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Compliance Review
University of Montana - Helena (WA)

August 16, 2010

Dr. Daniel J. Bingham
Dean/CEO
University of Montana-Helena
1115 N. Roberts Street
Helena, Montana 59601

Re:      University of Montana-Helena
OCR Reference No. 10096001

Dear Dr. Bingham:

The U.S. Department of Education, Office for Civil Rights (OCR) has completed its compliance review of the University of Montana-Helena (university) for the above-referenced case.  OCR’s review addressed whether the university is in compliance with the regulatory requirements of section 504 of the Rehabilitation Act of 1973 at 34 CFR 104.21 and title II of the Americans with Disabilities Act of 1990 (ADA) at 28 CFR 35.149 with respect to the physical accessibility of the university’s facilities, programs, and services.

This review was conducted pursuant to OCR’s authority under Section 504 and its implementing regulations at 34 CFR Part 104, and Title II of the ADA and its implementing regulations at 28 CFR Part 35.  These laws prohibit discrimination on the basis of disability by institutions receiving federal financial assistance from the U.S. Department of Education and by public entities, respectively.  As a public university that is also a recipient of federal financial assistance from the Department, the university is subject to the provisions of Section 504 and Title II.

The Section 504 and Title II regulations contain physical accessibility requirements.  Both laws distinguish between existing facilities and new construction.  Under Section 504, facilities constructed before June 3, 1977, are existing facilities, while new construction refers to facilities constructed on or after that date.  See 34 CFR 104.22-104.23.  Title II provides that existing facilities are those constructed before January 26, 1992, and facilities constructed on or after that date are considered new construction.  See 28 CFR 35.150-35.151.

For existing facilities, Section 504 and Title II require that an institution operate its program so that, when viewed in its entirety, it is readily accessible to persons with disabilities (program accessibility standard).  Under this standard, recipients are not required to make all existing facilities or every part of a facility accessible, as long as the program or activity provided at the facility is readily accessible to persons with disabilities.  See 34 CFR 104.22 and 28 CFR 35.150.  Program accessibility for existing facilities can be met through such means as redesign of equipment, alterations of existing facilities, or reassignment of classes or other services to accessible buildings.

The accessibility standard used for new construction depends on the date construction commenced.  Under Section 504, construction commenced between June 3, 1977, and January 17, 1991, must comply with the American National Standards Institute standards (ANSI-1971), and for construction commenced on or after January 18, 1991, the Uniform Federal Accessibility Standards (UFAS) applies.  Under Title II, construction commenced on or after January 26, 1992, must comply with either the Americans with Disabilities Act Accessibility Guidelines (ADAAG) or substantially equivalent standards.  Since January 26, 1992, a recipient may choose between the ADAAG and UFAS new construction standards for each facility, but must use the same standard for the entire facility.  New alterations to a facility are analyzed similarly to new construction.

In the findings below, OCR references ADAAG when discussing compliance concerns found under the program accessibility standard.  These references to ADAAG are used only as guidance to determine accessibility of those features.

During the course of this compliance review, OCR reviewed information that the university submitted, spoke with certain university students and staff members, including mobility-impaired students and staff, and conducted an on-site investigation.  On the basis of this information, OCR has identified certain compliance concerns, discussed below.  OCR understands that the university has utilized the ADAAG standard for its new construction and alterations.

The university’s facilities consist of two buildings, each located on separate campuses.  Programs at the Donaldson campus include courses in business, office technology, electronics technology, nursing, general education, community education, computer technology, and fire and rescue.  Programs at the Airport campus include automotive technology, aviation technology, construction technology, diesel technology, machine tool technology, and welding technology.  OCR evaluated each building’s parking areas, exterior routes, entrances, interior routes, restrooms, and rooms, such as classrooms, computer labs, restrooms, library, cafeteria, student store, faculty areas, and administrative areas.

OCR identified the following compliance concerns during its onsite review:

A. Both campuses

    OCR identified obstructions at the Airport campus such as a picnic table placed on the curb ramp, and a trash can blocking the approach to the paper towel dispenser in the men’s non-staff restroom.  At the Donaldson campus, a trash can blocked access to the paper towel dispenser on the second floor, a table was placed in front of the automatic door button at the main entrance, a trash can was stored in the knee clearance area of the accessible sink in science lab 137, and some of the parking access aisles contained debris such as gravel.  Additionally, OCR interviewed students and staff that stated that snow is sometimes plowed into the disabled parking spaces or access aisles at the Donaldson campus.  ADAAG does not allow obstacles to inhibit the minimum clearance space around accessible routes and features, and the surface area of routes must be stable, firm and slip-resistant.  See ADAAG 4.27.2, 4.7.3, 4.3.3, 4.3.6 and 4.5.1.

