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

Brief Answers

1. Yes, the replacement of a staircase is an alteration under the ADA and DOT’s implementing regulations because a staircase replacement is tantamount to the renovation, rehabilitation, or reconstruction of an existing facility, as opposed to normal maintenance. Moreover, in a situation where a staircase is being replaced due to concrete deterioration or to make the staircase easier or safer to use, such a staircase replacement qualifies as an alteration that affects or could affect the usability of the facility or part of the facility.

2. The plain language of the ADA and DOT’s implementing regulations, federal appellate case law, and the Department of Justice’s (DOJ) interpretation of the ADA’s legislative history each dictate that costs and cost-disproportionality may be considered by a public entity only under circumstances where a public entity is undertaking an alteration to a primary function area of the facility (e.g., train or bus platforms) and where the public entity must, therefore, ensure that “the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area are readily accessible” as well.