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

II. Cost-disproportionality Is Only a Factor Under Certain Circumstances

A public entity is permitted to consider cost-disproportionality in determining whether to make an altered path of travel readily accessible to individuals with disabilities (including individuals who use wheelchairs) only if the path of travel is being altered not as a general alteration, but rather as an additional alteration that is required where the path of travel to the altered area must be made readily accessible because the public entity is altering a primary function area (such as a bus or train platform) of a facility. See 42 U.S.C. § 12147(a); 49 CFR § 37.43(a), (c); DOJ Final Rule Implementing Title III of the ADA, 56 Fed. Reg. 35544, 35581 (July 26, 1991) (Title II of the ADA regarding public services and public transportation is identical in pertinent language to Title III of the ADA) (“Costs are to be considered only when an alteration to an area containing a primary function triggers an additional requirement to make the path of travel to the altered area accessible”); see also SEPTA II, 635 F.3d at 95; Roberts v. Royal Atlantic Corp., 542 F.3d 363, 371–72 (2d Cir. 2008).

The plain language of the ADA and DOT’s implementing regulations dictate that consideration of cost-disproportionality is permissible only in the scenario where alteration of a primary function area triggers the additional requirement to make the path of travel to the altered area readily accessible and usable by individuals with disabilities, including individuals who use wheelchairs, to the maximum extent feasible. See, e.g., 42 U.S.C. § 12147(a); 49 CFR § 37.43(a)(1)–(2); SEPTA II, 635 F.3d at 95. For example, 42 U.S.C. § 12147(a) does not provide that cost is a consideration in the sentence explaining the rule for general alterations, whereas the statute does state expressly, in the following sentence, that a path of travel must be altered if a primary function area is altered, where such alterations to the path of travel are “not disproportionate to the overall alterations in terms of cost and scope.” See 42 U.S.C. § 12147(a) (governing alterations to public transportation facilities). Similarly, but even more clearly than in separate sentences, 42 U.S.C. § 12162(e)(2)(B) differentiates between the requirements for general alterations (not containing cost-disproportionality as a factor) and the requirements for alterations to primary function areas (listing cost-disproportionality as a factor) by setting out the rule for each in separate paragraphs (i.e., (B)(i) and (B)(ii)). See 42 U.S.C. § 12162(e)(2)(B) (governing alterations to intercity and rail commuter stations). DOT’s implementing regulations likewise separate out the distinguishable rules in different paragraphs (i.e., (a)(1) and (a)(2)). See 49 CFR § 37.43(a)(1)–(2). Moreover, the Third Circuit has recognized that:

[B]oth 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43 do contain provisions for the consideration of cost in making public transit facilities accessible, but only in different sections establishing requirements for certain additional changes (e.g., to the bathrooms and drinking fountains [and paths of travel]) that must be made ‘to the maximum extent feasible’ if an area that serves a “primary function” is altered. The costs for those additional changes should not be ‘disproportionate.’ See 42 U.S.C. § 12147(a); 49 C.F.R. § 37.43(a)(2). The sections addressing ‘alterations’ in general contain no such language.

SEPTA II, 635 F.3d at 95. Consistent with DOT’s interpretation and Third Circuit case law, DOJ has also taken the position—based on the legislative history of the ADA—that “[c]osts are to be considered only when an alteration to an area containing a primary function triggers an additional requirement to make the path of travel to the altered area accessible.” DOJ Final Rule Implementing Title III of the ADA, 56 Fed. Reg. 35544, 35581 (July 26, 1991) (emphasis added) (Title II of the ADA regarding public services and public transportation is identical in pertinent language to Title III of the ADA).  

Consequently, where a path of travel (such as a staircase or escalator) in an existing facility is itself the subject of alteration—i.e., not in connection with an alteration to a primary function area—the public entity is required to make the altered portion readily accessible to and usable by individuals with disabilities (including individuals who use wheelchairs) without regard to costs or cost-disproportionality. See 56 Fed. Reg. at 35581; SEPTA II, 635 F.3d at 95; see also 42 U.S.C. § 12147(a); 49 CFR § 37.43(a). For general alterations to paths of travel, the qualifier set forth in 49 CFR § 37.43(a) that alterations must be readily accessible “to the maximum extent feasible” refers to technical feasibility. See 56 Fed. Reg. at 35581 (“Any features of the facility that are being altered shall be made accessible unless it is technically infeasible to do so”). The Third Circuit recognized that while there might be, in practice, a correlation or overlap between technical feasibility and “particularly excessive costs,” the “omission of any reference to costs” in the statutory and regulatory rules for general alterations, when cost-disproportionality is “mentioned in closely-related sections, indicates that the ADA and the DOT regulations define feasibility primarily with respect to technical, not purely economic concerns.” See SEPTA II, 635 F.3d at 94–95, n.10 (emphasis added). As such, the court held that SEPTA may not refuse to install elevators at a facility, where it had just undertaken a complete staircase replacement, “solely because to do so would, allegedly, force SEPTA to incur significant costs.” SEPTA II, 635 F.3d at 96. 

Importantly, 49 CFR § 37.43(b), itself, explicitly provides that “the phrase to the maximum extent feasible applies to the occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards through a planned alteration.” 49 CFR § 37.43(b) (emphasis added). Additionally, Appendix D clarifies that “‘to the maximum extent feasible’ means that all changes that are possible must be made.” App. D to 49 CFR part 37 (explaining, for example, that “to the maximum extent feasible” would not require entities “to make building alterations that have little likelihood of being accomplished without removing or altering a loadbearing structural member unless the load-bearing structural member is otherwise being removed or altered as part of the alteration”); see also SEPTA II, 635 F.3d at 95–96.