Guidance on the 2010 ADA Standards for Accessible Design

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