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 2. Laws, Regulations & St...
 3. Americans with Disabilities Act Title II Regulations

TABLE OF CONTENTS

 * Americans with Disabilities Act Title II Regulations
    * Title II Regulations Supplementary Information
       * SUPPLEMENTARY INFORMATION:
       * Enactment of the ADA and Issuance of the 1991 Regulations
       * Benefits Not Monetized in the Formal Analysis
       * Executive Order 13132
       * National Technology Transfer and Advance­ment Act of 1995
       * Plain Language Instructions
       * Paperwork Reduction Act
       * Unfunded Mandates Reform Act
       * List of Subjects for 28 CFR Part 35
   
    * Title II Regulations Revised Final Title II Regulation with Integrated
      Text
    * Subpart A-General
       * § 35.101 Purpose and broad coverage.
       * § 35.102 Application.
       * § 35.103 Relationship to other laws.
       * Section 35.104 Definitions.
       * § 35.105 Self-evaluation.
       * § 35.106 Notice
       * § 35.107 Designation of responsible employee and adoption of grievance
         procedures
       * §§ 35.109—35.129 [Reserved]
   
    * Subpart B—General Requirements
       * § 35.130 General prohibitions against discrimination
       * § 35.131 Illegal use of drugs
       * § 35.132 Smoking
       * § 35.133 Maintenance of accessible features
       * § 35.134 Retaliation or coercion
       * § 35.135 Personal devices and services
       * § 35.136 Service animals
       * § 35.137 Mobility devices.
       * § 35.138 Ticketing
       * Section 35.139 Direct threat.
   
    * Subpart C—Employment
       * § 35.140 Employment discrimination prohibited
       * §§ 35.141—35.148 [Reserved]
   
    * Subpart D—Program Accessibility
       * § 35.149 Discrimination prohibited.
       * § 35.150 Existing facilities
       * § 35.151 New construction and alterations
       * § 35.152 Jails, detention and correctional facilities, and community
         correctional facilities.
       * §§ 35.153—35.159 [Reserved]
   
    * Subpart E—Communications
       * § 35.160 General.
       * § 35.161 Telecommunications.
       * § 35.162 Telephone emergency services
       * § 35.163 Information and signage
       * § 35.164 Duties
       * §§ 35.165—35.169 [Reserved]
   
    * Subpart F—Compliance Procedures
       * § 35.170 Complaints
       * § 35.171 Acceptance of complaints
       * § 35.172 Investigations and compliance reviews.
       * § 35.173 Voluntary compliance agreements
       * § 35.174 Referral.
       * § 35.175 Attorney’s fees.
       * § 35.176 Alternative means of dispute resolution.
       * § 35.177 Effect of unavailability of technical assistance.
       * § 35.178 State immunity.
       * §§ 35.179—35.189 [Reserved]
   
    * Subpart G—Designated Agencies
       * § 35.190 Designated Agencies.
       * §§ 35.191—35.999 [Reserved]
   
    * Title II Regulations: 2010 Guidance and Section-by-Section Analysis
    * Subpart A–General
       * 35.104 Definitions.
   
    * Subpart B—General Requirements
       * Section 35.130(h) Safety.
       * Section 35.133 Maintenance of accessible features.
       * Section 35.136 Service animals.
       * Section 35.137 Mobility devices.
       * Section 35.138 Ticketing
       * § 35.139 Direct threat.
   
    * Subpart D—Program Accessibility
       * Section 35.150(b)(2) Safe harbor
       * Section 35.151 New construction and alterations
       * Section 35.151(b) Alterations
       * Section 35.151(b)(4)(ii)(C) Path of travel— safe harbor
       * Section 35.151(b)(3) Alterations to historic facilities
       * Section 35.151(c) Accessibility standards for new construction and
         alterations
       * Section 35.151(d) Scope of coverage
       * Section 35.151(e) Social service center establishments
       * Section 35.151(f) Housing at a place of education
       * Section 35.151(g) Assembly areas
       * Section 35.151(h) Medical care facilities
       * Section 35.151(i) Curb ramps
       * Section 35.151(j) Residential housing for sale to individual owners
       * Section 35.151(k) Detention and correctional facilities
       * Section 35.152 Detention and correctional facilities—program
         requirements
   
    * Subpart E—Communications
       * Section 35.160 Communications.
       * Section 35.161 Telecommunications.
   
    * Subpart F—Compliance Procedures
       * Section 35.171 Acceptance of complaints.
       * Section 35.172 Investigations and compliance reviews.
   
    * Subpart G—Designated Agencies
       * Section 35.190 Designated agencies.
   
    * Other Issues
       * Questions Posed in the NPRM Regarding Costs and Benefits of Complying
         With the 2010 Standards
       * Alterations and Water Closet Clearances in Single-User Toilet Rooms
         With In-Swinging Doors
       * Public Comments on Other NPRM Issues
   
    * Title II Regulations; 1991 Preamble and Section-by-Section Analysis
       * Appendix B to Part 35—Guidance on ADA Regulation on Nondiscrimination
         on the Basis of Disability in State and Local Government Services
         Originally Published July 26, 1991
   
    * Section-by-Section Analysis
    * Subpart A-General
       * §35.101 Purpose.
       * §35.102 Application.
       * §35.103 Relationship to other laws.
       * §35.105 Self-evaluation.
       * §35.106 Notice.
       * §35.107 Designation of responsible employee and adoption of grievance
         procedures.
   
    * Subpart B – General Requirements
       * §35.130 General prohibitions against discrimination.
       * §35.131 Illegal use of drugs.
       * §35.132 Smoking.
       * §35.133 Maintenance of accessible features.
       * §35.134 Retaliation or coercion.
       * §35.135 Personal devices and services.
   
    * Subpart C – Employment
       * §35.140 Employment discrimination prohibited.
   
    * Subpart D – Program Accessibility
       * §35.149 Discrimination prohibited.
       * §35.150 Existing facilities.
       * §35.151 New construction and alterations.
   
    * Subpart E – Communications
       * §35.160 General.
       * §35.161 Telecommunication Devices for the Deaf (TDD’s)
       * §35.162 Telephone Emergency Services
       * §35.163 Information and Signage
       * §35.164 Duties
   
    * Subpart F – Compliance Procedures
       * §35.170 Complaints.
       * §35.171 Acceptance of complaints.
       * §35.172 Resolution of complaints.
       * §35.173 Voluntary compliance agreements.
       * §35.174 Referral.
       * §35.175 Attorney’s fees.
       * §35.176 Alternative means of dispute resolution.
       * §35.177 Effect of unavailability of technical assistance.
       * §35.178 State immunity.
   
    * Subpart G – Designated Agencies
       * §35.190 Designated agencies.
   
    * Title II Regulations; Pool Extension Final Rule Guidance and Section-by
      Section Analysis
    * Title II Regulations; ADA Amendments Act Final Rule Guidance and
      Section-by-Section Analysis

Print this page


AMERICANS WITH DISABILITIES ACT TITLE II REGULATIONS



October 11, 2016

Part 35 Nondiscrimination on the Basis of Disability in State and Local
Government Services.


TITLE II REGULATIONS SUPPLEMENTARY INFORMATION

DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 105; AG Order No. 3180– 2010]
RIN 1190–AA46
Nondiscrimination on the Basis of Disability in State and Local Government
Services
AGENCY:
Department of Justice, Civil Rights Division.
ACTION:
Final rule.


--------------------------------------------------------------------------------

SUMMARY:This final rule revises the regulation of the Department of Justice
(Department) that implements title II of the Americans with Disabilities Act
(ADA), relating to nondiscrimination on the basis of disability in State and
local government services. The Department is issuing this final rule in order to
adopt enforceable accessibility standards under the ADA that are consistent with
the minimum guidelines and requirements issued by the Architectural and
Transportation Barriers Compliance Board (Access Board), and to update or amend
certain provisions of the title II regulation so that they comport with the
Department’s legal and practical experiences in enforcing the ADA since 1991.
Concurrently with the publication of this final rule for title II, the
Department is publishing a final rule amending its ADA title III regulation,
which covers nondiscrimination on the basis of disability by public
accommodations and in commercial facilities.

DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION

CONTACT:Janet L. Blizard, Deputy Chief, or Barbara J. Elkin, Attorney Advisor,
Disability Rights Sec­tion, Civil Rights Division, U.S. Department of Justice,
at (202) 307–0663 (voice or TTY). This is not a toll-free number. Information
may also be obtained from the Department’s toll-free ADA Information Line at
800-514-0301 (voice) or 1-833-610-1264 (TTY). This rule is also available in an
accessible format on the ADA Home Page. You may obtain copies of this rule in
large print or on computer disk by calling the ADA Information Line listed
above.


SUPPLEMENTARY INFORMATION:

THE ROLES OF THE ACCESS BOARD AND THE DEPARTMENT OF JUSTICE

The Access Board was established by section 502 of the Rehabilitation Act of
1973. 29 U.S.C. 792. The Board consists of 13 members appointed by the President
from among the general public, the majority of whom must be individuals with
disabilities, and the heads of 12 Federal departments and agencies specified by
statute, including the heads of the Department of Justice and the Department of
Transportation (DOT). Originally, the Access Board was established to develop
and maintain accessibility guidelines for facilities designed, constructed,
altered, or leased with Federal dollars under the Architectural Barriers Act of
1968 (ABA). 42 U.S.C. 4151 et seq. The passage of the ADA expanded the Access
Board’s responsibilities.

The ADA requires the Access Board to “issue minimum guidelines that shall
supplement the existing Minimum Guidelines and Requirements for Accessible
Design for purposes of subchapters II and III of this chapter * * * to ensure
that buildings, facilities, rail passenger cars, and vehicles are accessible, in
terms of architecture and design, transportation, and communication, to
individuals with disabilities.” 42 U.S.C. 12204. The ADA requires the Department
to issue regulations that include enforceable accessibility standards applicable
to facilities subject to title II or title III that are consistent with the
“minimum guidelines” issued by the Access Board, 42 U.S.C. 12134(c); 42 U.S.C.
12186(c), but vests in the Attorney General sole responsibility for the
promulgation of those standards that fall within the Department’s jurisdiction
and for enforcement of the regulations.

The ADA also requires the Department to develop regulations with respect to
existing facilities subject to title II (subtitle A) and title III. How and to
what extent the Access Board’s guidelines are used with respect to the barrier
removal requirement applicable to existing facilities under title III of the ADA
and to the provision of program accessibility under title II of the ADA are
solely within the discretion of the Department.


ENACTMENT OF THE ADA AND ISSUANCE OF THE 1991 REGULATIONS

On July 26, 1990, President George H.W. Bush signed into law the ADA, a
comprehensive civil rights law prohibiting discrimination on the basis of
disability.1 The ADA broadly protects the rights of individuals with
disabilities in employment, access to State and local government services,
places of public accommodation, transportation, and other important areas of
American life. The ADA also requires newly designed and constructed or altered
State and local government facilities, public accommodations, and commercial
facilities to be readily accessible to and usable by individuals with
disabilities. 42 U.S.C. 12101 et seq. Section 204(a) of the ADA directs the
Attorney General to issue regulations implementing part A of title II but
exempts matters within the scope of the authority of the Secretary of
Transportation under section 223, 229, or 244. See 42 U.S.C. 12134. Section
229(a) and section 244 of the ADA direct the Secretary of Transportation to
issue regulations implementing part B of title II, except for section 223. See
42 U.S.C 12149; 42 U.S.C. 12164. Title II, which this rule addresses, applies to
State and local government entities, and, in subtitle A, protects qualified
individuals with disabilities from discrimination on the basis of disability in
services, programs, and activities provided by State and local government
entities. Title II extends the prohibition on discrimination established by
section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all
activities of State and local governments regardless of whether these entities
receive Federal financial assistance. 42 U.S.C. 12131B65.

Title III prohibits discrimination on the basis of disability in the activities
of places of public accommodation (businesses that are generally open to the
public and that fall into one of twelve categories listed in the ADA, such as
restaurants, movie theaters, schools, day care facilities, recreational
facilities, and doctors’ offices) and requires newly constructed or altered
places of public accommodation—as well as commercial facilities (privately
owned, nonresidential facilities like factories, warehouses, or office
buildings)—to comply with the ADA Standards. 42 U.S.C. 12181B89.

On July 26, 1991, the Department issued rules implementing title II and title
III, which are codified at 28 CFR part 35 (title II) and part 36 (title III).
Appendix A of the 1991 title III regulation, which is republished as Appendix D
to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991
Standards), which were based upon the version of the Americans with Disabilities
Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the
same date. Under the Department’s 1991 title III regulation, places of public
accommodation and commercial facilities currently are required to comply with
the 1991 Standards with respect to newly constructed or altered facilities. The
Department’s 1991 title II regulation gives public entities the option of
complying with the Uniform Federal Accessibility Standards (UFAS) or the 1991
Standards with respect to newly constructed or altered facilities.

The Access Board’s publication of the 2004 ADA/ABA Guidelines was the
culmination of a long-term effort to facilitate ADA compliance by eliminating,
to the extent possible, inconsistencies among Federal accessibility requirements
and between Federal accessibility requirements and State and local building
codes. In support of this effort, the Department is amending its regulation
implementing title II and is adopting standards consistent with ADA Chapter 1,
ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, naming
them the 2010 ADA Standards for Accessible Design. The Department is also
amending its title III regulation, which prohibits discrimination on the basis
of disability by public accommodations and in commercial facilities,
concurrently with the publication of this rule in this issue of the Federal
Register.

DEVELOPMENT OF THE 2004 ADA/ABA GUIDELINES

In 1994, the Access Board began the process of updating the 1991 ADAAG by
establishing an advisory committee composed of members of the design and
construction industry, the building code community, and State and local
government entities, as well as individuals with disabilities. In 1998, the
Access Board added specific guidelines on State and local government facilities,
63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children,
63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and
recommendations of the advisory committee, the Access Board issued a Notice of
Proposed Rulemaking (NPRM) to update and revise its ADA and ABA Accessibility
Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board added
specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 2000). The Access
Board released an interim draft of its guidelines to the public on April 2,
2002, 67 FR 15509, in order to provide an opportunity for entities with model
codes to consider amendments that would promote further harmonization. In
September of 2002, the Access Board set forth specific guidelines on
recreational facilities. 67 FR 56352 (Sept. 3, 2002).

By the date of its final publication on July 23, 2004, the 2004 ADA/ABA
Guidelines had been the subject of extraordinary review and public
participation. The Access Board received more than 2,500 comments from
individuals with disabilities, affected industries, State and local governments,
and others. The Access Board provided further opportunity for participation by
holding public hearings.

The Department was involved extensively in the development of the 2004 ADA/ABA
Guidelines. As a Federal member of the Access Board, the Attorney General’s
representative voted to approve the revised guidelines. ADA Chapter 1 and ADA
Chapter 2 of the 2004 ADA/ABA Guidelines provided scoping requirements for
facilities subject to the ADA; “scoping” is a term used in the 2004 ADA/ABA
Guidelines to describe requirements that prescribe which elements and spaces—
and, in some cases, how many—must comply with the technical specifications. ABA
Chapter 1 and ABA Chapter 2 provide scoping requirements for facilities subject
to the ABA (i.e., facilities designed, built, altered, or leased with Federal
funds). Chapters 3 through 10 provide uniform technical specifications for
facilities subject to either the ADA or ABA. This revised format is designed to
eliminate unintended conflicts between the two sets of Federal accessibility
standards and to minimize conflicts between the Federal regulations and the
model codes that form the basis of many State and local building codes. For the
purposes of this final rule, the Department will refer to ADA Chapter 1, ADA
Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004
ADAAG.

These amendments to the 1991 ADAAG have not been adopted previously by the
Department as ADA Standards. Through this rule, the Department is adopting
revised ADA Standards consistent with the 2004 ADAAG, including all of the
amendments to the 1991 ADAAG since 1998. For the purposes of title II, the
Department’s revised standards are entitled “The 2010 Standards for Accessible
Design” and consist of the 2004 ADAAG and the requirements in § 35.151. Because
the Department has adopted the 2004 ADAAG as part of its title II and title III
regulations, once the Department’s final rules become effective, the 2004 ADAAG
will have legal effect with respect to the Department’s title II and title III
regulations and will cease to be mere guidance for those areas regulated by the
Department. In 2006, the (DOT) adopted the 2004 ADAAG. With respect to those
areas regulated by DOT, these guidelines, as adopted by DOT have had legal
effect since 2006.

THE DEPARTMENT’S RULEMAKING HISTORY

The Department published an advance notice of proposed rulemaking (ANPRM) on
September 30, 2004, 69 FR 58768, for two reasons: (1) To begin the process of
adopting the 2004 ADAAG by soliciting public input on issues relating to the
potential application of the Access Board’s revisions once the Department adopts
them as revised standards; and (2) to request background information that would
assist the Department in preparing a regulatory analysis under the guidance
provided in Office of Management and Budget (OMB) Circular AB4, sections D
(Analytical Approaches) and E (Identifying and Measuring Benefits and Costs)
(Sept. 17, 2003), available at
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24,
2010). While underscoring that the Department, as a member of the Access Board,
already had reviewed comments provided to the Access Board during its
development of the 2004 ADAAG, the Department specifically requested public
comment on the potential application of the 2004 ADAAG to existing facilities.
The extent to which the 2004 ADAAG is used with respect to the program access
requirement in title II (as well as with respect to the barrier removal
requirement applicable to existing facilities under title III) is within the
sole discretion of the Department. The ANPRM dealt with the Department’s
responsibilities under both title II and title III.

The public response to the ANPRM was substantial. The Department extended the
comment deadline by four months at the public’s request. 70 FR 2992 (Jan. 19,
2005). By the end of the extended comment period, the Department had received
more than 900 comments covering a broad range of issues. Many of the commenters
responded to questions posed specifically by the Department, including questions
regarding the Department’s application of the 2004 ADAAG once adopted by the
Department and the Department’s regulatory assessment of the costs and benefits
of particular elements. Many other commenters addressed areas of desired
regulation or of particular concern.

To enhance accessibility strides made since the enactment of the ADA, commenters
asked the Department to focus on previously unregulated areas such as ticketing
in assembly areas; reservations for hotel rooms, rental cars, and boat slips;
and captioning. They also asked for clarification on some issues in the 1991
regulations, such as the requirements regarding service animals. Other
commenters dealt with specific requirements in the 2004 ADAAG or responded to
questions regarding elements scoped for the first time in the 2004 ADAAG,
including recreation facilities and play areas. Commenters also provided some
information on how to assess the cost of elements in small facilities, office
buildings, hotels and motels, assembly areas, hospitals and long-term care
facilities, residential units, recreation facilities, and play areas. Still
other commenters addressed the effective date of the proposed standards, the
triggering event by which the effective date is calculated for new construction,
and variations on a safe harbor that would excuse elements built in compliance
with the 1991 Standards from compliance with the proposed standards.

After careful consideration of the public comments in response to the ANPRM, on
June 17, 2008, the Department published an NPRM covering title II (73 FR 4466).
The Department also published an NPRM on that day covering title III (73 FR
34508). The NPRMs addressed the issues raised in the public’s comments to the
ANPRM and sought additional comment, generally and in specific areas, such as
the Department’s adoption of the 2004 ADAAG, the Department’s regulatory
assessment of the costs and benefits of the rule, its updates and amendments of
certain provisions of the existing title II and III regulations, and areas that
were in need of additional clarification or specificity.

A public hearing was held on July 15, 2008, in Washington, D.C. Forty-five
individuals testified in person or by phone. The hearing was streamed live over
the Internet. By the end of the 60-day comment period, the Department had
received 4,435 comments addressing a broad range of issues many of which were
common to the title II and title III NPRMs, from representatives of businesses
and industries, State and local government agencies, disability advocacy
organizations, and private individuals, many of which addressed issues common to
both NPRMs.

The Department notes that this rulemaking was unusual in that much of the
proposed regulatory text and many of the questions asked across titles II and
III were the same. Consequently, many of the commenters did not provide separate
sets of documents for the proposed title II and title III rules, and in many
instances, the commenters did not specify which title was being commented upon.
As a result, where comments could be read to apply to both titles II and III,
the Department included them in the comments and responses for each final rule.

Most of the commenters responded to questions posed specifically by the
Department, including what were the most appropriate definitions for terms such
as “wheelchair,” “mobility device,” and “service animal”; how to quantify
various benefits that are difficult to monetize; what requirements to adopt for
ticketing and assembly areas; whether to adopt safe harbors for small
businesses; and how best to regulate captioning. Some comments addressed
specific requirements in the 2004 ADAAG or responded to questions regarding
elements scoped for the first time in the 2004 ADAAG, including recreation
facilities and play areas. Other comments responded to questions posed by the
Department concerning certain specific requirements in the 2004 ADAAG.

RELATIONSHIP TO OTHER LAWS

The Department of Justice regulation implementing title II, 28 CFR 35.103,
provides the following:

(a) Rule of interpretation. Except as otherwise provided in this part, this part
shall not be construed to apply a lesser standard than the standards applied
under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the
regulations issued by Federal agencies pursuant to that title.

(b) Other laws. This part does not invalidate or limit the remedies, rights, and
procedures of any other Federal, State, or local laws (including State common
law) that provide greater or equal protection for the rights of individuals with
disabilities or individuals associated with them.

These provisions remain unchanged by the final rule. The Department recognizes
that public entities subject to title II of the ADA may also be subject to title
I of the ADA, which prohibits discrimination on the basis of disability in
employment; section 504 of the Rehabilitation Act of 1973 and other Federal
statutes that prohibit discrimination on the basis of disability in the programs
and activities of recipients of Federal financial assistance; and other Federal
statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705 et seq., and
the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the
Department’s title II and title III regulations does not necessarily ensure
compliance with other Federal statutes.

Public entities that are subject to the ADA as well as other Federal disability
discrimination laws must be aware of the requirements of all applicable laws and
must comply with these laws and their implementing regulations. Although in many
cases similar provisions of different statutes are interpreted to impose similar
requirements, there are circumstances in which similar provisions are applied
differently because of the nature of the covered entity or activity or because
of distinctions between the statutes. For example, emotional support animals
that do not qualify as service animals under the Department’s title II
regulation may nevertheless qualify as permitted reasonable accommodations for
persons with disabilities under the FHAct and the ACAA. See, *e.g., Mutual
Homes, Inc. v. Spencer*, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities
that operate housing facilities must ensure that they apply the reasonable
accommodation requirements of the FHAct in determining whether to allow a
particular animal needed by a person with a disability into housing and may not
use the ADA definition as a justification for reducing their FHAct obligations.
In addition, nothing in the ADA prevents a covered entity subject to one statute
from modifying its policies and providing greater access in order to assist
individuals with disabilities in achieving access to entities subject to other
Federal statutes. For example, a public airport is a title II facility that
houses air carriers subject to the ACAA. The public airport operator is required
to comply with the title II requirements, but is not covered by the ACAA.
Conversely, the air carrier is required to comply with the ACAA, but is not
covered by title II of the ADA. If a particular animal is a service animal for
purposes of the ACAA and is thus allowed on an airplane, but is not a service
animal for purposes of the ADA, nothing in the ADA prohibits an airport from
allowing a ticketed passenger with a disability who is traveling with a service
animal that meets the ACAA’s definition of a service animal to bring that animal
into the facility even though under the ADA’s definition of service animal the
animal could be lawfully excluded.

In addition, public entities (including AMTRAK) that provide public
transportation services that are subject to subtitle B of title II should be
reminded that the Department’s regulation, at 28 CFR 35.102, provides: “(a)
Except as provided in paragraph (b) of this section, this part applies to all
services, programs, and activities provided or made available by public
entities. (b) To the extent that public transportation services, programs, and
activities of public entities are covered by subtitle B of title II of the ADA,
42 U.S.C. 12141 et seq., they are not subject to the requirements of this part.”
The ADA regulations of DOT at 49 CFR 37.21(c) state that entities subject to
DOT’s ADA regulations may also be subject to the ADA regulations of the
Department of Justice. As stated in the preamble to § 37.21(c) in DOT’s 1991
regulation, “[t]he DOT rules apply only to the entity’s transportation
facilities, vehicles, or services; the DOJ rules may cover the entity’s
activities more broadly.” 56 FR 45584, 45736 (Sept. 6, 1991). Nothing in this
final rule alters these provisions.

The Department recognizes that DOT has its own independent regulatory
responsibilities under subtitle B of title II of the ADA. To the extent that the
public transportation services, programs, and activities of public entities are
covered by subtitle B of title II of the ADA, they are subject to the DOT
regulations at 49 CFR parts 37 and 39. Matters covered by subtitle A are covered
by this rule. However, this rule should not be read to prohibit DOT from
elaborating on the provisions of this rule in its own ADA rules in the specific
regulatory contexts for which it is responsible, after appropriate consultation
with the Department. For example, DOT may issue such specific provisions with
respect to the use of non-traditional mobility devices, e.g., Segways®, on any
transportation vehicle subject to subtitle B. While DOT may establish
transportation-specific requirements that are more stringent or expansive than
those set forth in this rule, any such requirements cannot reduce the
protections and requirements set forth in this rule.

