-Partners in Practice -
ProNet PRACTICE NOTES	JULY 1993

On July 26, 1990, President George Bush signed into law the Americans with Disabilities Act. This has been referred to as the Emancipation Proclamation for all disabled individuals in the United States of America, but most everyone calls the law ADA. The legislation offers civil rights protection to individuals with disabilities that are similar to rights based on race, sex, national origin, and religion that are embodied in the U.S. Constitution. The civil rights enacted by the ADA have had a profound effect on the built environment as architects and building designers sort through their requirements. It does not overstate the effect of ADA to call it profound in comparison to past practices; however, the ADA is only a measured step to enfranchise disabled Americans in the built environment. Cost, practicality, and alternative facilities weigh in the decision to emancipate Americans from constructed barriers. How far one must go is the substantive and persistent question not settled by the law or administrative interpretations.

Architects have always been interested in social causes. Still, it would be optimistic to believe that all have been sensitive to the disabled in their designs. Even when sensitive, the demand for receptive, accessible buildings has been lacking. The ADA arrives as fulfillment of the desire to freely participate by those who have been held back as productive members of our society either by physical barriers or attitude. An estimated 43 million people are classified as Americans with disabilities. So a large a number of people using buildings regularly will test compliance with ADA, not to mention the sensitivity of architects and building owners.

The law mandates that all new construction and alterations to existing buildings for both private and public entities be designed and constructed in compliance with ADA requirements, most of which became effective on January 26, 1992. The ADA Accessibility Guidelines (ADA-AG) were issued in July 1991 by the Architectural and Transportation Barriers Compliance Board (ATBCB), an independent Federal Agency. The ADA-AG is the guidebook currently used by design professionals to evaluate compliance.

It is certain that new buildings designed to the ADA-AG will be more accommodating. What is striking about the ADA is the procession of interpretation ending in civil rights litigation. Considerably more foresight, imagination, and innovation is apparently required of design professionals than is needed for mere adherence to a building code. If architects must wait until courts have decided individual rights infringement cases, the question "What is the best overall design?" may become more pertinent than "What design will comply?"

Also striking is the requirement to retrofit existing public accommodations owned by private entities. There, questions of cost, practicality and alternatives are particularly acute. The courts are certain to test how well the balance was achieved.

Despite the ambiguous path, the objectives of ADA are appealing to design professionals. The consequence will be buildings that serve better through architecture even if spurred on by law. Where the law is ambiguous, risk is present, and this paper will offer some guidance.

The Americans with Disabilities Act is separated into five titles. Each one has different effective dates, ranging from August of 1990 to July of 1993. The five titles include:

The majority of the discussions in this paper will be in reference to Title II and Title III, which specifically affect physical facilities.

Title II affects most public entities. The Executive Branch of the Federal Government is unaffected. Coverage there is continued by the Rehabilitation Act of 1973 and the Architectural Barriers Act of 1968.

All activities, services, and programs of all other public entities are included under the ADA, whether or not they receive federal funds. Section 504 of the Rehabilitation Act of 1973 applied to public organizations that received federal assistance, while the ADA applies even in the absence of federal funds.

Prior to the ADA, the design of all new or altered federal buildings was required to be in compliance with the Uniform Federal Accessibility Standards (UFAS). These technical provisions were derived from the A117.1-1980 accessibility standards developed by the American National Standards Institute (ANSI). Entities of Title II facilities must choose a base standard by which to comply. The UFAS is still acceptable for use in the design of Title II facilities and should be used to design those facilities covered by the Rehabilitation Act of 1973. An option is offered to design in compliance with the Americans with Disabilities Act Accessibility Guidelines (ADA-AG), without the elevator exemptions for other Title II buildings. All new construction and alterations to existing Title II buildings must comply with the ADA using either UFAS or ADA-AG. The ADA-AG was written by the ATBCB using UFAS as a base, incorporating both a broader scope and new technical provisions.

