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

Q13: Do any other requirements apply to road alteration projects undertaken by public entities that receive Federal financial assistance from DOT either directly or indirectly, even if such financial assistance is not used for the specific road alteration project at issue? 

A13: Yes, if a public entity receives any Federal financial assistance from DOT whether directly or through another DOT recipient, then the entity must also apply DOT’s Section 504 requirements even if the road alteration project at issue does not use Federal funds. See 49 CFR 27.3 (applicability of DOT’s Section 504 requirements) and 27.5 (definition of “program or activity”).

DOT’s Section 504 disability nondiscrimination regulations are found at 49 CFR Part 27.  These regulations implement Section 504 of the Rehabilitation Act of 1973 (Section 504). In 2006, DOT updated its accessibility standards by adopting the 2004 Americans with Disabilities Act Accessibility Guidelines (2004 ADAAG²) into its Section 504 regulations at 49 CFR 27.3 (referencing 49 CFR Part 37, Appendix A).  These requirements replaced the previously applicable ADA Standards for Accessible Design (1991) (formerly known as 1991 ADAAG).  At that time, DOT’s regulation adopted a modification to Section 406 of the 2004 ADAAG which required  the placement of detectable warnings on curb ramps. 

The revised DOT Section 504 regulation also provided a “safe harbor” provision (similar to the ADA provision discussed in Question 1) that applies to curb ramps that were newly constructed or altered by entities receiving Federal financial assistance from DOT and that were in compliance with the 1991 ADAAG requirements prior to November 29, 2006.  If the “safe harbor” applies, these curb ramps are still considered compliant and do not have to be modified to add detectable warnings unless they are altered after November 29, 2006.  The DOT “safe harbor” provision is found at 49 CFR 37.9(c).  DOT’s Section 504 regulations (49 CFR 27.19(a)) require compliance with 49 CFR Part 37. 

The Section 504 safe harbor does not apply, however, if, at the time of the road alteration project, the existing curb ramp does not comply with the 1991 ADAAG and at that time it must be brought into compliance with the current DOT Section 504 requirements (2004 ADAAG) including detectable warnings.

² In 2004, the United States Architectural and Transportation Barriers Board (U.S. Access Board) published the Americans with Disabilities Act Accessibility Guidelines (2004 ADAAG), which serve as the basis of the current enforceable ADA standards adopted by both DOT and DOJ.