In addition, activities not specifically addressed by DOT’s ADA regulation may
be covered by DOT’s regulation implementing section 504 of the Rehabilitation
Act for its federally assisted programs and activities at 49 CFR part 27. Like
other programs of public entities that are also recipients of Federal financial
assistance, those programs would be covered by both the section 504 regulation
and this part. Airports operated by public entities are not subject to DOT’s ADA
regulation, but they are subject to subpart A of title II and to this rule. The
Department of Justice regulation implementing title II generally, and the DOT
regulations specifically implementing subtitle B of title II, may overlap. If
there is overlap in areas covered by subtitle B which DOT regulates, these
provisions shall be harmonized in accordance with the DOT regulation at 49 CFR
37.21(c).

ORGANIZATION OF THIS RULE

Throughout this rule, the original ADA Standards, which are republished as
Appendix D to 28 CFR part 36, will be referred to as the “1991 Standards.” The
original title II regulation, 28 CFR part 35, will be referred to as the “1991
title II regulation.” ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of
the 2004 ADA/ABA Guidelines, codified at 36 CFR part 1191, app. B and D (2009)
will be referred to as the “2004 ADAAG.” The Department’s Notice of Proposed
Rulemaking, 73 FR 34466 (June 17, 2008), will be referred to as the “NPRM.” As
noted above, the 2004 ADAAG, taken together with the requirements contained in §
35.151 (New Construction and Alterations) of the final rule, will be referred to
as the “2010 Standards.” The amendments made to the 1991 title II regulation and
the adoption of the 2004 ADAAG, taken together, will be referred to as the
“final rule.”

In performing the required periodic review of its existing regulation, the
Department has reviewed the title II regulation section by section, and, as a
result, has made several clarifications and amendments in this rule. Appendix A
of the final rule, “Guidance on Revisions to ADA Regulation on Nondiscrimination
on the Basis of Disability in State and Local Government Services,” codified as
Appendix A to 28 CFR part 35, provides the Department’s response to comments and
its explanations of the changes to the regulation. The section entitled
“Section-by-Section Analysis and Response to Comments” in Appendix A provides a
detailed discussion of the changes to the title II regulation. The
Section-by-Section Analysis follows the order of the 1991 title II regulation,
except that regulatory sections that remain unchanged are not referenced. The
discussion within each section explains the changes and the reasoning behind
them, as well as the Department’s response to related public comments. Subject
areas that deal with more than one section of the regulation include references
to the related sections, where appropriate. The Section-by-Section Analysis also
discusses many of the questions asked by the Department for specific public
response. The section of Appendix A entitled “Other Issues” discusses public
comments on several issues of concern to the Department that were the subject of
questions that are not specifically addressed in the Section-by-Section
Analysis.

The Department’s description of the 2010 Standards, as well as a discussion of
the public comments on specific sections of the 2004 ADAAG, is found in Appendix
B of the final title III rule, “Analysis and Commentary on the 2010 ADA
Standards for Accessible Design,” and codified as Appendix B to 28 CFR part 36.

The provisions of this rule generally take effect six months from its
publication in the Federal Register. The Department has determined, however,
that compliance with the 2010 Standards shall not be required until 18 months
from the publication date of this rule. This exception is set forth in §
35.151(c) and is discussed in greater detail in Appendix A. See Appendix A
discussion entitled “Section 35.151(c) New construction and alterations.”

This final rule only addresses issues that were identified in the NPRM as
subjects the Department intended to regulate through this rulemaking proceeding.
Because the Department indicated in the NPRM that it did not intend to regulate
certain areas, including equipment and furniture, accessible golf cars, and
movie captioning and video description, as part of this rulemaking proceeding,
the Department believes it would be appropriate to solicit more public comment
about these areas prior to making them the subject of a rulemaking. The
Department intends to engage in additional rulemaking in the near future
addressing accessibility in these areas and others, including next generation
9–1–1 and accessibility of Web sites operated by covered public entities and
public accommodations.

ADDITIONAL INFORMATION

Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and Executive
Orders)

The Department must provide two types of assessments as part of its final rule:
an analysis of the costs and benefits of adopting the changes contained in this
rule, and a periodic review of its existing regulations to consider their impact
on small entities, including small businesses, small nonprofit organizations,
and small governmental jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994
Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C.
601 et seq., as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A–4, available at
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24,
2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.

In the NPRM, the Department kept open the possibility that, if warranted by
public comments received on an issue raised by the 2004 ADAAG, or by the results
of the Department’s Initial Regulatory Impact Analysis (available at
https://archive.ada.gov/archive/NPRM2008/ria.htm) showing that the likely costs
of making a particular feature or facility accessible were disproportionate to
the benefits (including both monetized and nonmonetized benefits) to persons
with disabilities, the Attorney General, as a member of the Access Board, could
return the issue to the Access Board for further consideration. After careful
consideration, the Department has determined that it is unnecessary to return
any issues to the Access Board for additional consideration.

Executive Order 12866 This rule has been reviewed by the Office of Management
and Budget (OMB) under Executive Order 12866. The Department has evaluated its
existing regulations for title II and title III section by section, and many of
the provisions in the final rule for both titles reflect its efforts to mitigate
any negative effects on small entities. A Final Regulatory Impact Analysis
(Final RIA or RIA) was prepared by the Department’s contractor, HDR HLB Decision
Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and
OMB Circular A–4, the Department has reviewed and considered the Final RIA and
has accepted the results of this analysis as its assessment of the benefits and
costs of the final rules.

Executive Order 12866 refers explicitly not only to monetizable costs and
benefits but also to “distributive impacts” and “equity,” see E.O. 12866,
section 1(a), and it is important to recognize that the ADA is intended to
provide important benefits that are distributional and equitable in character.
The ADA states, “[i]t is the purpose of this [Act] (1) to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities; [and] (2) to provide clear, strong, consistent,
enforceable standards addressing discrimination against individuals with
disabilities[.]” 42 U.S.C. 12101(b). Many of the benefits of this rule stem from
the provision of such standards, which will promote inclusion, reduce stigma and
potential embarrassment, and combat isolation, segregation, and second-class
citizenship of individuals with disabilities. Some of these benefits are, in the
words of Executive Order 12866, “difficult to quantify, but nevertheless
essential to consider.” E.O. 12866, section 1(a). The Department has considered
such benefits here.

Final Regulatory Impact Analysis The Final RIA embodies a comprehensive
benefit-cost analysis of the final rules for both title II and title III and
assesses the incremental benefits and costs of the 2010 Standards relative to a
primary baseline scenario (1991 Standards). In addition, the Department
conducted additional research and analyses for requirements having the highest
negative net present values under the primary baseline scenario. This approach
was taken because, while the 1991 Standards are the only uniform set of
accessibility standards that apply to public accommodations, commercial
facilities, and State and local government facilities nationwide, it is also
understood that many State and local jurisdictions have already adopted IBC/ANSI
model code provisions that mirror those in the 2004 ADAAG. The assessments based
on this approach assume that covered entities currently implementing codes that
mirror the 2004 ADAAG will not need to modify their code requirements once the
rules are finalized. They also assume that, even without the final rules, the
current level of compliance would be unchanged. The Final RIA contains specific
information, including data in chart form, detailing which States have already
adopted the accessibility standards for this subset of six requirements. The
Department believes that the estimates resulting from this approach represent a
reasonable upper and lower measure of the likely effects these requirements will
have that the Department was able to quantify and monetize.

The Final RIA estimates the benefits and costs for all new (referred to as
“supplemental”) requirements and revised requirements across all types of newly
constructed and existing facilities. The Final RIA also incorporates a
sophisticated risk analysis process that quantifies the inherent uncertainties
in estimating costs and benefits and then assesses (through computer
simulations) the relative impact of these factors when varied simultaneously. A
copy of the Final RIA will be made available online for public review on the
Department’s ADA Home Page (http://www.ada.gov).

From an economic perspective (as specified in OMB Circular A–4), the results of
the Final RIA demonstrate that the Department’s final rules increase social
resources and thus represent a public good because monetized benefits exceed
monetized costs—that is, the regulations have a positive net present value
(NPV). Indeed, under every scenario assessed in the Final RIA, the final rules
have a positive NPV. The Final RIA’s first scenario examines the incremental
impact of the final rules using the “main” set of assumptions (i.e., assuming a
primary baseline (1991 Standards), that the safe harbor applies, and that for
title III entities barrier removal is readily achievable for 50 percent of
elements subject to supplemental requirements).

Under this set of assumptions, the final rules have an expected NPV of $9.3
billion (7 percent discount rate) and $40.4 billion (3 percent discount rate).
See Final RIA, table ES–1 & figure ES– 2.

Expected Impact of the Rules 2 (in billions)

Discount rate Expected NPV Total Expected PV (Benefits) Total Expected PV
(Costs) 3% $40.4 $66.2 $25.8 7% $9.3 $22.0 $12.8

Water Closet Clearances

The Department gave careful consideration to the costs and benefits of its
adoption of the standards relating to water closet clearances in single-user
toilet rooms. The primary effect of the Department’s proposed final rules
governing water closet clearances in single-user toilet rooms with in-swinging
and out-swinging doors is to allow sufficient room for “side” or “parallel”
methods of transferring from a wheelchair to a toilet. Under the current 1991
Standards, the requisite clearance space in single-user toilet rooms between and
around the toilet and the lavatory does not permit these methods of transfer.
Side or parallel transfers are used by large numbers of persons who use
wheelchairs and are regularly taught in rehabilitation and occupational therapy.
Currently, persons who use side or parallel transfer methods from their
wheelchairs are faced with a stark choice at establishments with single-user
toilet rooms—i.e., patronize the establishment but run the risk of needing
assistance when using the restroom, travel with someone who would be able to
provide assistance in toileting, or forgo the visit entirely. The revised water
closet clearance regulations would make single-user toilet rooms accessible to
all persons who use wheelchairs, not just those with the physical strength,
balance, and dexterity and the training to use a front-transfer method.
Single-user toilet rooms are located in a wide variety of public and private
facilities, including restaurants, fast-food establishments, schools, retail
stores, parks, sports stadiums, and hospitals. Final promulgation of these
requirements might thus, for example, enable a person who uses a side or
parallel transfer method to use the restroom (or use the restroom independently)
at his or her local coffee shop for the first time.

Because of the complex nature of its cost-benefit analysis, the Department is
providing “plain language” descriptions of the benefits calculations for the two
revised requirements with the highest estimated total costs: Water closet
clearance in single-user toilet rooms with out-swinging doors (RIA Req. # 28)
(section 604.3 of the 2010 Standards) and water closet clearance in single-user
toilet rooms with in-swinging doors (RIA Req. # 32) (sections 604.3 and 603.2.3
Exception 2 of the 2010 Standards). Since many of the concepts and calculations
in the Final RIA are highly technical, it is hoped that, by providing “lay”
descriptions of how benefits are monetized for an illustrative set of
requirements, the Final RIA will be more transparent and afford readers a more
complete understanding of the benefits model generally. Because of the
widespread adoption of the water closet clearance standards in existing State
and local building codes, the following calculations use the IBC/ANSI baseline.

General description of monetized benefits for water closet clearance in
single-user toilet rooms—out-swinging doors (Req. # 28). In order to assess
monetized benefits for the requirement covering water closet clearances in
single-user toilet rooms with out-swinging doors, a determination needed to be
made concerning the population of users with disabilities who would likely
benefit from this revised standard. Based on input received from a panel of
experts jointly convened by HDR and the Department to discuss benefits related
estimates and assumptions used in the RIA model, it was assumed that
accessibility changes brought about by this requirement would benefit persons
with any type of ambulatory (i.e., mobility-related) disability, such as persons
who use wheelchairs, walkers, or braces. Recent census figures estimate that
about 11.9 percent of Americans ages 15 and older have an ambulatory disability,
or about 35 million people. This expert panel also estimated that single-user
toilet rooms with out-swinging doors would be used slightly less than once every
other visit to a facility with such toilet rooms covered by the final rules (or,
viewed another way, about once every two hours spent at a covered facility
assumed to have one or more single-user toilet rooms with out-swinging doors) by
an individual with an ambulatory disability. The expert panel further estimated
that, for such individuals, the revised requirement would result in an average
time savings of about five and a half minutes when using the restroom. This time
savings is due to the revised water closet clearance standard, which permits,
among other things, greater flexibility in terms of access to the toilet by
parallel or side transfer, thereby perhaps reducing the wait for another person
to assist with toileting and the need to twist or struggle to access the toilet
independently. Based on average hourly wage rates compiled by the U.S.
Department of Labor, the time savings for Req. # 28 is valued at just under $10
per hour.

For public and private facilities covered by the final rules, it is estimated
that there are currently about 11 million single-user toilet rooms with
out-swinging doors. The majority of these types of single-user toilet rooms,
nearly 7 million, are assumed to be located at “Indoor Service Establishments,”
a broad facility group that encompasses various types of indoor retail stores
such as bakeries, grocery stores, clothing stores, and hardware stores. Based on
construction industry data, it was estimated that approximately 3 percent of
existing single-user toilet rooms with out-swinging doors would be altered each
year, and that the number of newly constructed facilities with these types of
toilet rooms would increase at the rate of about 1 percent each year. However,
due to the widespread adoption at the State and local level of model code
provisions that mirror Req. # 28, it is further understood that about half of
all existing facilities assumed to have single-user toilet rooms with
out-swinging doors already are covered by State or local building codes that
require equivalent water closet clearances. Due to the general
element-by-element safe harbor provision in the final rules, no unaltered
single-user toilet rooms that comply with the current 1991 Standards will be
required to retrofit to meet the revised clearance in the final rules.

With respect to new construction, it is assumed that each single-user toilet
room with an out-swinging door will last the life of the building, about 40
years. For alterations, the amount of time such a toilet room will be used
depends upon the remaining life of the building (i.e., a period of time between
1 and 39 years).

Summing up monetized benefits to users with disabilities across all types of
public and private facilities covered by the final rules, and assuming 46
percent of covered facilities nationwide are located in jurisdictions that have
adopted the relevant equivalent IBC/ ANSI model code provisions, it is expected
that the revised requirement for water closet clearance in single-user toilet
rooms with out-swinging doors will result in net benefits of approximately $900
million over the life of these regulations.

General description of monetized benefits for water closet clearance in
single-user toilet rooms—in-swinging doors (Req. # 32). For the water closet
clearance in single-user toilet rooms with the in-swinging door requirement
(Req. #32), the expert panel determined that the primary beneficiaries would be
persons who use wheelchairs. As compared to single-user toilet rooms with
out-swinging doors, those with in-swinging doors tend to be larger terms of
square footage) in order to accommodate clearance for the in-swinging door and,
thus, are already likely to have adequate clear floor space for persons with
disabilities who use other types of mobility aids such as walkers and crutches.

The expert benefits panel estimated that single-user toilet rooms with
in-swinging doors are used less frequently on average—about once every 20 visits
to a facility with such a toilet room by a person who uses a wheelchair—than
their counterpart toilet rooms with out-swinging doors. This panel also
determined that, on average, each user would realize a time savings of about 9
minutes as a result of the enhanced clearances required by this revised
standard.

The RIA estimates that there are about 4 million single-user toilet rooms with
in-swinging doors in existing facilities. About half of the single-user toilet
rooms with in-swinging doors are assumed to be located in single-level stores,
and about a quarter of them are assumed to be located in restaurants. Based on
construction industry data, it was estimated that approximately 3 percent of
existing single-user toilet rooms with in-swinging doors would be altered each
year, and that the number of newly constructed facilities with these types of
toilet rooms would increase at the rate of about 1 percent each year. However,
due to the widespread adoption at the State and local level of model code
provisions that mirror Req. #32, it is further understood that slightly more
than 70 percent of all existing facilities assumed to have single-user toilet
rooms with in-swinging doors already are covered by State or local building
codes that require equivalent water closet clearances. Due to the general
element-by-element safe harbor provision in the final rules, no unaltered
single-user toilet rooms that comply with the current 1991 Standards will be
required to retrofit to meet the revised clearance requirements in the final
rules.

Similar to the assumptions for Req. #28, it is assumed that newly constructed
single-user toilet rooms with in-swinging doors will last the life of the
building, about 40 years. For alterations, the amount of time such a toilet room
will be used depends upon the remaining life of the building (i.e., a period of
time between 1 and 39 years). Over this time period, the total estimated value
of benefits to users of water closets with in-swinging doors from the time they
will save and decreased discomfort they will experience is nearly $12 million.

Additional benefits of water closet clearance standards. The standards requiring
sufficient space in single-user toilet rooms for a wheelchair user to effect a
side or parallel transfer are among the most costly (in monetary terms) of the
new provisions in the Access Board’s guidelines that the Department adopts in
this rule—but also, the Department believes, one of the most beneficial in
non-monetary terms. Although the monetized costs of these requirements
substantially exceed the monetized benefits, the additional benefits that
persons with disabilities will derive from greater safety, enhanced
independence, and the avoidance of stigma and humiliation— benefits that the
Department’s economic model could not put in monetary terms—are, in the
Department’s experience and considered judgment, likely to be quite high.
Wheelchair users, including veterans returning from our Nation’s wars with
disabilities, are taught to transfer onto toilets from the side. Side transfers
are the safest, most efficient, and most independence-promoting way for
wheelchair users to get onto the toilet. The opportunity to effect a side
transfer will often obviate the need for a wheelchair user or individual with
another type of mobility impairment to obtain the assistance of another person
to engage in what is, for most people, among the most private of activities.
Executive Order 12866 refers explicitly not only to monetizable costs and
benefits but also to “distributive impacts” and “equity,” see E.O. 12866,
section 1(a), and it is important to recognize that the ADA is intended to
provide important benefits that are distributional and equitable in character.
These water closet clearance provisions will have non-monetized benefits that
promote equal access and equal opportunity for individuals with disabilities,
and will further the ADA’s purpose of providing “a clear and comprehensive
national mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C. 12101(b)(1).

The Department’s calculations indicated that, in fact, people with the relevant
disabilities would have to place only a very small monetary value on these quite
substantial benefits for the costs and benefits of these water closet clearance
standards to break even. To make these calculations, the Department separated
out toilet rooms with out-swinging doors from those with in-swinging doors,
because the costs and benefits of the respective water closet clearance
requirements are significantly different. The Department estimates that,
assuming 46 percent of covered facilities nationwide are located in
jurisdictions that have adopted the relevant equivalent IBC/ANSI model code
provisions, the costs of the requirement as applied to toilet rooms with
out-swinging doors will exceed the monetized benefits by $454 million, an
annualized net cost of approximately $32.6 million. But a large number of people
with disabilities will realize benefits of independence, safety, and avoided
stigma and humiliation as a result of the requirement’s application in this
context. Based on the estimates of its expert panel and its own experience, the
Department believes that both wheelchair users and people with a variety of
other mobility disabilities will benefit. The Department estimates that people
with the relevant disabilities will use a newly accessible single-user toilet
room with an out-swinging door approximately 677 million times per year.
Dividing the $32.6 million annual cost by the 677 million annual uses, the
Department concludes that for the costs and benefits to break even in this
context, people with the relevant disabilities will have to value safety,
independence, and the avoidance of stigma and humiliation at just under 5 cents
per visit. The Department believes, based on its experience and informed
judgment, that 5 cents substantially understates the value people with the
relevant disabilities would place on these benefits in this context.

There are substantially fewer single-user toilet rooms with in-swinging doors,
and substantially fewer people with disabilities will benefit from making those
rooms accessible. While both wheelchair users and individuals with other
ambulatory disabilities will benefit from the additional space in a room with an
out-swinging door, the Department believes, based on the estimates of its expert
panel and its own experience, that wheelchair users likely will be the primary
beneficiaries of the in-swinging door requirement. The Department estimates that
people with the relevant disabilities will use a newly accessible single-user
toilet room with an in-swinging door approximately 8.7 million times per year.
Moreover, the alteration costs to make a single-user toilet room with an
in-swinging door accessible are substantially higher (because of the space taken
up by the door) than the equivalent costs of making a room with an out-swinging
door accessible. Thus, the Department calculates that, assuming 72 percent of
covered facilities nationwide are located in jurisdictions that have adopted the
relevant equivalent IBC/ANSI model code provisions, the costs of applying the
toilet room accessibility standard to rooms with in-swinging doors will exceed
the monetized benefits of doing so by $266.3 million over the life of the
regulations, or approximately $19.14 million per year. Dividing the $19.14
million annual cost by the 8.7 million annual uses, the Department concludes
that for the costs and benefits to break even in this context, people with the
relevant disabilities will have to value safety, independence, and the avoidance
of stigma and humiliation at approximately $2.20 per visit. The Department
believes, based on its experience and informed judgment, that this figure
approximates, and probably understates, the value wheelchair users place on
safety, independence, and the avoidance of stigma and humiliation in this
context.

ALTERNATE SCENARIOS

Another scenario in the Final RIA explores the incremental impact of varying the
assumptions concerning the percentage of existing elements subject to
supplemental requirements for which barrier removal would be readily achievable.
Readily achievable barrier removal rates are modeled at 0 percent, 50 percent,
and 100 percent levels. The results of this scenario show that the expected NPV
is positive for each readily achievable barrier removal rate and that varying
this assumed rate has little impact on expected NPV. See Final RIA, figure ES–3.

A third set of analyses in the Final RIA demonstrates the impact of using
alternate baselines based on model codes instead of the primary baseline. The
IBC model codes, which have been widely adopted by State and local jurisdictions
around the country, are significant because many of the requirements in the
final rules mirror accessibility provisions in the IBC model codes (or standards
incorporated therein by reference, such as ANSI A117.1). The actual economic
impact of the Department’s final rules is, therefore, tempered by the fact that
many jurisdictions nationwide have already adopted and are enforcing portions of
the final rules—indeed, this was one of the goals underlying the Access Board’s
efforts to harmonize the 2004 ADAAG Standards with the model codes. However,
capturing the economic impact of this reality poses a difficult modeling
challenge due to the variety of methods by which States and localities have
adopted the IBC/ANSI model codes (e.g., in whole, in part, and with or without
amendments), as well as the lack of a national “facility census” establishing
the location, type, and age of existing ADA-covered facilities.

As a result, in the first set of alternate IBC baseline analyses, the Final RIA
assumes that all of the three IBC model codes—IBC 2000, IBC 2003, and IBC
2006—have been fully adopted by all jurisdictions and apply to all facilities
nationwide. As with the primary baseline scenarios examined in the Final RIA,
use of these three alternate IBC baselines results in positive expected NPVs in
all cases. See Final RIA, figure ES–4. These results also indicate that IBC 2000
and IBC 2006 respectively have the highest and lowest expected NPVs. These
results are due to changes in the make-up of the set of requirements that is
included in each alternative baseline.

Additionally, a second, more limited alternate baseline analysis in the Final
RIA uses a State-specific and requirement-specific alternate IBC/ANSI baseline
in order to demonstrate the likely actual incremental impact of an illustrative
subset of 20 requirements under current conditions nationwide. For this
analysis, research was conducted on a subset of 20 requirements in the final
rules that have negative net present values under the primary baseline and
readily identifiable IBC/ANSI counterparts to determine the extent to which they
each respectively have been adopted at the State or local level. With respect to
facilities, the population of adopting jurisdictions was used as a proxy for
facility location. In other words, it was assumed that the number of ADA-covered
facilities respectively compliant with these 20 requirements was equal to the
percentage of the United States population (based on statistics from the Census
Bureau) currently residing in those States or local jurisdictions that have
adopted the IBC/ANSI counterparts to these requirements. The results of this
more limited analysis, using State-specific and requirement-specific alternate
IBC/ANSI baselines for these 20 requirements, demonstrate that the widespread
adoption of IBC model codes by States and localities significantly lessens the
financial impact of these specific requirements. Indeed, the Final RIA estimates
that, if the NPVs for these 20 requirements resulting from the
requirement-specific alternate IBC/ANSI baseline are substituted for their
respective results under the primary baseline, the overall NPV for the final
rules increases from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2
& table 10.


BENEFITS NOT MONETIZED IN THE FORMAL ANALYSIS

Finally, the RIA recognizes that additional benefits are likely to result from
the new standards. Many of these benefits are more difficult to quantify. Among
the potential benefits that have been discussed by researchers and advocates are
reduced administrative costs due to harmonized guidelines, increased business
opportunities, increased social development, and improved health benefits. For
example, the final rules will substantially increase accessibility at newly
scoped facilities such as recreation facilities and judicial facilities, which
previously have been very difficult for persons with disabilities to access.
Areas where the Department believes entities may incur benefits that are not
monetized in the formal analysis include, but may not be limited to, the
following:

Use benefits accruing to persons with disabilities. The final rules should
improve the overall sense of well-being of persons with disabilities, who will
know that public entities and places of public accommodation are generally
accessible, and who will have improved individual experiences. Some of the most
frequently cited qualitative benefits of increased access are the increase in
one’s personal sense of dignity that arises from increased access and the
decrease in possibly humiliating incidents due to accessibility barriers.
Struggling to join classmates on a stage, to use a bathroom with too little
clearance, or to enter a swimming pool all negatively affect a person’s sense of
independence and can lead to humiliating accidents, derisive comments, or
embarrassment. These humiliations, together with feelings of being stigmatized
as different or inferior from being relegated to use other, less comfortable or
pleasant elements of a facility (such as a bathroom instead of a kitchen sink
for rinsing a coffee mug at work), all have a negative effect on persons with
disabilities.

