Guidance on the 2010 ADA Standards for Accessible Design

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