5.5.3 Disabled Access to Buildings

  A. Section 504 Program Accessibility Standards

The Department of Education’s Section 504 regulation applies to preschool, elementary, secondary, postsecondary, vocational, and adult education programs and activities, as well as other programs and activities that receive federal financial assistance. In accordance with Subpart C of the Section 504 regulation, no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity because a recipient’s facilities are inaccessible to, or unusable by, persons with disabilities.

The Section 504 regulation contains two distinctly different standards to be used in determining whether a recipient’s program and activities are accessible to individuals with disabilities. One standard applies to existing facilities; the other applies to new construction.

The term “existing facility” refers to any facility in existence or in the process of construction on or before June 3, 1977, the effective date of the regulation. The term “new construction” means groundbreaking that took place after the effective date of the regulation. “Facility,” as defined in the Section 504 regulation, includes all or any portion of buildings, structures, equipment, roads, walks, parking lots, laboratories, and other real or personal property or interest in such property.

For an existing facility, the regulation requires that the recipient’s program or activity, when viewed in its entirety, be readily accessible to persons with disabilities. This standard does not require that every facility or part be accessible, as long as individuals with disabilities have access to the programs and services contained in those facilities. Thus, recipients need not make structural changes to existing facilities where other alternatives are effective in making programs and activities accessible.

Examples of alternative methods include redesign or relocation of equipment, reassignment of classes and services, and provision or assignment of aids (e.g., use of “reach extenders” to access controls on elevators or light switches, assistance in retrieving library materials.)

Priority consideration, however, must be given to offering the programs or activities in the most integrated setting appropriate. In meeting the objective of program accessibility, an institution must use precaution not to isolate or concentrate individuals in settings away from other participants. For example, the Section 504 regulation would not permit making only one facility or part of a facility accessible if this resulted in segregating students with disabilities. It should be noted that if no effective alternatives can be provided to achieve program accessibility, a recipient is required to make necessary structural changes. These changes are to be consistent with the requirements for new construction.

For new construction, the regulation requires that a facility or part of a facility constructed by, on behalf of, or for the use of a recipient of federal financial assistance must be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by persons with disabilities. Likewise, all alterations that could affect the usability of a facility are required, to the maximum extent feasible, to be readily accessible to and usable by persons with disabilities, where the alteration was initiated after June 3, 1977.

When the Section 504 regulation became effective on June 3, 1977, design, construction, or alteration of buildings in conformance with the American National Standards Institute (ANSI) Standards A117.1-1961 (R 1971) was sufficient to satisfy the requirement for new construction. However, on January 18, 1991, an amendment to the Section 504 regulation replaced the accessibility guidelines included in the ANSI 1971 document with the Uniform Federal Accessibility Standards (commonly referred to as UFAS) (Appendix A to 41 C.F.R. subpart 101-19.6) for all new construction or alterations initiated from that date forward by a recipient of federal financial assistance. The Section 504 regulation permits departures from particular technical and scoping requirements of UFAS by the use of other methods where substantially equivalent or greater access to and usability of the building is provided.

 B. Accessibility Standards under the Americans with Disabilities Act

The American with Disabilities Act of 1990 (ADA), which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications, was enacted on July 26, 1990. On July 26, 1991, the Department of Justice issued final regulations implementing subtitle A of Title II of the ADA, which prohibits discrimination on the basis of disability by public entities. The U.S. Department of Education, Office for Civil Rights (OCR) is responsible for enforcing the Title II regulation in public elementary and secondary education systems and institutions, public postsecondary institutions and vocational education institutions (other than schools of medicine, dentistry, nursing, and other health-related schools), and public libraries. The regulations implementing Title II became effective on January 26, 1992.

The Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) is the applicable accessibility standard under the Title II regulation for new construction and alterations that were initiated after January 26, 1992, by, for, or on behalf of public entities. Because the regulation implementing Section 504 continues to apply to entities that receive federal financial assistance, public entities have a choice of following UFAS or ADAAG. However, public entities must follow the same standard throughout an entire building. They may not, for example, follow ADAAG on one floor of a new building and UFAS on the next floor.

It is important to note that although the ADAAG is modeled on UFAS, the ADAAG established different requirements in some areas. For example, requirements differ concerning elevators, signage, and telecommunication display devices or telecommunication devices for the deaf for individuals who cannot use voice telephones. In addition, the Title II regulation specifically disallows the elevator exemption contained in ADAAG for small buildings. The Title II regulation permits departures from particular requirements of either standard by the use of other methods when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

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