Disability Law Index - Public Entities: Existing Facilities


28 C.F.R § 35.150 - Existing facilities

(a) General - A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not--

(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;

(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with Sec. 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

(b) Methods

(1) General - A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of Sec. 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.


(i) Safe harbor. Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101–19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.

(ii) The safe harbor provided in § 35.150(b)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows––

(A) Residential facilities dwelling units, sections 233 and 809.

(B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.

(C) Recreational boating facilities, sections 235 and 1003; 206.2.10.

(D) Exercise machines and equipment, sections 236 and 1004; 206.2.13.

(E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.

(F) Golf facilities, sections 238 and 1006; 206.2.15.

(G) Miniature golf facilities, sections 239 and 1007; 206.2.16.

(H) Play areas, sections 240 and 1008; 206.2.17.

(I) Saunas and steam rooms, sections 241 and 612.

(J) Swimming pools, wading pools, and spas, sections 242 and 1009.

(K) Shooting facilities with firing positions, sections 243 and 1010.

(L) Miscellaneous.

(1) Team or player seating, section

(2) Accessible route to bowling lanes, section. 206.2.11.

(3) Accessible route in court sports facilities, section 206.2.12.

(3) Historic preservation programs - In meeting the requirements of Sec. 35.150(a) in historic preservation programs, a public entity shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required because of paragraph (a)(2) or (a)(3) of this section, alternative methods of achieving program accessibility include--

(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;

(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or

(iii) Adopting other innovative methods.

(c) Time period for compliance - Where structural changes in facilities are undertaken to comply with the obligations established under this section, such changes shall be made within three years of January 26, 1992, but in any event as expeditiously as possible.

(d) Transition plan

(1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be made available for public inspection.

(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

(3) The plan shall, at a minimum--

(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities;

(ii) Describe in detail the methods that will be used to make the facilities accessible;

(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and

(iv) Indicate the official responsible for implementation of the plan.

(4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation implementing Sec. 504 of the Rehabilitation Act of 1973, then the requirements of this paragraph (d) shall apply only to those policies and practices that were not included in the previous transition plan.

28 C.F.R. § 35.104 - Definitions. (excerpt)

Existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.

Case Law:

Chaffin v. Kansas State Fair Bd., 348 F.3d 850 (10th Cir. 2003).

  • "We therefore do not agree with Defendants that mere physical presence on the fairgrounds--at least when coupled with being effectively trapped in a handicapped section, unable to leave for food or to use the restroom, unable to view the stage, and subjected to being climbed over, stepped on, and bumped into by other attendees--amounts to anything other than a denial of the benefits of the fair."
  • when determining the compliance of existing facilities with the ADA under program accessibility, courts must "look at the accessibility of the facilities as a whole, not at individual elements." Even under this standard, the facilities as a whole must be "readily accessible."
  • A violation of Title II "does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity.... If a [facility's] wheelchair ramps are so steep that they impede a disabled person or if its bathrooms are unfit for the use of a disabled person, then it cannot be said that the [facility] is 'readily accessible.'"

Layton v. Elder, 143 F.3d 469, (8th Cir. 1998)

  • Officials in Montgomery County, Arkansas were ordered to provide access to the programs and services offered at the courthouse.  People with mobility impairments were confronted with a number of different barriers when they tried get to the courthouse. 
  • Finding accessible parking was difficult, the ramp into the building was too steep, the courthouse had no wheelchair access to the second floor, and the rest rooms could not accommodate a wheelchair.  One of the plaintiffs, who uses a wheelchair, had to have his “day in court” in the first floor hallway of the courthouse.  In its decision awarding attorney fees to the plaintiff, the appellate court noted that the regulations do give public entities a great deal of freedom in deciding how they will provide access to its programs and services, but went on to say that; “if the county intends to continue using the county courthouse to provide services, programs, and activities, it must make the parking accommodations and the building accessible to individuals with disabilities…”