Use benefits accruing to persons without disabilities. Improved accessibility
can affect more than just the rule’s target population; persons without
disabilities may also benefit from many of the requirements. Even though the
requirements were not designed to benefit persons without disabilities, any time
savings or easier access to a facility experienced by persons without
disabilities are also benefits that should properly be attributed to that change
in accessibility. Curb cuts in sidewalks make life easier for those using
wheeled suitcases or pushing a baby stroller. For people with a lot of luggage
or a need to change clothes, the larger bathroom stalls can be highly valued. A
ramp into a pool can allow a child (or adult) with a fear of water to ease into
that pool. All are examples of “unintended” benefits of the rule. And ideally,
all should be part of the calculus of the benefits to society of the rule.

Social benefits. Evidence supports the notion that children with and without
disabilities benefit in their social development from interaction with one
another. Therefore, there will likely be social development benefits generated
by an increase in accessible play areas. However, these benefits are nearly
impossible to quantify for several reasons. First, there is no guarantee that
accessibility will generate play opportunities between children with and without
disabilities. Second, there may be substantial overlap between interactions at
accessible play areas and interactions at other facilities, such as schools and
religious facilities. Third, it is not certain what the unit of measurement for
social development should be.

Non-use benefits. There are additional, indirect benefits to society that arise
from improved accessibility. For instance, resource savings may arise from
reduced social service agency outlays when people are able to access centralized
points of service delivery rather than receiving home-based care. Home-based and
other social services may include home health care visits and welfare benefits.
Third-party employment effects can arise when enhanced accessibility results in
increasing rates of consumption by disabled and non-disabled populations, which
in turn results in reduced unemployment.

Two additional forms of benefits are discussed less often, let alone quantified:
Option value and existence value. Option value is the value that people with and
without disabilities derive from the option of using accessible facilities at
some point in the future. As with insurance, people derive benefit from the
knowledge that the option to use the accessible facility exists, even if it
ultimately goes unused. Simply because an individual is a nonuser of accessible
elements today does not mean that he or she will remain so tomorrow. In any
given year, there is some probability that an individual will develop a
disability (either temporary or permanent) that will necessitate use of these
features. For example, the 2000 Census found that 41.9 percent of adults 65
years and older identified themselves as having a disability. Census Bureau
figures, moreover, project that the number of people 65 years and older will
more than double between 2000 and 2030—from 35 million to 71.5 million.
Therefore, even individuals who have no direct use for accessibility features
today get a direct benefit from the knowledge of their existence should such
individuals need them in the future.

Existence value is the benefit that individuals get from the plain existence of
a good, service or resource—in this case, accessibility. It can also be
described as the value that people both with and without disabilities derive
from the guarantees of equal treatment and non-discrimination that are accorded
through the provision of accessible facilities. In other words, people value
living in a country that affords protections to individuals with disabilities,
whether or not they themselves are directly or indirectly affected. Unlike use
benefits and option value, existence value does not require an individual ever
to use the resource or plan on using the resource in the future. There are
numerous reasons why individuals might value accessibility even if they do not
require it now and do not anticipate needing it in the future.

Costs Not Monetized in the Formal Analysis

The Department also recognizes that in addition to benefits that cannot
reasonably be quantified or monetized, there may be negative consequences and
costs that fall into this category as well. The absence of a quantitative
assessment of such costs in the formal regulatory analysis is not meant to
minimize their importance to affected entities; rather, it reflects the inherent
difficulty in estimating those costs. Areas where the Department believes
entities may incur costs that are not monetized in the formal analysis include,
but may not be limited to, the following:

Costs from deferring or forgoing alterations. Entities covered by the final
rules may choose to delay otherwise desired alterations to their facilities due
to the increased incremental costs imposed by compliance with the new
requirements. This may lead to facility deterioration and decrease in the value
of such facilities. In extreme cases, the costs of complying with the new
requirements may lead some entities to opt to not build certain facilities at
all. For example, the Department estimates that the incremental costs of
building a new wading pool associated with the final rules will increase by
about $142,500 on average. Some facilities may opt to not build such pools to
avoid incurring this increased cost.

Loss of productive space while modifying an existing facility. During complex
alterations, such as where moving walls or plumbing systems will be necessary to
comply with the final rules, productive space may be unavailable until the
alterations are complete. For example, a hotel altering its bathrooms to comply
with the final rules will be unable to allow guests to occupy these rooms while
construction activities are underway, and thus the hotel may forgo revenue from
these rooms during this time. While the amount of time necessary to perform
alterations varies significantly, the costs associated with unproductive space
could be high in certain cases, especially if space is already limited or if an
entity or facility is located in an area where real estate values are
particularly high (e.g., New York or San Francisco).

Expert fees. Another type of cost to entities that is not monetized in the
formal analysis is legal fees to determine what, if anything, a facility needs
to do in order to comply with the new rules or to respond to lawsuits. Several
commenters indicated that entities will incur increased legal costs because the
requirements are changing for the first time since 1991. Since litigation risk
could increase, entities could spend more on legal fees than in the past.
Likewise, covered entities may face incremental costs when undertaking
alterations because their engineers, architects, or other consultants may also
need to consider what modifications are necessary to comply with the new
requirements. The Department has not quantified the incremental costs of the
services of these kinds of experts.

Reduction in facility value and losses to individuals without disabilities due
to the new accessibility requirements. It is possible that some changes made by
entities to their facilities in order to comply with the new requirements may
result in fewer individuals without disabilities using such facilities (because
of decreased enjoyment) and may create a disadvantage for individuals without
disabilities, even though the change might increase accessibility for
individuals with disabilities. For example, the new requirements for wading
pools might decrease the value of the pool to the entity that owns it due to
fewer individuals using it (because the new requirements for a sloped entry
might make the pool too shallow). Similarly, several commenters from the
miniature golf industry expressed concern that it would be difficult to comply
with the regulations for accessible holes without significantly degrading the
experience for other users. Finally, with respect to costs to individuals who do
not have disabilities, a very tall person, for example, may be inconvenienced by
having to reach further for a lowered light switch.

SECTION 610 REVIEW

The Department is also required to conduct a periodic regulatory review pursuant
to section 610 of the RFA. The review requires agencies to consider five
factors: (1) The continued need for the rule; (2) the nature of complaints or
comments received concerning the rule from the public; (3) the complexity of the
rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with
other Federal rules, and, to the extent feasible, with State and local
governmental rules; and (5) the length of time since the rule has been evaluated
or the degree to which technology, economic conditions, or other factors have
changed in the area affected by the rule. See 5 U.S.C. 610(b). Based on these
factors, the agency is required to determine whether to continue the rule
without change or to amend or rescind the rule, to minimize any significant
economic impact of the rule on a substantial number of small entities. See id.
610(a).

In developing the 2010 Standards, the Department reviewed the 1991 Standards
section by section and, as a result, has made several clarifications and
amendments in both the title II and title III implementing regulations. The
changes reflect the Department’s analysis and review of complaints or comments
from the public, as well as changes in technology. Many of the amendments aim to
clarify and simplify the obligations of covered entities. As discussed in
greater detail above, one significant goal of the development of the 2004 ADAAG
was to eliminate duplication or overlap in Federal accessibility guidelines, as
well as to harmonize the Federal guidelines with model codes. The Department has
also worked to create harmony where appropriate between the requirements of
titles II and III. Finally, while the regulation is required by statute and
there is a continued need for it as a whole, the Department proposes several
modifications that are intended to reduce its effects on small entities.

The Department has consulted with the Small Business Administration’s Office of
Advocacy about this process. The Office of Advocacy has advised that although
the process followed by the Department was ancillary to the proposed adoption of
revised ADA Standards, the steps taken to solicit public input and to respond to
public concerns are functionally equivalent to the process required to complete
a section 610 review. Therefore, this rulemaking fulfills the Department’s
obligations under section 610 of the RFA.

FINAL REGULATORY FLEXIBILITY ANALYSIS

The final rule also has been reviewed by the Small Business Administration’s
Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR
53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates
that the final rule will not have a significant economic impact on a substantial
number of small governmental jurisdictions or facilities. The Department has
also conducted a final regulatory flexibility analysis (FRFA) as a component of
this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010
Standards, include all of the elements of a FRFA required by the Regulatory
Flexibility Act (RFA). See 5 U.S.C. 604(a)(1)–(5).

Section 604(a) lists the specific requirements for a FRFA. The Department has
addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards,
and the RIA. In summary, the Department has satisfied its FRFA obligations under
section 604(a) by providing the following:

1. Succinct summaries of the need for, and objectives of, the final rules. The
Department is issuing this final rule in order to comply with its obligations
under both the ADA and the SBREFA. The Department is also updating or amending
certain provisions of the existing title II regulations so that they are
consistent with the title III regulations and accord with the Department’s legal
and practical experiences in enforcing the ADA.

The ADA requires the Department to adopt enforceable accessibility standards
under the ADA that are consistent with the Access Board’s minimum accessibility
guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA
Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of
the 2010 Standards, which will give the guidelines legal effect with respect to
the Department’s title II and title III regulations.

Under the SBREFA, the Department is required to perform a periodic review of its
1991 rule because the rule may have a significant economic impact on a
substantial number of small entities. The SBREFA also requires the Department to
make a regulatory assessment of the costs and benefits of any significant
regulatory action. See preamble sections of the final rules for titles II and
III entitled, “Summary” and “The Department’s Rulemaking History”; Department of
Justice ANPRM, 69 FR 58768, 58768–70 (Sept. 30, 2004) (outlining the regulatory
history, goals, and rationale underlying DOJ’s proposal to revise its
regulations implementing titles II and III of the ADA); Department of Justice
NPRM, 73 FR 34508, 34508– 14 (June 17, 2008) (outlining the regulatory history
and rationale underlying DOJ’s proposal to revise its regulations implementing
titles II and III of the ADA).

2. Summaries of significant issues raised by public comments in response to the
Department’s initial regulatory flexibility analysis (IRFA) and discussions of
regulatory revisions made as a result of such comments. The Department received
no comments addressing specific substantive issues regarding the IRFA for the
title II NPRM. However, the Office of Advocacy (Advocacy) of the U.S. Small
Business Administration did provide specific comments on the title III NPRM,
which may be relevant to the title II IRFA. Accordingly, the Department has
included those comments here.

Advocacy acknowledged how the Department took into account the comments and
concerns of small entities. However, Advocacy remained concerned about certain
items in the Department’s NPRM and requested clarification or additional
guidance on certain items.

General Safe Harbor. Advocacy expressed support for the Department’s proposal to
allow an element-by-element safe harbor for elements that now comply with the
1991 ADA Standards and encouraged the Department to include specific technical
assistance in the Small Business Compliance Guide that the Department is
required to publish pursuant to section 212 of the SBREFA. Advocacy requested
that technical assistance outlining which standards are subject to the safe
harbor be included in the Department’s guidance. The Department has provided a
list of the new requirements in the 2010 Standards that are not eligible for the
safe harbor in § 35.150(b)(2)(ii)(A) through § 35.150(b)(2)(ii)(L) of the final
rule and plans to include additional information about the application of the
safe harbor in the Department’s Small Business Compliance Guide. Advocacy also
requested that guidance regarding the two effective dates for regulations also
be provided and the Department plans to include such guidance in its Small
Business Compliance Guide.

Indirect Costs. Advocacy expressed concern that small entities would incur
substantial indirect costs under the final rules for accessibility consultants,
legal counsel, training, and the development of new policies and procedures. The
Department believes that such “indirect costs,” even assuming they would occur
as described by Advocacy, are not properly attributed to the Department’s final
rules implementing the ADA.

The vast majority of the new requirements are incremental changes subject to a
safe harbor. All small entities currently in compliance with the 1991 Standards
will neither need to undertake further retrofits nor require the services of a
consultant to tell them so. If, on the other hand, elements at an existing
facility are not currently in compliance with the 1991 Standards, then the cost
of making such a determination and bringing these elements into compliance are
not properly attributed to the final rules, but to lack of compliance with the
1991 Standards.

For the limited number of requirements in the final rule that are supplemental
(i.e., relating to accessibility at courthouses, play areas, and recreation
facilities), the Department believes that covered entities simply need to
determine whether they have an element covered by a supplemental requirement
(e.g., a swimming pool) and then conduct any work necessary to provide program
access either in-house or by contacting a local contractor. Determining whether
such an element exists is expected to take only a minimal amount of staff time.
Nevertheless, Chapter 5.3 of the Final RIA has a high-end estimate of the
additional management costs of such evaluation (from 1 to 8 hours of staff
time).

The Department also anticipates that small entities will incur minimal costs for
accessibility consultants to ensure compliance with the new requirements for New
Construction and Alterations in the final rules. Both the 2004 ADAAG and the
proposed requirements have been made public for some time and are already being
incorporated into design plans by architects and builders. Further, in adopting
the final rules, the Department has sought to harmonize, to the greatest extent
possible, the ADA Standards with model codes that have been adopted on a
widespread basis by State and local jurisdictions across the country.
Accordingly, many of the requirements in the final rules are already
incorporated into building codes nationwide. Additionally, it is assumed to be
part of the regular course of business—and thereby incorporated into standard
professional services or construction contracts—for architects and contractors
to keep abreast of changes in applicable Federal, State, and local laws and
building codes. Given these considerations, the Department has determined that
the additional costs, if any, for architectural or contractor services that
arise out of the final rules are expected to be minimal.

Some business commenters stated that the final rules would require them to
develop new policies or manuals to retrain employees on the revised ADA
standards. However, it is the Department’s view that because the revised and
supplemental requirements address architectural issues and features, the final
rules would require minimal, if any, changes to the overall policies and
procedures of covered entities.

Finally, commenters representing business interests expressed the view that the
final rules would cause businesses to incur significant legal costs in order to
defend ADA lawsuits. However, regulatory impact analyses are not an appropriate
forum for assessing the cost covered entities may bear, or the repercussions
they may face, for failing to comply (or allegedly failing to comply) with
current law. See Final RIA, Ch. 3, section 3.1.4, id., at Ch. 5, id. at table
15.

3. Estimates of the number and type of small entities to which the final rules
will apply. The Department estimates that the final rules will apply to
approximately 89,000 facilities operated by small governmental jurisdictions
covered by title II. See Final RIA, Ch. 7, “Small Business Impact Analysis,”
table 17, and app. 5, “Small Business Data of the RIA” (available for review at
http://www.ada.gov); see also 73 FR 36964 (June 30, 2008), app. B: Initial
Regulatory Assessment, sections entitled, “Regulatory Alternatives,” “Regulatory
Proposals with Cost Implications,” and “Measurement of Incremental Benefits”
(estimating the number of small entities the Department believes may be impacted
by the NPRM and calculating the likely incremental economic impact of these
rules on small facilities or entities versus “typical” (i.e., average-sized)
facilities or entities).

4. A description of the projected reporting, record-keeping, and other
compliance requirements of the final rules, including an estimate of the classes
of small entities that will be subject to the requirement and the type of
professional skills necessary for preparation of the report or record. The final
rules impose no new recordkeeping or reporting requirements. See preamble
sections of the final rule for titles II and III entitled, “Paperwork Reduction
Act.” Small entities may incur costs as a result of complying with the final
rules. These costs are detailed in the Final RIA, Chapter 7, “Small Business
Impact Analysis” and accompanying Appendix 5, “Small Business Data” (available
for review at http://www.ada.gov).

5. Descriptions of the steps taken by the Department to minimize any significant
economic impact on small entities consistent with the stated objectives of the
ADA, including the reasons for selecting the alternatives adopted in the final
rules and for rejecting other significant alternatives. From the outset of this
rulemaking, the Department has been mindful of small entities and has taken
numerous steps to minimize the impact of the final rule on small governmental
jurisdictions. Several of these steps are summarized below.

As an initial matter, the Department— as a voting member of the Access Board—was
extensively involved in the development of the 2004 ADAAG. These guidelines,
which are incorporated into the 2010 Standards, reflect a conscious effort to
mitigate any significant economic impact on small entities in several respects.
First, one of the express goals of the 2004 ADAAG is harmonization of Federal
accessibility guidelines with industry standards and model codes that often form
the basis of State and local building codes, thereby minimizing the impact of
these guidelines on all covered entities, but especially small entities. Second,
the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of
private and public entities, including groups representing government entities,
worked cooperatively to develop accessibility guidelines that achieved an
appropriate balance between accessibility and cost. For example, as originally
recommended by the Access Board’s Recreation Access Advisory Committee, all
holes on a miniature golf course would be required to be accessible except for
sloped surfaces where the ball could not come to rest. See, e.g., “ADA
Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and
Outdoor Developed Areas,” Access Board Advance Notice of Proposed Rulemaking, 59
FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators,
who are nearly all small businesses or small governmental jurisdictions,
expressed significant concern that such requirements would be prohibitively
expensive, require additional space, and might fundamentally alter the nature of
their courses. See, e.g., “ADA Accessibility Guidelines for Buildings and
Facilities—Recreation Facilities,” Access Board Notice of Proposed Rulemaking,
64 FR 37326 (July 9, 1999). In consideration of such concerns, and after holding
informational meetings with miniature golf representatives and persons with
disabilities, the Access Board significantly revised the final miniature golf
guidelines. The final guidelines not only reduced significantly the number of
holes required to be accessible to 50 percent of all holes (with one break in
the sequence of consecutive holes permitted), but also added an exemption for
carpets used on playing surfaces, modified ramp landing slope and size
requirements, and reduced the space See,e.g., “ADA Accessibility Guidelines for
Buildings and Facilities—Recreation Facilities Final Rule,” 67 FR 56352,
56375B76 (Sept. 3, 2002) (codified at 36 CFR parts 1190 and 1191).

The Department also published an ANPRM to solicit public input on the adoption
of the 2004 ADAAG as the revised Federal accessibility standards implementing
titles II and III of the ADA. Among other things, the ANPRM specifically invited
comment from small entities regarding the proposed rules’ potential economic
impact and suggested regulatory alternatives to ameliorate any such impact. See
ANPRM, 69 FR 58768, 58778-79 (Sept. 30, 2004). The Department received over 900
comments and small entities’ interests figured prominently. See NPRM, 73 FR
34466, 34468, 34468, 34501 (June 17, 2008).

Subsequently, when the Department published its NPRM in June 2008, several
regulatory proposals were included to address concerns raised by small
businesses and small local governmental jurisdictions in ANPRM comments. First,
to mitigate costs to existing facilities, the Department proposed an
element-by-element safe harbor that would exempt elements in compliance with
applicable technical and scoping requirements in the 1991 Standards from any
program accessibility retrofit obligations under the revised title II rules. Id.
at 34485. While this proposed safe harbor applied to title-II covered entities
irrespective of size, it was small governmental jurisdictions that especially
stood to benefit since, according to comments from small entities, such
jurisdictions are more likely to operate in older buildings and facilities.
Additionally, the NPRM sought public input on the inclusion of reduced scoping
provisions for certain types of small existing recreational facilities (i.e.,
swimming pools, play areas, and saunas). Id. at 34485-88.

During the NPRM comment period, the Department engaged in considerable public
outreach to small entities. A public hearing was held in Washington, D.C, during
which nearly 50 persons testified in person or by phone, including several small
business owners. See Transcript of the Public Hearing on Notices of Proposed
Rulemaking (July 15, 2008), available at
https://archive.ada.gov/archive/NPRM2008/public_hearing_transcript.htm. This
hearing was also streamed live over the Internet. By the end of the 60-day
comment period, the Department had also received nearly 4,500 public comments on
the NPRMs, including a significant number of comments reflecting the
perspectives of small governmental jurisdictions on a wide range of regulatory
issues.

In addition to soliciting input from small entities through the formal process
for public comment, the Department also targeted small entities with less formal
regulatory discussions, including a Small Business Roundtable convened by the
Office of Advocacy and held at the offices of the Small Business Administration
in Washington, DC, and an informational question-and-answer session concerning
the title II and III NPRMs at the Department of Justice in which business
representatives attended in-person and by telephone. These outreach efforts
provided the small business community with information on the NPRM proposals
being considered by the Department and gave small entities the opportunity to
ask questions of the Department and provide feedback.

As a result of the feedback provided by representatives of small business
interests on the title II NPRM, the Department was able to assess the impact of
various alternatives on small governmental jurisdictions before adopting its
final rule and took steps to minimize any significant impact on small entities.
Most notably, the final rule retains the element-by-element safe harbor, for
which the community of small businesses and small governmental jurisdictions
voiced strong support. See Appendix A discussion of safe harbor (§
35.150(b)(2)). The Department believes that this element-by-element safe harbor
provision will go a long way toward mitigating the economic impact of the final
rule on existing facilities owned or operated by small governmental
jurisdictions.

Additional regulatory measures mitigating the economic impact of the final rule
on entities covered by title II (including small governmental jurisdictions)
include deletion of the proposed requirement for captioning of safety and
emergency information on scoreboards at sporting venues, retention of the
proposed path of travel safe harbor, and extension of the compliance date of the
2010 Standards as applied to new construction and alterations from 6 months to
18 months after publication of the final rule. See Appendix A discussions of
captioning at sporting venues (§ 35.160), path of travel safe harbor  (§
35.151(b)(4)(ii)(C)), and accessibility standards compliance dates for new
construction and alterations (§ 35.151(c)).

One set of proposed alternative measures that would have potentially provided
some cost savings to small public entities—the reduced scoping for certain
existing recreational facilities— was not adopted by the Department in the final
rule. While these proposals were not specific to small entities, they
nonetheless might have mitigated the impact of the final rule for some small
governmental jurisdictions that owned or operated existing facilities at which
these recreational elements were located. See Appendix A discussion of existing
facilities. The Department gave careful consideration to how best to insulate
small entities from overly burdensome costs under the 2010 Standards for
existing small play areas, swimming pools, and saunas, while still ensuring
accessible and integrated recreational facilities that are of great importance
to persons with disabilities. The Department concluded that the existing program
accessibility standard (coupled with the new general element-by-element safe
harbor), rather than specific exemptions for these types of existing facilities,
is the most efficacious method by which to protect small governmental
jurisdictions.

Once the final rule is promulgated, small entities will also have a wealth of
documents to assist them in complying with the 2010 Standards. For example,
accompanying the title III final rule in the Federal Register is the
Department’s “Analysis and Commentary on the 2010 ADA Standards for Accessible
Design” (codified as Appendix B to 28 CFR part 36), which provides a plain
language description of the revised scoping and technical requirements in these
Standards and provides illustrative figures. The Department also expects to
publish guidance specifically tailored to small businesses in the form of a
small business compliance guide, as well as to publish technical assistance
materials of general interest to all covered entities following promulgation of
the final rule. Additionally, the Access Board has published a number of guides
that discuss and illustrate application of the 2010 Standards to play areas and
various types of recreational facilities.


EXECUTIVE ORDER 13132

Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, requires
executive branch agencies to consider whether a rule will have federalism
implications. That is, the rulemaking agency must determine whether the rule is
likely to have substantial direct effects on State and local governments, a
substantial direct effect on the relationship between the Federal Government and
the States and localities, or a substantial direct effect on the distribution of
power and responsibilities among the different levels of government. If an
agency believes that a rule is likely to have federalism implications, it must
consult with State and local elected officials about how to minimize or
eliminate the effects.

Title II of the ADA covers State and local government programs, services, and
activities and, therefore, clearly has some federalism implications. State and
local governments have been subject to the ADA since 1991, and the majority have
also been required to comply with the requirements of section 504. Hence, the
ADA and the title II regulation are not novel for State and local governments.
In its adoption of the 2010 Standards, the Department was mindful of its
obligation to meet the objectives of the ADA while also minimizing conflicts
between State law and Federal interests.

The 2010 Standards address and minimize federalism concerns. As a member of the
Access Board, the Department was privy to substantial feedback from State and
local governments throughout the development of the Board’s 2004 guidelines.
Before those guidelines were finalized as the 2004 ADA/ABA Guidelines, they
addressed and minimized federalism concerns expressed by State and local
governments during the development process. Because the Department adopted ADA
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA
Guidelines as part of the 2010 Standards, the steps taken in the 2004 ADA/ABA
Guidelines to address federalism concerns are reflected in the 2010 Standards.

The Department also solicited and received input from public entities in the
September 2004 ANPRM and the June 2008 NPRM. Through the ANPRM and NPRM
processes, the Department solicited comments from elected State and local
officials and their representative national organizations about the potential
federalism implications. The Department received comments addressing whether the
ANPRM and NPRM directly affected State and local governments, the relationship
between the Federal Government and the States, and the distribution of power and
responsibilities among the various levels of government. This rule preempts
State laws affecting entities subject to the ADA only to the extent that those
laws conflict with the requirements of the ADA, as set forth in the rule.

Title III of the ADA covers public accommodations and commercial facilities.
These facilities are generally subject to regulation by different levels of
government, including Federal, State, and local governments. The ADA and the
Department’s implementing regulations set minimum civil rights protections for
individuals with disabilities that in turn may affect the implementation of
State and local laws, particularly building codes. The Department’s implementing
regulations address federalism concerns and mitigate federalism implications,
particularly the provisions that streamline the administrative process for State
and local governments seeking ADA code certification under title III.


