L&I Accessibility Audit Program and Findings

GENERAL:

The Department of Labor & Industry is required, by law, to review each opt-in municipality at least once every five years, in order to ensure that adequate enforcement of the UCC’s accessibility requirements is occurring. At the conclusion of the audit, the Department submits a written report to the municipality’s chief elected official. A copy is also provided to the municipality’s Building Code Official (BCO), the person who is legally in charge of the local code enforcement program.

The Department’s accessibility audit program began in September 2005. As of August 31, 2010, Department inspectors have visited all opt-in municipalities, seeking to perform initial accessibility audits. In 1,185 of these municipalities, inspectors found completed commercial construction work that could be audited and have completed accessibility audits.

Whenever an initial visit reveals that a municipality has no completed commercial construction projects to audit, that jurisdiction is scheduled for a follow-up audit within two-years from the date of the initial visit.

Additionally, reassessment audits are scheduled, whenever an initial assessment reveals that a municipality has utilized uncertified code officials to grant accessibility approvals or whenever we discovered numerous physical or administrative issues (or a combination thereof), to see if the Department’s recommendations have been acted upon.

A total of 1545 follow-up or reassessment audits have been completed as of August 31, 2010, as part of our attempts to complete an initial audit or to reassess municipal code enforcement performance.

OVERVIEW OF AUDIT PROCESS:

  1. A member of L&I’s inspection staff contacts the municipality’s BCO, to schedule an appointment to begin the audit.
     
  2. At the initial visit, the auditor reviews the purpose of the audit, the responsibilities of the BCO relating to accessibility, the potential penalties that can be incurred if a person is found to be in violation of the UCC, and the role of the Accessibility Advisory Board. The BCO is also asked to fill out a copy of the Department’s “Accessibility Inspector/Plans Examiner Information Form.” (This form is used to ascertain who performed the accessibility plan reviews and/or inspections on audited projects.)
     
  3. The auditor asks to see the records of all certificates of occupancy that have been issued from the effective date of the UCC in the municipality to the date of the audit (or from the date of the last assessment to the date of the current audit).
     
  4. The auditor randomly selects three completed projects from the list (if three are available): a simple new building, a complex new building and an alteration to a legally existing building. He/she does not allow the BCO to make the selections, in order to prevent the BCO from picking projects that are likely to have few, if any, discrepancies. This also allows the auditor to decide if there were projects that should have been approved for accessibility (and perhaps weren’t) by a certified person.
     
  5. The auditor then asks to review the records and construction plans for the selected projects and checks them for compliance with the UCC administrative requirements (as contained in Chapter 403 of the regulation).
     
  6. The BCO is then asked to call the owners of the selected projects, to arrange for a convenient time for our auditor to determine, on site, if any construction discrepancies relating to the accessibility requirements of the UCC exist. The BCO is asked to accompany the auditor on the arranged site visits. The person who performed the accessibility approvals may also join them.
     
  7. Upon visiting each building, the auditor either verifies that the construction met UCC accessibility requirements or notes all visible deficiencies, and then submits a report to the responsible UCC Audit and Training Administrator, so that a formal report may be prepared and mailed to the municipality’s chief elected official and the BCO.
     
  8. When any discrepancies are discovered, a reassessment is scheduled, to determine whether improvements have been made to the accessibility enforcement program. If similar, multiple errors are discovered, the Department will take appropriate enforcement action (which could include steps to decertify the offending party). Reassessments are scheduled no sooner than six months after the initial review, with a goal of returning to municipalities no later than twenty-four months (when more serious issues are uncovered) or thirty-six months (when less serious issues are uncovered), after the review that necessitated a reassessment.
     
  9. Where the BCO or the Accessibility Inspector/Plans Examiner has committed egregious violations, the Department’s UCC Administrator issues a formal warning letter which is attached to the code official’s certification file (and provides the basis for future punitive actions, should the code official disregard the Department’s recommendations). The chief elected official in the municipality where the violations occurred is copied on this warning letter.

MISUNDERSTANDINGS REGARDING THE NATURE OF THE AUDIT PROGRAM:

The primary thrust of this program is learning and improved code enforcement --- it is not punitive. Nonetheless, we remain adamant in assigning the same level of importance to each "miss" of an accessibility code requirement and we express this sentiment in official audit reports sent to the affected parties. However, code officials showing progress in their accessibility enforcement need not fear Department sanctions.

The Department’s audit reports no longer cite moveable objects that may extend into accessible routes (and thereby diminish the width of the passage). Although early on we did cite this as an issue, we always indicated that the placement of the intruding object could very well have occurred some time after the final inspection was performed.

