New Construction of Transportation Facilities

3.4.5Disproportionate Costs

“(1) Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20 percent of the cost of the alteration to the primary function area (without regard to the costs of accessibility modifications).

(2) Costs that may be counted as expenditures required to provide an accessible path of travel include:

(i) Costs associated with providing an accessible entrance and an accessible route to the altered area (e.g., widening doorways and installing ramps);

(ii) Costs associated with making restrooms accessible (e.g., grab bars, enlarged toilet stalls, accessible faucet controls);

(iii) Costs associated with providing accessible telephones (e.g., relocation of phones to an accessible height, installation of amplification devices or TDDs);

(iv) Costs associated with relocating an inaccessible drinking fountain” (§ 37.43(e)).

Discussion

In other words, when altering a primary function area, if the costs of changes to the path of travel to that primary function area are disproportionate, then public entities are required only to complete those changes for which the costs are not disproportionate. As explained in § 37.43(e), alterations made to provide an accessible path of travel to the altered area are deemed disproportionate when the cost associated with the accessible path exceeds 20 percent of the cost of the alteration to the primary function area (without regard to the costs of accessibility modifications).

For example, consider a subway station that is not designated as a key station that only has stair access and the only way to provide access to individuals who use wheelchairs would be to install elevators. An alteration project to the platform areas might involve retiling the platform surface at a cost of $150,000. Accordingly, costs to make alterations to provide an accessible path of travel to platforms that exceed $30,000 would be disproportionate, and more costly path-of-travel improvements like elevators would not be required. ¹⁶ On the other hand, if extensive renovations to the platforms and mezzanine are planned, and elevators would increase the cost of the renovations by 20 percent or less, § 37.43(e) requires that elevators be included.

When altering a primary function area, only the costs of the additional alterations to the path of travel are relevant to calculating disproportionate costs. Section 37.43(a)(1) requires the altered area itself to be accessible.

In this context, “costs” include those necessary to bring the alteration project to its conclusion, such as design, engineering, and construction. Ongoing maintenance and other continuing operating expenses are not part of the calculation. For example, it would be appropriate to consider the total costs of designing, engineering, and construction for the alterations to the primary function area, including ADA compliance for the altered elements. The total would form the basis against which the costs of providing an accessible path of travel would be measured for purposes of determining disproportionality. But it would not be appropriate to include the ongoing expected maintenance costs (e.g., those associated with elevators) as part of the project costs.

3.4.6Accessibility Improvements When Costs Are Disproportionate

“(1) When the cost of alterations necessary to make a path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, then such areas shall be made accessible to the maximum extent without resulting in disproportionate costs;

(2) In this situation, the public entity should give priority to accessible elements that will provide the greatest access, in the following order:

(i) An accessible entrance;

(ii) An accessible route to the altered area;

(iii) At least one accessible restroom for each sex or a single unisex restroom (where there are one or more restrooms);

(iv) Accessible telephones;

(v) Accessible drinking fountains;

(vi) When possible, other accessible elements (e.g., parking, storage, alarms)” (§ 37.43(f)).

“If a public entity performs a series of small alterations to the area served by a single path of travel rather than making the alterations as part of a single undertaking, it shall nonetheless be responsible for providing an accessible path of travel” (§ 37.43(g)).

“(1) If an area containing a primary function has been altered without providing an accessible path of travel to that area, and subsequent alterations of that area, or a different area on the same path of travel, are undertaken within three years of the original alteration, the total cost of alteration to the primary function areas on that path of travel during the preceding three year period shall be considered in determining whether the cost of making that path of travel is disproportionate” (§ 37.43(h)).

Discussion

Public entities are encouraged to consider the cost-effectiveness of undertaking alterations of multiple elements. Advisory 202.3 of the DOT Standards notes:

Although covered entities are permitted to limit the scope of an alteration to individual elements, the alteration of multiple elements within a room or space may provide a cost-effective opportunity to make the entire room or space accessible.

Finally, Appendix D to § 37.43 explains:

In looking at facility concepts like “disproportionality” and “to the maximum extent feasible,” [DOT] will consider any expenses related to accessibility for passengers. It is not relevant to consider non-passenger related improvements (e.g., installing a new track bed) or to permit “gold-plating” (attributing to accessibility costs the expense of non-related improvements, such as charging to accessibility costs the price of a whole new door, when only adding a new handle to the old door was needed for accessibility).

For example, if a transit agency’s renovation of a rail station includes the installation of a new track structure and track bed, then costs of these alterations are not attributable to the costs of making the path of travel to the altered passenger area accessible.

Transit agencies with questions about calculating disproportionate costs for facility alterations are encouraged to seek assistance from the FTA Office of Civil Rights.