28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.133 Maintenance of Accessible Features (Section-by-Section Analysis)

The general rule regarding the maintenance of accessible features, which provides that a public entity must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by qualified individuals with disabilities, is unchanged.  However, the Department wishes to clarify its application and proposes one change to the section.

The Department has noticed that some covered entities do not understand what is required by § 35.133, and it would like to take the opportunity presented by this NPRM to clarify the requirement. Section 35.133(a) broadly covers all features that are required to be accessible under the ADA, from accessible routes and elevators to roll-in showers and signage.  It is not sufficient for a building or other feature to be built in compliance with the ADA, only to be changed or blocked later so that it becomes inaccessible.  A common problem observed by the Department is that covered facilities do not maintain accessible routes.  For example, the accessible routes in offices or hallways are commonly obstructed by boxes, furniture, or other items so that the routes are inaccessible to individuals who use wheelchairs.  Under the ADA, the accessible route must be maintained and therefore these items are required to be removed.  If the items are placed there temporarily--for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room--then § 35.133(b) excuses such "isolated or temporary interruptions."  Other common examples of features that must be maintained, and often are not, are platform lifts and elevators. Public entities must ensure that these features are operable, and to meet this requirement, regular servicing and making repairs quickly will be necessary.

The Department proposes to amend the rule by adding § 35.133(c) to address the discrete situation in which the scoping requirements provided in the proposed standards may reduce the number of required elements below that are required by the 1991 Standards.  In that discrete event, a public entity may reduce such accessible features in accordance with the requirements in the proposed standards.