With this new concept, comes new challenges and various issues. One of which is accessibility, and most notably, accessibility to the upper story. Society appears to have accepted that accessibility to the second story is a forgone conclusion; however, there is some question as to the appropriate means to provide the accessibility. The question revolves around elevators versus wheelchair lifts. While both devices, provide accessibility, are both devices equally allowed by state and federal law? The purpose of this article is to help school districts and individuals understand responsibilities of the districts and potential liabilities.

Must all two-story classrooms be made accessible?
Yes. State regulations, Uniform Building Code, and the federal ADA all stipulate that, publicly funded buildings be accessible to individuals with disabilities. Sections 4450 and 4451 of the State Government Code states that these facilities must be accessible. The districts are of course also tied to federal law as is the state, which states that all state regulations must meet or exceed those standards as set out in federal code.

Must modular classrooms also be made accessible?
Yes. State regulations mandate that portable buildings must all be accessible. Relocatability is not an excuse to not provide accessibility in any way.

Can a vertical wheelchair lift be legally used in lieu of an elevator?
No. State and federal law stipulates that ramps and or elevators must be used to provide access, and that wheelchair lifts can only be considered in certain exceptions. There are only a few exceptions, and the only one that could be applied is if it were "technically infeasible to provide an elevator." In this case, "technically infeasible" is recognized as conditions such as having a water level within one foot of the surface or being on solid bed rock, hence making an elevator technically infeasible, due to the required pit. Some people will ask, "What about the 3,000 square foot rule?" Elevators can be exempted in buildings where the second story has 3000 square feet or less. This only applies to certain types of privately owned facilities. This does not apply, nor can it be applied, to publicly funded buildings. This is the case in both state and federal law.

Is there any instance where a wheelchair lift can be used in lieu of an elevator to access the second story of a two-story building?
Only under the exception which allows a wheelchair lift when it is technically infeasible to install an elevator. There is no language that allows the installation of wheelchair lifts in these situations. There is only language that would allow ramps or elevators.

Because of the ability of modular buildings to relocate, can wheelchair lifts and elevators also be relocated?
Virtually all types of wheelchair lifts can be relocated. Typical conventionally built elevators, however, would be quite difficult to relocate, yet could be. However, new types of modular elevators are craned into place as one preassembled structure. Relocation would be done in virtually the same manner. Wheelchair lifts are no more relocatable than modular preassembled elevators.

Are there benefits to using a wheelchair lift rather than an elevator, and visa versa?
Wheelchair lifts are approximately 40% the cost of an elevator and have typically shorter manufacturing lead times; however, historically, they are not nearly as reliable, and typically require service more frequently. Wheelchair lifts can only be used for the transporting of disabled individuals, and only one at a time. Elevators can transport several individuals at a time and can be used to transport materials as needed. Depending on the number of individuals on the upper floor, one wheelchair lift may not be adequate to serve all those that need access. Elevators are also historically much, much faster than wheelchair lifts.

Must the point of access be within a certain number of feet of all classrooms?
State and federal law does not address this issue; however, there may be some civil rights implications, if there is closer access for the average non-disabled individual.

The California Division of the State Architect, Access Compliance, has come out with a policy that wheelchair lifts can be used instead of elevators under certain conditions. Can they make such policy?

The Access Compliance Division can write policy as it pertains to state Building Codes, and as specifically stated in the policy they came out with, it says "This policy will be enforced on a case by case basis; however, the Division of the State Architect will consider the following as acceptable compliance with the California Building Code regulations. Each school district choosing to utilize two-story modular, relocatable classrooms must submit in writing to this office, a request for a waiver to use wheelchair lifts in lieu of full commercial elevators on a site by site basis. . . ." Note that the Division only references the California Building Code. They do not reference state statutory regulations or the federal ADA. The Department of the State Architect, does not have the authority to grant variances or exceptions from state statutory regulations, civil code, or the federal ADA. Most everything referenced in this package is state statutory regulations and from the ADA. It is also important to note that in the DSA's Policy statement they also state, "Two-story relocatable classrooms are considered new construction and require full-size commercial elevators for accessibility."

If a variance were granted by the Division of the State Architect, Access Compliance, are there stipulations a district should be concerned with?
They seem to use the 3,000 square foot rule, that only applies to private facilities. However, in private construction, any structure that would have less than 3,000 square feet on the second story would not have to be accessible at all. The Division of State Architect appears to be using this breaking point as a measuring stick where a wheelchair lift would be considered in lieu of an elevator. One must bear in mind however, if a two-story classroom structure with less than 3,000 square feet were constructed and a wheelchair lift were used for access, and then the structure were expanded, either the wheelchair lift would have to be removed and replaced with an elevator, or an elevator would have to be added in addition to the existing wheelchair lift. No more than one wheelchair lift can be installed in any one school facility. Hence, if you build two structures with less than 3,000 square feet in each, only one could have a wheelchair lift and the other would have to have an elevator. The district must also have a funded ADA transition plan for the school applying for the variance and must submit the plan to the state. This transition plan must be signed by the superintendent or assistant superintendent of the district applying. Only after meeting all the above would a variance be considered.

Does a variance eliminate the district's liability and exposure to litigation as result of using a wheelchair lift in lieu of an elevator?
Not at all. The district still has exposure to civil litigation under state statutory regulations, civil code, and the federal ADA. One could bring an action in either, or both, state and federal court. California is also the only state that someone can sue in state court for violations of federal law. This is only important in that California allows for treble damages and attorney fee compensation. Liability does not potentially stop with the district. The Justice Department has also looked to architects and more recently to general contractors as also having some liability for ADA violations.

Have wheelchair lifts been approved by the Department of the State Architect, Structural Division? Do any wheelchair lift manufacturers have, or do they even need, structural approval?
The Department of the State Architect has accepted and allowed low rise (two to five feet) wheelchair lifts for many years, but say that tall lifts (10 to 12 feet) must be reviewed for their structural integrity. State standards, the Uniform Building Code, and the federal ADA, all stipulate that wheelchair lifts would not be allowed in new construction, temporary, or modular/portable construction. Even though a school may be able to program around the needs of a student with a disability, they can not program around the disabled family member or friend of the student.

Tom Shield is president of T. L. Shield & Associates, Inc., a supplier of accessibility equipment, in Sun Valley, California
Email: info@tlshield.com.