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

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.