Unlike Title III's requirements for public access, the Title II mandate to eliminate barriers from existing buildings is not conditioned by a financial burden test. A higher degree of compliance is required of Title II public entities to make their programs accessible to individuals who are unable to negotiate physical barriers to their use of an existing facility. The ADA requires elevators for access to public services on levels other than those at grade in Title II buildings. Some programs may be made accessible only by retrofitting physical space. Yet, Title II allows creative approaches to program access. An inaccessible library in a neighboring community of Tulsa met its obligation by providing curbside delivery of books to those who phone ahead. People with disabilities are prevented from browsing at this library, but accessibility to the essential services meets the intent of this law in the near term. This creativity is acceptable on a temporary basis and is condoned by the Department of Justice as long as an alternative to provide the full service is planned at some near term date.

This title covers buildings other than those publicly funded. A "Public Accommodation" is a private entity that owns, leases (or leases to), or operates a "place of public accommodation." The place of public accommodation is a private facility with operations that affect commerce and fall within at least one of the following 12 categories:

·			Place of lodging (e.g., a hotel or motel)
·			Establishment serving food or drink (e.g., a restaurant)
·			Place of exhibition or entertainment (e.g., a theater)
·			Place of public gathering (e.g., a convention center)
·			Sales or rental establishment (e.g., a bakery or clothing store)
·			Service establishment (e.g., a bank, barbershop, office of a lawyer or professional office of a health-care provider)
·			Station used for specified public transportation
·			Place of public display or collection (e.g., a museum)
·			Place of recreation (e.g., a zoo or amusement park)
·			Place of education (e.g., a nursery school or post-graduate private school)
·			Social service center establishment (e.g., senior citizen center or food bank)
·			Place of exercise or recreation (e.g., a health spa.)
Exemptions Include:
·			Entities controlled by religious organizations
·			Private clubs
·			Private residential facilities addressed in the Fair Housing Amendments Act of 1988.

A "Commercial Facility" is a facility intended for nonresidential use by a private entity whose operations affect commerce. Examples are office buildings, warehouses, factories and other buildings in which employment may occur. This is highlighted as a particularly gray area of the Americans with Disabilities Act.

While a public accommodation contains areas that are meant for the public's use, a commercial facility is built for a private business and its employees. For instance, an office building that is occupied by a single tenant and contains no places of public accommodation would be considered a commercial facility.

All new construction and alterations to existing "Public Accommodations" and "Commercial Facilities" buildings must be designed and constructed in compliance with the ADA for Title III buildings. In addition, physical barriers in existing Title III Public Accommodations facilities must be removed if it is determined that the removal is "readily achievable." These barrier removals are not required for Title III Commercial Facilities.

What is "readily achievable" by the ADA definition is "easily accomplishable and able to be carried out without much difficulty or expense." Whether an action is readily achievable is to be determined on a case-by-case basis, and it is always determined in the first instance by the owner of the facility, the tenant, or (in any case) whoever is acting as the client to the architect. The Department of Justice has declined to set dollar numerical limits.

The following factors are relevant:

·		The nature and the cost of the action needed.
·		The overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources, or the impact upon the operation of the site.
·		The geographical separateness and the administrative or fiscal relationship of the site or sites to any parent corporation or entity.
·		If applicable, the overall financial resources and size of any parent corporation or entity.
·		If applicable, the type of operation of any parent corporation or entity-each barrier removal action need not be considered in complete isolation when determining what is readily achievable, and the costs of other barrier removal actions may be considered as another factor when determining if a measure is readily achievable.

The client (not the design professional) must select the method for correction to obtain compliance and determine what is "readily achievable." Financial decisions have always rested finally with our clients. Design professionals make recommendations based on the knowledge, skill, and judgment of their profession. Architects are not financial officers for their clients equipped with an overall economic perspective adequate to determine financial feasibility. Plainly, an architect cannot guarantee that the client's decisions will comply with the ADA.

Tenant/landlord agreements add a further complication. It is generally accepted by the landlords that a tenant is responsible for making "readily achievable" changes in its office space; however, the final decision may reside in the language and interpretation of the lease agreement. It is more evident that the landlord is generally responsible for making readily achievable changes in the common areas of existing buildings. These issues must be settled on a case-by-case basis more by law than by architecture.