NATIONAL TECHNOLOGY TRANSFER AND ADVANCE­MENT ACT OF 1995

The National Technology Transfer and Advancement Act of 1995 (NTTAA) directs
that as a general matter, all Federal agencies and departments shall use
technical standards that are developed or adopted by voluntary consensus
standards bodies, which are private, generally non-profit organizations that
develop technical standards or specifications using well-defined procedures that
require openness, balanced participation among affected interests and groups,
fairness and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities. Public Law 104– 113, section 12(d)(1) (15
U.S.C. 272 note). In addition, the NTTAA directs agencies to consult with
voluntary, private sector, consensus standards bodies and requires that agencies
participate with such bodies in the development of technical standards when such
participation is in the public interest and is compatible with agency and
departmental missions, authorities, priorities, and budget resources. Id. at
section 12(d)(1). The Department, as a member of the Access Board, was an active
participant in the lengthy process of developing the 2004 ADAAG, on which the
2010 Standards are based. As part of this update, the Board has made its
guidelines more consistent with model building codes, such as the IBC, and
industry standards. It coordinated extensively with model code groups and
standard-setting bodies throughout the process so that differences could be
reconciled. As a result, a historic level of harmonization has been achieved
that has brought about improvements to the guidelines, as well as to counterpart
provisions in the IBC and key industry standards, including those for accessible
facilities issued through the American National Standards Institute.


PLAIN LANGUAGE INSTRUCTIONS

The Department makes every effort to promote clarity and transparency in its
rulemaking. In any regulation, there is a tension between drafting language that
is simple and straightforward and drafting language that gives full effect to
issues of legal interpretation. The Department operates a toll-free ADA
Information Line (voice); 1-833-610-1264 (TTY) that the public is welcome to
call at any time to obtain assistance in understanding anything in this rule. If
any commenter has suggestions for how the regulation could be written more
clearly, please contact Janet L. Blizard, Deputy Chief or Barbara J. Elkin,
Attorney Advisor, Disability Rights Section, whose contact information is
provided in the introductory section of this rule, entitled,“FOR FURTHER
INFORMATION CONTACT.”


PAPERWORK REDUCTION ACT

The Paperwork Reduction Act of 1980 (PRA) requires agencies to clear forms and
record keeping requirements with OMB before they can be introduced. 44 U.S.C.
3501 et seq. This rule does not contain any paperwork or record keeping
requirements and does not require clearance under the PRA.


UNFUNDED MANDATES REFORM ACT

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2),
excludes from coverage under that Act any proposed or final Federal regulation
that “establishes or enforces any statutory rights that prohibit discrimination
on the basis of race, color, religion, sex, national origin, age, handicap, or
disability.” Accordingly, this rulemaking is not subject to the provisions of
the Unfunded Mandates Reform Act.


LIST OF SUBJECTS FOR 28 CFR PART 35

Administrative practice and procedure, Buildings and facilities, Civil rights,
Communications, Individuals with disabilities, Reporting and recordkeeping
requirements, State and local governments.

 * By the authority vested in me as Attorney General by law, including 28 U.S.C.
   509 and 510, 5 U.S.C. 301, and section 204 of the Americans with Disabilities
   Act of 1990, Pub. L. 101– 336, 42 U.S.C. 12134, and for the reasons set forth
   in Appendix A to 28 CFR part 35, chapter I of title 28 of the Code of Federal
   Regulations shall be amended as follows—


TITLE II REGULATIONS REVISED FINAL TITLE II REGULATION WITH INTEGRATED TEXT

NOTE: These provisions update the relevant portions of the title II regulation
to incorporate changes made to the regulatory text through October 11, 2016.
These modifications stem from the Pool Extension Final Rule (77 FR 30174,
published May 21, 2012) and the ADA Amendments Act Final Rule (81 FR 53202,
published Aug. 11, 2016). All section headings and changes are noted in bold.

Part 35 Nondiscrimination on the Basis of Disability in State and Local
Government Services
(as amended by the final rule published on August 11, 2016)

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.


SUBPART A-GENERAL


§ 35.101 PURPOSE AND BROAD COVERAGE.

(a) Purpose. The purpose of this part is toimplementsubtitle A of title II of
the Americans with Disabilities Act of 1990 (42 U.S. C. 12131–12134),as amended
by the ADA Amendments Act of 2008 (ADA Amendments Act) (Public Law 110–325, 122
Stat. 3553 (2008)), which prohibits discrimination on the basis of disability by
public entities.

(b) Broad coverage. The primary purpose of the ADA Amendments Act is to make it
easier for people with disabilities to obtain protection under the ADA.
Consistent with the ADA Amendments Act’s purpose of reinstating a broad scope of
protection under the ADA, the definition of “disability” in this part shall be
construed broadly in favor of expansive coverage to the maximum extent permitted
by the terms of the ADA. The primary object of attention in cases brought under
the ADA should be whether entities covered under the ADA have complied with
their obligations and whether discrimination has occurred, not whether the
individual meets the definition of disability. The question of whether an
individual meets the definition of disability under this part should not demand
extensive analysis.


§ 35.102 APPLICATION.

(a) Except as provided in paragraph (b) of this section, this part applies to
all services, programs, and activities provided or made available by public
entities.

(b) To the extent that public transportation services, programs, and activities
of public entities are covered by subtitle B of title II of the ADA, they are
not subject to the requirements of this part.


§ 35.103 RELATIONSHIP TO OTHER LAWS.

(a) Rule of interpretation. Except as otherwise provided in this part, this part
shall not be construed to apply a lesser standard than the standards applied
under title V of the Rehabilitation Act of 1973 or the regulations issued by
Federal agencies pursuant to that title.

(b) Other laws. This part does not invalidate or limit the remedies, rights, and
procedures of any other Federal laws, or State or local laws (including State
common law) that provide greater or equal protection for the rights of
individuals with disabilities or individuals associated with them.


SECTION 35.104 DEFINITIONS.

For purposes of this part, the term—

1991 Standards means the requirements set forth in the ADA Standards for
Accessible Design, originally published on July 26, 1991, and republished as
Appendix D to 28 CFR part 36.

2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part
1191 (2009).

2010 Standards means the 2010 ADA Standards for Accessible Design, which consist
of the 2004 ADAAG and the requirements contained in § 35.151.

Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 Stat. 327,
42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).

Assistant Attorney General means the Assistant Attorney General, Civil Rights
Division, United States Department of Justice.

Auxiliary aids and services includes—

(1) Qualified interpreters on-site or through video remote interpreting (VRI)
services; notetakers; real-time computer-aided transcription services; written
materials; exchange of written notes; telephone handset amplifiers; assistive
listening devices; assistive listening systems; telephones compatible with
hearing aids; closed caption decoders; open and closed captioning, including
real-time captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and captioned
telephones, or equally effective telecommunications devices; videotext displays;
accessible electronic and information technology; or other effective methods of
making aurally delivered information available to individuals who are deaf or
hard of hearing;

(2) Qualified readers; taped texts; audio recordings; Brailled materials and
displays; screen reader software; magnification software; optical readers;
secondary auditory programs (SAP); large print materials; accessible electronic
and information technology; or other effective methods of making visually
delivered materials available to individuals who are blind or have low vision;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

Complete complaint means a written statement that contains the complainant’s
name and address and describes the public entity’s alleged discriminatory action
in sufficient detail to inform the agency of the nature and date of the alleged
violation of this part. It shall be signed by the complainant or by someone
authorized to do so on his or her behalf. Complaints filed on behalf of classes
or third parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.

Current illegal use of drugs means illegal use of drugs that occurred recently
enough to justify a reasonable belief that a person’s drug use is current or
that continuing use is a real and ongoing problem.

Designated agency means the Federal agency designated under subpart G of this
part to oversee compliance activities under this part for particular components
of State and local governments.

Direct threat means a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices or procedures, or
by the provision of auxiliary aids or services as provided in § 35.139.

Disability.The definition of disability can be found at § 35.108.

Drug means a controlled substance, as defined in schedules I through V of
section 202 of the Controlled Substances Act (21 U.S.C. 812).

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.

Facility means all or any portion of buildings, structures, sites, complexes,
equipment, rolling stock or other conveyances, roads, walks, passageways,
parking lots, or other real or personal property, including the site where the
building, property, structure, or equipment is located.

Historic preservation programs means programs conducted by a public entity that
have preservation of historic properties as a primary purpose.

Historic properties means those properties that are listed or eligible for
listing in the National Register of Historic Places or properties designated as
historic under State or local law.

Housing at a place of education means housing operated by or on behalf of an
elementary, secondary, undergraduate, or postgraduate school, or other place of
education, including dormitories, suites, apartments, or other places of
residence.

Illegal use of drugs means the use of one or more drugs, the possession or
distribution of which is unlawful under the Controlled Substances Act (21 U.S.C.
812). The term illegal use of drugs does not include the use of a drug taken
under supervision by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions of Federal law.

Individual with a disability means a person who has a disability. The term
individual with a disability does not include an individual who is currently
engaging in the illegal use of drugs, when the public entity acts on the basis
of such use.

Other power-driven mobility device means any mobility device powered by
batteries, fuel, or other engines––whether or not designed primarily for use by
individuals with mobility disabilities––that is used by individuals with
mobility disabilities for the purpose of locomotion, including golf cars,
electronic personal assistance mobility devices (EPAMDs), such as the Segway®
PT, or any mobility device designed to operate in areas without defined
pedestrian routes, but that is not a wheelchair within the meaning of this
section. This definition does not apply to Federal wilderness areas; wheelchairs
in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C.
12207(c)(2).

Public entity means—

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other instrumentality
of a State or States or local government; and

(3) The National Railroad Passenger Corporation, and any commuter authority (as
defined in section 103(8) of the Rail Passenger Service Act).

Qualified individual with a disability means an individual with a disability
who, with or without reasonable modifications to rules, policies, or practices,
the removal of architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity.

Qualified interpreter means an interpreter who, via a video remote interpreting
(VRI) service or an on-site appearance, is able to interpret effectively,
accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary. Qualified interpreters include, for example,
sign language interpreters, oral transliterators, and cued-language
transliterators.

Qualified reader means a person who is able to read effectively, accurately, and
impartially using any necessary specialized vocabulary. Section 504 means
section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29
U.S.C. 794), as amended.

Service animal means any dog that is individually trained to do work or perform
tasks for the benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. Other species of
animals, whether wild or domestic, trained or untrained, are not service animals
for the purposes of this definition. The work or tasks performed by a service
animal must be directly related to the individual’s disability. Examples of work
or tasks include, but are not limited to, assisting individuals who are blind or
have low vision with navigation and other tasks, alerting individuals who are
deaf or hard of hearing to the presence of people or sounds, providing
non-violent protection or rescue work, pulling a wheelchair, assisting an
individual during a seizure, alerting individuals to the presence of allergens,
retrieving items such as medicine or the telephone, providing physical support
and assistance with balance and stability to individuals with mobility
disabilities, and helping persons with psychiatric and neurological disabilities
by preventing or interrupting impulsive or destructive behaviors. The crime
deterrent effects of an animal’s presence and the provision of emotional
support, well-being, comfort, or companionship do not constitute work or tasks
for the purposes of this definition.

State means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana
Islands.

Video remote interpreting (VRI) service means an interpreting service that uses
video conference technology over dedicated lines or wireless technology offering
high-speed, wide-bandwidth video connection that delivers high-quality video
images as provided in § 35.160(d).

Wheelchair means a manually-operated or power-driven device designed primarily
for use by an individual with a mobility disability for the main purpose of
indoor, or of both indoor and outdoor locomotion. This definition does not apply
to Federal wilderness areas; wheelchairs in such areas are defined in section
508(c)(2) of the ADA, 42 U.S.C. 12207 (c)(2).


§ 35.105 SELF-EVALUATION.

(a) A public entity shall, within one year of the effective date of this part,
evaluate its current services, policies, and practices, and the effects thereof,
that do not or may not meet the requirements of this part and, to the extent
modification of any such services, policies, and practices is required, the
public entity shall proceed to make the necessary modifications.

(b) A public entity shall provide an opportunity to interested persons,
including individuals with disabilities or organizations representing
individuals with disabilities, to participate in the self-evaluation process by
submitting comments.

(c) A public entity that employs 50 or more persons shall, for at least three
years following completion of the self-evaluation, maintain on file and make
available for public inspection:

(1) A list of the interested persons consulted;

(2) A description of areas examined and any problems identified; and

(3) A description of any modifications made.

(d) If a public entity has already complied with the self-evaluation requirement
of a regulation implementing section 504 of the Rehabilitation Act of 1973, then
the requirements of this section shall apply only to those policies and
practices that were not included in the previous self- evaluation.


§ 35.106 NOTICE

A public entity shall make available to applicants, participants, beneficiaries,
and other interested persons information regarding the provisions of this part
and its applicability to the services, programs, or activities of the public
entity, and make such information available to them in such manner as the head
of the entity finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.


§ 35.107 DESIGNATION OF RESPONSIBLE EMPLOYEE AND ADOPTION OF GRIEVANCE
PROCEDURES

(a) Designation of responsible employee. A public entity that employs 50 or more
persons shall designate at least one employee to coordinate its efforts to
comply with and carry out its responsibilities under this part, including any
investigation of any complaint communicated to it alleging its noncompliance
with this part or alleging any actions that would be prohibited by this part.
The public entity shall make available to all interested individuals the name,
office address, and telephone number of the employee or employees designated
pursuant to this paragraph.

(b) Complaint procedure. A public entity that employs 50 or more persons shall
adopt and publish grievance procedures providing for prompt and equitable
resolution of complaints alleging any action that would be prohibited by this
part.

§ 35.108 Definition of disability

(a)

(1) Disability means, with respect to an individual:

(i) A physical or mental impairment that substantially limits one or more of the
major life activities of such individual;

(ii) A record of such an impairment; or

(iii) Being regarded as having such an impairment as described in paragraph (f)
of this section.

(2) Rules of construction.

(i) The definition of “disability” shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the ADA.

(ii) An individual may establish coverage under any one or more of the three
prongs of the definition of “disability” in paragraph (a)(1) of this section,
the “actual disability” prong in paragraph (a)(1)(i) of this section, the
“record of” prong in paragraph (a)(1)(ii) of this section, or the “regarded as”
prong in paragraph (a)(1)(iii) of this section.

(iii) Where an individual is not challenging a public entity’s failure to
provide reasonable modifications under § 35.130(b)(7), it is generally
unnecessary to proceed under the “actual disability” or “record of” prongs,
which require a showing of an impairment that substantially limits a major life
activity or a record of such an impairment. In these cases, the evaluation of
coverage can be made solely under the “regarded as” prong of the definition of
disability, which does not require a showing of an impairment that substantially
limits a major life activity or a record of such an impairment. An individual
may choose, however, to proceed under the “actual disability” or “record of”
prong regardless of whether the individual is challenging a public entity’s
failure to provide reasonable modifications.

(b)

(1) Physical or mental impairment means:

(i) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more body systems, such as: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genitourinary, immune, circulatory,
hemic, lymphatic, skin, and endocrine; or

(ii) Any mental or psychological disorder such as intellectual disability,
organic brain syndrome, emotional or mental illness, and specific learning
disability.

(2) Physical or mental impairment includes, but is not limited to, contagious
and noncontagious diseases and conditions such as the following: orthopedic,
visual, speech and hearing impairments, and cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual
disability, emotional illness, dyslexia and other specific learning
disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency
Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug
addiction, and alcoholism.

(3) Physical or mental impairment does not include homosexuality or bisexuality.

(c)

(1) Major life activities include, but are not limited to:

(i) Caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, writing, communicating,
interacting with others, and working; and

(ii) The operation of a major bodily function, such as the functions of the
immune system, special sense organs and skin, normal cell growth, and digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive
systems. The operation of a major bodily function includes the operation of an
individual organ within a body system.

(2) Rules of construction.

(i) In determining whether an impairment substantially limits a major life
activity, the term major shall not be interpreted strictly to create a demanding
standard.

(ii) Whether an activity is a major life activity is not determined by reference
to whether it is of central importance to daily life.

(d) Substantially limits.

(1) Rules of construction. The following rules of construction apply when
determining whether an impairment substantially limits an individual in a major
life activity.

(i) The term “substantially limits” shall be construed broadly in favor of
expansive coverage, to the maximum extent permitted by the terms of the ADA.
“Substantially limits” is not meant to be a demanding standard.

(ii) The primary object of attention in cases brought under title II of the ADA
should be whether public entities have complied with their obligations and
whether discrimination has occurred, not the extent to which an individual’s
impairment substantially limits a major life activity. Accordingly, the
threshold issue of whether an impairment substantially limits a major life
activity should not demand extensive analysis.

(iii) An impairment that substantially limits one major life activity does not
need to limit other major life activities in order to be considered a
substantially limiting impairment.

(iv) An impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.

(v) An impairment is a disability within the meaning of this part if it
substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population. An impairment
does not need to prevent, or significantly or severely restrict, the individual
from performing a major life activity in order to be considered substantially
limiting. Nonetheless, not every impairment will constitute a disability within
the meaning of this section.

(vi) The determination of whether an impairment substantially limits a major
life activity requires an individualized assessment. However, in making this
assessment, the term “substantially limits” shall be interpreted and applied to
require a degree of functional limitation that is lower than the standard for
substantially limits applied prior to the ADA Amendments Act.

(vii) The comparison of an individual’s performance of a major life activity to
the performance of the same major life activity by most people in the general
population usually will not require scientific, medical, or statistical
evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or
limit the presentation of scientific, medical, or statistical evidence in making
such a comparison where appropriate.

(viii) The determination of whether an impairment substantially limits a major
life activity shall be made without regard to the ameliorative effects of
mitigating measures. However, the ameliorative effects of ordinary eyeglasses or
contact lenses shall be considered in determining whether an impairment
substantially limits a major life activity. Ordinary eyeglasses or contact
lenses are lenses that are intended to fully correct visual acuity or to
eliminate refractive error.

(ix) The six-month “transitory” part of the “transitory and minor” exception in
paragraph (f)(2) of this section does not apply to the “actual disability” or
“record of” prongs of the definition of “disability.” The effects of an
impairment lasting or expected to last less than six months can be substantially
limiting within the meaning of this section for establishing an actual
disability or a record of a disability.

(2) Predictable assessments.

(i) The principles set forth in the rules of construction in this section are
intended to provide for more generous coverage and application of the ADA’s
prohibition on discrimination through a framework that is predictable,
consistent, and workable for all individuals and entities with rights and
responsibilities under the ADA.

(ii) Applying these principles, the individualized assessment of some types of
impairments will, in virtually all cases, result in a determination of coverage
under paragraph (a)(1)(i) of this section (the “actual disability” prong) or
paragraph (a)(1)(ii) of this section (the “record of” prong). Given their
inherent nature, these types of impairments will, as a factual matter, virtually
always be found to impose a substantial limitation on a major life activity.
Therefore, with respect to these types of impairments, the necessary
individualized assessment should be particularly simple and straightforward.

(iii) For example, applying these principles it should easily be concluded that
the types of impairments set forth in paragraphs (d)(2)(iii)(A) through (K) of
this section will, at a minimum, substantially limit the major life activities
indicated. The types of impairments described in this paragraph may
substantially limit additional major life activities (including major bodily
functions) not explicitly listed in paragraphs (d)(2)(iii)(A) through (K).

(A) Deafness substantially limits hearing;

(B) Blindness substantially limits seeing;

(C) Intellectual disability substantially limits brain function;

(D) Partially or completely missing limbs or mobility impairments requiring the
use of a wheelchair substantially limit musculoskeletal function;

(E) Autism substantially limits brain function;

(F) Cancer substantially limits normal cell growth;

(G) Cerebral palsy substantially limits brain function;

(H) Diabetes substantially limits endocrine function;

(I) Epilepsy, muscular dystrophy, and multiple sclerosis each substantially
limits neurological function;

(J) Human Immunodeficiency Virus (HIV) infection substantially limits immune
function; and

(K) Major depressive disorder, bipolar disorder, post-traumatic stress disorder,
traumatic brain injury, obsessive compulsive disorder, and schizophrenia each
substantially limits brain function.

(3) Condition, manner, or duration.

(i) At all times taking into account the principles set forth in the rules of
construction, in determining whether an individual is substantially limited in a
major life activity, it may be useful in appropriate cases to consider, as
compared to most people in the general population, the conditions under which
the individual performs the major life activity; the manner in which the
individual performs the major life activity; or the duration of time it takes
the individual to perform the major life activity, or for which the individual
can perform the major life activity.

(ii) Consideration of facts such as condition, manner, or duration may include,
among other things, consideration of the difficulty, effort or time required to
perform a major life activity; pain experienced when performing a major life
activity; the length of time a major life activity can be performed; or the way
an impairment affects the operation of a major bodily function. In addition, the
non-ameliorative effects of mitigating measures, such as negative side effects
of medication or burdens associated with following a particular treatment
regimen, may be considered when determining whether an individual’s impairment
substantially limits a major life activity.

(iii) In determining whether an individual has a disability under the “actual
disability” or “record of” prongs of the definition of “disability,” the focus
is on how a major life activity is substantially limited, and not on what
outcomes an individual can achieve. For example, someone with a learning
disability may achieve a high level of academic success, but may nevertheless be
substantially limited in one or more major life activities, including, but not
limited to, reading, writing, speaking, or learning because of the additional
time or effort he or she must spend to read, write, speak, or learn compared to
most people in the general population.

(iv) Given the rules of construction set forth in this section, it may often be
unnecessary to conduct an analysis involving most or all of the facts related to
condition, manner, or duration. This is particularly true with respect to
impairments such as those described in paragraph (d)(2)(iii) of this section,
which by their inherent nature should be easily found to impose a substantial
limitation on a major life activity, and for which the individualized assessment
should be particularly simple and straightforward.

(4) Mitigating measures include, but are not limited to:

(i) Medication, medical supplies, equipment, appliances, low-vision devices
(defined as devices that magnify, enhance, or otherwise augment a visual image,
but not including ordinary eyeglasses or contact lenses), prosthetics including
limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable
hearing devices, mobility devices, and oxygen therapy equipment and supplies;

(ii) Use of assistive technology;

(iii) Reasonable modifications or auxiliary aids or services as defined in this
regulation;

(iv) Learned behavioral or adaptive neurological modifications; or

(v) Psychotherapy, behavioral therapy, or physical therapy.

(e) Has a record of such an impairment.

(1) An individual has a record of such an impairment if the individual has a
history of, or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.

(2) Broad construction. Whether an individual has a record of an impairment that
substantially limited a major life activity shall be construed broadly to the
maximum extent permitted by the ADA and should not demand extensive analysis. An
individual will be considered to fall within this prong of the definition of
“disability” if the individual has a history of an impairment that substantially
limited one or more major life activities when compared to most people in the
general population, or was misclassified as having had such an impairment. In
determining whether an impairment substantially limited a major life activity,
the principles articulated in paragraph (d)(1) of this section apply.

(3)Reasonable modification. An individual with a record of a substantially
limiting impairment may be entitled to a reasonable modification if needed and
related to the past disability.

(f) Is regarded as having such an impairment. The following principles apply
under the “regarded” as prong of the definition of “disability” (paragraph
(a)(1)(iii) of this section):

(1) Except as set forth in paragraph (f)(2) of this section, an individual is
“regarded as having such an impairment” if the individual is subjected to a
prohibited action because of an actual or perceived physical or mental
impairment, whether or not that impairment substantially limits, or is perceived
to substantially limit, a major life activity, even if the public entity
asserts, or may or does ultimately establish, a defense to the action prohibited
by the ADA.

(2) An individual is not “regarded as having such an impairment” if the public
entity demonstrates that the impairment is, objectively, both “transitory” and
“minor.” A public entity may not defeat “regarded as” coverage of an individual
simply by demonstrating that it subjectively believed the impairment was
transitory and minor; rather, the public entity must demonstrate that the
impairment is (in the case of an actual impairment) or would be (in the case of
a perceived impairment), objectively, both “transitory” and “minor.” For
purposes of this section, “transitory” is defined as lasting or expected to last
six months or less.

(3) Establishing that an individual is “regarded as having such an impairment”
does not, by itself, establish liability. Liability is established under title
II of the ADA only when an individual proves that a public entity discriminated
on the basis of disability within the meaning of title II of the ADA, 42 U.S.C.
12131–12134.

(g) Exclusions. The term “disability” does not include—

(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender
identity disorders not resulting from physical impairments, or other sexual
behavior disorders;

(2) Compulsive gambling, kleptomania, or pyromania; or

(3) Psychoactive substance use disorders resulting from current illegal use of
drugs.


§§ 35.109—35.129 [RESERVED]


SUBPART B—GENERAL REQUIREMENTS


§ 35.130 GENERAL PROHIBITIONS AGAINST DISCRIMINATION

(a) No qualified individual with a disability shall, on the basis of disability,
be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any public entity.

(b)

(1) A public entity, in providing any aid, benefit, or service, may not,
directly or through contractual, licensing, or other arrangements, on the basis
of disability—

(i) Deny a qualified individual with a disability the opportunity to participate
in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to
participate in or benefit from the aid, benefit, or service that is not equal to
that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or
service that is not as effective in affording equal opportunity to obtain the
same result, to gain the same benefit, or to reach the same level of achievement
as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals
with disabilities or to any class of individuals with disabilities than is
provided to others unless such action is necessary to provide qualified
individuals with disabilities with aids, benefits, or services that are as
effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a
disability by providing significant assistance to an agency, organization, or
person that discriminates on the basis of disability in providing any aid,
benefit, or service to beneficiaries of the public entity’s program;

(vi) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards; - (vii) Otherwise limit
a qualified individual with a disability in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others receiving the aid,
benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the
opportunity to participate in services, programs, or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.