Changes made to accessible features after the final inspection and occupancy of buildings, while noted, are not listed as code "misses." Building Code Officials (and the persons who have issued accessibility approvals) are encouraged to accompany Department auditors, not only to enhance their learning, but also to point out features that may have been changed since the time of the final building inspection.

"Construction industry tolerances" are not allowed, and with good reason, namely:
  • In its commentaries and formal and informal opinions, the International Code Council has not defined the meaning of this phrase; in fact, the much bandied-about term is nowhere defined.
  • None of the code books or standards authorize the code official to give contractors a "pass" on accessibility or other prescriptive requirements involving measurements.
  • Most accessibility requirements are stated in ranges, so "tolerances" are generally built into the accessibility requirements. Further, there are only 8 requirements in the ICC/ANSI A117.1 standard that are stated as absolute measurements --- measurements that must be adhered to for the proper usage of the affected elements.
  • Given human nature, code officials who begin granting specified tolerances (such as ¼" or ½") will likely find themselves facing expectations that they accept greater tolerances in the future.

Department auditors have been instructed to be very wary of calling out misses with very close tolerances, since it so easy to flex a tape measure (and obtain an incorrect measurement). Further, a code official will not be sanctioned on the basis of minor measurement deviations.

FINDINGS:

Since the start of the audit program, the Department has maintained a listing of the 50 most commonly observed issues/code misses discovered during our audits. The data have been updated to include information from initial audits and reassessments made during the period 09-01-05 through 08-31-10. Access a detailed listing of discrepancies uncovered during the first five years of this municipal audit program.

Some comments about the data on this list:

In comparing the total number of physical and administrative issues for the 2009-2010 reporting period with the previous year, there was a decrease of 279 findings. This represents a 7% drop when compared to findings reported for the previous year and a 24% decrease in findings when compared to findings that we reported two years ago.

Additionally, total misses decreased for 34 of the 50 issue items listed on this report, when compared to misses reported for 2008-2009.

Previously, we provided the results of a survey of audited municipalities which staff performed, in an attempt to determine whether any improvement in accessibility enforcement was occurring, by comparing the number of code misses discovered during initial audits versus those found in reassessment audits, in randomly selected municipalities.

From September 2009 through August 31, 2010, we have been carefully tracking reassessments and keeping performance information for municipalities where the same Accessibility inspector/Plans Examiner, the same Building Code Official and the same L&I inspector have been involved in construction approvals, so that we can more accurately assess whether accessibility enforcement is improving. Based on a review of this information, we have concluded that local accessibility enforcement is improving.

During the past year, our field inspectors were able to perform reassessment audits in 465 municipalities. 43 or 9% of these municipalities actually qualified for review under the controlled parameters of this year’s comparison report. In 30 or 70% of these 43 municipalities, we found a decrease in physical findings (accessibility “misses”) between the initial report and the follow-up report.

Our 2008-2009 random survey of 48 municipalities revealed that in 32 or 67% of these municipalities there was a decrease in physical findings (accessibility “misses”) between the initial report and the reassessment.

Here’s what we also discovered when reviewing the numbers of physical findings:

In our 2009-2010 survey, we reviewed 110 buildings in our initial audits and reported 499 physical findings; in reassessing these same 43 municipalities, we reviewed 106 buildings and found 335 accessibility misses. This represents a 33% decrease in findings. While our physical findings counts went up in 13 reassessed municipalities, these increases were marginal (they averaged less than 2 misses per building).

As a point of comparison: we found a 20% decrease in code misses in reassessed municipalities in our 2008-2009 random survey.

While we realize these findings are not the primary focus of our accessibility audit program, here is what we have discovered regarding administrative deficiencies.

In our 2009-2010 survey, our initial audits of the 43 municipalities uncovered 86 administrative findings, but when reassessing these same municipalities, we found only 33 administrative errors, a 62% decrease. We only found 7 municipalities where errors increased, but these increases were negligible.

Our 2008-2009 survey revealed that, upon reassessment, there was a 46% decrease in administrative errors, and in the 8 municipalities that showed increases in administrative errors, the increases were also negligible.

Statistically-speaking, it appears that the primary goal of the audit program, to improve the performance of all Accessibility Inspectors/Plan Reviewers statewide, is being attained.

MOVING FORWARD:

There has been a steady decrease in the number of physical and administrative findings over the past three years and we have reason to expect that the number of issues will continue to decline.

Our expectation is based on two factors: most code officials take Department recommendations seriously; and, with the passage of time and with greater experience, code officials are becoming much more familiar with the requirements of the ICC/ANSI standard and the UCC’s administrative requirements, and they are enforcing these requirements more consistently.

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