Examples of measures which may be "readily achievable" outlined by the Department of Justice include:

·		Installing ramps
·		Making curb cuts in sidewalks and entrances
·		Repositioning shelves
·		Rearranging tables, vending machines, and other furniture
·		Repositioning telephones
·		Adding raised markings on elevator control buttons
·		Installing flashing alarm lights
·		Widening doors
·		Installing offset hinges to widen doorways
·		Installing accessible door hardware
·		Installing grab bars in toilet stalls
·		Rearranging toilet partitions to increase maneuvering space
·		Insulating lavatory pipes under sinks to prevent burns
·		Installing a raised toilet seat
·		Installing an accessible paper cup dispenser at an existing inaccessible water fountain
·		Installing a full-length bathroom mirror
·		Repositioning a paper towel dispenser in a bathroom
·		Creating designated accessible parking spaces
·		Removing high pile, low density carpeting

The first priority for Public Accommodations action, as stated by the DOJ, should be given to the measures that will enable individuals with disabilities to "get in the front door." This is the place to start for all barrier removal plans.

The ADA-AG is a guideline with an emphasis on the future. All new construction and alterations must be accessible. When alterations to primary function areas are made, an accessible path of travel to the altered area must be provided. This path of travel includes bathrooms, telephones, and drinking fountains. The additional accessibility alterations may be considered disproportionate in cost if they exceed 20 percent of the original alteration. In the words of the Rules and Regulations, "Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area." Alterations to windows, hardware, controls, electrical outlets, and signage in primary function areas do not trigger the path-of-travel requirement.

The Americans with Disabilities Act Accessibility Guidelines (ADA-AG) were written specifically as Title III building design guidelines. There are 20 technical elements included in the ADA-AG. Foremost is primary access to the building. The second area of importance is access to goods and services and the third is access to restrooms. The categories of elements used to determine accessibility are:

1.		Accessible Route - Exterior
2.		Accessible Parking
3.		Curb Ramps
4.		Entrances
5.		Accessible Route - Interior
6.		Ramps
7.		Stairs
8.		Elevators
9.		Platform Lifts
10.		Doors
11.		Drinking Fountains
12.		Toilet Rooms and Bathrooms
		12.1	Water Closets
		12.2	Toilet Stalls
		12.3	Urinals
		12.4	Lavatories and Mirrors
		12.5	Sinks
		12.6	Bathtubs
		12.7	Shower Stalls
		12.8	Grab Bars
		12.9	Tub/Shower Seats
13.		Assembly Areas
14.		Storage
15.		Alarms
16.		Signage
17.		Public Telephones
18.		Seating and Tables
19.		Automatic Teller Machines
20.		Dressing and Fitting Rooms

Elevators are not required in Title III buildings if under three stories or with less than 3,000 square feet per floor, unless the building has a particular use--a shopping center or mall, a professional office of a health care provider, a public transit station, or an airport passenger terminal. In contrast, elevators are required in Title II buildings if activities, services, or programs for the public are provided at other than grade level.

The first step for the building owner or tenant is preparing a barrier removal plan, and that would include:

·		Identify any existing barriers. An appropriate analysis will compare the existing building or facility to the requirements for new construction and alterations for similar new construction and alterations outlined in the ADA AG.
·		Once all existing barriers have been identified, determine what is "readily achievable." The Department of Justice priority list should be considered to determine which barriers are the most critical. All existing barriers that can be removed through "readily achievable" measures should be removed. "Readily achievable" barrier removal is an ongoing obligation.
·		Establish a periodic review process when barriers remain that cannot be removed currently by "readily achievable" means. Public accommodation may be improved when removal of these barriers is readily achievable at some future date.

The Americans with Disabilities Act requirements for public accommodations and commercial facilities became effective on January 26, 1992. New facilities designed and submitted for building permits by January 26, 1992, and with first occupancy later than January 26, 1993, must also comply.

The Department of Justice will enforce Title II, State and Local Government Services, and Title III, Public Accommodations and Commercial Facilities. It is important to note that there are no ADA police. The building codes used by building officials in this country are not ADA-certified. The ADA is not a building code: It is civil rights legislation. There is an ADA provision for DOJ certification that state or local accessibility regulations meet or exceed the requirements of the Americans with Disabilities Act.

Any aggrieved party has the right of private action. Generally, lawsuits could not be filed for Title III public accommodations until January 26, 1992. In addition, except with respect to new construction and alterations, lawsuits may be filed beginning July 26, 1992, against businesses with 25 or fewer employees and gross receipts of $1 million or less. Additional time, until January 26, 1993, was allowed before suits could be filed against businesses with 10 or fewer employees and gross receipts of $500,000 or less. These small businesses could have been sued at any time for violations relating to new construction and alterations to facilities in planning after the applicable effective date.