(3) A public entity may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration—

(i) That have the effect of subjecting qualified individuals with disabilities
to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing
accomplishment of the objectives of the public entity’s program with respect to
individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public
entities are subject to common administrative control or are agencies of the
same State.

(4) A public entity may not, in determining the site or location of a facility,
make selections—

(i) That have the effect of excluding individuals with disabilities from,
denying them the benefits of, or otherwise subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the service, program, or activity with
respect to individuals with disabilities.

(5) A public entity, in the selection of procurement contractors, may not use
criteria that subject qualified individuals with disabilities to discrimination
on the basis of disability.

(6) A public entity may not administer a licensing or certification program in a
manner that subjects qualified individuals with disabilities to discrimination
on the basis of disability, nor may a public entity establish requirements for
the programs or activities of licensees or certified entities that subject
qualified individuals with disabilities to discrimination on the basis of
disability. The programs or activities of entities that are licensed or
certified by a public entity are not, themselves, covered by this part.

(7)

(i)A public entity shall make reasonable modifications in policies, practices,
or procedures when the modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can demonstrate that making
the modifications would fundamentally alter the nature of the service, program,
or activity.

(ii) A public entity is not required to provide a reasonable modification to an
individual who meets the definition of “disability” solely under the “regarded
as” prong of the definition of disability at § 35.108(a)(1)(iii).

(8) A public entity shall not impose or apply eligibility criteria that screen
out or tend to screen out an individual with a disability or any class of
individuals with disabilities from fully and equally enjoying any service,
program, or activity, unless such criteria can be shown to be necessary for the
provision of the service, program, or activity being offered.

(c) Nothing in this part prohibits a public entity from providing benefits,
services, or advantages to individuals with disabilities, or to a particular
class of individuals with disabilities beyond those required by this part.

(d) A public entity shall administer services, programs, and activities in the
most integrated setting appropriate to the needs of qualified individuals with
disabilities.

(e)

(1) Nothing in this part shall be construed to require an individual with a
disability to accept an accommodation, aid, service, opportunity, or benefit
provided under the ADA or this part which such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or guardian of
an individual with a disability to decline food, water, medical treatment, or
medical services for that individual.

(f) A public entity may not place a surcharge on a particular individual with a
disability or any group of individuals with disabilities to cover the costs of
measures, such as the provision of auxiliary aids or program accessibility, that
are required to provide that individual or group with the nondiscriminatory
treatment required by the Act or this part.

(g) A public entity shall not exclude or otherwise deny equal services,
programs, or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known to have
a relationship or association.

(h) A public entity may impose legitimate safety requirements necessary for the
safe operation of its services, programs, or activities. However, the public
entity must ensure that its safety requirements are based on actual risks, not
on mere speculation, stereotypes, or generalizations about individuals with
disabilities.

(i) Nothing in this part shall provide the basis for a claim that an individual
without a disability was subject to discrimination because of a lack of
disability, including a claim that an individual with a disability was granted a
reasonable modification that was denied to an individual without a disability.


§ 35.131 ILLEGAL USE OF DRUGS

(a) General.

(1) Except as provided in paragraph (b) of this section, this part does not
prohibit discrimination against an individual based on that individual’s current
illegal use of drugs. (2) A public entity shall not discriminate on the basis of
illegal use of drugs against an individual who is not engaging in current
illegal use of drugs and who—

(i) Has successfully completed a supervised drug rehabilitation program or has
otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program; or

(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services.

(1) A public entity shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the basis of that
individual’s current illegal use of drugs, if the individual is otherwise
entitled to such services.

(2) A drug rehabilitation or treatment program may deny participation to
individuals who engage in illegal use of drugs while they are in the program.

(c) Drug testing.

(1) This part does not prohibit a public entity from adopting or administering
reasonable policies or procedures, including but not limited to drug testing,
designed to ensure that an individual who formerly engaged in the illegal use of
drugs is not now engaging in current illegal use of drugs.

(2) Nothing in paragraph (c) of this section shall be construed to encourage,
prohibit, restrict, or authorize the conduct of testing for the illegal use of
drugs.


§ 35.132 SMOKING

This part does not preclude the prohibition of, or the imposition of
restrictions on, smoking in transportation covered by this part.


§ 35.133 MAINTENANCE OF ACCESSIBLE FEATURES

(a) A public entity shall maintain in operable working condition those features
of facilities and equipment that are required to be readily accessible to and
usable by persons with disabilities by the Act or this part.

(b) This section does not prohibit isolated or temporary interruptions in
service or access due to maintenance or repairs.

(c) If the 2010 Standards reduce the technical requirements or the number of
required accessible elements below the number required by the 1991 Standards,
the technical requirements or the number of accessible elements in a facility
subject to this part may be reduced in accordance with the requirements of the
2010 Standards.


§ 35.134 RETALIATION OR COERCION

(a) No private or public entity shall discriminate against any individual
because that individual has opposed any act or practice made unlawful by this
part, or because that individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under the
Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten, or interfere
with any individual in the exercise or enjoyment of, or on account of his or her
having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right
granted or protected by the Act or this part.


§ 35.135 PERSONAL DEVICES AND SERVICES

This part does not require a public entity to provide to individuals with
disabilities personal devices, such as wheelchairs; individually prescribed
devices, such as prescription eyeglasses or hearing aids; readers for personal
use or study; or services of a personal nature including assistance in eating,
toileting, or dressing.


§ 35.136 SERVICE ANIMALS

(a) General. Generally, a public entity shall modify its policies, practices, or
procedures to permit the use of a service animal by an individual with a
disability.

(b)Exceptions. A public entity may ask an individual with a disability to remove
a service animal from the premises if—

(1) The animal is out of control and the animal’s handler does not take
effective action to control it; or

(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a public entity properly excludes a
service animal under § 35.136 (b), it shall give the individual with a
disability the opportunity to participate in the service, program, or activity
without having the service animal on the premises.

(d) Animal under handler’s control. A service animal shall be under the control
of its handler. A service animal shall have a harness, leash, or other tether,
unless either the handler is unable because of a disability to use a harness,
leash, or other tether, or the use of a harness, leash, or other tether would
interfere with the service animal’s safe, effective performance of work or
tasks, in which case the service animal must be otherwise under the handler’s
control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A public entity is not responsible for the care or
supervision of a service animal.

(f) Inquiries. A public entity shall not ask about the nature or extent of a
person’s disability, but may make two inquiries to determine whether an animal
qualifies as a service animal. A public entity may ask if the animal is required
because of a disability and what work or task the animal has been trained to
perform. A public entity shall not require documentation, such as proof that the
animal has been certified, trained, or licensed as a service animal. Generally,
a public entity may not make these inquiries about a service animal when it is
readily apparent that an animal is trained to do work or perform tasks for an
individual with a disability (e.g., the dog is observed guiding an individual
who is blind or has low vision, pulling a person’s wheelchair, or providing
assistance with stability or balance to an individual with an observable
mobility disability).

(g) Access to areas of a public entity. Individuals with disabilities shall be
permitted to be accompanied by their service animals in all areas of a public
entity’s facilities where members of the public, participants in services,
programs or activities, or invitees, as relevant, are allowed to go.

(h) Surcharges. A public entity shall not ask or require an individual with a
disability to pay a surcharge, even if people accompanied by pets are required
to pay fees, or to comply with other requirements generally not applicable to
people without pets. If a public entity normally charges individuals for the
damage they cause, an individual with a disability may be charged for damage
caused by his or her service animal.

(i) Miniature horses.

(1) Reasonable modifications. A public entity shall make reasonable
modifications in policies, practices, or procedures to permit the use of a
miniature horse by an individual with a disability if the miniature horse has
been individually trained to do work or perform tasks for the benefit of the
individual with a disability.

(2) Assessment factors. In determining whether reasonable modifications in
policies, practices, or procedures can be made to allow a miniature horse into a
specific facility, a public entity shall consider—

(i) The type, size, and weight of the miniature horse and whether the facility
can accommodate these features;

(ii) Whether the handler has sufficient control of the miniature horse;

(iii) Whether the miniature horse is housebroken; and

(iv) Whether the miniature horse’s presence in a specific facility compromises
legitimate safety requirements that are necessary for safe operation.

(3) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which
apply to service animals, shall also apply to miniature horses.


§ 35.137 MOBILITY DEVICES.

(a) Use of wheelchairs and manually-powered mobility aids. A public entity shall
permit individuals with mobility disabilities to use wheelchairs and
manually-powered mobility aids, such as walkers, crutches, canes, braces, or
other similar devices designed for use by individuals with mobility disabilities
in any areas open to pedestrian use.

(b)

(1) Use of other power-driven mobility devices. A public entity shall make
reasonable modifications in its policies, practices, or procedures to permit the
use of other power-driven mobility devices by individuals with mobility
disabilities, unless the public entity can demonstrate that the class of other
power-driven mobility devices cannot be operated in accordance with legitimate
safety requirements that the public entity has adopted pursuant to § 35.130(h).

(2)Assessment factors. In determining whether a particular other power-driven
mobility device can be allowed in a specific facility as a reasonable
modification under paragraph (b)(1) of this section, a public entity shall
consider—

(i) The type, size, weight, dimensions, and speed of the device;

(ii) The facility’s volume of pedestrian traffic (which may vary at different
times of the day, week, month, or year);

(iii) The facility’s design and operational characteristics (e.g., whether its
service, program, or activity is conducted indoors, its square footage, the
density and placement of stationary devices, and the availability of storage for
the device, if requested by the user);

(iv) Whether legitimate safety requirements can be established to permit the
safe operation of the other power-driven mobility device in the specific
facility; and

(v) Whether the use of the other power-driven mobility device creates a
substantial risk of serious harm to the immediate environment or natural or
cultural resources, or poses a conflict with Federal land management laws and
regulations.

(c)

(1) Inquiry about disability. A public entity shall not ask an individual using
a wheelchair or other power-driven mobility device questions about the nature
and extent of the individual’s disability.

(2) Inquiry into use of other power-driven mobility device. A public entity may
ask a person using an other power-driven mobility device to provide a credible
assurance that the mobility device is required because of the person’s
disability. A public entity that permits the use of an other power-driven
mobility device by an individual with a mobility disability shall accept the
presentation of a valid, State-issued, disability parking placard or card, or
other State-issued proof of disability as a credible assurance that the use of
the other power-driven mobility device is for the individual’s mobility
disability. In lieu of a valid, State-issued disability parking placard or card,
or State-issued proof of disability, a public entity shall accept as a credible
assurance a verbal representation, not contradicted by observable fact, that the
other power-driven mobility device is being used for a mobility disability. A
“valid” disability placard or card is one that is presented by the individual to
whom it was issued and is otherwise in compliance with the State of issuance’s
requirements for disability placards or cards.


§ 35.138 TICKETING

(a)

(1) For the purposes of this section, “accessible seating” is defined as
wheelchair spaces and companion seats that comply with sections 221 and 802 of
the 2010 Standards along with any other seats required to be offered for sale to
the individual with a disability pursuant to paragraph (d) of this section.

(2) Ticket sales. A public entity that sells tickets for a single event or
series of events shall modify its policies, practices, or procedures to ensure
that individuals with disabilities have an equal opportunity to purchase tickets
for accessible seating—

(i) During the same hours;

(ii) During the same stages of ticket sales, including, but not limited to,
pre-sales, promotions, lotteries, wait-lists, and general sales;

(iii) Through the same methods of distribution;

(iv) In the same types and numbers of ticketing sales outlets, including
telephone service, in-person ticket sales at the facility, or third-party
ticketing services, as other patrons; and

(v) Under the same terms and conditions as other tickets sold for the same event
or series of events.

(b) Identification of available accessible seating. A public entity that sells
or distributes tickets for a single event or series of events shall, upon
inquiry—

(1) Inform individuals with disabilities, their companions, and third parties
purchasing tickets for accessible seating on behalf of individuals with
disabilities of the locations of all unsold or otherwise available accessible
seating for any ticketed event or events at the facility;

(2) Identify and describe the features of available accessible seating in enough
detail to reasonably permit an individual with a disability to assess
independently whether a given accessible seating location meets his or her
accessibility needs; and

(3) Provide materials, such as seating maps, plans, brochures, pricing charts,
or other information, that identify accessible seating and information relevant
thereto with the same text or visual representations as other seats, if such
materials are provided to the general public.

(c) Ticket prices. The price of tickets for accessible seating for a single
event or series of events shall not be set higher than the price for other
tickets in the same seating section for the same event or series of events.
Tickets for accessible seating must be made available at all price levels for
every event or series of events. If tickets for accessible seating at a
particular price level are not available because of inaccessible features, then
the percentage of tickets for accessible seating that should have been available
at that price level (determined by the ratio of the total number of tickets at
that price level to the total number of tickets in the assembly area) shall be
offered for purchase, at that price level, in a nearby or similar accessible
location.

(d) Purchasing multiple tickets.

(1) General. For each ticket for a wheelchair space purchased by an individual
with a disability or a third-party purchasing such a ticket at his or her
request, a public entity shall make available for purchase three additional
tickets for seats in the same row that are contiguous with the wheelchair space,
provided that at the time of purchase there are three such seats available. A
public entity is not required to provide more than three contiguous seats for
each wheelchair space. Such seats may include wheelchair spaces.

(2) Insufficient additional contiguous seats available. If patrons are allowed
to purchase at least four tickets, and there are fewer than three such
additional contiguous seat tickets available for purchase, a public entity shall
offer the next highest number of such seat tickets available for purchase and
shall make up the difference by offering tickets for sale for seats that are as
close as possible to the accessible seats.

(3) Sales limited to less than four tickets. If a public entity limits sales of
tickets to fewer than four seats per patron, then the public entity is only
obligated to offer as many seats to patrons with disabilities, including the
ticket for the wheelchair space, as it would offer to patrons without
disabilities.

(4) Maximum number of tickets patrons may purchase exceeds four. If patrons are
allowed to purchase more than four tickets, a public entity shall allow patrons
with disabilities to purchase up to the same number of tickets, including the
ticket for the wheelchair space.

(5) Group sales. If a group includes one or more individuals who need to use
accessible seating because of a mobility disability or because their disability
requires the use of the accessible features that are provided in accessible
seating, the group shall be placed in a seating area with accessible seating so
that, if possible, the group can sit together. If it is necessary to divide the
group, it should be divided so that the individuals in the group who use
wheelchairs are not isolated from their group.

(e) Hold-and-release of tickets for accessible seating.

(1) Tickets for accessible seating may be released for sale in certain limited
circumstances. A public entity may release unsold tickets for accessible seating
for sale to individuals without disabilities for their own use for a single
event or series of events only under the following circumstances—

(i) When all non-accessible tickets (excluding luxury boxes, club boxes, or
suites) have been sold;

(ii) When all non-accessible tickets in a designated seating area have been sold
and the tickets for accessible seating are being released in the same designated
area; or

(iii) When all non-accessible tickets in a designated price category have been
sold and the tickets for accessible seating are being released within the same
designated price category.

(2) No requirement to release accessible tickets. Nothing in this paragraph
requires a facility to release tickets for accessible seating to individuals
without disabilities for their own use.

(3) Release of series-of-events tickets on a series-of-events basis.

(i) Series-of-events tickets sell-out when no ownership rights are attached.
When series-of-events tickets are sold out and a public entity releases and
sells accessible seating to individuals without disabilities for a series of
events, the public entity shall establish a process that prevents the automatic
reassignment of the accessible seating to such ticket holders for future
seasons, future years, or future series so that individuals with disabilities
who require the features of accessible seating and who become newly eligible to
purchase tickets when these series-of-events tickets are available for purchase
have an opportunity to do so.

(ii) Series-of-events tickets when ownership rights are attached. When
series-of-events tickets with an ownership right in accessible seating areas are
forfeited or otherwise returned to a public entity, the public entity shall make
reasonable modifications in its policies, practices, or procedures to afford
individuals with mobility disabilities or individuals with disabilities that
require the features of accessible seating an opportunity to purchase such
tickets in accessible seating areas.

(f) Ticket transfer. Individuals with disabilities who hold tickets for
accessible seating shall be permitted to transfer tickets to third parties under
the same terms and conditions and to the same extent as other spectators holding
the same type of tickets, whether they are for a single event or series of
events.

(g) Secondary ticket market.

(1) A public entity shall modify its policies, practices, or procedures to
ensure that an individual with a disability may use a ticket acquired in the
secondary ticket market under the same terms and conditions as other individuals
who hold a ticket acquired in the secondary ticket market for the same event or
series of events.

(2) If an individual with a disability acquires a ticket or series of tickets to
an inaccessible seat through the secondary market, a public entity shall make
reasonable modifications to its policies, practices, or procedures to allow the
individual to exchange his ticket for one to an accessible seat in a comparable
location if accessible seating is vacant at the time the individual presents the
ticket to the public entity.

(h) Prevention of fraud in purchase of tickets for accessible seating. A public
entity may not require proof of disability, including, for example, a doctor’s
note, before selling tickets for accessible seating.

(1) Single-event tickets. For the sale of single-event tickets, it is
permissible to inquire whether the individual purchasing the tickets for
accessible seating has a mobility disability or a disability that requires the
use of the accessible features that are provided in accessible seating, or is
purchasing the tickets for an individual who has a mobility disability or a
disability that requires the use of the accessible features that are provided in
the accessible seating.

(2) Series-of-events tickets. For series-of-events tickets, it is permissible to
ask the individual purchasing the tickets for accessible seating to attest in
writing that the accessible seating is for a person who has a mobility
disability or a disability that requires the use of the accessible features that
are provided in the accessible seating.

(3) Investigation of fraud. A public entity may investigate the potential misuse
of accessible seating where there is good cause to believe that such seating has
been purchased fraudulently.


SECTION 35.139 DIRECT THREAT.

(a) This part does not require a public entity to permit an individual to
participate in or benefit from the services, programs, or activities of that
public entity when that individual poses a direct threat to the health or safety
of others.

(b) In determining whether an individual poses a direct threat to the health or
safety of others, a public entity must make an individualized assessment, based
on reasonable judgment that relies on current medical knowledge or on the best
available objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually occur; and
whether reasonable modifications of policies, practices, or procedures or the
provision of auxiliary aids or services will mitigate the risk.


SUBPART C—EMPLOYMENT


§ 35.140 EMPLOYMENT DISCRIMINATION PROHIBITED

(a) No qualified individual with a disability shall, on the basis of disability,
be subjected to discrimination in employment under any service, program, or
activity conducted by a public entity.

(b)

(1) For purposes of this part, the requirements of title I of the Act, as
established by the regulations of the Equal Employment Opportunity Commission in
29 CFR part 1630, apply to employment in any service, program, or activity
conducted by a public entity if that public entity is also subject to the
jurisdiction of title I.

(2) For the purposes of this part, the requirements of section 504 of the
Rehabilitation Act of 1973, as established by the regulations of the Department
of Justice in 28 CFR part 41, as those requirements pertain to employment, apply
to employment in any service, program, or activity conducted by a public entity
if that public entity is not also subject to the jurisdiction of title I.


§§ 35.141—35.148 [RESERVED]


SUBPART D—PROGRAM ACCESSIBILITY


§ 35.149 DISCRIMINATION PROHIBITED.

Except as otherwise provided in § 35.150, no qualified individual with a
disability shall, because a public entity’s facilities are inaccessible to or
unusable by individuals with disabilities, be excluded from participation in, or
be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity.


§ 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 §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 § 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.

(2)

(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 221.2.1.4. - (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 § 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.

(4) Swimming pools, wading pools, and spas. The requirements setforth in
sections 242 and 1009 of the 2010 Standards shall not applyuntil January 31,
2013, if a public entity chooses to make structural changesto existing swimming
pools, wading pools, or spas built before March 15,2012, for the sole purpose of
complying with the program accessibilityrequirements set forth in this section.

(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 section 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.


§ 35.151 NEW CONSTRUCTION AND ALTERATIONS

(a) Design and construction.

(1) Each facility or part of a facility constructed by, on behalf of, or for the
use of a public entity shall be designed and constructed in such manner that the
facility or part of the facility is readily accessible to and usable by
individuals with disabilities, if the construction was commenced after January
26, 1992.

(2) Exception for structural impracticability.

(i) Full compliance with the requirements of this section is not required where
a public entity can demonstrate that it is structurally impracticable to meet
the requirements. Full compliance will be considered structurally impracticable
only in those rare circumstances when the unique characteristics of terrain
prevent the incorporation of accessibility features.

(ii) If full compliance with this section would be structurally impracticable,
compliance with this section is required to the extent that it is not
structurally impracticable. In that case, any portion of the facility that can
be made accessible shall be made accessible to the extent that it is not
structurally impracticable.

(iii) If providing accessibility in conformance with this section to individuals
with certain disabilities (e.g., those who use wheelchairs) would be
structurally impracticable, accessibility shall nonetheless be ensured to
persons with other types of disabilities, (e.g., those who use crutches or who
have sight, hearing, or mental impairments) in accordance with this section.

(b) Alterations.

(1) Each facility or part of a facility altered by, on behalf of, or for the use
of a public entity in a manner that affects or could affect the usability of the
facility or part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is readily
accessible to and usable by individuals with disabilities, if the alteration was
commenced after January 26, 1992.

(2) The path of travel requirements of § 35.151(b)(4) shall apply only to
alterations undertaken solely for purposes other than to meet the program
accessibility requirements of § 35.150.

(3)

(i) Alterations to historic properties shall comply, to the maximum extent
feasible, with the provisions applicable to historic properties in the design
standards specified in § 35.151(c).

(ii) If it is not feasible to provide physical access to an historic property in
a manner that will not threaten or destroy the historic significance of the
building or facility, alternative methods of access shall be provided pursuant
to the requirements of § 35.150.

(4) Path of travel. An alteration that affects or could affect the usability of
or access to an area of a facility that contains a primary function shall be
made so as to ensure that, to the maximum extent feasible, the path of travel to
the altered area and the restrooms, telephones, and drinking fountains serving
the altered area are readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, unless the cost and
scope of such alterations is disproportionate to the cost of the overall
alteration.

(i) Primary function. A “primary function” is a major activity for which the
facility is intended. Areas that contain a primary function include, but are not
limited to, the dining area of a cafeteria, the meeting rooms in a conference
center, as well as offices and other work areas in which the activities of the
public entity using the facility are carried out.

(A) Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or
locker rooms, janitorial closets, entrances, and corridors are not areas
containing a primary function. Restrooms are not areas containing a primary
function unless the provision of restrooms is a primary purpose of the area,
e.g., in highway rest stops.

(B) For the purposes of this section, alterations to windows, hardware,
controls, electrical outlets, and signage shall not be deemed to be alterations
that affect the usability of or access to an area containing a primary function.

(ii) A “path of travel” includes a continuous, unobstructed way of pedestrian
passage by means of which the altered area may be approached, entered, and
exited, and which connects the altered area with an exterior approach (including
sidewalks, streets, and parking areas), an entrance to the facility, and other
parts of the facility.

(A) An accessible path of travel may consist of walks and sidewalks, curb ramps
and other interior or exterior pedestrian ramps; clear floor paths through
lobbies, corridors, rooms, and other improved areas; parking access aisles;
elevators and lifts; or a combination of these elements.

(B) For the purposes of this section, the term “path of travel” also includes
the restrooms, telephones, and drinking fountains serving the altered area.

(C) Safe harbor. If a public entity has constructed or altered required elements
of a path of travel in accordance with the specifications in either the 1991
Standards or the Uniform Federal Accessibility Standards before March 15, 2012,
the public entity is not required to retrofit such elements to reflect
incremental changes in the 2010 Standards solely because of an alteration to a
primary function area served by that path of travel.

(iii) Disproportionality.

(A) 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 % of the cost of the alteration to the primary function area.

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

(1) Costs associated with providing an accessible entrance and an accessible
route to the altered area, for example, the cost of widening doorways or
installing ramps;

(2) Costs associated with making restrooms accessible, such as installing grab
bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet
controls;

(3) Costs associated with providing accessible telephones, such as relocating
the telephone to an accessible height, installing amplification devices, or
installing a text telephone (TTY); and

(4) Costs associated with relocating an inaccessible drinking fountain.

(iv) Duty to provide accessible features in the event of disproportionality.

(A) When the cost of alterations necessary to make the path of travel to the
altered area fully accessible is disproportionate to the cost of the overall
alteration, the path of travel shall be made accessible to the extent that it
can be made accessible without incurring disproportionate costs.

(B) In choosing which accessible elements to provide, priority should be given
to those elements that will provide the greatest access, in the following order—

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as parking, storage, and
alarms.

(v) Series of smaller alterations.

(A) The obligation to provide an accessible path of travel may not be evaded by
performing a series of small alterations to the area served by a single path of
travel if those alterations could have been performed as a single undertaking.

(B)

(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 alterations 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 accessible is disproportionate.

(2) Only alterations undertaken on or after March 15, 2011, shall be considered
in determining if the cost of providing an accessible path of travel is
disproportionate to the overall cost of the alterations.

(c) Accessibility standards and compliance date.

(1) If physical construction or alterations commence after July 26, 1992, but
prior to September 15, 2010, then new construction and alterations subject to
this section must comply with either the UFAS or the 1991 Standards except that
the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of
the 1991 Standards shall not apply. Departures from particular requirements of
either standard by the use of other methods shall be permitted when it is
clearly evident that equivalent access to the facility or part of the facility
is thereby provided.