B. Donaldson campus

    The Donaldson campus is a single building that houses the university administrative offices, faculty offices, classrooms, the registrar, student services, and the library.  It was constructed in 1967.  In 1996, a student center was newly constructed on this campus.  In 2001, classrooms were remodeled, and in 2007, a new addition was built on the north side.  In 2001, the parking lots were resurfaced, and in 2007, they were enlarged.

  1. Parking (ADAAG)
    1. East side parking

      1. The curb ramps do not have a detectable warning. ADAAG 4.7.7 and 4.29.2 require curb ramps to have detectable warnings with truncated domes and visual contrast.

      2. The southernmost curb ramp has a slope of 1¼" per foot. ADAAG 4.7.2 and 4.8.2 require the slope of the curb ramp to be 1:12 or less in new construction.

      3. The flared sides of the two southernmost curb ramps have slopes that are 1:6 or greater. ADAAG 4.7.5 requires that curb ramps have side flare slopes of 1:10 or less. Ensure that the flared sides of the two southernmost curb ramps have proper slopes. ADAAG 4.7.5 requires that curb ramps have side flare slopes of 1:10 or less.

      4. All of the parking spaces and access aisles on the east side had slope measurements of 1:32 or greater. ADAAG 4.6.3 requires that all accessible parking spaces and access aisles be level with no slope greater than 1:50 in all directions.

      5. The east parking area has three parking spaces identified as van-accessible, but only the northernmost space complies with ADAAG 4.1.2(5)(b), which requires that access aisles for van-accessible parking spots be at least 96" wide. While the parking area only requires one van-accessible space, the current signage misidentifies two regular disabled parking spaces as van-accessible.

    2. North side parking

      The two disabled parking spaces and access aisle had slopes and cross-slopes greater than 1:50. ADAAG 4.6.3 requires that all accessible parking spaces and access aisles be level with no slope greater than 1:50 in all directions.

  1. Restrooms
    1. First floor men’s restroom - north end (ADAAG)


      1. The restroom door required 11 pounds of force (lbf) to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.


      2. The toilet paper in the accessible stall was located above the grab bar. ADAAG 4.16.6 requires toilet paper dispensers to be mounted below the grab bar, at least 19" from the floor.

    2. First floor women’s restroom-north end (ADAAG)

      1. The restroom door required 14 lbf to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.

      2. The only shelf in the restroom was 65" high with a parallel approach. When a parallel approach is provided, the maximum shelf height is 54", according to ADAAG 4.25.3.

      3. The toilet paper in the accessible stall was located above the grab bar. ADAAG 4.16.6 requires toilet paper dispensers to be mounted below the grab bar, at least 19" above the floor.

    3. First floor men’s restroom-center (program accessibility standard)


      1. The entrance door was 29" wide. ADAAG 4.13.5 requires at least 32" door clearance when the door is open 90 degrees.

      2. The entrance door enters into a short hallway, requiring a 90 degree turn around at the end of a wall. The distance between the side wall and back wall at the turn is 33". ADAAG requires a minimum of 36" between the walls at a 90 degree turn.

      3. The only shelf was 74 ¾" high. ADAAG 4.25.3 limits shelf heights to a maximum of 54" with a parallel approach.

      4. The restroom did not have signage indicating the location of an alternative accessible restroom. 34 CFR 104.22(f) requires recipients to implement procedures so that persons can obtain information on the location of accessible facilities.

    4. First floor women’s restroom-center (program accessibility standard)


      1. The entrance door was 29" wide. ADAAG 4.13.5 requires at least 32" door clearance when the door is open 90 degrees.

      2. The only shelf was 63" high. ADAAG 4.25.3 limits shelf heights to a maximum of 54" with a parallel approach.

      3. The restroom did not have signage indicating the location of an alternative accessible restroom. 34 CFR 104.22(f) requires recipients to implement procedures so that persons can obtain information on the location of accessible facilities.