The legal front has been active. The February 5, 1992, issue of the Washington Post reported that in Washington D.C., the Capital Hilton, Woodward & Lothrop's F Street store, Raleigh's Clothiers, and the Union Station theater complex all were targeted in separate lawsuits filed by a local lawyer who has used a wheelchair since he was paralyzed in 1975. The suits allege that inadequate entrances, rest rooms, elevators, or other barriers prevented the lawyer from using the services in these businesses, and he suffered "inconvenience, embarrassment, humiliation, emotional distress and the indignity and stigma of discrimination." Private enforcement lawsuits may follow a similar pattern.

This law is one that encourages voluntary compliance by all Americans. There are incentives for action. Since 1976, the IRS tax code has allowed companies up to $15,000 per year for expenses associated with removal of architectural and transportation barriers. This deduction may be taken only once each year for all facilities under control of the taxpayer. There is also an annual tax credit for small businesses to offset ADA compliance costs of up to $5,000. A small business is one having less than $1 million gross receipts and 30 or fewer full time employees.

The greatest immediate incentive is the avoidance of economic penalties. An individual has the right to file a private lawsuit, as mentioned in the Washington Post example. Title III does not allow monetary recovery to individuals, but a civil judgment may require that the defendant make the facility accessible and pay for attorney fees and costs.

As an additional or alternate approach, individuals may file complaints with the Attorney General. Following an investigation, the Attorney General may bring "pattern and practice" cases against owners or tenants of inaccessible buildings. These cases are filed on behalf of the United States Government, and, if successful, the maximum monetary recovery is $50,000 for a first violation. The maximum recovery for additional violations is $100,000. The court may also order further remedies for any violation--that the defendant make the facilities accessible, provide auxiliary aids; modify policies, pay attorney's fees and costs, and provide monetary relief for the injured party including, but not limited to, relief for pain and suffering, but not for punitive damages.

Title II entities are also subject to civil suit for the remedies available under section 504 of the Rehabilitation Act of 1973. Monetary recovery is not allowed, but reasonable attorneys' fee may be awarded to the prevailing party. Under Title II, individuals may also file complaints with one of eight appropriate administrative agencies. Complaints on behalf of classes of individuals are also permitted. For example, the Department of Health and Human Services might file a suit for users of public health-care facilities. Complaints may also be sent to agencies designated to process complaints under the regulation or to agencies that provide federal financial assistance to the program in question. 

The incentive for the future is to design universal buildings which are usable by everyone. This is almost certain to fulfill the objectives of the Americans with Disabilities Act.

The Americans with Disabilities Act will be of economic benefit to those architecture firms which pursue additional professional services in the area of facility accessibility audits. These audits are provided to aid in the development of the barrier removal plans for each building owner or tenant. Following the audits, there is the potential for traditional architectural service to design the required barrier removal. This area is also of economic benefit to building contractors around the country. It is important to note that it is not the intent of the ADA to rebuild America.

The time between promulgation of regulations, guides, and codes and their certification by the DOJ is a time of transition. Some would characterize transition as risk, and they may decide conservatively. If architects advise conservatively and building owners choose more than the minimum renovation to protect themselves, they may anticipate the future. The purpose of the ADA-AG, after all, was to provide a guideline for the future.

Interpretations of the ADA are difficult to obtain in the period of transition, and that adds to the confusion and risk. Defense counselors representing architects in third party lawsuits may enjoy a source of income as a consequence. It is estimated that over 5 million private buildings are under the jurisdiction of the ADA, not including publicly owned facilities. It is unavoidable that architects will become involved in legal actions. We have heard comments that building owners are pursuing professional services as a source of risk management to shift the liability to the design professional. That strikes to the heart of the purpose of the Risk Management Committee of The American Institute of Architects--to inform the members of the AIA about risk management issues.