(2) If physical construction or alterations commence on or after September 15,
2010, and before March 15, 2012, then new construction and alterations subject
to this section may comply with one of the following: the 2010 Standards, UFAS,
or the 1991 Standards except that the elevator exemption contained at section
4.1.3(5) and section 4.1.6(1)(k) of the 1991 Standards shall not apply.
Departures from particular requirements of either standard by the use of other
methods shall be permitted when it is clearly evident that equivalent access to
the facility or part of the facility is thereby provided.

(3) If physical construction or alterations commence on or after March 15, 2012,
then new construction and alterations subject to this section shall comply with
the 2010 Standards.

(4) For the purposes of this section, ceremonial groundbreaking or razing of
structures prior to site preparation do not commence physical construction or
alterations.

(5) Noncomplying new construction and alterations.

(i) Newly constructed or altered facilities or elements covered by §§ 35.151(a)
or (b) that were constructed or altered before March 15, 2012, and that do not
comply with the 1991 Standards or with UFAS shall before March 15, 2012, be made
accessible in accordance with either the 1991 Standards, UFAS, or the 2010
Standards.

(ii) Newly constructed or altered facilities or elements covered by §§ 35.151(a)
or (b) that were constructed or altered before March 15, 2012 and that do not
comply with the 1991 Standards or with UFAS shall, on or after March 15, 2012,
be made accessible in accordance with the 2010 Standards.

APPENDIX TO § 35.151(C)

Compliance Date for New Construction or Alterations Applicable Standards Before
September 15, 2010 1991 Standards or UFAS On or after September 15, 2010, and
before March 15, 2012 1991 Standards, UFAS, or 2010 Standards On or after March
15, 2012 2010 Standards

(d) Scope of coverage. The 1991 Standards and the 2010 Standards apply to fixed
or built-in elements of buildings, structures, site improvements, and pedestrian
routes or vehicular ways located on a site. Unless specifically stated
otherwise, the advisory notes, appendix notes, and figures contained in the 1991
Standards and the 2010 Standards explain or illustrate the requirements of the
rule; they do not establish enforceable requirements.

(e) Social service center establishments. Group homes, halfway houses, shelters,
or similar social service center establishments that provide either temporary
sleeping accommodations or residential dwelling units that are subject to this
section shall comply with the provisions of the 2010 Standards applicable to
residential facilities, including, but not limited to, the provisions in
sections 233 and 809.

(1) In sleeping rooms with more than 25 beds covered by this section, a minimum
of 5% of the beds shall have clear floor space complying with section 806.2.3 of
the 2010 Standards.

(2) Facilities with more than 50 beds covered by this section that provide
common use bathing facilities, shall provide at least one roll-in shower with a
seat that complies with the relevant provisions of section 608 of the 2010
Standards. Transfer-type showers are not permitted in lieu of a roll-in shower
with a seat, and the exceptions in sections 608.3 and 608.4 for residential
dwelling units are not permitted. When separate shower facilities are provided
for men and for women, at least one roll-in shower shall be provided for each
group.

(f) Housing at a place of education. Housing at a place of education that is
subject to this section shall comply with the provisions of the 2010 Standards
applicable to transient lodging, including, but not limited to, the requirements
for transient lodging guest rooms in sections 224 and 806 subject to the
following exceptions. For the purposes of the application of this section, the
term "sleeping room" is intended to be used interchangeably with the term "guest
room" as it is used in the transient lodging standards.

(1) Kitchens within housing units containing accessible sleeping rooms with
mobility features (including suites and clustered sleeping rooms) or on floors
containing accessible sleeping rooms with mobility features shall provide
turning spaces that comply with section 809.2.2 of the 2010 Standards and
kitchen work surfaces that comply with section 804.3 of the 2010 Standards.

(2) Multi-bedroom housing units containing accessible sleeping rooms with
mobility features shall have an accessible route throughout the unit in
accordance with section 809.2 of the 2010 Standards.

(3) Apartments or townhouse facilities that are provided by or on behalf of a
place of education, which are leased on a year-round basis exclusively to
graduate students or faculty, and do not contain any public use or common use
areas available for educational programming, are not subject to the transient
lodging standards and shall comply with the requirements for residential
facilities in sections 233 and 809 of the 2010 Standards.

(g) Assembly areas. Assembly areas subject to this section shall comply with the
provisions of the 2010 Standards applicable to assembly areas, including, but
not limited to, sections 221 and 802. In addition, assembly areas shall ensure
that—

(1) In stadiums, arenas, and grandstands, wheelchair spaces and companion seats
are dispersed to all levels that include seating served by an accessible route;

(2) Assembly areas that are required to horizontally disperse wheelchair spaces
and companion seats by section 221.2.3.1 of the 2010 Standards and have seating
encircling, in whole or in part, a field of play or performance area shall
disperse wheelchair spaces and companion seats around that field of play or
performance area;

(3) Wheelchair spaces and companion seats are not located on (or obstructed by)
temporary platforms or other movable structures, except that when an entire
seating section is placed on temporary platforms or other movable structures in
an area where fixed seating is not provided, in order to increase seating for an
event, wheelchair spaces and companion seats may be placed in that section. When
wheelchair spaces and companion seats are not required to accommodate persons
eligible for those spaces and seats, individual, removable seats may be placed
in those spaces and seats;

(4) Stadium-style movie theaters shall locate wheelchair spaces and companion
seats on a riser or cross-aisle in the stadium section that satisfies at least
one of the following criteria—

(i) It is located within the rear 60% of the seats provided in an auditorium; or

(ii) It is located within the area of an auditorium in which the vertical
viewing angles (as measured to the top of the screen) are from the 40th to the
100th percentile of vertical viewing angles for all seats as ranked from the
seats in the first row (1st percentile) to seats in the back row (100th
percentile).

(h) Medical care facilities. Medical care facilities that are subject to this
section shall comply with the provisions of the 2010 Standards applicable to
medical care facilities, including, but not limited to, sections 223 and 805. In
addition, medical care facilities that do not specialize in the treatment of
conditions that affect mobility shall disperse the accessible patient bedrooms
required by section 223.2.1 of the 2010 Standards in a manner that is
proportionate by type of medical specialty.

(i) Curb ramps.

(1) Newly constructed or altered streets, roads, and highways must contain curb
ramps or other sloped areas at any intersection having curbs or other barriers
to entry from a street level pedestrian walkway.

(2) Newly constructed or altered street level pedestrian walkways must contain
curb ramps or other sloped areas at intersections to streets, roads, or
highways.

(j) Facilities with residential dwelling units for sale to individual owners.

(1) Residential dwelling units designed and constructed or altered by public
entities that will be offered for sale to individuals shall comply with the
requirements for residential facilities in the 2010 Standards including sections
233 and 809.

(2) The requirements of paragraph (1) also apply to housing programs that are
operated by public entities where design and construction of particular
residential dwelling units take place only after a specific buyer has been
identified. In such programs, the covered entity must provide the units that
comply with the requirements for accessible features to those pre-identified
buyers with disabilities who have requested such a unit.

(k) Detention and correctional facilities.

(1) New construction of jails, prisons, and other detention and correctional
facilities shall comply with the 2010 Standards except that public entities
shall provide accessible mobility features complying with section 807.2 of the
2010 Standards for a minimum of 3%, but no fewer than one, of the total number
of cells in a facility. Cells with mobility features shall be provided in each
classification level.

(2) Alterations to detention and correctional facilities. Alterations to jails,
prisons, and other detention and correctional facilities shall comply with the
2010 Standards except that public entities shall provide accessible mobility
features complying with section 807.2 of the 2010 Standards for a minimum of 3%,
but no fewer than one, of the total number of cells being altered until at least
3%, but no fewer than one, of the total number of cells in a facility shall
provide mobility features complying with section 807.2. Altered cells with
mobility features shall be provided in each classification level. However, when
alterations are made to specific cells, detention and correctional facility
operators may satisfy their obligation to provide the required number of cells
with mobility features by providing the required mobility features in substitute
cells (cells other than those where alterations are originally planned),
provided that each substitute cell—

(i) Is located within the same prison site;

(ii) Is integrated with other cells to the maximum extent feasible;

(iii) Has, at a minimum, equal physical access as the altered cells to areas
used by inmates or detainees for visitation, dining, recreation, educational
programs, medical services, work programs, religious services, and participation
in other programs that the facility offers to inmates or detainees; and,

(iv) If it is technically infeasible to locate a substitute cell within the same
prison site, a substitute cell must be provided at another prison site within
the corrections system.

(3) With respect to medical and long-term care facilities in jails, prisons, and
other detention and correctional facilities, public entities shall apply the
2010 Standards technical and scoping requirements for those facilities
irrespective of whether those facilities are licensed.


§ 35.152 JAILS, DETENTION AND CORRECTIONAL FACILITIES, AND COMMUNITY
CORRECTIONAL FACILITIES.

(a) General. This section applies to public entities that are responsible for
the operation or management of adult and juvenile justice jails, detention and
correctional facilities, and community correctional facilities, either directly
or through contractual, licensing, or other arrangements with public or private
entities, in whole or in part, including private correctional facilities.

(b) Discrimination prohibited.

(1) Public entities shall ensure that qualified inmates or detainees with
disabilities shall not, because a facility is inaccessible to or unusable by
individuals with disabilities, be excluded from participation in, or be denied
the benefits of, the services, programs, or activities of a public entity, or be
subjected to discrimination by any public entity.

(2) Public entities shall ensure that inmates or detainees with disabilities are
housed in the most integrated setting appropriate to the needs of the
individuals. Unless it is appropriate to make an exception, a public entity–

(i) Shall not place inmates or detainees with disabilities in inappropriate
security classifications because no accessible cells or beds are available;

(ii) Shall not place inmates or detainees with disabilities in designated
medical areas unless they are actually receiving medical care or treatment;

(iii) Shall not place inmates or detainees with disabilities in facilities that
do not offer the same programs as the facilities where they would otherwise be
housed; and

(iv) Shall not deprive inmates or detainees with disabilities of visitation with
family members by placing them in distant facilities where they would not
otherwise be housed.

(3) Public entities shall implement reasonable policies, including physical
modifications to additional cells in accordance with the 2010 Standards, so as
to ensure that each inmate with a disability is housed in a cell with the
accessible elements necessary to afford the inmate access to safe, appropriate
housing.


§§ 35.153—35.159 [RESERVED]


SUBPART E—COMMUNICATIONS


§ 35.160 GENERAL.

(a)

(1) A public entity shall take appropriate steps to ensure that communications
with applicants, participants, members of the public, and companions with
disabilities are as effective as communications with others.

(2) For purposes of this section, “companion” means a family member, friend, or
associate of an individual seeking access to a service, program, or activity of
a public entity, who, along with such individual, is an appropriate person with
whom the public entity should communicate.

(b)

(1) A public entity shall furnish appropriate auxiliary aids and services where
necessary to afford qualified individuals with disabilities, including
applicants, participants, companions, and members of the public, an equal
opportunity to participate in, and enjoy the benefits of, a service, program, or
activity of a public entity.

(2) The type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of communication used by
the individual; the nature, length, and complexity of the communication
involved; and the context in which the communication is taking place. In
determining what types of auxiliary aids and services are necessary, a public
entity shall give primary consideration to the requests of individuals with
disabilities. In order to be effective, auxiliary aids and services must be
provided in accessible formats, in a timely manner, and in such a way as to
protect the privacy and independence of the individual with a disability.

(c)

(1) A public entity shall not require an individual with a disability to bring
another individual to interpret for him or her.

(2) A public entity shall not rely on an adult accompanying an individual with a
disability to interpret or facilitate communication except—

(i) In an emergency involving an imminent threat to the safety or welfare of an
individual or the public where there is no interpreter available; or

(ii) Where the individual with a disability specifically requests that the
accompanying adult interpret or facilitate communication, the accompanying adult
agrees to provide such assistance, and reliance on that adult for such
assistance is appropriate under the circumstances.

(3) A public entity shall not rely on a minor child to interpret or facilitate
communication, except in an emergency involving an imminent threat to the safety
or welfare of an individual or the public where there is no interpreter
available.

(d) Video remote interpreting (VRI) services. A public entity that chooses to
provide qualified interpreters via VRI services shall ensure that it provides—

(1) Real-time, full-motion video and audio over a dedicated high-speed,
wide-bandwidth video connection or wireless connection that delivers
high-quality video images that do not produce lags, choppy, blurry, or grainy
images, or irregular pauses in communication;

(2) A sharply delineated image that is large enough to display the interpreter’s
face, arms, hands, and fingers, and the participating individual’s face, arms,
hands, and fingers, regardless of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals
so that they may quickly and efficiently set up and operate the VRI.


§ 35.161 TELECOMMUNICATIONS.

(a) Where a public entity communicates by telephone with applicants and
beneficiaries, text telephones (TTYs) or equally effective telecommunications
systems shall be used to communicate with individuals who are deaf or hard of
hearing or have speech impairments.

(b) When a public entity uses an automated-attendant system,including, but not
limited to, voice mail and messaging, or aninteractive voice response system,
for receiving and directing incomingtelephone calls, that system must provide
effective real-timecommunication with individuals using auxiliary aids and
services,including TTYs and all forms of FCC-approved telecommunications
relaysystem, including Internet-based relay systems.

(c) A public entity shall respond to telephone calls from atelecommunications
relay service established under title IV of the ADAin the same manner that it
responds to other telephone calls.


§ 35.162 TELEPHONE EMERGENCY SERVICES

Telephone emergency services, including 911 services, shall provide direct
access to individuals who use TDD’s and computer modems.


§ 35.163 INFORMATION AND SIGNAGE

(a) A public entity shall ensure that interested persons, including persons with
impaired vision or hearing, can obtain information as to the existence and
location of accessible services, activities, and facilities. (b) A public entity
shall provide signage at all inaccessible entrances to each of its facilities,
directing users to an accessible entrance or to a location at which they can
obtain information about accessible facilities. The international symbol for
accessibility shall be used at each accessible entrance of a facility.


§ 35.164 DUTIES

This subpart does not 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 this subpart 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 the 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
required to comply with this subpart 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, to the
maximum extent possible, individuals with disabilities receive the benefits or
services provided by the public entity.


§§ 35.165—35.169 [RESERVED]


SUBPART F—COMPLIANCE PROCEDURES


§ 35.170 COMPLAINTS

(a) Who may file. An individual who believes that he or she or a specific class
of individuals has been subjected to discrimination on the basis of disability
by a public entity may, by himself or herself or by an authorized
representative, file a complaint under this part.

(b) Time for filing. A complaint must be filed not later than 180 days from the
date of the alleged discrimination, unless the time for filing is extended by
the designated agency for good cause shown. A complaint is deemed to be filed
under this section on the date it is first filed with any Federal agency.

(c) Where to file. An individual may file a complaint with any agency that he or
she believes to be the appropriate agency designated under subpart G of this
part, or with any agency that provides funding to the public entity that is the
subject of the complaint, or with the Department of Justice for referral as
provided in §35.171(a)(2).


§ 35.171 ACCEPTANCE OF COMPLAINTS

(a) Receipt of complaints.

(1)

(i) Any Federal agency that receives a complaint of discrimination on the basis
of disability by a public entity shall promptly review the complaint to
determine whether it has jurisdiction over the complaint under section 504.

(ii) If the agency does not have section 504 jurisdiction, it shall promptly
determine whether it is the designated agency under subpart G of this part
responsible for complaints filed against that public entity.

(2)

(i) If an agency other than the Department of Justice determines that it does
not have section 504 jurisdiction and is not the designated agency, it shall
promptly refer the complaint to the appropriate designated agency, the agency
that has section 504 jurisdiction, or the Department of Justice, and so notify
the complainant.

(ii) When the Department of Justice receives a complaint for which it does not
have jurisdiction under section 504 and is not the designated agency, it may
exercise jurisdiction pursuant to § 35.190(e) or refer the complaint to an
agency that does have jurisdiction under section 504 or to the appropriate
agency designated in subpart G of this part or, in the case of an employment
complaint that is also subject to title I of the Act, to the Equal Employment
Opportunity Commission.

(3)

(i) If the agency that receives a complaint has section 504 jurisdiction, it
shall process the complaint according to its procedures for enforcing section
504.

(ii) If the agency that receives a complaint does not have section 504
jurisdiction, but is the designated agency, it shall process the complaint
according to the procedures established by this subpart.

(b) Employment complaints.

(1) If a complaint alleges employment discrimination subject to title I of the
Act, and the agency has section 504 jurisdiction, the agency shall follow the
procedures issued by the Department of Justice and the Equal Employment
Opportunity Commission under section 107(b) of the Act.

(2) If a complaint alleges employment discrimination subject to title I of the
Act, and the designated agency does not have section 504 jurisdiction, the
agency shall refer the complaint to the Equal Employment Opportunity Commission
for processing under title I of the Act.

(3) Complaints alleging employment discrimination subject to this part, but not
to title I of the Act shall be processed in accordance with the procedures
established by this subpart.

(c) Complete complaints.

(1) A designated agency shall accept all complete complaints under this section
and shall promptly notify the complainant and the public entity of the receipt
and acceptance of the complaint.

(2) If the designated agency receives a complaint that is not complete, it shall
notify the complainant and specify the additional information that is needed to
make the complaint a complete complaint. If the complainant fails to complete
the complaint, the designated agency shall close the complaint without
prejudice.


§ 35.172 INVESTIGATIONS AND COMPLIANCE REVIEWS.

(a) The designated agency shall investigate complaints for which it is
responsible under § 35.171.

(b) The designated agency may conduct compliance reviews of public entities in
order to ascertain whether there has been a failure to comply with the
nondiscrimination requirements of this part.

(c) Where appropriate, the designated agency shall attempt informal resolution
of any matter being investigated under this section, and, if resolution is not
achieved and a violation is found, issue to the public entity and the
complainant, if any, a Letter of Findings that shall include—

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found (including compensatory
damages where appropriate); and

(3) Notice of the rights and procedures available under paragraph (d) of this
section and §§ 35.173 and 35.174.

(d) At any time, the complainant may file a private suit pursuant to section 203
of the Act, 42 U.S.C. 12133, whether or not the designated agency finds a
violation.


§ 35.173 VOLUNTARY COMPLIANCE AGREEMENTS

(a) When the designated agency issues a noncompliance Letter of Findings, the
designated agency shall—

(1) Notify the Assistant Attorney General by forwarding a copy of the Letter of
Findings to the Assistant Attorney General; and

(2) Initiate negotiations with the public entity to secure compliance by
voluntary means.

(b) Where the designated agency is able to secure voluntary compliance, the
voluntary compliance agreement shall—

(1) Be in writing and signed by the parties;

(2) Address each cited violation;

(3) Specify the corrective or remedial action to be taken, within a stated
period of time, to come into compliance;

(4) Provide assurance that discrimination will not recur; and

(5) Provide for enforcement by the Attorney General.


§ 35.174 REFERRAL.

If the public entity declines to enter into voluntary compliance negotiations or
if negotiations are unsuccessful, the designated agency shall refer the matter
to the Attorney General with a recommendation for appropriate action.


§ 35.175 ATTORNEY’S FEES.

In any action or administrative proceeding commenced pursuant to the Act or this
part, the court or agency, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee, including litigation
expenses, and costs, and the United States shall be liable for the foregoing the
same as a private individual.


§ 35.176 ALTERNATIVE MEANS OF DISPUTE RESOLUTION.

Where appropriate and to the extent authorized by law, the use of alternative
means of dispute resolution, including settlement negotiations, conciliation,
facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged
to resolve disputes arising under the Act and this part.


§ 35.177 EFFECT OF UNAVAILABILITY OF TECHNICAL ASSISTANCE.

A public entity shall not be excused from compliance with the requirements of
this part because of any failure to receive technical assistance, including any
failure in the development or dissemination of any technical assistance manual
authorized by the Act.


§ 35.178 STATE IMMUNITY.

A State shall not be immune under the eleventh amendment to the Constitution of
the United States from an action in Federal or State court of competent
jurisdiction for a violation of this Act. In any action against a State for a
violation of the requirements of this Act, remedies (including remedies both at
law and in equity) are available for such a violation to the same extent as such
remedies are available for such a violation in an action against any public or
private entity other than a State.


§§ 35.179—35.189 [RESERVED]


SUBPART G—DESIGNATED AGENCIES


§ 35.190 DESIGNATED AGENCIES.

(a) The Assistant Attorney General shall coordinate the compliance activities of
Federal agencies with respect to State and local government components, and
shall provide policy guidance and interpretations to designated agencies to
ensure the consistent and effective implementation of the requirements of this
part.

(b) The Federal agencies listed in paragraph (b)(1)-(8) of this section shall
have responsibility for the implementation of subpart F of this part for
components of State and local governments that exercise responsibilities,
regulate, or administer services, programs, or activities in the following
functional areas.

(1) Department of Agriculture: All programs, services, and regulatory activities
relating to farming and the raising of livestock, including extension services.

(2) Department of Education: All programs, services, and regulatory activities
relating to the operation of elementary and secondary education systems and
institutions, institutions of higher education and vocational education (other
than schools of medicine, dentistry, nursing, and other health-related schools),
and libraries.

(3) Department of Health and Human Services: All programs, services, and
regulatory activities relating to the provision of health care and social
services, including schools of medicine, dentistry, nursing, and other
health-related schools, the operation of health care and social service
providers and institutions, including "grass-roots" and community services
organizations and programs, and preschool and daycare programs.

(4) Department of Housing and Urban Development: All programs, services, and
regulatory activities relating to state and local public housing, and housing
assistance and referral.

(5) Department of Interior: All programs, services, and regulatory activities
relating to lands and natural resources, including parks and recreation, water
and waste management, environmental protection, energy, historic and cultural
preservation, and museums.

(6) Department of Justice: All programs, services, and regulatory activities
relating to law enforcement, public safety, and the administration of justice,
including courts and correctional institutions; commerce and industry, including
general economic development, banking and finance, consumer protection,
insurance, and small business; planning, development, and regulation (unless
assigned to other designated agencies); state and local government support
services (e.g., audit, personnel, comptroller, administrative services); all
other government functions not assigned to other designated agencies.

(7) Department of Labor: All programs, services, and regulatory activities
relating to labor and the work force.

(8) Department of Transportation: All programs, services, and regulatory
activities relating to transportation, including highways, public
transportation, traffic management (non-law enforcement), automobile licensing
and inspection, and driver licensing.

(c) Responsibility for the implementation of subpart F of this part for
components of State or local governments that exercise responsibilities,
regulate, or administer services, programs, or activities relating to functions
not assigned to specific designated agencies by paragraph (b) of this section
may be assigned to other specific agencies by the Department of Justice.

(d) If two or more agencies have apparent responsibility over a complaint, the
Assistant Attorney General shall determine which one of the agencies shall be
the designated agency for purposes of that complaint.

(e) When the Department receives a complaint directed to the Attorney General
alleging a violation of this part that may fall within the jurisdiction of a
designated agency or another Federal agency that may have jurisdiction under
section 504, the Department may exercise its discretion to retain the complaint
for investigation under this part.


§§ 35.191—35.999 [RESERVED]


TITLE II REGULATIONS: 2010 GUIDANCE AND SECTION-BY-SECTION ANALYSIS

Appendix A to Part 35—Guidance to Revisions to ADA Regulation on
Nondiscrimination on the Basis of Disability in State and Local Government
Services Note: This Appendix contains guidance providing a section-by-section
analysis of the revisions to 28 CFR part 35 published on September 15, 2010.

Section-By-Section Analysis and Response to Public Comments
This section provides a detailed description of the Department’s changes to the
title II regulation, the reasoning behind those changes, and responses to public
comments received on these topics. The Section-by-Section Analysis follows the
order of the title II regulation itself, except that, if the Department has not
changed a regulatory section, the unchanged section has not been mentioned.


SUBPART A–GENERAL


35.104 DEFINITIONS.

“1991 Standards” and “2004 ADAAG”

The Department has included in the final rule new definitions of both the “1991
Standards” and the “2004 ADAAG.” The term “1991 Standards” refers to the ADA
Standards for Accessible Design, originally published on July 26, 1991, and
republished as Appendix D to part 36. The term “2004 ADAAG” refers to ADA
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with
Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which
were issued by the Access Board on July 23, 2004, 36 CFR 1191, app. B and D
(2009), and which the Department has adopted in this final rule. These terms are
included in the definitions section for ease of reference.

“2010 Standards”

The Department has added to the final rule a definition of the term “2010
Standards.” The term “2010 Standards” refers to the 2010 ADA Standards for
Accessible Design, which consist of the 2004 ADAAG and the requirements
contained in § 35.151.

“Auxiliary Aids and Services”

In the NPRM, the Department proposed revisions to the definition of auxiliary
aids and services under § 35.104 to include several additional types of
auxiliary aids that have become more readily available since the promulgation of
the 1991 title II regulation, and in recognition of new technology and devices
available in some places that may provide effective communication in some
situations.

