest of the campus to structurally alter the facility. Elements to be considered in making this decision should include at least the following:

1. the cost of the structural alterations
2. the landlord's obligation or willingness to pay any of the cost of the alterations
3. the time remaining on the lease term
4. the lease termination costs (e.g., moving costs, continuing the lease payment obligations, etc.)
5. other risks, costs, or benefits associated with the decision to make structural alterations

Curb Ramps

Title II requires that newly-constructed or altered streets, roads, and highways have curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street-level pedestrian walkway. The definition of "pedestrian walkway" includes locations where access is required to use public transportation, such as bus stops not at an intersection or a crosswalk. The law also states that newly-constructed or altered street-level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways. The Technical Assistance Manual for Title II explains this requirement further. It says that a public entity, if it has responsibility or authority over streets, roads, and highways, must prepare a schedule for providing curb ramps where pedestrian walkways cross curbs. The public entity must give priority to walkways serving State and local government offices and facilities, transportation, places of public accommodation (Title III entities), and employees, followed by walkways serving other areas. This schedule must be included as part of the Transition Plan.

Existing Parking Lots or Garages

Title II requires that a public entity provide an adequate number of accessible parking spaces in existing parking lots or garages over which it has jurisdiction.

Title III

Title III of the ADA covers places of public accommodation, commercial facilities, and examinations and courses related to applications, licensing, certification, or credentialing for secondary or post secondary education, professional, or trade purposes. By definition, the University, as a public entity, is not subject to Title III of the ADA. Often, however, the University has a close relationship to private entities covered by Title III. Therefore, certain University activities may be indirectly affected by both titles.

In its relations with private entities, the University must meet its Title II obligations. This may require the University to contractually obligate the private entity to perform in a manner that will enable the University to meet its Title II obligations even though the private entity is not directly subject to Title II. For example, if the University contracts with a private entity to provide a program, service, or activity that the University would otherwise provide, the University must by contract obligate the private entity to perform in a manner that allows the University to meet its Title II obligations.

Where the University acts jointly with a private entity, it must ensure that the relevant requirements of Title II are met. The private entity will be required to ensure that the relevant requirements of Title III are met. If the requirements under Title II and Title III differ, then the standard providing the highest degree of accessibility to a disabled person will apply.

2. Requirements and Calendar

Submittal to Office of the President

The following items related to Title II of the ADA are required to be submitted to the Office of the President. Please send the submittals to the Director of Facilities Design, Construction, and Management, Office of the President, 300 Lakeside Drive, 12th Floor, Oakland, CA 94612-3550, on or before the dates listed below.

a. Advisory Committee - June 1, 1992

Title II requires that a pubic entity designate at least one employee to coordinate its efforts to comply with this part of the law. Each campus shall also form an Advisory Committee to coordinate the implementation of the requirements of Title II. Send the names of the committee members, with their responsibilities. This committee should be the same committee or sub-committee of your Section 504 or ADA committee responsible for compliance with the other titles of the ADA. Examples of responsibilities are surveying campus facilities, preparation of the Transition Plan and Self-evaluation, investigation of complaints about non-compliance issues, and adopting and publishing grievance procedures. Title II requires that the name, office address, and telephone number of the employee or employees responsible for implementing compliance be made available to all interested individuals. The Advisory Committee's objective is the implementation of the ADA at the campus and the prompt and equitable resolution of all ADA compliance complaints.

The Title II requirements for designation of a responsible person for coordination of the implementation efforts and for establishing grievance procedures for resolving complaints of violations comes from Section 504 regulations. We recommend that one person be designated to correspond with Facilities Design, Construction, and Management on all Title II requirements.

b. Transition Plan Format Outline - June 1, 1992

Submit an outline of the format you will use, the names of the people assembling the Transition Plan, your philosophy and rationale for selecting projects that will be on the list, and proposed funding for your preparation of the Transition Plan.

c. Certification Statement - July 26, 1992

Title II requires that the Transition Plan be developed with the assistance of interested persons, including individuals with disabilities or organizations representing individuals with disabilities, by having them submit comments. The Office of the President will keep on file a certification statement listing those who commented and verifying that the campus Transition Plan is complete and that it will be maintained on file for public inspection for three years. (Please refer to Attachment 1 for an example of the certification statement format.)

d. Transition Plan - July 26, 1992

Submit a copy of the completed Transition Plan.