Plainly, owners and occupiers of buildings are exposed to suits by and on behalf of persons with disabilities. Some owners will hire architects to help them control their exposure. If architects perform their services negligently, they, in turn, are clearly exposed to lawsuits from their clients. All exposures faced by design professionals are not so apparent, and suits by disabled persons directly against design professionals or through the DOJ should be a concern. The ADA describes no class of people who are exempt from enforcement actions. While owners and occupiers are the targets of first opportunity, designers are mentioned in the ADA at least for their part in the design of new construction. The Justice Department has been unwilling to assure design professionals that ADA civil suits against them would be without legal foundation. That, alone, is enough to assure a legal test against someone in one court or another. Lawyers can be counted on for a particular group deportment: Lawyers will notice and mimic the successes of other lawyers. If design professionals are sued successfully in a single instance, other suits will follow.

Whether architects' and engineers' professional liability insurance policy will cover ADA based lawsuits is a paramount concern of the design professional today. Suits by clients (presumably brought for negligent services) are covered; however, suits by disabled persons will not require proof of negligence or breach of any standard of professional service. Disabled persons will base their suits on a denial of their civil right to enter into and use the built environment. If civil rights are denied by a person who owes a duty to accord civil rights, then, proof of negligence is beside the point. An argument can be constructed that professional liability insurance will not cover damages that arise without proof of negligence or without even an allegation that the design professional failed to comply with standards of practice. All design professionals need to be aware of this potential exposure.

An owner's protection plan begins with a barrier removal plan. This protection is best when the plan is done by an outsider, hopefully a knowledgeable architect who receives advice from the disabilities community. If completed in-house, the barrier removal plan may appear self serving. The lack of any plan at all could make defense quite a burden. Offering this service has the tendency to place the architect in the liability line-of-fire. As mentioned, understanding the potential of liability shifting to the design professional is an important lesson to learn. Appropriate contract language will help as a risk-management tool in this learning process.

Our firm provides accessibility audits as a professional architectural service. The first contract we negotiated was with our very smallest rural public hospital client. This project was unusual in size, but attorneys' fees could well have exceeded the entire architectural fee if we were paying our broker and insurance company attorney hourly rates for contract review. Nevertheless, we paid more than 10 percent of our fee to our firm's independent defense counsel, who was most uncomfortable with the risk potential for ADA professional services. After many rewrites, we settled on compromise language that was agreed to by our client. A copy of this language is included here as Exhibit I.

It is good business practice to involve legal counsel in the preparation of contracts. In order to prepare for this process, we recommend a document prepared by Covenants, a professional service firm under the direction of Charles R. Heuer, Esq., FAIA, from Somerville, Massachusetts. The aforementioned example of contract language for facility accessibility audits was prepared using this document.

Schinnerer Management Services, Inc. publishes "Guidelines for Improving Practice," which is the major risk management offering provided to architects. In their Volume XXI, Number 6 titled, The Americans with Disabilities Act: Managing the Risks, the ADA is classified as "liability neutral." Schinnerer outlines the three greatest risks for design professionals as the standard of care, express warranties and indemnifications, and professional service certifications as to ADA compliance. These items must all be addressed at the contract negotiation stage with each new project.

The greatest risk from traditional architectural service is in the short term, before the certification of the local accessibility regulations by the Department of Justice. It is very important that language be included in owner/architect agreements stating that the architect will not warrant their services or guarantee compliance with the ADA. Various parties will seek warranties and guarantees, but they are inappropriate at any time.

Technical assistance is organized through the Architectural and Transportation Barriers Compliance Board to interpret the guidelines, but there is a potential for inconsistent interpretation. Any inconsistency may increase the exposure during the implementation stages of the ADA. There is no formal appeal or waiver process to achieve finality of interpretations. Once accessibility regulations are certified, the architect will have more assurance that compliance with a local code will provide a reliable measure of compliance with the ADA and standards of due care.

Our firm is concerned about the size of the fee we earn from accessibility audits compared to the potential loss if we are involved in a lawsuit. Serving our client's ADA requirements is a necessary and desirable aspect of our business, but the defense expenses for even one suit could exceed our profit on many ADA engagements. The advantage of a limitation of liability provision occurred to us, but it turns out that the remedy there is limited. An agreement between architect and client to limit the architect's liability for damages to a fixed sum would not bind any third party disabled person whatsoever. It is significant in equal measure that those suits exactly (those not requiring proof of negligence) have unsettled insurance coverage.