The NPRM proposed adding an explicit reference to written notes in the
definition of “auxiliary aids.” Although this policy was already enunciated in
the Department’s 1993 Title II Technical Assistance Manual at II– 7.1000, the
Department proposed inclusion in the regulation itself because some Title II
entities do not understand that exchange of written notes using paper and pencil
is an available option in some circumstances. See Department of Justice, The
Americans with Disabilities Act, Title II Technical Assistance Manual Covering
State and Local Government Programs and Services (1993), available at
http://archive.ada.gov/taman2.html. Comments from several disability advocacy
organizations and individuals discouraged the Department from including the
exchange of written notes in the list of available auxiliary aids in § 35.104.
Advocates and persons with disabilities requested explicit limits on the use of
written notes as a form of auxiliary aid because, they argue, most exchanges are
not simple and are not communicated effectively using handwritten notes. One
major advocacy organization, for example, noted that the speed at which
individuals communicate orally or use sign language averages about 200 words per
minute or more while exchange of notes often leads to truncated or incomplete
communication. For persons whose primary language is American Sign Language
(ASL), some commenters pointed out, using written English in exchange of notes
often is ineffective because ASL syntax and vocabulary is dissimilar from
English. By contrast, some commenters from professional medical associations
sought more specific guidance on when notes are allowed, especially in the
context of medical offices and health care situations.

Exchange of notes likely will be effective in situations that do not involve
substantial conversation, for example, blood work for routine lab tests or
regular allergy shots. Video Interpreting Services (hereinafter referred to as
“video remote interpreting services” or VRI) or an interpreter should be used
when the matter involves greater complexity, such as in situations requiring
communication of medical history or diagnoses, in conversations about medical
procedures and treatment decisions, or when giving instructions for care at home
or elsewhere. In the Section-By-Section Analysis of § 35.160 (Communications)
below, the Department discusses in greater detail the kinds of situations in
which interpreters or captioning would be necessary. Additional guidance on this
issue can be found in a number of agreements entered into with health-care
providers and hospitals that are available on the Department’s Web site at
http:// www.ada.gov.

In the NPRM, in paragraph (1) of the definition in § 35.104, the Department
proposed replacing the term “telecommunications devices for deaf persons (TDD)”
with the term “text telephones (TTYs).” TTY has become the commonly accepted
term and is consistent with the terminology used by the Access Board in the 2004
ADAAG. Commenters representing advocates and persons with disabilities expressed
approval of the substitution of TTY for TDD in the proposed regulation.

Commenters also expressed the view that the Department should expand paragraph
(1) of the definition of auxiliary aids to include “TTY’s and other voice, text,
and video-based telecommunications products and systems such as videophones and
captioned telephones.” The Department has considered these comments and has
revised the definition of “auxiliary aids” to include references to voice, text,
and video-based telecommunications products and systems, as well as accessible
electronic and information technology.

In the NPRM, the Department also proposed including a reference in paragraph (1)
to a new technology, Video Interpreting Services (VIS). The reference remains in
the final rule. VIS is discussed in the Section-By- Section Analysis below in
reference to § 35.160 (Communications), but is referred to as VRI in both the
final rule and Appendix A to more accurately reflect the terminology used in
other regulations and among users of the technology. In the NPRM, the Department
noted that technological advances in the 18 years since the ADA’s enactment had
increased the range of auxiliary aids and services for those who are blind or
have low vision. As a result the Department proposed additional examples to
paragraph (2) of the definition, including Brailled materials and displays,
screen reader software, optical readers, secondary auditory programs (SAP), and
accessible electronic and information technology. Some commenters asked for more
detailed requirements for auxiliary aids for persons with vision disabilities.
The Department has decided it will not make additional changes to that provision
at this time.

Several comments suggested expanding the auxiliary aids provision for persons
who are both deaf and blind, and in particular, to include in the list of
auxiliary aids a new category, “support service providers (SSP),” which was
described in comments as a navigator and communication facilitator. The
Department believes that services provided by communication facilitators are
already encompassed in the requirement to provide qualified interpreters.
Moreover, the Department is concerned that as described by the commenters, the
category of support service providers would include some services that would be
considered personal services and that do not qualify as auxiliary aids.
Accordingly, the Department declines to add this new category to the list at
this time.

Some commenters representing advocacy organizations and individuals asked the
Department to explicitly require title II entities to make any or all of the
devices or technology available in all situations upon the request of the person
with a disability. The Department recognizes that such devices or technology may
provide effective communication and in some circumstances may be effective for
some persons, but the Department does not intend to require that every entity
covered by title II provide every device or all new technology at all times as
long as the communication that is provided is as effective as communication with
others. The Department recognized in the preamble to the 1991 title II
regulation that the list of auxiliary aids was “not an all-inclusive or
exhaustive catalogue of possible or available auxiliary aids or services. It is
not possible to provide an exhaustive list, and an attempt to do so would omit
the new devices that will become available with emerging technology.” 28 CFR
part 35, app. A at 560 (2009). The Department continues to endorse that view;
thus, the inclusion of a list of examples of possible auxiliary aids in the
definition of “auxiliary aids” should not be read as a mandate for a title II
entity to offer every possible auxiliary aid listed in the definition in every
situation.

“Direct Threat”

In Appendix A of the Department’s 1991 title II regulation, the Department
included a detailed discussion of “direct threat” that, among other things,
explained that principles established in § 36.208 of the Department’s [title
III] regulation” were “applicable” as well to title II, insofar as “questions of
safety are involved.” 28 CFR part 35, app. A at 565 (2009). In the final rule,
the Department has included an explicit definition of “direct threat” that is
parallel to the definition in the title III rule and placed it in the
definitions section at § 35.104.

“Existing Facility”

The 1991 title II regulation provided definitions for “new construction” at §
35.151(a) and “alterations” at § 35.151(b). In contrast, the term “existing
facility” was not explicitly defined, although it is used in the statute and
regulations for title II. See 42 U.S.C. 12134(b); 28 CFR 35.150. It has been the
Department’s view that newly constructed or altered facilities are also existing
facilities with continuing program access obligations, and that view is made
explicit in this rule.

The classification of facilities under the ADA is neither static nor mutually
exclusive. Newly constructed or altered facilities are also existing facilities.
A newly constructed facility remains subject to the accessibility standards in
effect at the time of design and construction, with respect to those elements
for which, at that time, there were applicable ADA Standards. And at some point,
the facility may undergo alterations, which are subject to the alterations
requirements in effect at the time. See § 35.151(b)–(c). The fact that the
facility is also an existing facility does not relieve the public entity of its
obligations under the new construction and alterations requirements in this
part.

For example, a facility constructed or altered after the effective date of the
original title II regulations but prior to the effective date of the revised
title II regulation and Standards, must have been built or altered in compliance
with the Standards (or UFAS) in effect at that time, in order to be in
compliance with the ADA. In addition, a “newly constructed” facility or
“altered” facility is also an “existing facility” for purposes of application of
the title II program accessibility requirements. Once the 2010 Standards take
effect, they will become the new reference point for determining the program
accessibility obligations of all existing facilities. This is because the ADA
contemplates that as our knowledge and understanding of accessibility advances
and evolves, this knowledge will be incorporated into and result in increased
accessibility in the built environment. Under title II, this goal is
accomplished through the statute’s program access framework. While newly
constructed or altered facilities must meet the accessibility standards in
effect at the time, the fact that these facilities are also existing facilities
ensures that the determination of whether a program is accessible is not frozen
at the time of construction or alteration. Program access may require
consideration of potential barriers to access that were not recognized as such
at the time of construction or alteration, including, but not limited to, the
elements that are first covered in the 2010 Standards, as that term is defined
in § 35.104. Adoption of the 2010 Standards establishes a new reference point
for title II entities that choose to make structural changes to existing
facilities to meet their program access requirements.

The NPRM included the following proposed definition of “existing facility.” “A
facility that has been constructed and remains in existence on any given date.”
73 FR 34466, 34504 (June 17, 2008). The Department received a number of comments
on this issue. The commenters urged the Department to clarify that all buildings
remain subject to the standards in effect at the time of their construction,
that is, that a facility designed and constructed for first occupancy between
January 26, 1992, and the effective date of the final rule is still considered
“new construction” and that alterations occurring between January 26, 1992, and
the effective date of the final rule are still considered “alterations.”

The final rule includes clarifying language to ensure that the Department’s
interpretation is accurately reflected. As established by this rule, 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. Thus, this definition reflects the Department’s interpretation that
public entities have program access requirements that are independent of, but
may coexist with, requirements imposed by new construction or alteration
requirements in those same facilities.

“Housing at a Place of Education”

The Department has added a new definition to § 35.104, “housing at a place of
education,” to clarify the types of educational housing programs that are
covered by this title. This section defines “housing at a place of education” as
“housing operated by or on behalf of an elementary, secondary, undergraduate, or
postgraduate school, or other place of education, including dormitories, suites,
apartments, or other places of residence.” This definition does not apply to
social service programs that combine residential housing with social services,
such as a residential job training program.

“Other Power-Driven Mobility Device” and “Wheelchair”

Because relatively few individuals with disabilities were using nontraditional
mobility devices in 1991, there was no pressing need for the 1991 title II
regulation to define the terms “wheelchair” or “other power-driven mobility
device,” to expound on what would constitute a reasonable modification in
policies, practices, or procedures under § 35.130(b)(7), or to set forth within
that section specific requirements for the accommodation of mobility devices.
Since the issuance of the 1991 title II regulation, however, the choices of
mobility devices available to individuals with disabilities have increased
dramatically. The Department has received complaints about and has become aware
of situations where individuals with mobility disabilities have utilized devices
that are not designed primarily for use by an individual with a mobility
disability, including the Segway® Personal Transporter (Segway® PT), golf cars,
all-terrain vehicles (ATVs), and other locomotion devices.

The Department also has received questions from public entities and individuals
with mobility disabilities concerning which mobility devices must be
accommodated and under what circumstances. Indeed, there has been litigation
concerning the legal obligations of covered entities to accommodate individuals
with mobility disabilities who wish to use an electronic personal assistance
mobility device (EPAMD), such as the Segway® PT, as a mobility device. The
Department has participated in such litigation as amicus curiae. See Ault v.
Walt Disney World Co., No. 6:07–cv–1785–Orl–31KRS, 2009 WL 3242028 (M.D. Fla.
Oct. 6, 2009). Much of the litigation has involved shopping malls where
businesses have refused to allow persons with disabilities to use EPAMDs. See ,
e.g., McElroy v. Simon Property Group, No. 08– 404 RDR, 2008 WL 4277716 (D. Kan.
Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway ® PT as a
mobility device where an individual agrees to all of a mall’s policies for use
of the device, except indemnification); Shasta Clark, Local Man Fighting Mall
Over Right to Use Segway, WATE 6 News, July 26, 2005, available at
http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010).

In response to questions and complaints from individuals with disabilities and
covered entities concerning which mobility devices must be accommodated and
under what circumstances, the Department began developing a framework to address
the use of unique mobility devices, concerns about their safety, and the
parameters for the circumstances under which these devices must be accommodated.
As a result, the Department’s NPRM proposed two new approaches to mobility
devices. First, the Department proposed a two-tiered mobility device definition
that defined the term “wheelchair” separately from “other power-driven mobility
device.” Second, the Department proposed requirements to allow the use of
devices in each definitional category. In § 35.137(a), the NPRM proposed that
wheelchairs and manually-powered mobility aids used by individuals with mobility
disabilities shall be permitted in any areas open to pedestrian use. Section
35.137(b) of the NPRM provided that a public entity “shall make reasonable
modifications in its policies, practices, and procedures to permit the use of
other power-driven mobility devices by individuals with disabilities, unless the
public entity can demonstrate that the use of the device is not reasonable or
that its use will result in a fundamental alteration of the public entity’s
service, program, or activity.” 73 FR 34466, 34504 (June 17, 2008).

The Department sought public comment with regard to whether these steps would,
in fact, achieve clarity on these issues. Toward this end, the Department’s NPRM
asked several questions relating to the definitions of “wheelchair,” “other
power-driven mobility device,” and “manually-powered mobility aids”; the best
way to categorize different classes of mobility devices; the types of devices
that should be included in each category; and the circumstances under which
certain mobility devices must be accommodated or may be excluded pursuant to the
policy adopted by the public entity.

Because the questions in the NPRM that concerned mobility devices and their
accommodation were interrelated, many of the commenters’ responses did not
identify the specific question to which they were responding. Instead, the
commenters grouped the questions together and provided comments accordingly.
Most commenters spoke to the issues addressed in the Department’s questions in
broad terms and general concepts. As a result, the responses to the questions
posed are discussed below in broadly grouped issue categories rather than on a
question-by-question basis.

Two-tiered definitional approach. Commenters supported the Department’s proposal
to use a two-tiered definition of mobility device. Commenters nearly universally
said that wheelchairs always should be accommodated and that they should never
be subject to an assessment with regard to their admission to a particular
public facility. In contrast, the vast majority of commenters indicated they
were in favor of allowing public entities to conduct an assessment as to
whether, and under which circumstances, other power-driven mobility devices
would be allowed on-site.

Many commenters indicated their support for the two-tiered approach in
responding to questions concerning the definition of “wheelchair” and
“other-powered mobility device.” Nearly every disability advocacy group said
that the Department’s two-tiered approach strikes the proper balance between
ensuring access for individuals with disabilities and addressing fundamental
alteration and safety concerns held by public entities; however, a minority of
disability advocacy groups wanted other power-driven mobility devices to be
included in the definition of “wheelchair.” Most advocacy, nonprofit, and
individual commenters supported the concept of a separate definition for “other
power-driven mobility device” because it maintains existing legal protections
for wheelchairs while recognizing that some devices that are not designed
primarily for individuals with mobility disabilities have beneficial uses for
individuals with mobility disabilities. They also favored this concept because
it recognizes technological developments and that the innovative uses of varying
devices may provide increased access to individuals with mobility disabilities.

Many environmental, transit system, and government commenters indicated they
opposed in its entirety the concept of “other power-driven mobility devices” as
a separate category. They believe that the creation of a second category of
mobility devices will mean that other power-driven mobility devices,
specifically ATVs and off-highway vehicles, must be allowed to go anywhere on
national park lands, trails, recreational areas, etc.; will conflict with other
Federal land management laws and regulations; will harm the environment and
natural and cultural resources; will pose safety risks to users of these
devices, as well as to pedestrians not expecting to encounter motorized devices
in these settings; will interfere with the recreational enjoyment of these
areas; and will require too much administrative work to regulate which devices
are allowed and under which circumstances. These commenters all advocated a
single category of mobility devices that excludes all fuel-powered devices.

Whether or not they were opposed to the two-tier approach in its entirety,
virtually every environmental commenter and most government commenters
associated with providing public transportation services or protecting land,
natural resources, fish and game, etc., said that the definition of “other
power-driven mobility device” is too broad. They suggested that they might be
able to support the dual category approach if the definition of “other
power-driven mobility device” were narrowed. They expressed general and
program-specific concerns about permitting the use of other power-driven
mobility devices. They noted the same concerns as those who opposed the
two-tiered concept—that these devices create a host of environmental, safety,
cost, administrative and conflict of law issues. Virtually all of these
commenters indicated that their support for the dual approach and the concept of
other power-driven mobility devices is, in large measure, due to the other
power-driven mobility device assessment factors in § 35.137(c) of the NPRM.

By maintaining the two-tiered approach to mobility devices and defining
“wheelchair” separately from “other power-driven mobility device,” the
Department is able to preserve the protection users of traditional wheelchairs
and other manually powered mobility aids have had since the ADA was enacted,
while also recognizing that human ingenuity, personal choice, and new
technologies have led to the use of devices that may be more beneficial for
individuals with certain mobility disabilities.

Moreover, the Department believes the two-tiered approach gives public entities
guidance to follow in assessing whether reasonable modifications can be made to
permit the use of other power-driven mobility devices on-site and to aid in the
development of policies describing the circumstances under which persons with
disabilities may use such devices. The two-tiered approach neither mandates that
all other power-driven mobility devices be accommodated in every circumstance,
nor excludes these devices. This approach, in conjunction with the factor
assessment provisions in § 35.137(b)(2), will serve as a mechanism by which
public entities can evaluate their ability to accommodate other power-driven
mobility devices. As will be discussed in more detail below, the assessment
factors in § 35.137(b)(2) are designed to provide guidance to public entities
regarding whether it is appropriate to bar the use of a specific “other
power-driven mobility device in a specific facility. In making such a
determination, a public entity must consider the device’s type, size, weight,
dimensions, and speed; the facility’s volume of pedestrian traffic; the
facility’s design and operational characteristics; whether the device conflicts
with legitimate safety requirements; and whether the device poses a substantial
risk of serious harm to the immediate environment or natural or cultural
resources, or conflicts with Federal land management laws or regulations. In
addition, if under § 35.130(b)(7), the public entity claims that it cannot make
reasonable modifications to its policies, practices, or procedures to permit the
use of other power-driven mobility devices by individuals with disabilities, the
burden of proof to demonstrate that such devices cannot be operated in
accordance with legitimate safety requirements rests upon the public entity.

Categorization of wheelchair versus other power-driven mobility devices.
Implicit in the creation of the two-tiered mobility device concept is the
question of how to categorize which devices are wheelchairs and which are other
power-driven mobility devices. Finding weight and size to be too restrictive,
the vast majority of advocacy, nonprofit, and individual commenters opposed
using the Department of Transportation’s definition of “common wheelchair” to
designate the mobility device’s appropriate category. Commenters who generally
supported using weight and size as the method of categorization did so because
of their concerns about potentially detrimental impacts on the environment and
cultural and natural resources; on the enjoyment of the facility by other
recreational users, as well as their safety; on the administrative components of
government agencies required to assess which devices are appropriate on narrow,
steeply sloped, or foot-and-hoof only trails; and about the impracticality of
accommodating such devices in public transportation settings.

Many environmental, transit system, and government commenters also favored using
the device’s intended-use to categorize which devices constitute wheelchairs and
which are other power-driven mobility devices. Furthermore, the intended-use
determinant received a fair amount of support from advocacy, nonprofit, and
individual commenters, either because they sought to preserve the broad
accommodation of wheelchairs or because they sympathized with concerns about
individuals without mobility disabilities fraudulently bringing other
power-driven mobility devices into public facilities.

Commenters seeking to have the Segway® PT included in the definition of
“wheelchair” objected to classifying mobility devices on the basis of their
intended use because they felt that such a classification would be unfair and
prejudicial to Segway® PT users and would stifle personal choice, creativity,
and innovation. Other advocacy and nonprofit commenters objected to employing an
intended-use approach because of concerns that the focus would shift to an
assessment of the device, rather than the needs or benefits to the individual
with the mobility disability. They were of the view that the mobility-device
classification should be based on its function—whether it is used for a mobility
disability. A few commenters raised the concern that an intended-use approach
might embolden public entities to assess whether an individual with a mobility
disability really needs to use the other power-driven mobility device at issue
or to question why a wheelchair would not provide sufficient mobility. Those
citing objections to the intended use determinant indicated it would be more
appropriate to make the categorization determination based on whether the device
is being used for a mobility disability in the context of the impact of its use
in a specific environment. Some of these commenters preferred this approach
because it would allow the Segway® PT to be included in the definition of
“wheelchair.”

Many environmental and government commenters were inclined to categorize
mobility devices by the way in which they are powered, such as battery-powered
engines versus fuel or combustion engines. One commenter suggested using exhaust
level as the determinant. Although there were only a few commenters who would
make the determination based on indoor or outdoor use, there was nearly
universal support for banning the indoor use of devices that are powered by fuel
or combustion engines.

A few commenters thought it would be appropriate to categorize the devices based
on their maximum speed. Others objected to this approach, stating that
circumstances should dictate the appropriate speed at which mobility devices
should be operated— for example, a faster speed may be safer when crossing
streets than it would be for sidewalk use—and merely because a device can go a
certain speed does not mean it will be operated at that speed. The Department
has decided to maintain the device’s intended use as the appropriate determinant
for which devices are categorized as “wheelchairs.” However, because wheelchairs
may be intended for use by individuals who have temporary conditions affecting
mobility, the Department has decided that it is more appropriate to use the
phrase “primarily designed” rather than “solely designed” in making such
categorizations. The Department will not foreclose any future technological
developments by identifying or banning specific devices or setting restrictions
on size, weight, or dimensions. Moreover, devices designed primarily for use by
individuals with mobility disabilities often are considered to be medical
devices and are generally eligible for insurance reimbursement on this basis.
Finally, devices designed primarily for use by individuals with mobility
disabilities are less subject to fraud concerns because they were not designed
to have a recreational component. Consequently, rarely, if ever, is any inquiry
or assessment as to their appropriateness for use in a public entity necessary.

Definition of “wheelchair.” In seeking public feedback on the NPRM’s definition
of “wheelchair,” the Department explained its concern that the definition of
“wheelchair” in section 508(c)(2) of the ADA (formerly section 507(c)(2), July
26, 1990, 104 Stat. 372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public
Law 110–325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to
Federal wilderness areas, is not specific enough to provide clear guidance in
the array of settings covered by title II and that the stringent size and weight
requirements for the Department of Transportation’s definition of “common
wheelchair” are not a good fit in the context of most public entities. The
Department noted in the NPRM that it sought a definition of “wheelchair” that
would include manually-operated and power-driven wheelchairs and mobility
scooters (i.e., those that typically are single-user, have three to four wheels,
and are appropriate for both indoor and outdoor pedestrian areas), as well as a
variety of types of wheelchairs and mobility scooters with individualized or
unique features or models with different numbers of wheels. The NPRM defined a
wheelchair as “a device designed solely for use by an individual with a mobility
impairment for the primary purpose of locomotion in typical indoor and outdoor
pedestrian areas. A wheelchair may be manually-operated or power-driven.” 73 FR
34466, 34479 (June 17, 2008). Although the NPRM’s definition of “wheelchair”
excluded mobility devices that are not designed solely for use by individuals
with mobility disabilities, the Department, noting that the use of the Segway®
PT by individuals with mobility disabilities is on the upswing, inquired as to
whether this device should be included in the definition of “wheelchair.” Many
environment and Federal government employee commenters objected to the
Department’s proposed definition of “wheelchair” because it differed from the
definition of “wheelchair” found in section 508(c)(2) of the ADA—a definition
used in the statute only in connection with a provision relating to the use of a
wheelchair in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other
government commenters associated with environmental issues wanted the phrase
“outdoor pedestrian use” eliminated from the definition of “wheelchair.” Some
transit system commenters wanted size, weight, and dimensions to be part of the
definition because of concerns about costs associated with having to accommodate
devices that exceed the dimensions of the “common wheelchair” upon which the
2004 ADAAG was based.

Many advocacy, nonprofit, and individual commenters indicated that as long as
the Department intends the scope of the term “mobility impairments” to include
other disabilities that cause mobility impairments (e.g., respiratory,
circulatory, stamina, etc.), they were in support of the language. Several
commenters indicated a preference for the definition of “wheelchair” in section
508(c)(2) of the ADA. One commenter indicated a preference for the term
“assistive device,” as it is defined in the Rehabilitation Act of 1973, over the
term “wheelchair.” A few commenters indicated that strollers should be added to
the preamble’s list of examples of wheelchairs because parents of children with
disabilities frequently use strollers as mobility devices until their children
get older.

In the final rule, the Department has rearranged some wording and has made some
changes in the terminology used in the definition of “wheelchair,” but
essentially has retained the definition, and therefore the rationale, that was
set forth in the NPRM. Again, the text of the ADA makes the definition of
“wheelchair” contained in section 508(c)(2) applicable only to the specific
context of uses in designated wilderness areas, and therefore does not compel
the use of that definition for any other purpose. Moreover, the Department
maintains that limiting the definition to devices suitable for use in an “indoor
pedestrian area” as provided for in section 508(c)(2) of the ADA, would ignore
the technological advances in wheelchair design that have occurred since the ADA
went into effect and that the inclusion of the phrase “indoor pedestrian area”
in the definition of “wheelchair” would set back progress made by individuals
with mobility disabilities who, for many years now, have been using devices
designed for locomotion in indoor and outdoor settings. The Department has
concluded that same rationale applies to placing limits on the size, weight, and
dimensions of wheelchairs.

With regard to the term “mobility impairments,” the Department intended a broad
reading so that a wide range of disabilities, including circulatory and
respiratory disabilities, that make walking difficult or impossible, would be
included. In response to comments on this issue, the Department has revisited
the issue and has concluded that the most apt term to achieve this intent is
“mobility disability.” In addition, the Department has decided that it is more
appropriate to use the phrase “primarily” designed for use by individuals with
disabilities in the final rule, rather than “solely” designed for use by
individuals with disabilities—the phrase proposed in the NPRM. The Department
believes that this phrase more accurately covers the range of devices the
Department intends to fall within the definition of “wheelchair.”

After receiving comments that the word “typical” is vague and the phrase
“pedestrian areas” is confusing to apply, particularly in the context of
similar, but not identical, terms used in the proposed Standards, the Department
decided to delete the term “typical indoor and outdoor pedestrian areas” from
the final rule. Instead, the final rule references “indoor or of both indoor and
outdoor locomotion,” to make clear that the devices that fall within the
definition of “wheelchair” are those that are used for locomotion on indoor and
outdoor pedestrian paths or routes and not those that are intended exclusively
for traversing undefined, unprepared, or unimproved paths or routes. Thus, the
final rule defines the term “wheelchair” to mean “a manually operated or
power-driven device designed primarily for use by an individual with a mobility
disability for the main purpose of indoor or of both indoor and outdoor
locomotion.”

