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M|O Perspectives

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After 30 Years of the ADA, Why Do Barriers Still Exist?

Sep 16, 2020

It’s been 30 years since the Americans with Disabilities Act (ADA) passed. So why are design and construction errors still so prevalent in new and existing construction?

The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. So, after all of this time, why do barriers that have frequent and greater impacts on the quality of life for people with disabilities still exist? In our view, it comes down to complexity, conformance and continuity.

The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of life, including public and private places that are open to the general public. Signed into law in 1990, it was modeled after and also expanded upon the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. As such, the ADA remains a critical guide for the built environment. But it’s also complicated.

Complexity of ADA - Design

The ADA Standards for Accessible Design have a tremendous amount of information which can be difficult to navigate. In addition, these standards do not cover all specific items and occurrences, and naturally, this can lead to gray areas. This lack of clarity brings varying opinions and interpretations that can serve to confuse those involved in the design, construction and ownership of properties.

The ADA applies to both alterations at existing facilities and new construction. For example, one new construction project we’re working on at Marx|Okubo has three different accessibility consultants with different opinions—some, for example, related to risk management. Complexity coupled with confusion does not make for conforming properties.

In addition, for structures built prior to the enactment of the ADA, places of public accommodation are required to remove barriers when it is “readily achievable” to do so. That means easily-accomplishable and able to be carried out without much difficulty or expense. So how do you determine what is readily achievable? This assessment can be so complex that it often requires insight from accountants and lawyers as well as architects. Yet more opinions can further complicate the situation.

Conformance is Critical - Construction

Sometimes, even the best-laid plans go wrong. Construction projects contain hundreds of moving parts which go beyond accessibility, so it is easy for the design and construction team to lose sight of one aspect while focusing on something else. Often, errors at installation are repeated over numerous elements and spaces, which can multiply the problem and become more expensive to remedy.

Without quality control, these conformance issues are difficult to catch because spot-checking may not identify them. In fact, sometimes an owner doesn’t hear about these problems until after the building is occupied. Often, it can be tenants or periphery accessibility consultants who uncover accessibility violations.

Unfortunately, owners often cut fees and scope for this critical component first. But, in our experience working on projects here at Marx|Okubo, we can assure you that it’s far more expensive to correct for accessibility issues after they have been built into a structure. So, what should you do?

Continuity in ADA Consulting - Solution

The best solution to make sure your project is compliant is to partner with a qualified, highly-experienced accessibility consultant that can not only design the ADA strategy employed in your building, but also follow an aggressive, consistent quality control program. For new construction, we recommend this consultant have the capacity to provide a full suite of services from design to occupancy, across the project lifecycle, and agree on a scope of services that can head off problems before they get out of hand. All of this is critical to empowering your decision-making and to your project’s overall accessibility success.

Here are three things to look for in an ADA consultancy:

  • Ability to maintain project continuity from the earliest design phases all the way through occupancy — and beyond
  • Complete understanding of accessibility, coupled with a scope of services that allows for proactive construction visits to monitor conformance
  • Ongoing availability to answer inevitable compliance questions during every step of the construction project

What if you are acquiring an existing, already-built facility? For ADA, when you buy the property, you also incur the civil rights violations that exist. It is vital to get a comprehensive review of the property to identify those areas and understand the potential complexity of those violations. Importantly, if purchasing a property built after the enactment, then it was required to comply at the time of construction, and those violations must be corrected. A skillful accessibility consultant can help you evaluate all aspects of the building to identify all areas of nonconformance.

For existing facilities, it’s essential to have a comprehensive plan. In this process, proper and thorough documentation is key for compliance and to anticipate/plan for changes. For example, barrier removal may not be "readily achievable" today, but it could be in the future. Places of public accommodation should have a plan that includes a list prioritizing barrier removal based on the ADA's recommendations of those to be mitigated or eliminated first, as well as costs and timelines for removing barriers.

For any questions or to get more information on accessibility consulting services, please contact Angela Shapiro or Sarah Strauch.

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Marx|Okubo is a national architecture/engineering/construction consulting firm that works with real estate owners, investors and lenders—at every point of the property lifecycle—to evaluate their building projects, solve complex challenges and implement tailored solutions. We help clients understand their projects’ complexities, so they can make more informed decisions and, ultimately, mitigate their risk.