    5. Men’s second floor restroom stall (ADAAG)


      • The toilet paper dispenser in the men’s restroom stall is mounted above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.

    6. Women’s second floor restroom stall (ADAAG)


      • The toilet paper dispenser in the men’s restroom stall is mounted above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.

    7. Men’s basement restroom (ADAAG)


      1. The entrance door required 11 lbf to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.

      2. The toilet paper was located above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.

    8. Women’s basement restroom (ADAAG)


      1. The entrance door required 10 lbf to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.


      2. The toilet paper was located above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.


    9. Staff restrooms (program accessibility standard)


      1. Both the men’s and women’s staff restrooms were inaccessible. The men’s restroom’s entrance door was 29 ½" wide, the sink pipes were not wrapped, the stall door was 29 ½" wide, and there were no grab bars. The women’s restroom was the same, except that it had a single grab bar in the stall. The restrooms had no signage indicating the location of the nearest accessible restroom.

  1. Rooms (ADAAG)
    1. Classroom/lab 131
    2. The entrance door required 15 lbf to open.  ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.

    3. Science lab A


      1. The entrance door required 10 lbf to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.


      2. The emergency shower had a pull control that was 65½" above the floor. ADAAG 4.2.5 and 4.2.6 allow maximum reaches of 48" for a forward approach and 54" for a parallel approach.


    4. Faculty/Administrative area
    5. The door leading to this area required 15 lbf to open. ADAAG 4.13.11 requires interior doors to have a minimum opening force of 5 lbf.

C. Airport campus

    This building was built in 1939.  The nursing annex was built in 1998, and the metal storage building was built in 1999.  A welding shop addition was built in 2005, and another addition was built in 2007.  The parking lots were enlarged in 2007.
  1. Restrooms
    1. Staff restrooms (program accessibility standard)

      The men’s and women’s staff restrooms near the main entrance were inaccessible. Each restroom had 29" clearance at the entrance doors, a 27" route to the stall, a 22½" stall door, and no grab bars in the stall. The restrooms did not have signage indicating the nearest accessible restroom.


    2. Women’s non-staff restroom closest to main entrance (program accessibility except for disabled toilet stall which was redone in 1996 and is held to the ADAAG standard)


      1. The toilet paper dispenser in the women’s restroom stall is mounted above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.


      2. The pipes under the sinks are not insulated. ANSI 5.6.3 states that it is important that drain pipes and hot water pipes under a lavatory be covered or insulated so that a wheelchair user without sensation does not burn herself, and ADAAG 4.19.4 requires insulated hot water and drain pipes, or otherwise configured to protect against contact.


      3. The entrance to the shower area has a 2" vertical change in level. ANSI 5.5.2 states that floors need to be level, and ADAAG 4.3.8 and 4.5.2 only allow a vertical change in level up to ¼".


      4. The stall width is 40". ADAAG 4.17.3 requires it to be at least 60" wide.


      5. The space between the back wall and the back grab bar in the disabled toilet stall is 3¼". ADAAG 4.26.2 requires that grab bars be 1½" from the wall.


    3. Men’s non-staff restroom closest to main entrance (program accessibility except for disabled toilet stall which was redone in 1996 and is held to the ADAAG standard)


      1. The space between the back wall and the back grab bar in the disabled toilet stall is 3¼". ADAAG 4.26.2 requires that grab bars be 1½" from the wall.


      2. The toilet paper dispenser in the men’s restroom stall is mounted above the grab bar. ADAAG 4.16.6 requires the toilet paper dispenser to be mounted below the grab bar, at least 19" from the floor.


      3. The entrance to the shower area has 2" vertical change in level. ANSI 5.5.2 states that floors need to be level, and ADAAG 4.3.8 and 4.5.2 only allow a vertical change in level up to ¼".


  1. Annex area (ADAAG)
    1. Unisex restroom in annex
    2. The coat hook was 68" above the floor. According to ADAAG 4.2.5 and 4.2.6, the maximum height for an object with a forward reach is 48", and the maximum height for an object with a side reach is 54".

    3. Break room in annex


      1. The pipes under the sink were exposed without insulation. According to ADAAG 4.19.4, hot water pipes and drain pipes must be insulated or otherwise configured to protect against contact.


