Americans with Disabilities Act Technical Assistance Letters

767

July 24, 1998

The Honorable Roy Blunt

Member, U.S. House of Representatives

2740 East Sunshine

Springfield, Missouri 65804

Dear Congressman Blunt:

I am responding to your letter on behalf of your constituent, Mr. Jerry King, regarding the enforcement of title II of the Americans with Disabilities Act of 1990 (ADA). Please excuse our delay in responding.

Mr. King's letter indicates that as the local building official one of his duties is to enforce the accessibility requirements found in the city's building code. The city's building code is currently based on a model code published by the Building Officials and Code Administrators (BOCA). In his letter, Mr. King states that he had recently received a bulletin from the U.S. Architectural and Transportation Barriers Compliance Board (Access Board), and this bulletin stated that effective April 13, 1998, all State and local government facilities must comply with title II of the ADA. Mr. King, based on the bulletin, expressed his concern that because local building officials have the authority to enforce locally adopted building codes and lack the authority to enforce the ADA, that this may create an "enforcement dilemma."

Under the ADA, the Access Board is required to issue minimum guidelines to assist the Department of Justice in establishing accessibility standards. The Department is responsible for issuing final regulations, consistent with the guidelines issued by the Access Board, to implement title II. Recently, the Access Board published its new guidelines for title II, effective April 13, 1998. These new guidelines have not yet been adopted by the Department and are, therefore, not legally enforceable. However, the Department's existing title II regulations, in 29 C.F.R. Pt. 35, have been in effect since January 26, 1992.

Under title II of the ADA, State and local governments are prohibited from discriminating against persons with disabilities with regard to any programs, activities and services. Mr. King is correct that State or local governments lack the authority to enforce the ADA. The Department, along with other federal agencies, are responsible for enforcing the ADA. However, the fact that state or local governments lack the authority to enforce the ADA does not relieve them from their title II obligations to provide readily accessible programs, activities and services.

Lastly, in his letter, Mr. King inquired whether the accessibility provisions in BOCA are equivalent to the Department's ADA accessibility standards. Under title III of the ADA, the Department, upon request by a State or local government, may certify that a State or local building code meets or exceeds the minimum requirements of the ADA for new construction and alterations. To date, the Department has certified the building codes of the States of Washington, Texas, Maine and Florida. The Department, upon request by a model code entity, may also review a model code, such as the BOCA code, and issue guidance of whether the model code is consistent with the ADA accessibility standards. Although the Department has not completed its review of the BOCA code, it has reviewed the BCMC/ANSI provisions on which the BOCA code is based and the Department determined that those provisions were not equivalent to the ADA.

For your information I have enclosed a copy of an article entitled "Open Letter to Building Code Officials" which was published in the November/December 1995 issue of the Building Standards magazine. The article addresses not only the process of obtaining certification but also the many questions the Department has received regarding the role of State and local building officials in implementing the ADA. If Mr. King has additional questions, the Department maintains a telephone information line to provide technical assistance regarding the rights and obligations of individuals, businesses, agencies, and others covered or protected by the ADA. This technical assistance is available by calling 800-514-0301 (Voice) or 800-514-0383 (TDD).

I hope this information is helpful to you in responding to your constituent.

Sincerely,

Bill Lann Lee

Acting Assistant

Attorney General

Civil Rights Division

Enclosure