Actually, Congress has done significant liability limitation work for us. Monetary damages allowable under ADA are themselves limited (as pointed out in Part VII above), and they are, accordingly, less susceptible to "runaway" jury verdicts too frequently experienced in bodily injury cases. The construction involved in barrier prevention and removal is not a high dollar sum compared to the whole construction, which tends to limit potential damages in cases of outright negligence.

Without overstating our confidence, we would expect our firm to perform our services in a highly defensible manner. Our greatest risk is attorneys' fees expended in our defense. Our liability in cases brought by clients for negligence (to the extent we have purchased adequate insurance in the first place) is already limited to our policy deductible. Persons worried about even those costs may find an advantage in "cost of defense" coverage available from most insurance carriers. If professional liability insurance coverage is uncertain for disabled party civil rights suits, then, a limitation of liability clause will not fix that. Design professionals would better protect themselves by working out coverage solutions with their insurance carriers and attending to quality in their ADA practice.

ADA exposures are best controlled by our methods of practice. We pay particular attention to our professional service agreements, where we limit the scope of our services to facility-related requirements of Title II and III only, not including employment, communications, or transportation issues. The owner's responsibilities are expressed, including the owner's choice among methods of "readily achievable" barrier removal. We put all feasible options before the owner, document the discussion, and record both the owner's choices and the reasons for them. If barrier removal cannot be readily achieved in one pass, we develop and record the plan for future steps. We endeavor to have an answer to the question, "What was done, what is planned to comply with ADA, and how is the plan justified?"

We believe that the objective of the DOJ and the disabilities community is access to the built environment. Wherever we provide services, we expect to be able to demonstrate without litigation that access and progress can be accomplished. We choose clients carefully. We could not (nor could anyone) render effective ADA services for clients reluctant to fairly meet ADA.

We make a point to have frequent, in depth contact with the Architectural and Transportation Compliance Board personnel and ADA personnel at the Justice Department, and we seek guidance and rulings in doubtful circumstances. As the Justice Department has gained experience, the guidance available there has become more informed and, we believe, increasingly reliable. We would no more practice in the ADA arena without relationships in the Department of Justice than practice in our home town without meeting our Fire Marshall. Architectural practice gets better by getting involved, so we network with our fellow architects.

We keep an open mind. Instead of emphasizing the ambiguity and utter strangeness of practice under a civil rights law, we attempt to adopt its objectives as our own. One need not become a crusader here, but a positive mental attitude is far more useful in assisting clients than a reluctant, apprehensive posture. Just as we have seen the good in our fire code, we accept that there is good in ADA, and we want to be a part of achieving it. A quick review of the bombed World Trade Center evacuation is enough reminder that everyone is disabled in extreme circumstances, and disabled persons are more so.

Architects cannot guarantee compliance with Title II or III of the ADA or compliance with any other law of the land. But, in my view, the ADA is special: There is no official interpretation by the ATBCB or the Department of Justice. It is a civil rights law. It is not a building code and will not be enforced as a code. Building codes are the standard design guidelines, but the ADA lacks many of the essential and useful features of codes. A building code should be easy to understand and consistently applied. A code book and a code official are essential to assist in the understanding and intent of the requirements of the building code. In many jurisdictions where accessibility codes exist, there is a potential conflict between ADA and existing guidelines that have not yet become certified. The design professional has the task of interpreting two sets of inconsistent and uncoordinated guidelines.

All accessibility building codes that exist must be individually certified by the DOJ. None have been certified as of January 1, 1993, although some are in the process. Each state and local government must make an application to the Attorney General, who will consult with the ATBCB. The DOJ may then certify that the code meets or exceeds ADA accessibility requirements. Despite certification, the enforcement alternatives discussed earlier are still available to an aggrieved party. Certification is not immunity, but it is a most welcome light in the darkness.

