Guidance on the 2010 ADA Standards for Accessible Design

Section 35.151 -- Title II Regulation with the 1991 Standards are not required implements that delegation of authority. to retrofit those elements in order to reflect One commenter proposed that a previ- incremental changes in the 2010 Standards ous record of barrier removal be one of solely because of an alteration to a primary the factors in determining, prospectively, function area that is served by that path what renders a facility, when viewed in of travel. In these circumstances, the pub- its entirety, usable and accessible to lic entity is entitled to a safe harbor and is persons with disabilities. Another com- only required to modify elements to comply menter asked the Department to clarify, with the 2010 Standards if the public entity at a minimum, that to the extent compli- is planning an alteration to the element. ance with the 1991 Standards does not provide program access, particularly with A substantial number of commenters regard to areas not specifically addressed objected to the Department’s imposition of in the 1991 Standards, the safe harbor a safe harbor for alterations to facilities of will not operate to relieve an entity of its public entities that comply with the 1991 obligations to provide program access. Standards. These commenters argued that if a public entity is already in the pro- One commenter supported the proposal cess of altering its facility, there should be to add a safe harbor for path of travel. a legal requirement that individuals with disabilities be entitled to increased acces- The final rule retains the safe harbor sibility by using the 2010 Standards for for required elements of a path of travel to path of travel work. They also stated that altered primary function areas for public enti- they did not believe there was a statu- ties that have already complied with the 1991 tory basis for “grandfathering’’ facilities Standards with respect to those required that comply with the 1991 Standards. elements. The Department believes that this safe harbor strikes an appropriate balance The ADA is silent on the issue of “grand- between ensuring that individuals with dis- fathering’’ or establishing a safe harbor for abilities are provided access to buildings and measuring compliance in situations where facilities and potential financial burdens on the covered entity is not undertaking a existing public entities that are undertaking planned alteration to specific building ele- alterations subject to the 2010 Standards. ments. The ADA delegates to the Attorney This safe harbor is not a blanket exemption General the responsibility for issuing regula- for facilities. If a public entity undertakes an tions that define the parameters of covered alteration to a primary function area, only entities’ obligations when the statute does the required elements of a path of travel to not directly address an issue. This regulation that area that already comply with the 1991 Department of Justice Guidance on 2010 Standards: Title II - 9