Guidance on the 2010 ADA Standards for Accessible Design Department of Justice September 15, 2010 Reproduction of this document is encouraged. This publication may be viewed or downloaded from the ADA website (www.ADA.gov). Additional copies may be obtained by calling the ADA Information Line: 800-514-0301 (voice) 800-514-0383 (TTY) September 15, 2010 i Contents 1 Introduction........…………………....….………......1 2 State and Local Government Facilities: Guidance on the Revisions to 28 CFR 35.151....3 3 Public Accommodations and Commercial Facilities: Guidance on the Revisions to 28 CFR part 36, subpart D.............…….……..39 4 Appendix B to part 36: Analysis and Commentary on the 2010 ADA Standards for Accessible Design…......................................69 ii iii 1 Introduction The Department of Justice published its revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 “ADA” in the Federal Register on September 15, 2010, which include the 2010 Standards for Accessible Design “2010 Standards” or “Standards”. In the revised regulations, the Department included detailed guidance with a section-by-section analysis of the revisions. The following includes guidance from the revised regulations related to 28 CFR 35.151; 28 CFR part 36, subpart D; and the 2004 ADAAG. It addresses changes to the Standards, the reasoning behind those changes, and responses to public comments received on these topics For More Information For information about the ADA, including the revised 2010 ADA regulations, please visit the Department’s website www.ADA. gov; or, for answers to specific questions, call the toll-free ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY). 1 2 2 State and Local Government Facilities 3 4 - Guidance on 2010 Standards: Title II Department of Justice Section 35.151 -- Title II Regulation State and Local Government Section 35.151(b) Alterations Facilities: Guidance on the The 1991 title II regulation does not con- Revisions to 28 CFR Section tain any specific regulatory language com- 35.151 parable to the 1991 title III regulation relating to alterations and path of travel for cov- Section 35.151(a), which provided that ered entities, although the 1991 Standards those facilities that are constructed or altered describe standards for path of travel during by, on behalf of, or for the use of a public alterations to a primary function. See 28 CFR entity shall be designed, constructed, or part 36, app A., section 4.1.6(a) (2009). altered to be readily accessible to and usable by individuals with disabilities, is unchanged The path of travel requirements con- in the final rule, but has been redesignated tained in the title III regulation are based as Sec. 35.151(a)(1). The Department has on section 303(a)(2) of the ADA, 42 U.S.C. added a new section, designated as Sec. 12183(a)(2), which provides that when an 35.151(a)(2), to provide that full compliance entity undertakes an alteration to a place of with the requirements of this section is not public accommodation or commercial facil- required where an entity can demonstrate ity that affects or could affect the usabil- that it is structurally impracticable to meet ity of or access to an area that contains the requirements. Full compliance will be a primary function, the entity shall ensure considered structurally impracticable only in that, to the maximum extent feasible, the those rare circumstances when the unique path of travel to the altered area--and the characteristics of terrain prevent the incorpo- restrooms, telephones, and drinking foun- ration of accessibility features. This excep- tains serving it--is readily accessible to tion was contained in the title III regulation and usable by individuals with disabilities, and in the 1991 Standards (applicable to including individuals who use wheelchairs. both public accommodations and facilities used by public entities), so it has applied The NPRM proposed amending to any covered facility that was constructed Sec. 35.151 to add both the path of travel under the 1991 Standards since the effective requirements and the exemption relating date of the ADA. The Department added it to barrier removal (as modified to apply to to the text of Sec. 35.151 to maintain con- the program accessibility standard in title sistency between the design requirements II) that are contained in the title III regula- that apply under title II and those that apply tion to the title II regulation. Proposed under title III. The Department received no Sec. 35.151(b)(4) contained the require- significant comments about this section. ments for path of travel. Proposed Department of Justice Guidance on 2010 Standards: Title II - 5 Section 35.151 -- Title II Regulation Sec. 35.151(b)(2) stated that the path of The Department is not changing the travel requirements of Sec. 35.151(b)(4) shall requirements for program accessibility. As not apply to measures taken solely to comply provided in Sec. 35.151(b)(2) of the regula- with program accessibility requirements. tion, the path of travel requirements of Sec. 35.151(b)(4) only apply to alterations under- Where the specific requirements for path taken solely for purposes other than to meet of travel apply under title III, they are lim- the program accessibility requirements. ited to the extent that the cost and scope The exemption for the specific path of travel of alterations to the path of travel are dis- requirement was included in the regula- proportionate to the cost of the overall tion to ensure that the specific requirements alteration, as determined under criteria and disproportionality exceptions for path of established by the Attorney General. travel are not applied when areas are being altered to meet the title II program accessibil- The Access Board included the path of ity requirements in Sec. 35.150. In contrast, travel requirement for alterations to facilities when areas are being altered to meet pro- covered by the standards (other than those gram accessibility requirements, they must subject to the residential facilities standards) comply with all of the applicable require- in section 202.4 of 2004 ADAAG. Section ments referenced in section 202 of the 2010 35.151(b)(4)(iii) of the final rule establishes Standards. A covered title II entity must pro- the criteria for determining when the cost of vide accessibility to meet the requirements alterations to the path of travel is “dispropor- of Sec. 35.150 unless doing so is an undue tionate’’ to the cost of the overall alteration. financial and administrative burden in accor- dance with Sec. 35.150(a)(3). A covered title The NPRM also provided that areas II entity may not use the disproportionality such as supply storage rooms, employee exception contained in the path of travel pro- lounges and locker rooms, janitorial closets, visions as a defense to providing an acces- entrances, and corridors are not areas con- sible route as part of its obligation to provide taining a primary function. Nor are restroom program accessibility. The undue financial areas considered to contain a primary func- and administrative burden standard does tion unless the provision of restrooms is a not contain any bright line financial tests. primary purpose of the facility, such as at a highway rest stop. In that situation, a rest- The Department’s proposed room would be considered to be an “area Sec. 35.151(b)(4) adopted the language containing a primary function’’ of the facility. now contained in Sec. 36.403 of the title III regulation, including the disproportion- ality limitation (i.e., alterations made to 6 - Guidance on 2010 Standards: Title II Department of Justice