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

Background:

New York City Transit (NYCT) has altered, is in the process of altering, or plans to alter numerous stations on its rapid rail (subway) lines. NYCT typically seeks funding from the Federal Transit Administration (FTA) for these projects. NYCT asserts that any time alterations to the path of travel are contemplated, cost is a factor, and if the cost of making the path of travel accessible is disproportionate, then NYCT is not required to make the path of travel accessible. Thus, NYCT asserts it is not required to install an elevator when it replaces staircases with new staircases.

The U.S. Department of Transportation’s (DOT) Americans with Disabilities Act (ADA) regulation at 49 CFR § 37.43(a)(1), provides that when a public entity “alters an existing facility or a part of an existing facility used in providing designated public transportation services in a way that affects or could affect the usability of the facility or part of the facility, the entity shall make the alterations (or ensure that the alterations are made) in such a manner, and 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.”

Section 37.43(a)(2) provides that when a public entity “undertakes an alteration that affects or could affect the usability of or access to an area of a facility containing a primary function, the entity shall make the alteration in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of the alterations. Provided, that alterations to the path of travel, drinking fountains, telephones and bathrooms are not required to be made readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, if the cost and scope of doing so would be disproportionate.”

Importantly, as described here and supported by the legal analysis below, there is a distinction between these two provisions. Section 37.43(a)(1) applies to alterations of existing facilities that could affect the usability of the facility—what we have labeled for purposes of this opinion, “general alterations.” As explained further below, when making general alterations under section 37.43(a)(1), cost is not a factor. On the other hand, section 37.43(a)(2) specifically applies only to those situations in which an entity is altering a primary function area, and requires that in such a case, the entity also alters the path of travel, provided the cost of doing so is not disproportionate. Thus, where an element of a path of travel (such as a sidewalk, pedestrian ramp, passageway between platforms, staircase, escalator, etc.) in an existing facility is itself the subject of alteration—that is, not in connection with an alteration to a primary function area—and is therefore subject to 49 CFR § 37.43(a)(1), the public entity is required to make the altered portion (i.e., the element of the path of travel) readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, without regard to cost or cost disproportionality, to the maximum extent feasible.