LEGAL OPINION - U.S. DEPARTMENT OF TRANSPORTATION OFFICE of GENERAL COUNSEL on 49 CFR 37.43(a)

(A) Staircase replacements are alterations.

Pursuant to Title II of the ADA (Pub. L. No. 101-336, Title II) and DOT’s implementing regulations (49 CFR part 37), when a public entity alters an existing public transportation facility or a part thereof, “in a way that affects or could affect the usability of the facility or part” thereof,

the entity shall make the alterations (or ensure that the alterations are made) in such a manner, to the maximum extent feasible, that the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.

49 CFR § 37.43(a)(1); see also 42 U.S.C. § 12147(a); 42 U.S.C. § 12162(e)(2)(B)(i). “Alteration” is defined by DOT regulations as:

[A] change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.

49 CFR § 37.3. The regulatory definition differentiates between “normal maintenance” and more substantial modifications, such as “remodeling, renovation, rehabilitation, [or] reconstruction,” when giving examples of what constitutes an alteration for purposes of the ADA and DOT’s regulations. See 49 CFR §§ 37.3, 37.43(a); 42 U.S.C. § 12147(a); see also SEPTA II (stating that complete replacement of a stairway should be considered “‘remodeling, renovation, rehabilitation [or] reconstruction’ in the ordinary sense of those words”) (quoting 49 CFR § 37.3). Replacing a staircase is an alteration here because staircases that are demolished, under construction, or otherwise in disrepair in public transportation facilities directly impact usability.