Title II of the ADA requires a Transition Plan only if structural alterations are determined to be necessary to achieve program access. If a campus has explored all administrative solutions and has determined that a structural solution is the most feasible or preferable, the structural solution must be identified in the Transition Plan. A Transition Plan addresses how and when those structural alterations are to be made.

Title II also requires a campus, with authority over streets, roads, or highways, to include a schedule in the Transition Plan for providing curb ramps or other sloped areas where pedestrian walks cross curbs. Priority must be given to walkways serving facilities, transportation, places of public accommodation, and employees, followed by walkways serving other areas.

If a campus has complied with Transition Plan requirements of Section 504, then this requirement applies only to those policies and practices that were not included in the previous Transition Plan, or to programs, services, or activities that have changed in any way since the implementation of Section 504. Title II states that the Transition Plan must at a minimum do the following:

1. Identify physical barriers that limit accessibility of programs, services, and activities to disabled persons.
2. Describe in detail the methods that will be used to remove the physical barriers and make the facilities accessible.
3. Specify the schedule for taking the necessary steps to achieve compliance with Title II. If the period for compliance is longer than one year, the Transition Plan shall clearly identify the interim steps that will be taken during each year of the transition period.
4. Name the person responsible for implementing the Transition Plan.

We recommend including the following information for each project in the Transition Plan:

• the name of the facility
• the type of facility
• the barrier
• the solution
• the estimated cost
• proposed funding
• the schedule
• the interim steps, if the work will take longer than one year

Please refer to Attachment 1 for an example of the Transition Plan's format.

Though not specified in Title II, we also recommend that Transition Plan projects be assigned a priority for determining which projects should receive the earliest attention. Assigning a priority to projects requires consideration of factors that each campus must evaluate within its own context, based on the required degree of access to the program, service, or activity. Suggested methods for determining priorities are as follows:

Method 1:

Priority 1 - Safety hazard or code issue
Priority 2 - Completely blocks access to a program, service, or activity
Priority 3 - A barrier exists with some access, but complete access does not exist for all disabled persons to all programs, services, and activities.

Method 2:

Priority 1 Getting to the site
Priority 2 Getting in the entrance and using the facility
Priority 3 Providing access to programs, services, and activities and their benefits (e.g., classes, sports activities, etc.)
Priority 4 Providing access to toilets, telephones, drinking fountains, etc.

Title II requires that Transition Plans be completed by July 26, 1992, that they be available to the public for three years thereafter, and that removal of all physical barriers identified in Transition Plans must be completed by January 26, 1995.

c. Self-evaluation Outline - June 1, 1992

The Office of the President will keep on file an outline of the current services, policies, and practices that will be evaluated, the philosophy and rationale for examining them, who will be doing the evaluation.

d. Self-evaluation Certification Statement January 26, 1993

Title II requires that the Self-evaluation be developed with the assistance of interested persons, including disabled persons or organizations representing disabled persons, by having them submit comments. The Office of the President will keep on file a statement listing those who commented, and verifying that the Self-evaluation is complete and that it will be maintained on file for public inspection for three years. (Please refer to Attachment 2 for an example of the Self-evaluation certificate statement format.)

e. Self-evaluation January 26, 1993

Submit a completed Self-evaluation.

