ADA Best Practices Tool Kit for State and Local Governments

H. Repairing and Rebuilding

Emergencies and disasters often damage state and local government facilities. In the recovery stage of emergency management, state and local governments often make alterations to facilities to repair such damage, construct facilities to replace those that were destroyed or extensively damaged, or move government programs, services, and activities from damaged facilities to other locations. When constructing new or replacement facilities and repairing damaged facilities, state and local governments must comply with the accessibility requirements of Title II of the ADA. They may choose from two design standards for new construction and alterations – either the Uniform Federal Accessibility Standards (UFAS) or the ADA Standards for Accessible Design (ADA Standards). If the ADA Standards are chosen, public entities are not entitled to the elevator exemption contained in § 4.1.3(5) of the Standards. If the building was newly constructed or altered after the ADA went into effect, then the design standard used at that time must be followed for the rebuilding. Alterations to facilities must not decrease accessibility.

State or local government facilities constructed after January 26, 1992 and alterations to such facilities must comply with the new construction requirements of Title II of the ADA.⁸ Alterations to facilities constructed before the ADA became effective, must comply with Title II’s requirements for alterations to existing facilities.⁹ Under the ADA Standards, alterations to primary function areas of existing facilities trigger a "path of travel" requirement – i.e., a requirement to make the path of travel from the entrance to the altered area accessible, including telephones, restrooms, and drinking fountains serving the altered area.¹⁰ Primary function areas are those where major activities take place. But a public entity is not required to spend more than 20 percent of the cost of the original alteration on making the path of travel accessible, even if this cost limitation results in less than full accessibility. Under UFAS, if an existing facility undergoes a “substantial alteration,” the public entity must provide (1) an accessible route from public transportation, parking, streets, and sidewalks to all accessible parts of the building; (2) an accessible entrance; and (3) accessible restrooms.¹¹ A “substantial alteration” for purposes of UFAS is where the total cost of all alterations in a 12-month period amounts to 50 percent or more of the value of the building.

When moving programs from a damaged facility to another location, state and local governments must ensure that the programs remain accessible to people with disabilities.¹² This requirement applies whether the program is relocated permanently or temporarily.