If you are doing an ADA inspection of a water fountain and you push on the actuator, does it have to work? The short answer is YES. Americans with Disabilities Act (ADA) compliance of the 2010 ADA Standards for Accessible Design (2010 Standards) does involve functionality of elements. But the rules that make this so are not in the 2010 Standards. Here comes the long answer.
Implementation regulation 28 CFR (Code of Federal Regulations}, Part 35, is written for non-discrimination on the basis of disability in state and local government services. Within 28 CFR, 35.133, Maintenance of accessible features, states, “(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.”
Similarly, implementation regulation 28 CFR, Part 36, is written for non-discrimination on the basis of disability by public accomodations and in commercial facilities. Within 28 CFR, Part 36.211, Maintenance of accessible features, states, “(a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.”
So what these regulations are saying is that functionality of elements (features of facilities and equipment) is a component of compliance with ADA laws. In other words, it is not good enough that an element required by the ADA be present and in the correct location, but it is also required that the element be in operable working condition. So it has to work properly as well.
A couple of examples. A facility has to have compliant toilet rooms. But not only should there be accessible toilets and sinks, etc, but they must also work properly. So if the toilet seat is loosely mounted, or the toilet does not flush properly, or the sink faucets leak of have the hot/cold water reversed, then those features would not satisfy 28 CFR, Part 35 or 36, depending on who owned the facility.
Simularly, going back to the water fountain, and assuming it is in a public building, if you push on the actuator for the water fountain and it does not produce water at an acceptable height of flow, or maybe not at all, then the switch/fountain has failed to comply with 28 CFR Part 36.
In fact, the Department of Justice often references these regulations in settlements for ADA compliance that are posted on their website.
So when you think about ADA compliance, remember to include functionality as part of the assessment to verify compliance.
ADA Inspections Nationwide, LLC, offers ADA/ABA/FHA accessibility compliance inspections for buildings and facilities, as applicable to the different laws, and expert witness services with respect to ADA/ABA/FHA laws for building owners, tenants and managers. Also, ADAIN offers consulting for home modifications as a CAPS consultant for people wishing to age in place in their homes. For a complete list of services please see ADAIN Services.