practical approaches to ada compliance
TRANSCRIPT
April 10, 2015
P R A C T I C A L A P P RO A C H E S TO A DA C O M P L I A N C E
About EMG
Speakers
Greg Bailey Scott McNeice Ron Stupi Director,
A&E Technical Operations Senior Project Manager Principal and
VP of Business Development
Agenda
1. Introduction to ADA 2. Proactive vs. Reactive Approaches 3. How to Plan and Get Buy-In 4. Case Studies 5. Resources 6. Q&A
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Introduction
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Mission
The mission of ADA is to ensure: …people with disabilities should be able to arrive on the site, approach the building or facility and its amenities, and enter as freely as everyone else.*
*Per Department of Justice (DOJ)
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Regulatory Background
• Enacted in 1990 as a Federal Civil Rights Law (28 CFR Part 36)
• ADA Accessibility Guidelines (ADAAG) published in 1991 (revised 2004)
• State Accessibility Standards – may be more stringent than Federal requirements but not less
• Local Accessibility Standards – may be more stringent than State or Federal requirements but not less
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2010 ADA Standards for Accessible Design
• Public accommodations and commercial facilities obligated to follow the 2010 Standards
• Responsible for performing self-assessments • Implement Transition Plans
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• Revised Title III of the ADA published on September 15, 2010 • ADA 2010 Standards became enforceable on March 15, 2012
Intrinsic Benefits
• Curb ramps strollers and bulky item navigation • Better ergonomics of building components • Audible tones for traffic signal, elevators • Visual strobes for fire alarm systems • Reduce trip hazard at flooring and doorways • Improved identification and directional signage • Limit protrusion/obstacle in corridors and hallways
Trends for Non-Compliance
• Dramatic increase in litigation • Approximately 4,000 accessibility suits filed in 2014
(25% over 2013) • Increase in “serial” plaintiffs and activist attorneys • Evolving regulatory/political climate
– Compliance “sweeps” – High-profile “example” cases
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Risks of Non-Compliance
• Reputational and Brand Risk impacts • Financial impact
– Punitive and Actual Damages – Legal fees – Design and consulting fees
• Time frame to comply is mandated • Loss of control of process and timeline
Typical Hot Buttons Hospitality
• Parking and path of travel • Accessible routes • Common area • Accessible guest rooms • Auxiliary aids and Service • Accommodation of service
animals • Amenities and swimming pools • Accessible restrooms • Food service / restaurants
Retail Landlord typically responsible for: • Accessible van parking • Accessible car parking • Accessible routes (paths of travel and
building entry to tenant door) • Common area public restrooms • Access to all other landlord-
controlled public amenities
Tenant typically responsible for: • Accessible entrances, exits and paths
of travel in tenant space • Public restrooms • Accessible point(s) of sale and
countertops
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Proactive Vs. Reactive
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Proactive Approach
• Two-way conversation based on documented plan • Documented policy establishes good faith efforts to comply • Transition Plan facilitates removal of barriers in accordance
with YOUR priorities • Reduced legal costs • Control annual budget costs • Control Transition Plan timeline
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Reactive Approach
• Typically a one-way conversation, e.g. mandated solution • D.O.J. / A.G. investigation will result in THEM setting the
scope and timing of the compliance action • A complaint is likely a question of “when,” not “if” • Increased legal fees and consulting fees due to imposed
timelines • Costs may include the repairs AND civil penalties and
plaintiff ’s legal fees • No ability to control barriers, schedule, or budget
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Which Approach to Choose?