Title II requires the Self-evaluation to do the following:

• Evaluate current services, policies, and practices, and the effects of those that do not meet Title II accessibility requirements. Allow comments from the public, including disabled persons and organizations that represent them.
• Specify what modification will be made of identified services, policies, or practices that deny or limit participation of the disabled in University programs, services, and activities. Structural modifications required for program accessibility should be made as expeditiously as possible, but no later than January 26, 1995.
• Make the Self-evaluation available for public inspection, with the following information about the self-evaluation process, for three years beginning January 26, 1993:
  • a list of interested persons consulted
  • a description of areas examined and any problems identified
  • a description of any modifications made

A Self-evaluation is more than just an analysis of physical barriers. Several areas, such as educational programs and activities; employment practices; and health, welfare, and other social services and benefits must be examined. The process of doing the Self-evaluation will include overlap and cooperation with all segments of the campus, such as employment, student affairs, academic affairs, etc.

The Self-evaluation requirement applies to those policies and practices that previously had not been included in the Self-evaluation required by Section 504. Because most Section 504 self-evaluations were done many years ago, a campus must decide which of its policies and practices have changed or were not included at that time (e.g., technology issues). In addition, Section 504 coverage has been changed by statutory amendment, particularly the Civil Rights Restoration Act of 1987 that expanded the definition of a covered "program or activity."

Areas relating specifically to facilities taken from the Department of Justice, Title II Technical Manual that should be carefully examined include, but are not limited to, the following:

1. Physical Barriers. Determine for each program, service, or activity whether any physical barriers to access exist. Identify steps to be done to enable these programs to be made accessible either by administrative or structural changes. If structural changes are necessary, they must be included in the Transition Plan.
2. Policies and Practices. Determine whether any policies and practices exclude or limit the participation of the disabled in programs, services, or activities. Such policies or practices must be modified, unless they are necessary for the operation or provision of the program, service, or activity. Identify policy modifications to be implemented and include complete justifications for any exclusionary or limiting policies or practices that will not be modified.
3. Communications. Determine what communication devices are needed to communicate effectively with students, faculty, staff, and members of the public with disabilities. This could include adding Telecommunication Devices for the Deaf or other types of telecommunication systems for individuals with impaired hearing or speech. Review telephone emergency services, if provided on campus.
4. Evacuation from Buildings. Review procedures to evacuate disabled individuals during an emergency. This may require installation of visual and audible warning signals and special procedures for helping disabled individuals exiting from a facility during an emergency.
5. Fundamental Alteration in Nature of Program. Review policies to ensure that decisions concerning a fundamental alteration in the nature of a program, service, or activity, or a decision that undue financial and administrative burdens will be imposed by Title II, are made properly and expeditiously.
6. Building and Construction Policies. Review building and construction policies to ensure that the construction of each new facility or part of a facility, or the alteration of existing facilities begun or sent out to bid after January 26, 1992, adheres to all standards required under Title II and to all applicable Title 24 code requirements.

EXAMPLE - Attachment 1

TRANSITION PLAN FORMAT

TRANSITION PLAN: __________CAMPUS 7/26/92
Facility/Building	Type of Space/Facility	Barrier	Solution	Estimated Cost	Funding	Schedule	Interim Steps (if longer than l year)
1. Sproul Hall	Instructional	inaccessible restrooms on floors 1-3	modify mens' and womens' restrooms	$250,000	Campus funds	6/92-8/93	floor 1: 6/92-11/92 floor 2: 11/92-4/93 floor 3:4/93-8/93
2. South Hall	Classroom	inaccessible wheelchair locations	remove fixed seats at 2 locations	$1,500	Campus funds	8/92
3. Whelan Court	Shuttle Stop	curb	curb cut	$500	Campus funds	9/92

The Transition Plan/Self-evaluation is completed and on file and available for public inspection according to the requirements of Title II of the Americans with Disabilities Act (ADA). It will be kept on file for three years. The following interested groups or persons were contacted to help in evaluating compliance with the Title II of the ADA:

1. Janet Moore, individual
2. Students for Access
3. Westwood Association for the Visually Impaired
4. David Kellogg, individual
5. Barrier-Free Campus Now

_______________________________
Signature

_______________________________
Date

_______________________________
Title

Please return to the Director, Facilities Design, Construction, and Management, 300 Lakeside Drive, 12th Floor, Oakland, CA 94612-3550.

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