      2. The paper towel dispenser was 60" high. According to ADAAG 4.2.5 and 4.2.6, the maximum height for a dispenser with a forward reach is 48", and the maximum height for an object with a side reach is 54".
  1. Ramp, in center of building, near break room (ADAAG applies because the ramp was installed in 1996)
    1. The ramp slope is greater than 1:10 at some points. ADAAG 4.8.2 requires a ramp to have a slope no greater than 1:12 or one foot rise in 12 feet.


    2. The ramp’s maximum rise is above 30". ADAAG 4.8.2 requires that the rise for any run can be a maximum of 30".


    3. One side of the handrail is 32" high above the ramp, and the other side is 33.5" above the ramp. ADAAG 4.8.5 requires the top of the handrail to be between 34-38" above the ramp surface.


    4. The handrail does not extend 12" beyond both sides at the top and bottom of the ramp. ADAAG 4.8.5 requires handrails to extend at least 12" beyond the top and bottom of a ramp.


    5. The diameter of the handrail is 2". ADAAG 4.8.5 and 4.26.2 require the diameter of the handrail to be between 1¼" and 1½".


    6. The clearance between the wall and the handrail is 2" on one side and 2½" on the other side. ADAAG 4.8.5 and 4.26.2 require that the clearance between walls and handrails be exactly 1½".
  1. Program accessibility at the Airport campus
    1. Some portions of the Airport campus are inaccessible, such as the glass bead machine room, classrooms in the loft area, and a foot-operated sink in the welding lab. Because these parts of the facility fall under the program accessibility standard, the university is not required to make structural changes as long as it makes the programs accessible. OCR was not able to identify any mobility-impaired person that attended or applied for any of the programs at this campus, and the university told OCR that it has never had a mobility-impaired student or faculty member in any of these programs. The university is seeking funding to make changes that would increase the accessibility of the Airport campus, and the university’s disability services director stated that the university would attempt to relocate any programs contained in inaccessible areas to an accessible area, if a mobility-impaired student wanted to participate in one of those programs.


D. Policies and Procedures

    OCR reviewed the university’s written policies, procedures, plans, and published notices pertaining to providing physical access for disabled persons. While OCR found that the university provided students with notice of a person to contact for accessibility issues, the 2009-2010 Student Handbook & Planner also states, “Students wishing to file a formal complaint with regard to discrimination on the basis of a disability must be registered as individual [sic] with a disability with the Director of Disability Services….” The Section 504 regulation at 34 CFR 104.7 requires recipients to adopt grievance procedures that provide for the prompt and equitable resolution of Section 504 related complaints, and does not limit potential complainants to persons registered with the recipient’s disability services office.

Compliance Conclusion

The regulations implementing Section 504 and Title II provide that no qualified individual with a disability shall, because facilities are inaccessible to or unusable by disabled individuals, be excluded from participation in, be denied the benefits of services, programs or activities of, or be subjected to discrimination by a recipient of federal funds or a public entity.  See 34 CFR 104.21 and 28 CFR 35.149.  As identified above, OCR found accessibility concerns with the university’s buildings and parking areas and policies and procedures.  OCR concluded that the university has not fully complied with Section 504 and Title II with respect to the areas investigated in this compliance review.

The university and OCR entered into discussions regarding the compliance concerns identified above.  As a result of these discussions, the university has agreed to take the voluntary corrective actions set forth in the enclosed Settlement Agreement (agreement).  We have concluded that upon full implementation of the commitments in the agreement, the university will be in compliance with Section 504 and Title II with respect to the compliance concerns identified in this review.  OCR will monitor the terms of the agreement.  After OCR determines that all the agreement’s terms are satisfied, OCR will issue a final closure letter to the university. The findings and conclusion presented in this letter apply only to the specific facts and issues of this compliance review.  This determination of compliance with Section 504 and Title II is contingent upon the university’s full implementation of the commitments set forth in the agreement.  The university’s failure to honor these commitments may result in further action by OCR with respect to this case.

I wish to thank you and your staff for the cooperation extended to my staff during this compliance review.  If you have any questions regarding this letter, please contact Amy Klosterman, Attorney, by telephone at (206) 607-1622, or by e-mail at amy.klosterman@ed.gov.

 

Sincerely,
/S/  
Gary D. Jackson
Director
Seattle Office

                                                                   

 

Enclosure: Settlement Agreement Attachment A

    

 
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Last Modified: 06/09/2011