36 CFR Parts 1190 and 1191 ADA and ABA Accessibility Guidelines - Preamble (Discussion of Comments and Changes)

202 Existing Buildings and Facilities

Section 202 establishes the scope and application of the guidelines in the case of alterations or additions to existing facilities. Section 202.3 states that each altered element or space is required to meet the applicable scoping provisions of Chapter 2. There are three exceptions to this requirement, which have been revised for clarity or added in the final rule. Criteria for alterations affecting primary function areas (202.4) and historic facilities (202.5) are also provided. In the final rule, the provision for primary function areas includes a new exception for residential facilities.

Comment. An exception in the proposed rule (202.3, Exception 1) stated that altered elements and spaces are not required to be on accessible routes. This was intended to clarify that an accessible route to an altered space or element does not have to be provided as part of the work, unless the alteration is to a primary function area covered by 202.4. Comments pointed out that while this exception was intended to cover accessible routes to an altered space, as worded it would also exempt accessible routes within an altered space.

Response. The Board did not intend to exempt requirements for accessible routes within spaces that are altered. The scope of this exception has been limited so that it applies only where elements and spaces are altered, but the circulation path to them is not. Consistent with the proposed rule, this exception is not permitted for alterations to primary function areas, which are required to be connected by an accessible path of travel (unless the cost of providing such a path is "disproportionate" to the overall alteration cost).

A second exception notes that compliance is required unless it is technically infeasible, in which case compliance is required to the maximum extent feasible (202.3, Exception 2). In the proposed rule, this exception contained clarifying language related to this provision that has been recast as an advisory note in the final rule.

A third exception has been added in the final rule for residential facilities (202.3, Exception 3). This exception exempts from coverage dwelling units not required to be accessible under the ADA or the Rehabilitation Act of 1973,¹⁵ which requires that federally funded programs and services, including those pertaining to housing, be accessible to persons with disabilities. In finalizing the rule, the Board has reconciled housing requirements with those of other Federal regulations, as discussed below in the scoping section on residential dwelling units (233). Regulations issued under title II of the ADA by DOJ and HUD under section 504 of the Rehabilitation Act require each program or activity conducted by a covered entity or a program or activity receiving Federal financial assistance to be readily accessible to and usable by individuals with disabilities when the program or activity is viewed in its entirety. Meeting these requirements may involve retrofit of existing facilities as part of a transition plan for compliance. Dwelling units that are accessible or that are to be made accessible under the requirements of the ADA or the Rehabilitation Act are required to comply with the requirements of section 202 when altered; other dwelling units are exempt under the new exception.

Comment. Commenters expressed concern that the replacement of telephones would trigger more extensive alterations, such as a requirement to lower a telephone installed at 54 inches (currently permitted by ADAAG) to 48 inches.

Response. Where elements are altered or replaced they must comply with these guidelines. However, in some cases the altered element is part of a larger element which is itself not altered. For example, pay telephone providers sometimes replace existing telephones with new telephones and, as part of the telephone replacement project, they do not replace or alter the existing telephone enclosures or pedestals. The new telephones, when replaced, must provide a volume control in compliance with section 704.3 that provides up to 20 decibels of gain; original ADAAG 4.31.5(2) only required 18 decibels of gain. However, the existing unaltered telephone enclosures or pedestals need not be lowered so that the telephones comply with the new 48 inch reach requirement established in section 308. Similarly, if a narrow door is replaced, the doorway need not be widened as a consequence of the door replacement. However, if new operating hardware is provided for the door, the hardware must comply with section 404.2.7.

Comment. Commenters indicated that it is common practice to reduce the number of existing telephones in telephone banks in order to reconcile the supply of pay telephones with the demand; noting also an overall decrease in the demand for pay telephones. The comments requested clarification as to whether the removal of an inaccessible pay telephone would be an alteration that would trigger a requirement to lower an adjacent wheelchair accessible pay telephone from 54 inches (currently permitted by ADAAG) to 48 inches.

Response. Inaccessible pay telephones may be removed without triggering requirements for lowering adjacent wheelchair accessible pay telephones, provided that the telephone enclosure or pedestal is not altered when telephones are removed.

Alterations to areas containing a primary function must include an accessible path of travel to the altered area unless it is disproportionate in cost or scope (202.4). This provision is intended to ensure that such areas, when altered, are on an accessible route and are served by accessible rest rooms, telephones, and drinking fountains. Requirements specific to altered residential dwelling units in section 233.3 effectively substitute for this provision by ensuring an accessible route to those dwelling units required to comply as part of an alteration. For consistency and clarity, the Board has exempted residential dwelling units from the requirements for altered primary function areas.

Comment. Comments from the historic preservation community requested that information be provided on the consultation procedures to be followed when applying the exceptions for alterations to qualified historic buildings or facilities in section 202.5. They also requested that the specific language for the exceptions for accessible routes, entrances, and toilet facilities be included in section 202.5, instead of in the various scoping provisions for those elements. In addition, they requested that information be provided on the obligation of public entities that operate historic preservation programs to achieve program accessibility under the DOJ regulations.

Response. The final rule includes advisory information in section 202.5 on the consultation procedures to be followed when applying the exceptions for alterations to qualified historic buildings or facilities. This information derives from advisory information in the original ADAAG (section 4.1.7). When an entity believes that compliance with the requirements for accessible routes, entrances, or toilet facilities would threaten or destroy the historic significance of the building or facility, the entity should consult with its State Historic Preservation Officer. If the State Historic Preservation Officer agrees that compliance with the requirements for a specific element would threaten or destroy the historic significance of the building or facility, use of the exception for that element is permitted. The advisory note to section 202.5 also references the scoping provisions for accessible routes, entrances, and toilet facilities where the specific language for the exceptions for qualified historic buildings and facilities are found. Information has also been included in the advisory note to section 202.5 on the obligation of public entities that operate historic preservation programs to achieve program accessibility under the DOJ regulations.