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

I. Staircase Replacements Are Alterations That Affect or Could Affect Usability

Replacing a staircase at a public transportation facility (A) is an alteration for purposes of the ADA and DOT’s implementing regulations and (B) affects or could affect the usability of a facility or part of the facility. See 42 U.S.C. § 12147(a); 49 CFR §§ 37.3, 37.43(a); see also, Disabled in Action of Pa. v. Se. Pa. Transp. Auth. (hereinafter “SEPTA II”), 635 F.3d 87, 93–94 (3d Cir. 2011).

(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.

(B) Staircase replacements are alterations that affect or could affect the usability of a public transportation facility or part thereof.

NYCT, in its comments to the docket for FTA’s proposed ADA circular, asserted that an alteration to an existing facility must be done “in a way that affects or could affect the usability of the facility” in order to trigger the accessibility requirements under the ADA and 49 CFR § 37.43. However, in Disabled in Action of Pa. v. Se. Pa. Transp. Auth. (hereinafter “SEPTA I”), 655 F. Supp. 2d 553, 562 (E.D. Pa. 2009), aff’d, SEPTA II, 635 F.3d 87, 93–94 (3d Cir. 2011), the staircase at issue was replaced due to deterioration of the concrete, and the court noted that the original stairway and the replacement stairway brought an ambulatory person from street level to the same point within the station courtyard. SEPTA I, 655 F. Supp. 2d at 557. The Federal District Court, later affirmed by the Third Circuit, found it “inescapable as a conclusion that replacing a stairway that is unsafe and an escalator that is inoperable with a safe stairway and an operating escalator unequivocally enhances the usability of the stairway and escalator portions of the SEPTA facilities.” SEPTA I, 655 F. Supp. 2d at 562 (emphasis added).

NYCT argues that the “usability” determination in SEPTA II hinges on the fact that the Third Circuit considered the staircase to be “unusable” when it was replaced (or, in NYCT’s words, “no longer usable” and “non-functional”). See SEPTA II, 635 F.3d at 90, 93 (describing the staircase as having become “unusable”); but see SEPTA I, 655 F. Supp. 2d at 557, 562 (deciding that a staircase replacement affected “usability” without describing the original staircase as being “unusable,” but rather “unsafe” or “in disrepair”). While the court in SEPTA II found that the staircase was unusable because it was no longer safe or operable, these are not the only circumstances that meet the “usability” standard. For example, the Third Circuit in Kinney held that resurfacing street pavement affects the street’s “usability” because it makes streets “easier and safer” to use. Kinney v. Yerusalim, 9 F.3d 1067, 1073–74 (3d Cir. 1993) (citing the District Court opinion). “When that surface is improved, the street becomes more usable in a fundamental way.” Id. at 1074. Neither the District Court nor the Third Circuit indicated that the street was unsafe when it was resurfaced. Rather, the Third Circuit’s holding rested solely on the fact that resurfacing the street made the street “easier and safer” for pedestrians and vehicles to use. Id. at 1073–74. The Third Circuit, citing the legislative history of the ADA, underscored that the term “usability” should be broadly defined and has an expansive, remedial construction. Id. at 1073 (citing H. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 64 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 487). By asserting that an altered portion of a facility must be “no longer usable” or “nonfunctional” (in NYCT’s words), or not “in-use” (in SEPTA’s words), in order to qualify as an alteration that “affects or could affect the usability of a facility or part of the facility,” NYCT and SEPTA attempt to add a substantive element that does not exist in 42 U.S.C. § 12147(a) or 49 CFR § 37.43(a); indeed, adding such an element would be inconsistent with Third Circuit case law. See Kinney, 9 F.3d at 1073–74. 

In conclusion, a staircase replacement at an existing facility would qualify as an alteration, given DOT’s examples of alterations under 49 CFR § 37.3 (e.g., “remodeling, renovation, rehabilitation, reconstruction,” etc.), and Third Circuit case law that held that a staircase replacement is in fact an alteration for purposes of the ADA. SEPTA II, 635 F.3d at 93–94. Moreover, where the staircase is replaced due to concrete deterioration or to make the staircase easier or safer to use, such a staircase replacement would qualify as an alteration that “affects or could affect the usability of the facility or part of the facility” under federal appellate case law, regardless of whether the staircase was “in use” at that time. See Kinney, 9 F.3d at 1073–74; SEPTA I, 655 F. Supp. 2d at 562, aff’d, SEPTA II, 635 F.3d at 93–94; see also 42 U.S.C. § 12147(a); 49 CFR § 37.43(a)(1). 

(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.