Original Document: Here's what I think. Under ADAAG the following exceptions apply to new construction and alterations respectively: In new construction, a person or entity is not required to meet fully the requirements of these guidelines where that person or entity can demonstrate that it is structurally impracticable to do so. Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features. If full compliance with the requirements of these guidelines is structurally impracticable, a person or entity shall comply with the requirements to the extent it is not structurally impracticable. Any portion of the building or facility which can be made accessible shall comply to the extent that it is not structurally impracticable. In alteration work, if compliance is technically infeasible, the alteration shall provide accessibility to the maximum extent feasible. Any elements or features of the building or facility that are being altered and can be made accessible shall be made accessible within the scope of the alteration. Technically infeasible means, with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility. It is my understanding that the head of the organization must make these determinations, so if its a City then the Mayor, or the mayor's designee, makes these calls. If such a determination has been made (this typically requires a formal, predefined process) then it has legal standing and would probably need to be challenged in the courts, unless the Department of Justice has a means for determining and dealing with obvious abuse of this exception. If you are a state overseeing a sub-recipient, then you are obligated to ensure that your sub-recipients are compliant with Section 504 of the Rehab Act and the ADA. In this case, if you think the entity is non-compliant (and from the information you supplied it seems that they are, intentionally) you can start the process of denying further state and federal assistance to that entity. You also have the option of filing a formal complaint with the USDOT or the USDOJ regardless of whether the entity is a sub-recipient of yours or not. My best advice is to find out who the ADA coordinator and the risk manager of the Title II entity is and work this out with them. The State's language does not supercede the federal law and regulations so a local entity that is thinking they can use State standards that are less accessible than the federal requirements is mistaken. It does work the other way, however; if a State requires greater accessibility than the federal requirements, the State's requirements will prevail.
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This page last updated on 10/15/2008 01:00:05 PM |
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