• Proactive – Good faith effort – More control – Reduce risk of exposure
• Reactive – Only fix what you have to – Run the risk of exposure at your other sites – Legal fees may be higher
• Consult your corporate legal team • Seek technical advice
Planning
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Components of ADA Plan 1. Develop a corporate policy regarding accessibility 2. Define the regulatory landscape of your portfolio
a. Legal counsel is a key part of this step
b. What ADA Law and other applicable regulations apply
c. Landlord vs. Tenant responsibility
3. Perform a self-assessment 4. Prioritize findings related to barriers 5. Draft a Transition Plan (aka Barrier Removal Plan) 6. Develop Transition Plan costs / budget 7. Implement plan 8. Execute plan 9. Document progress
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Establish a Corporate Proactive ADA Policy
[The Company] recognizes that it is unlawful to discriminate against customers of its hotels because of a disability. As such, it
is the policy of [the Company] to comply with the Americans with Disabilities Act ("ADA") and all applicable federal, state, and local laws, so that the properties owned and operated by
[the Company] are accessible to people with disabilities within the meaning of the law.
In support of this policy [the Company] has developed a
Transition Plan / Barrier Removal Plan based on a Self-Assessment.
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in conjunction with your legal counsel
Key Elements of Self-Assessment
• Training and accessibility awareness • Document review
– Site/plan review – Lease agreements – Landlord/tenant delineation maps, etc.
• Site walk-through and survey form • Site-specific measurements and data gathering • Documentation photos, reports, cost estimating • Ongoing verification, monitoring, calibration
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Prioritize Findings of Self-Assessment
Example of Barrier Priorities: Priority One - Accessible Parking and Loading Zones Priority Two - Accessible Routes: Ramps, Curb Ramps, Doors Priority Three - Restrooms, Stairways, Lifts and Elevators Priority Four - All other owner-controlled public amenities
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Getting Buy-in for your Strategy
Quantify the Risk of Exposure or Inaction • Test locations/sample size • Understand most visible areas • High level budgeting • Establish reasonable timeframe
Getting Buy-in for your Strategy
• What if you take no action? – Historic Data – Industry Trends
• Needs to Be objective and quantifiable – Develop a documented ADA Plan
Case Studies
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Case Study #1 Ground-Up Construction – Proactive
Situation • Client wanted to understand the current deficiencies and
develop a plan to fix during the prototype/construction of all new-build locations
Approach • Stand-alone new construction – on every new location • Compliance visit post construction
Outcome • Client has identified and changed several prototype items
in an effort to become more accessible
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Case Study #2: National Hotel - Proactive
Situation • Concern over 2010 ADA regulation updates • Goal: Which properties were deficient, and in what ways? • Properties ranged from 100 - 1,200+ rooms
Approach • Surveyed parking lots, guest rooms, multiple pools, bars,
restaurants, restrooms, and all paths of travel Outcome
• Reports allowed Board of Directors to proactively plan for needed capital 12 - 24 months out
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Case Study #3: National Retailer - Reactive
Situation • DOJ Settlement • Required 5 year compliance program • 49 states
Approach • Pre-determined “list” of compliance requirements (vs. site by site) • Survey – then remedy within 12 months of survey • “Firm” list of corrections at each location • Audit and Documentation Procedures
Outcome • Will be fully compliant by mid-2016
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Case Study #4: National Restaurant Operator - Reactive
Situation • Litigations at fewer than 10 sites • Potential to be expensive and class action
Approach • Developed SOW for exterior remediation
Outcome • Now a national proactive program at remaining locations
• Over 5 years • Developing Policy & Procedures • Planned Capital Spend
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Key Takeaways • Awareness and risk are growing • Complex but manageable regulation • Develop a documented strategy and be
consistent • Strategy should be based on legal and
technical guidance
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Additional Resources
U.S. Access Board http://www.access-board.gov/
Dept. of Justice (DOJ) http://www.ada.gov/2010ADAstandards_index.htm
ADA National Network (10 Regional Centers) http://adata.org/contact-us
ADA Checklist for Existing Facilities http://www.adachecklist.org/doc/fullchecklist/ada-checklist.pdf
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About EMG
Thank You! For questions, contact:
Ron Stupi Principal [email protected] Ph. 602-758-4790 www.qpmllc.com
Aliza Stern Principal [email protected] Ph. 800-733-0660 x7610 www.emgcorp.com