ADA Update: DOJ To Make Jails Subject to Accessible Design Guidelines

by: Stephen E. Horan and Kevin M. Kreutz

Starting March 2012, public entities must design, construct and renovate their jail facilities to comply with the design standards set forth in the Americans With Disabilities Act.  This requirement is one of many changes in store for federal civil rights disabilities litigation, as the U.S. Department of Justice recently revised federal regulations implementing the ADA.  Unlike other revisions, which are largely technical in nature, the DOJ’s declaration that jails must comply with the ADA’s technical guidelines may help end decades of confusion over what “programmatic access” means for the incarcerated.

Enacted in 1991, Title II of the ADA applies to public entities.  Title II states that public entities must “operate each service, program, and activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”  Federal courts have interpreted this standard to apply to any service a public entity provides, including jail or correctional services.
Though it has been clear that Title II applies to correctional services, it has remained unclear whether Title II’s implementing regulations – the American With Disabilities Act Accessibility Guidelines, or ADAAG – required public entities to design, build or renovate correctional facilities in a particular manner.  Some courts have held correctional facilities to these standards despite language in prior DOJ publications suggesting the ADAAG do not apply to jails.  The result has been sparse and inconsistent case law among the federal circuits.

The DOJ clarified ADAAG’s scope during the summer/fall of 2010, when Attorney General Eric Holder signed final regulations revising ADAAG.  These new regulations will become known as the 2010 ADA Standards for Accessible Design (“2010 Standards”).
In its explanation of the 2010 Standards, the DOJ states “[t]he 1991 Standards did not contain specific accessibility standards applicable to cells in correctional facilities.”  The 2010 Standards set forth “specific requirements for the design and construction and alterations of cells in correctional facilities for the first time.”

The 2010 ADAAG’s general requirement is that three percent of newly constructed or altered cells must comply with the specific building requirements set forth in the 2010 Standards.  However, recognizing that detention facilities are unique, and often very expensive to retrofit, the 2010 Standards permit public entities to comply with the new requirements through substitute accessible cells.  These cells may be located at the same facility being constructed or altered, or may be located at an entirely different facility, subject to certain requirements.

In sum, the 2010 Standards seem to end the confusion over whether public entities must comply with the 1991 ADAAG, and perhaps more importantly, whether public entities may be liable for violations of the 1991 ADAAG.  The 2010 Standards appear to answer both questions in the negative.  Nevertheless, by March 2012, public entities will have an affirmative duty to comply with the 2010 Standards.  Accordingly, public entities should be familiar with the details of these new standards before then.  Please contact us if you have any questions or need help understanding how the 2010 ADAAG apply to jails and what they require by the March 2012 deadline.