According to the U.S. Department of Justice, Civil Rights Division, in the Title III Technical Assistance Manual, January 24, 1992:

Certification is advantageous for the following reasons:

·		When an entity is designing, constructing, or altering a building in accordance with an applicable state or local code that has been certified by the Department, the designer or contractor will need to consult only that one code, in order to determine the applicable Federal, state, and local requirements.
·		The covered entity will have some degree of assurance in advance of construction or alteration that the ADA requirements will be met.
·		If a covered entity is subject to a lawsuit, compliance with a certified code will be evidence of compliance with 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 the codes is voluntary but would be extremely advantageous. The design community relies heavily upon code officials to maintain consistent interpretation of design guidelines. The telephone lines at the DOJ are clogged with calls, as the design community of the entire country is asked to call the Architectural and Transportation Compliance Board Hotline, (1-800-USA-ABLE). There, we speak with a whole new classification of government employees. These "accessibility specialists" will interpret unofficially only, and in some cases they are inconsistent. That is a major risk management problem. Attorneys and architects concerned about the future of our practices must all focus on an effort to encourage our local code officials to work for certification of local codes under the Americans with Disabilities Act. Order might be restored to an otherwise chaotic process. 

This Act will affect each one of us as employers. The Americans with Disabilities Act requires employers to engage in reasonable accommodations, which can include altering physical structures to meet the needs of an employee. Alternatively, one can reorganize job duties for employees with disabilities. An employer may be required to modify facilities to enable an individual to perform essential job functions and to afford equal opportunity to participate in other employment-related activities. For example, the employee lounge or break room may become work space. Employers must also enable any qualified applicant to participate in the application process, but this does not require building modification.

An employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined by the Equal Employment Opportunities Commission as "an action requiring significant difficulty or expense" when considered in light of a number of factors. These factors are similar to those outlined in this document when describing "readily achievable. 

The removal of discriminatory situations and the attitudes (even benign neglect) that allow them to persist will take time. In the summer of 1988, I was assigned to work on the master plan for a city park in Tulsa. Jill Tarbel, a community leader and one of the activists for disabled rights, was on the building committee. It was always difficult to plan a meeting site, as quite often Jill could not gain access to a particular building where there were no curb cuts or there were steps at the front door. During one meeting, she pulled me from the conference room to go down the hall with her. As we stood in this inaccessible toilet room of a public facility, she asked me for advice how she might complete her task of going to the bathroom. All discriminatory attitudes departed from me at that moment on one hot summer day.

One year later, as our firm was looking for new offices to lease, we found it next to impossible to find accessible office buildings. We looked at more than we could count, and found only two choices that would allow people with disabilities to meet with us in our office. We now have an accessible office and a true appreciation for the needs of the disabled within our community. We believe that with the requirements of the ADA, it is possible for our clients (along with the building officials, the landlords, the tenants, and all people) to realize their fullest potential in life where their lives encounter our built environment.

12.1 General.?The Americans with Disability Act of 1990 (ADA) is relatively new and is a complex law. It contains many concepts and terms which have yet to be tested by actual experience or defined in the courts with respect to particular factual situations. The Client and Consultant have discussed this situation prior to entering into this Agreement. Accordingly, the Client acknowledges that the Consultant has made no warranty, express or implied, that, in performing its services, it will locate every barrier to individuals with disabilities the removal of which might be required by the ADA, or make every provision or furnish every facility required thereby. Further, the Client acknowledges that, as between the Client and Consultant, the Client is solely responsible for non-discrimination under the ADA.

12.2 Indemnification. The Client agrees to protect, defend, indemnify and hold harmless the Consultant against all claims, costs, expenses, litigation and liabilities (including, without limitation, attorneys' fees, court costs and other costs of suit) arising as a result of any injury of loss sustained or alleged by any person or entity, whether a party to this agreement or not, allegedly arising out of Consultant's performance of services hereunder.

12.3 Service. The Consultant shall perform the following services:

12.4 The Consultant SHALL NOT be obligated to perform services other than as described in Paragraph 12.3. Such other services not to be performed include, but are not limited to:

____________

* Connie McFarland, AIA, CSI, is serving her second term as Chair of the Architects' Risk Management Committee of The American Institute of Architects. She is President of McFarland Architects, P.C., an architectural and planning firm in Tulsa, Oklahoma. Ms. McFarland holds a Bachelor of Science in Architectural Studies from Oklahoma State University and a Bachelor of Architecture from the University of Oklahoma. She has a diversified practice in corporate and public projects with an emphasis in services to the health care industry. She adapted this paper from a paper presented to the 31st Annual Meeting of Invited Attorneys.

For inquiries or problems please contact us via e-mail at Earleen Thomas or call us directly at 800-705-7742.
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