Newly Constructed and Altered Buildings and Facilities
Title III of the ADA
authorizes the Department of Justice to certify that State
laws, local building codes, or similar ordinances meet or
exceed the ADA
Standards for Accessible Design for new construction and
alterations. Title III applies to public accommodations and
commercial facilities, which include most private businesses
and non-profit service providers. Examples of covered
businesses are restaurants, banks and commercial lending
institutions, movie theaters, stadiums, grocery and
convenience stores, health care facilities and professional
medical offices to name a few.
Congress, by authorizing the certification of State and local
accessibility requirements under title III, recognized the
important role that state and local building codes and
standards may play in achieving compliance with the
building-related aspects of accessibility. State and local
building officials who are involved in plan approval and
construction inspection processes may provide important
assistance to construction and design professionals through
their oversight of the accessibility requirements of a
certified State or local code.
And, in any legal challenge that might be brought under the
ADA to facilities constructed in compliance with an ADA
certified code, compliance with the certified code constitutes
rebuttable evidence of compliance with title III of the ADA.
The benefits of certification are not limited, however, to
potential ADA lawsuits.
Why is Certification Important?
Voluntary compliance is an important component of an effective
strategy for implementing title III of the ADA. Private
businesses that voluntarily comply with ADA accessibility
requirements help to promote the broader objectives of the ADA
by increasing access for persons with disabilities to the
goods, services, and facilities available in our respective
communities. Certification facilitates voluntary ADA
compliance by assuring that certified State and local
accessibility requirements meet or exceed ADA requirements. In
this regard, business owners, builders, developers,
architects, and others in the design and construction industry
are benefitted because, once a code is certified, they can
refer to certified code requirements and rely upon them for
equivalency with the ADA.
Certification of a state or local accessibility code also
allows business owners, builders, developers, and architects
to rely on their state or local plan approval and building
inspection processes for assistance with ADA compliance
through the implementation of certified accessibility
requirements. Should a mistake occur in the design or initial
construction phase of a project, the mistake can be identified
early through the plan approval and inspection processes and
corrected at a time when adjustments can easily be made and
the costs for doing so remain low. In this manner, State and
local building code officials in jurisdictions with an
ADA-certified code can play an important role in checking to
determine whether accessibility requirements have been met.
Finally, jurisdictions that provide accessibility “check
points” such as those described above through the
implementation of a certified code provide a significant
benefit to private industry and an incentive for growth and
development.
Overview of the Certification Process
Technical Assistance For State and Local Governments
The Department of Justice provides technical assistance to
jurisdictions that are in the process of adopting or amending
their accessibility requirements and would like our views
regarding the extent to which the proposed requirements comply
with or exceed ADA accessibility requirements. To obtain
technical assistance, the jurisdiction should submit a written
request to the Department along with the proposed
accessibility requirements and any appropriate supporting
materials (for example, information concerning any model code
or statute on which the proposed requirements are based;
copies of any statute, standard, or regulation referenced in
the proposed requirements; and any relevant manuals, guides,
or other interpretive information about the proposed code or
about provisions of the proposed code that are carried over
from a pre-existing code or requirement).
The same Department of Justice staff who review certification
requests for finally enacted accessibility requirements will
undertake a review of the proposed code for technical
assistance purposes only. ADA certification, however, can only
be granted for finally enacted codes and requirements that are
capable of administration under State or local law.
Technical Assistance For Model Code Organizations
The implementing regulations at
28 C.F.R.
36.608 provide for requests from model code organizations
for guidance from the Department of Justice regarding the
consistency of model codes with ADA accessibility
requirements. The ADA does not authorize the Department,
however, to certify model codes and standards.
Certification Requests From State and Local Governments
Throughout the certification review process, Department of
Justice staff provide assistance and guidance to
representatives of State and local governments that request
certification of their accessibility requirements. Upon
receipt of a complete certification submission, a team of
experienced staff (architects, accessibility specialists and
attorneys) undertake a detailed comparison of the submitted
accessibility code to the title III requirements for the
design, construction, and alteration of buildings and
facilities, including the
ADA Standards for
Accessible Design. The staff may contact submitting
officials during this process to gain additional information
about the correct interpretation and application of the
submitted code. Prior to making a preliminary certification
determination, the Department often provides written technical
assistance to submitting jurisdictions. In its technical
assistance letter, the Department could point out provisions
of the submitted code that raise concerns or questions about
equivalency with the ADA, and may suggest possible changes or
revisions to achieve compliance with the ADA. Once a
preliminary determination is made that a submitted code meets
or exceeds ADA requirements, the submitting jurisdiction is
notified, members of the public, including persons with
disabilities, are notified, and the public is provided an
opportunity to comment. If the preliminary determination of
equivalency is sustained, the Department will issue a
certification of equivalency.
How to Request Certification
To request certification, a jurisdiction should provide the
Department with a written request that complies with the
specifications in the title III implementing regulations,
subpart F
at 28 C.F.R. 36.601 et. seq.
Summary of the
certification submission requirements, copies of
certification-related forms, and a more detailed description
of the certification process.
