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

(C) NYCT’s interpretation of the ADA and DOT’s implementing regulations is too narrow.

To address another argument presented by NYCT,¹ the ADA Accessibility Guidelines (ADAAG) do not, as NYCT contends, limit the requirement that “a means of accessible vertical access” be provided in connection with staircase or escalator alterations or additions to only those circumstances where a staircase or elevator did not exist previously and where major structural modifications were necessary for the installation.² A similar argument was presented by SEPTA in SEPTA II, and the Third Circuit expressly held that “[a]lthough ADAAG § 4.1.6(1)(f) addresses one scenario in which an accessible means of vertical access must be provided, it does not clearly indicate that this is the only scenario in which such access must be provided [. . . and] SEPTA’s reading is at odds with the otherwise broad accessibility mandate of 42 U.S.C. § 12147(a) and 49 CFR § 37.43.” SEPTA II, 635 F.3d at 94 (emphasis in original). In fact, 49 CFR § 37.9(a) requires public entities to comply with both the requirements of 49 CFR Part 37 and the ADAAG requirements set forth in Appendices B and D to 36 CFR Part 1191, not just the ADAAG requirements. 

The relevant ADAAG requirement cited by NYCT, as set forth in § 206.2.3.1 of Appendix B to 36 CFR Part 1191, merely lays out one situation in which a public entity must provide an accessible route between the levels served by the staircase or escalator— i.e., a situation where the staircase or escalator did not exist previously and major structural modifications were necessary for the installation. Notwithstanding this nonexhaustive ADAAG requirement, because a staircase replacement at an existing facility qualifies as an “alteration” that “affects or could affect the usability of the facility or part of the facility,” for the reasons set forth above, DOT’s regulations (specifically, 49 CFR § 37.43(a)(1)) expressly require that the public entity shall make the alteration “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.” See 49 CFR § 37.43(a)(1); SEPTA II, 635 F.3d at 93–98.