Guidance on the 2010 ADA Standards for Accessible Design

Section 35.151 -- Title II Regulation providing program access results in an undue burden, the public entity would nevertheless financial and administration burden within the be required to take some other action that meaning of Sec. 35.150(a)(3). The exemp- would not result in such an alteration or such tion was also provided to maintain consis- burdens but would ensure that the benefits tency with the title III path of travel exemption and services provided by the public entity are for barrier removal, see Sec. 36.304(d), in readily accessible to persons with disabilities. keeping with the Department’s regulatory When the public entity is making modifica- authority under title II of the ADA. See 42 tions to meet its program access obligation, U.S.C. 12134(b); see also H. R Rep. No. it may not rely on the path of travel excep- 101B485, pt. 2, at 84 (1990) (“The committee tion under Sec. 35.151(b)(4), which limits intends, however, that the forms of discrimi- the requirement to those alterations where nation prohibited by section 202 be identi- the cost and scope of the alterations are cal to those set out in the applicable provi- not disproportionate to the cost and scope sions of titles I and III of this legislation.’’). of the overall alterations. If the public entity later decides to alter courtrooms in the other For title II entities, the path of travel building, for purposes of updating the facility requirements are of significance in those (and, as previously stated, has met its pro- cases where an alteration is being made gram access obligations) then in that case, solely for reasons other than program acces- the public entity would have to comply with sibility. For example, a public entity might the path of travel requirements in the 2010 have six courtrooms in two existing buildings Standards subject to the disproportionality and might determine that only three of those exception set forth in Sec. 35.151(b)(4). courtrooms and the public use and common use areas serving those courtrooms in one The Department has slightly revised pro- building are needed to be made accessible posed Sec. 35.151(b)(2) to make it clearer in order to satisfy its program access obliga- that the path of travel requirements only tions. When the public entity makes those apply when alterations are undertaken solely courtrooms and the public use and common for purposes other than program accessibility. use areas serving them accessible in order to meet its program access obligations, it Section 35.151(b)(4)(ii)(C) will have to comply with the 2010 Standards Path of travel--safe harbor unless the public entity can demonstrate that full compliance would result in undue finan- In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the cial and administrative burdens as described Department included a provision that stated in Sec. 35.150(a)(3). If such action would that public entities that have brought required result in an undue financial or administrative elements of path of travel into compliance 8 - Guidance on 2010 Standards: Title II Department of Justice