Questions & Answers: Supplement to the 2013 DOJ/DOT Joint Technical Assistance on the Title II of the ADA Requirements To Provide Curb Ramps when Streets, Roads, or Highways are Altered through Resurfacing

Q12: Is full-depth pavement patching considered maintenance?

A12: The answer to this question depends on the scope and location of the pavement patch.  If the pavement patch work is limited to a portion of the pavement, even including a portion of the crosswalk, patching the pavement would typically be considered maintenance and would not require simultaneous installation or upgrading of curb ramps. Public entities should note that the ADA requires maintenance of accessible features, and as such, they should ensure that when the pavement is patched or other road maintenance is performed, the work does not result in a lesser level of accessibility.  See 28 CFR 35.133(a).  If the pavement patching impacts the curb at a pedestrian street crossing where no curb ramp exists, the work affecting the curb falls within the definition of “alteration,” and a curb ramp must be constructed rather than simply replacing the curb.  See 28 CFR 35.151(b) and 35.151(i).

If a public entity is unsure whether the scope of specific full-depth pavement patching constitutes an alteration, the best practice is for the public entity to work together with the State transportation agency and the FHWA Division to come to an agreement on how to consistently handle these situations and document their decisions.