Oct 2011 Issue

2010 Title III ADA Regulations: Deciphering What It Means For Your Hotel

Presented by: Natalie J. Francoeur

Beginning on March 15, 2012, businesses will be required to comply with the 2010 Title III ADA regulations, including the ADA Standards for Accessible Design. This also represents the compliance date for the new hotel reservations policies. As this date is fast approaching, it is important to understand your responsibilities in meeting these standards as a hotel owner and/or operator and how these changes may impact day-to-day operations as well as capital planning.

The Americans with Disabilities Act (ADA) of 1990 initially created Title III regulations in July 1991, which were designed to prohibit public accommodation from discriminating on the basis of disabilities, and set forth design and construction standards that outlined what makes a facility accessible. The 2010 Title III retains many of the same provisions set forth in the original 1991 Standards; however, there are a number of differences that warrant mention. Furthermore, the Standards are utilized differently depending upon whether your property is: existing and in compliance with the 1991 Standards; existing and compliant but making modifications; or new construction.

New construction is the most straight forward as all new construction that begins prior to March 15, 2012 may choose either the 1991 or 2010 Standards; however, new construction that begins on or after March 15, 2012 must utilize the 2010 Standards. How the 2010 Standards are applied to existing facilities are a little more complex. If your existing hotel was constructed or renovated in the last 20 years, and is considered to be compliant with the 1991 Standards, you do not have to make modifications to meet the 2010 Standards and essentially are granted 'safe harbor' on an element-by-element basis. However, should you choose to make modifications to any one of these elements, it then must be brought into compliance with the 2010 Standards and your 'safe harbor' no longer applies to that specific element. For example, should you be resurfacing your parking lot, which is considered a modification, you will now need to ensure that you have the appropriate number of accessible spaces that meet the designed specifications set forth in the 2010 Standards.

There are a number of (substantial) elements that were not addressed in the 1991 Standards that are new requirements in the 2010 Standards and are not subject to the 'safe harbor' principal. The most relevant of these include fitness facilities, golf facilities, saunas and steam rooms, and swimming pools and spas. These elements must be brought into compliance with the 2010 Standards on or after March 15, 2012 when it is 'readily achievable' which is, according to its definition, "easily accomplishable and able to be carried out without much difficulty or expense". As an example, hotels owners will need to evaluate whether (when) it is readily achievable to make swimming pools accessible to individuals with mobility disabilities by installing a ramp or lift in the pool.

One additional element of the ADA regulations, in both the 1991 and the 2010 Standards is the concept of barrier removal. Existing properties are required to remove architectural barriers when it is 'readily achievable' and this is a continuing obligation. Architectural barriers are those that impede or prohibit service to an individual with a disability. A property may have identified elements of the property that are considered barriers but may have been unable to remove or minimize their impact on service in recent years due to financial constraints during the economic downturn. However, as financial situations improve, these elements will need to be addressed. Should you to take steps to remove barriers prior to March 15, 2012, you have the option of which Standards to follow either the 1991 Standards or the 2010 Standards, but you must choose only one for the entire property. Barrier removal after March 15, 2012 must follow the 2010 Standards.

The change in hotel reservations policy also takes effect on March 15, 2011. The concept of the policy is that individuals with disabilities should be able to make a hotel reservation with the same efficiency and convenience as those not requiring an accessible guest room, whether that reservation is being made in-person, over the telephone, on the property website or through a third-party. A hotel property must fully describe the facilities and amenities of an accessible room such that a potential guest can determine if that room will meet his/her needs. Additionally, hotels are obligated to sell accessible rooms on a last availability basis. Furthermore, once an accessible room has been sold it must be taken out of sellable inventory in all distribution channels.

These changes in ADA regulations and design standards will warrant real investment in terms of both time and capital for hotel owners and operators in the coming months and years. There are several important considerations for both parties.

As a (prospective) hotel owner:

• Ensure that their manager's are familiar with new Standards and are prepared for what the implications of meeting the 2010 Standards are for capital planning purposes;
• Recognize that in the event of litigation, both the management company and ownership group may be held accountable;
• As part of any due diligence, invest in a pre-purchase ADA inspection of the property by a qualified expert to fully understand the implication of any capital expenditures that may be required to being the property into compliance.

As a hotel manager:

• Educate your employees on these new standards to ensure that service delivery meets new compliance regulations;
• Update your reservations policies and practices prior to March 15, 2012, in accordance with the new Standards.

These new regulations attempt to clarify many of the issues and questions that have been raised over the past 20 years. Ultimately they serve as a guide to hotel owners and managers so that we can provide all of our customers with a pleasant and memorable experience we are in the hospitality business after all and we are here to serve our customers.

Natalie J. Francoeur has been with Pinnacle Advisory Group since May 2005. Natalie works with the Pinnacle asset management team and focuses on long-term strategic planning for clients in transition periods, including asset repositioning, restructuring of management, development of operational policies and practices and budget planning and development.