Whether the definition of “wheelchair” includes the Segway® PT. As discussed
above, because individuals with mobility disabilities are using the Segway® PT
as a mobility device, the Department asked whether it should be included in the
definition of “wheelchair.” The basic Segway® PT model is a two-wheeled,
gyroscopically-stabilized, battery-powered personal transportation device. The
user stands on a platform suspended three inches off the ground by wheels on
each side, grasps a T-shaped handle, and steers the device similarly to a
bicycle. Most Segway® PTs can travel up to 121⁄2 miles per hour, compared to the
average pedestrian walking speed of three to four miles per hour and the
approximate maximum speed for power-operated wheelchairs of six miles per hour.
In a study of trail and other non-motorized transportation users including
EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of
individuals using EPAMDs ranged from approximately 69 to 80 inches. See Federal
Highway Administration, Characteristics of Emerging Road and Trail Users and
Their Safety (Oct. 14, 2004), available at
http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus, the
Segway® PT can operate at much greater speeds than wheelchairs, and the average
user stands much taller than most wheelchair users.

The Segway® PT has been the subject of debate among users, pedestrians,
disability advocates, State and local governments, businesses, and bicyclists.
The fact that the Segway® PT is not designed primarily for use by individuals
with disabilities, nor used primarily by persons with disabilities, complicates
the question of to what extent individuals with disabilities should be allowed
to operate them in areas and facilities where other power-driven mobility
devices are not allowed. Those who question the use of the Segway® PT in
pedestrian areas argue that the speed, size, and operating features of the
devices make them too dangerous to operate alongside pedestrians and wheelchair
users.

Comments regarding whether to include the Segway® PT in the definition of
“wheelchair” were, by far, the most numerous received in the category of
comments regarding wheelchairs and other power-driven mobility devices.
Significant numbers of veterans with disabilities, individuals with multiple
sclerosis, and those advocating on their behalf made concise statements of
general support for the inclusion of the Segway® PT in the definition of
“wheelchair.” Two veterans offered extensive comments on the topic, along with a
few advocacy and nonprofit groups and individuals with disabilities for whom
sitting is uncomfortable or impossible.

While there may be legitimate safety issues for EPAMD users and bystanders in
some circumstances, EPAMDs and other nontraditional mobility devices can deliver
real benefits to individuals with disabilities. Among the reasons given by
commenters to include the Segway® PT in the definition of “wheelchair” were that
the Segway® PT is well-suited for individuals with particular conditions that
affect mobility including multiple sclerosis, Parkinson’s disease, chronic
obstructive pulmonary disease, amputations, spinal cord injuries, and other
neurological disabilities, as well as functional limitations, such as gait
limitation, inability to sit or discomfort in sitting, and diminished stamina
issues. Such individuals often find that EPAMDs are more comfortable and easier
to use than more traditional mobility devices and assist with balance,
circulation, and digestion in ways that wheelchairs do not. See Rachel Metz,
Disabled Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically
cited pressure relief, reduced spasticity, increased stamina, and improved
respiratory, neurologic, and muscular health as secondary medical benefits from
being able to stand. Other arguments for including the Segway® PT in the
definition of “wheelchair” were based on commenters’ views that the Segway® PT
offers benefits not provided by wheelchairs and mobility scooters, including its
intuitive response to body movement, ability to operate with less coordination
and dexterity than is required for many wheelchairs and mobility scooters, and
smaller footprint and turning radius as compared to most wheelchairs and
mobility scooters. Several commenters mentioned improved visibility, either due
to the Segway® PT’s raised platform or simply by virtue of being in a standing
position. And finally, some commenters advocated for the inclusion of the
Segway® PT simply based on civil rights arguments and the empowerment and
self-esteem obtained from having the power to select the mobility device of
choice. Many commenters, regardless of their position on whether to include the
Segway® PT in the definition of “wheelchair,” noted that the Segway® PT’s safety
record is as good as, if not better, than the record for wheelchairs and
mobility scooters.

Most environmental, transit system, and government commenters were opposed to
including the Segway® PT in the definition of “wheelchair” but were supportive
of its inclusion as an “other power-driven mobility device.” Their concerns
about including the Segway® PT in the definition of “wheelchair” had to do with
the safety of the operators of these devices (e.g., height clearances on trains
and sloping trails in parks) and of pedestrians, particularly in confined and
crowded facilities or in settings where motorized devices might be unexpected;
the potential harm to the environment; the additional administrative, insurance,
liability, and defensive litigation costs; potentially detrimental impacts on
the environment and cultural and natural resources; and the impracticality of
accommodating such devices in public transportation settings. Other
environmental, transit system, and government commenters would have banned all
fuel-powered devices as mobility devices. In addition, these commenters would
have classified non-motorized devices as “wheelchairs” and would have
categorized motorized devices, such as the Segway® PT, battery-operated
wheelchairs, and mobility scooters as “other power-driven mobility devices.” In
support of this position, some of these commenters argued that because their
equipment and facilities have been designed to comply with the dimensions of the
“common wheelchair” upon which the ADAAG is based, any device that is larger
than the prototype wheelchair would be misplaced in the definition of
“wheelchair.” Still others in this group of commenters wished for only a single
category of mobility devices and would have included wheelchairs, mobility
scooters, and the Segway® PT as “mobility devices” and excluded fuel-powered
devices from that definition.

Many disability advocacy and nonprofit commenters did not support the inclusion
of the Segway® PT in the definition of “wheelchair.” Paramount to these
commenters was the maintenance of existing protections for wheelchair users.
Because there was unanimous agreement that wheelchair use rarely, if ever, may
be restricted, these commenters strongly favored categorizing wheelchairs
separately from the Segway® PT and other power-driven mobility devices and
applying the intended-use determinant to assign the devices to either category.
They indicated that while they support the greatest degree of access in public
entities for all persons with disabilities who require the use of mobility
devices, they recognize that under certain circumstances, allowing the use of
other power-driven mobility devices would result in a fundamental alteration of
programs, services, or activities, or run counter to legitimate safety
requirements necessary for the safe operation of a public entity. While these
groups supported categorizing the Segway® PT as an “other power-driven mobility
device,” they universally noted that in their view, because the Segway® PT does
not present environmental concerns and is as safe to use as, if not safer than,
a wheelchair, it should be accommodated in most circumstances.

The Department has considered all the comments and has concluded that it should
not include the Segway® PT in the definition of “wheelchair.” The final rule
provides that the test for categorizing a device as a wheelchair or an other
power-driven mobility device is whether the device is designed primarily for use
by individuals with mobility disabilities. Mobility scooters are included in the
definition of “wheelchair” because they are designed primarily for users with
mobility disabilities. However, because the current generation of EPAMDs,
including the Segway® PT, was designed for recreational users and not primarily
for use by individuals with mobility disabilities, the Department has decided to
continue its approach of excluding EPAMDs from the definition of “wheelchair”
and including them in the definition of “other power-driven mobility device.”
Although EPAMDs, such as the Segway® PT, are not included in the definition of a
“wheelchair,” public entities must assess whether they can make reasonable
modifications to permit individuals with mobility disabilities to use such
devices on their premises. The Department recognizes that the Segway® PT
provides many benefits to those who use them as mobility devices, including a
measure of privacy with regard to the nature of one’s particular disability, and
believes that in the vast majority of circumstances, the application of the
factors described in § 35.137 for providing access to other-powered mobility
devices will result in the admission of the Segway® PT.

Treatment of “manually-powered mobility aids.” The Department’s NPRM did not
define the term “manually-powered mobility aids.” Instead, the NPRM included a
non- exhaustive list of examples in § 35.137(a). The NPRM queried whether the
Department should maintain this approach to manually powered mobility aids or
whether it should adopt a more formal definition.

Only a few commenters addressed “manually-powered mobility aids.” Virtually all
commenters were in favor of maintaining a non-exhaustive list of examples of
“manually-powered mobility aids” rather than adopting a definition of the term.
Of those who commented, a few sought clarification of the term
“manually-powered.” One commenter suggested that the term be changed to
“human-powered.” Other commenters requested that the Department include ordinary
strollers in the non-exhaustive list of “manually-powered mobility aids.” Since
strollers are not devices designed primarily for individuals with mobility
disabilities, the Department does not consider them to be manually-powered
mobility aids; however, strollers used in the context of transporting
individuals with disabilities are subject to the same assessment required by the
ADA’s title II reasonable modification standards at § 35.130(b)(7). The
Department believes that because the existing approach is clear and understood
easily by the public, no formal definition of the term “manually-powered
mobility aids” is required.

Definition of “other power-driven mobility device.” The Department’s NPRM
defined the term “other power-driven mobility device” in § 35.104 as “any of a
large range of devices powered by batteries, fuel, or other engines— whether or
not designed solely for use by individuals with mobility impairments—that are
used by individuals with mobility impairments for the purpose of locomotion,
including golf cars, bicycles, electronic personal assistance mobility devices
(EPAMDs), or any mobility aid designed to operate in areas without defined
pedestrian routes.” 73 FR 34466, 34504 (June 17, 2008).

Nearly all environmental, transit systems, and government commenters who
supported the two-tiered concept of mobility devices said that the Department’s
definition of “other power-driven mobility device” is overbroad because it
includes fuel-powered devices. These commenters sought a ban on fuel-powered
devices in their entirety because they believe they are inherently dangerous and
pose environmental and safety concerns. They also argued that permitting the use
of many of the contemplated other power-driven mobility devices, fuel-powered
ones especially, would fundamentally alter the programs, services, or activities
of public entities.

Advocacy, nonprofit, and several individual commenters supported the definition
of “other power-driven mobility device” because it allows new technologies to be
added in the future, maintains the existing legal protections for wheelchairs,
and recognizes that some devices, particularly the Segway® PT, which are not
designed primarily for individuals with mobility disabilities, have beneficial
uses for individuals with mobility disabilities. Despite support for the
definition of “other power-driven mobility device,” however, most advocacy and
nonprofit commenters expressed at least some hesitation about the inclusion of
fuel-powered mobility devices in the definition. While virtually all of these
commenters noted that a blanket exclusion of any device that falls under the
definition of “other power-driven mobility device” would violate basic civil
rights concepts, they also specifically stated that certain devices,
particularly, off-highway vehicles, cannot be permitted in certain
circumstances. They also made a distinction between the Segway® PT and other
power-driven mobility devices, noting that the Segway® PT should be accommodated
in most circumstances because it satisfies the safety and environmental elements
of the policy analysis. These commenters indicated that they agree that other
power-driven mobility devices must be assessed, particularly as to their
environmental impact, before they are accommodated.

Although many commenters had reservations about the inclusion of fuel-powered
devices in the definition of other power-driven mobility devices, the Department
does not want the definition to be so narrow that it would foreclose the
inclusion of new technological developments (whether powered by fuel or by some
other means). It is for this reason that the Department has maintained the
phrase “any mobility device designed to operate in areas without defined
pedestrian routes” in the final rule’s definition of other power-driven mobility
devices. The Department believes that the limitations provided by “fundamental
alteration” and the ability to impose legitimate safety requirements will likely
prevent the use of fuel and combustion engine-driven devices indoors, as well as
in outdoor areas with heavy pedestrian traffic. The Department notes, however,
that in the future, technological developments may result in the production of
safe fuel-powered mobility devices that do not pose environmental and safety
concerns. The final rule allows consideration to be given as to whether the use
of a fuel-powered device would create a substantial risk of serious harm to the
environment or natural or cultural resources, and to whether the use of such a
device conflicts with Federal land management laws or regulations; this aspect
of the final rule will further limit the inclusion of fuel-powered devices where
they are not appropriate. Consequently, the Department has maintained
fuel-powered devices in the definition of “other power-driven mobility device.”
The Department has also added language to the definition of “other power-driven
mobility device” to reiterate that the definition does not apply to Federal
wilderness areas, which are not covered by title II of the ADA; the use of
wheelchairs in such areas is governed by section 508(c)(2) of the ADA, 42 U.S.C.
12207(c)(2). ‘

“Qualified Interpreter”

In the NPRM, the Department proposed adding language to the definition of
“qualified interpreter” to clarify that the term includes, but is not limited
to, sign language interpreters, oral interpreters, and cued-speech interpreters.
As the Department explained, not all interpreters are qualified for all
situations. For example, a qualified interpreter who uses American Sign Language
(ASL) is not necessarily qualified to interpret orally. In addition, someone
with only a rudimentary familiarity with sign language or finger spelling is not
qualified, nor is someone who is fluent in sign language but unable to translate
spoken communication into ASL or to translate signed communication into spoken
words.

As further explained, different situations will require different types of
interpreters. For example, an oral interpreter who has special skill and
training to mouth a speaker’s words silently for individuals who are deaf or
hard of hearing may be necessary for an individual who was raised orally and
taught to read lips or was diagnosed with hearing loss later in life and does
not know sign language. An individual who is deaf or hard of hearing may need an
oral interpreter if the speaker’s voice is unclear, if there is a quick-paced
exchange of communication (e.g., in a meeting), or when the speaker does not
directly face the individual who is deaf or hard of hearing. A cued-speech
interpreter functions in the same manner as an oral interpreter except that he
or she also uses a hand code or cue to represent each speech sound.

The Department received many comments regarding the proposed modifications to
the definition of “interpreter.” Many commenters requested that the Department
include within the definition a requirement that interpreters be certified,
particularly if they reside in a State that licenses or certifies interpreters.
Other commenters opposed a certification requirement as unduly limiting, noting
that an interpreter may well be qualified even if that same interpreter is not
certified. These commenters noted the absence of nationwide standards or
universally accepted criteria for certification.

On review of this issue, the Department has decided against imposing a
certification requirement under the ADA. It is sufficient under the ADA that the
interpreter be qualified. However, as the Department stated in the original
preamble, this rule does not invalidate or limit State or local laws that impose
standards for interpreters that are equal to or more stringent than those
imposed by this definition. See 28 CFR part 35, app. A at 566 (2009). For
instance, the definition would not supersede any requirement of State law for
use of a certified interpreter in court proceedings.

With respect to the proposed additions to the rule, most commenters supported
the expansion of the list of qualified interpreters, and some advocated for the
inclusion of other types of interpreters on the list as well, such as deaf-blind
interpreters, certified deaf interpreters, and speech-to-speech interpreters. As
these commenters explained, deaf-blind interpreters are interpreters who have
specialized skills and training to interpret for individuals who are deaf and
blind; certified deaf interpreters are deaf or hard of hearing interpreters who
work with hearing sign language interpreters to meet the specific communication
needs of deaf individuals; and speech-to-speech interpreters have special skill
and training to interpret for individuals who have speech disabilities.

The list of interpreters in the definition of qualified interpreter is
illustrative, and the Department does not believe it necessary or appropriate to
attempt to provide an exhaustive list of qualified interpreters. Accordingly,
the Department has decided not to expand the proposed list. However, if a deaf
and blind individual needs interpreter services, an interpreter who is qualified
to handle the needs of that individual may be required. The guiding criterion is
that the public entity must provide appropriate auxiliary aids and services to
ensure effective communication with the individual. Commenters also suggested
various definitions for the term “cued-speech interpreters,” and different
descriptions of the tasks they performed. After reviewing the various comments,
the Department has determined that it is more accurate and appropriate to refer
to such individuals as “cued-language transliterators.” Likewise, the Department
has changed the term “oral interpreters” to “oral transliterators.” These two
changes have been made to distinguish between sign language interpreters, who
translate one language into another language (e.g., ASL to English and English
to ASL), from transliterators who interpret within the same language between
deaf and hearing individuals. A cued-language transliterator is an interpreter
who has special skill and training in the use of the Cued Speech system of
handshapes and placements, along with non-manual information, such as facial
expression and body language, to show auditory information visually, including
speech and environmental sounds. An oral transliterator is an interpreter who
has special skill and training to mouth a speaker’s words silently for
individuals who are deaf or hard of hearing. While the Department included
definitions for “cued speech interpreter” and “oral interpreter” in the
regulatory text proposed in the NPRM, the Department has decided that it is
unnecessary to include such definitions in the text of the final rule.

Many commenters questioned the proposed deletion of the requirement that a
qualified interpreter be able to interpret both receptively and expressively,
noting the importance of both these skills. Commenters stated that this phrase
was carefully crafted in the original regulation to make certain that
interpreters both (1) are capable of understanding what a person with a
disability is saying and (2) have the skills needed to convey information back
to that individual. These are two very different skill sets and both are equally
important to achieve effective communication. For example, in a medical setting,
a sign language interpreter must have the necessary skills to understand the
grammar and syntax used by an ASL user (receptive skills) and the ability to
interpret complicated medical information—presented by medical staff in
English—back to that individual in ASL (expressive skills). The Department
agrees and has put the phrase “both receptively and expressively” back in the
definition.

Several advocacy groups suggested that the Department make clear in the
definition of qualified interpreter that the interpreter may appear either
on-site or remotely using a video remote interpreting (VRI) service. Given that
the Department has included in this rule both a definition of VRI services and
standards that such services must satisfy, such an addition to the definition of
qualified interpreter is appropriate.

After consideration of all relevant information submitted during the public
comment period, the Department has modified the definition from that initially
proposed in the NPRM. The final definition now states that “[q]ualified
interpreter means an interpreter who, via a video remote interpreting (VRI)
service or an on-site appearance, is able to interpret effectively, accurately,
and impartially, both receptively and expressively, using any necessary
specialized vocabulary. Qualified interpreters include, for example, sign
language interpreters, oral transliterators, and cued-language transliterators.”

“Qualified Reader”

The 1991 title II regulation identifies a qualified reader as an auxiliary aid,
but did not define the term. See 28 CFR 35.104(2). Based upon the Department’s
investigation of complaints alleging that some entities have provided
ineffective readers, the Department proposed in the NPRM to define “qualified
reader” similarly to “qualified interpreter” to ensure that entities select
qualified individuals to read an examination or other written information in an
effective, accurate, and impartial manner. This proposal was suggested in order
to make clear to public entities that a failure to provide a qualified reader to
a person with a disability may constitute a violation of the requirement to
provide appropriate auxiliary aids and services. The Department received
comments supporting inclusion in the regulation of a definition of a “qualified
reader.” Some commenters suggested the Department add to the definition a
requirement prohibiting the use of a reader whose accent, diction, or
pronunciation makes full comprehension of material being read difficult. Another
commenter requested that the Department include a requirement that the reader
“will follow the directions of the person for whom he or she is reading.”
Commenters also requested that the Department define “accurately” and
“effectively” as used in this definition.

While the Department believes that its proposed regulatory definition adequately
addresses these concerns, the Department emphasizes that a reader, in order to
be “qualified,” must be skilled in reading the language and subject matter and
must be able to be easily understood by the individual with the disability. For
example, if a reader is reading aloud the questions for a college microbiology
examination, that reader, in order to be qualified, must know the proper
pronunciation of scientific terminology used in the text, and must be
sufficiently articulate to be easily understood by the individual with a
disability for whom he or she is reading. In addition, the terms “effectively”
and “accurately” have been successfully used and understood in the Department’s
existing definition of “qualified interpreter” since 1991 without specific
regulatory definitions. Instead, the Department has relied upon the common use
and understanding of those terms from standard English dictionaries. Thus, the
definition of “qualified reader” has not been changed from that contained in the
NPRM. The final rule defines “qualified reader” to mean “a person who is able to
read effectively, accurately, and impartially using any necessary specialized
vocabulary.”

“Service Animal”

Although there is no specific language in the 1991 title II regulation
concerning service animals, title II entities have the same legal obligations as
title III entities to make reasonable modifications in policies, practices, or
procedures to allow service animals when necessary in order to avoid
discrimination on the basis of disability, unless the entity can demonstrate
that making the modifications would fundamentally alter the nature of the
service, program, or activity. See 28 CFR 35.130(b)(7). The 1991 title III
regulation, 28 CFR 36.104, defines a “service animal” as “any guide dog, signal
dog, or other animal individually trained to do work or perform tasks for the
benefit of an individual with a disability, including, but not limited to,
guiding individuals with impaired vision, alerting individuals with impaired
hearing to intruders or sounds, providing minimal protection or rescue work,
pulling a wheelchair, or fetching dropped items.” Section 36.302(c)(1) of the
1991 title III regulation requires that “[g]enerally, a public accommodation
shall modify policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.” Section 36.302(c)(2) of the 1991
title III regulation states that “a public accommodation [is not required] to
supervise or care for a service animal.”

The Department has issued guidance and provided technical assistance and
publications concerning service animals since the 1991 regulations became
effective. In the NPRM, the Department proposed to modify the definition of
service animal, added the definition to title II, and asked for public input on
several issues related to the service animal provisions of the title II
regulation: whether the Department should clarify the phrase “providing minimal
protection” in the definition or remove it; whether there are any circumstances
where a service animal “providing minimal protection” would be appropriate or
expected; whether certain species should be eliminated from the definition of
“service animal,” and, if so, which types of animals should be excluded; whether
“common domestic animal” should be part of the definition; and whether a size or
weight limitation should be imposed for common domestic animals even if the
animal satisfies the “common domestic animal” part of the NPRM definition.

The Department received extensive comments on these issues, as well as requests
to clarify the obligations of State and local government entities to accommodate
individuals with disabilities who use service animals, and has modified the
final rule in response. In the interests of avoiding unnecessary repetition, the
Department has elected to discuss the issues raised in the NPRM questions about
service animals and the corresponding public comments in the following
discussion of the definition of “service animal.”

The Department’s final rule defines “service animal” as “any dog that is
individually trained to do work or perform tasks for the benefit of an
individual with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability. Other species of animals, whether wild
or domestic, trained or untrained, are not service animals for the purposes of
this definition. The work or tasks performed by a service animal must be
directly related to the individual’s disability. Examples of work or tasks
include, but are not limited to, assisting individuals who are blind or have low
vision with navigation and other tasks, alerting individuals who are deaf or
hard of hearing to the presence of people or sounds, providing non-violent
protection or rescue work, pulling a wheelchair, assisting an individual during
a seizure, alerting individuals to the presence of allergens, retrieving items
such as medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities, and
helping persons with psychiatric and neurological disabilities by preventing or
interrupting impulsive or destructive behaviors. The crime deterrent effects of
an animal’s presence and the provision of emotional support, well-being,
comfort, or companionship do not constitute work or tasks for the purposes of
this definition.”

This definition has been designed to clarify a key provision of the ADA. Many
covered entities indicated that they are confused regarding their obligations
under the ADA with regard to individuals with disabilities who use service
animals. Individuals with disabilities who use trained guide or service dogs are
concerned that if untrained or unusual animals are termed “service animals,”
their own right to use guide or service dogs may become unnecessarily restricted
or questioned. Some individuals who are not individuals with disabilities have
claimed, whether fraudulently or sincerely (albeit mistakenly), that their
animals are service animals covered by the ADA, in order to gain access to
courthouses, city or county administrative offices, and other title II
facilities. The increasing use of wild, exotic, or unusual species, many of
which are untrained, as service animals has also added to the confusion.

Finally, individuals with disabilities who have the legal right under the Fair
Housing Act (FHAct) to use certain animals in their homes as a reasonable
accommodation to their disabilities have assumed that their animals also qualify
under the ADA. This is not necessarily the case, as discussed below.

The Department recognizes the diverse needs and preferences of individuals with
disabilities protected under the ADA, and does not wish to unnecessarily impede
individual choice. Service animals play an integral role in the lives of many
individuals with disabilities and, with the clarification provided by the final
rule, individuals with disabilities will continue to be able to use their
service animals as they go about their daily activities and civic interactions.
The clarification will also help to ensure that the fraudulent or mistaken use
of other animals not qualified as service animals under the ADA will be
deterred. A more detailed analysis of the elements of the definition and the
comments responsive to the service animal provisions of the NPRM follows.

Providing minimal protection. As previously noted, the 1991 title II regulation
does not contain specific language concerning service animals. The 1991 title
III regulation included language stating that “minimal protection” was a task
that could be performed by an individually trained service animal for the
benefit of an individual with a disability. In the Department’s “ADA Business
Brief on Service Animals” (2002), the Department interpreted the “minimal
protection” language within the context of a seizure (i.e., alerting and
protecting a person who is having a seizure). The Department received many
comments in response to the question of whether the “minimal protection”
language should be clarified. Many commenters urged the removal of the “minimal
protection” language from the service animal definition for two reasons: (1) The
phrase can be interpreted to allow any dog that is trained to be aggressive to
qualify as a service animal simply by pairing the animal with a person with a
disability; and (2) the phrase can be interpreted to allow any untrained pet dog
to qualify as a service animal, since many consider the mere presence of a dog
to be a crime deterrent, and thus sufficient to meet the minimal protection
standard. These commenters argued, and the Department agrees, that these
interpretations were not contemplated under the original title III regulation,
and, for the purposes of the final title II regulations, the meaning of “minimal
protection” must be made clear.

While many commenters stated that they believe that the “minimal protection”
language should be eliminated, other commenters recommended that the language be
clarified, but retained. Commenters favoring clarification of the term suggested
that the Department explicitly exclude the function of attack or exclude those
animals that are trained solely to be aggressive or protective. Other commenters
identified nonviolent behavioral tasks that could be construed as minimally
protective, such as interrupting self-mutilation, providing safety checks and
room searches, reminding the individual to take medications, and protecting the
individual from injury resulting from seizures or unconsciousness.

Several commenters noted that the existing direct threat defense, which allows
the exclusion of a service animal if the animal exhibits unwarranted or
unprovoked violent behavior or poses a direct threat, prevents the use of
“attack dogs” as service animals. One commenter noted that the use of a service
animal trained to provide “minimal protection” may impede access to care in an
emergency, for example, where the first responder, usually a title II entity, is
unable or reluctant to approach a person with a disability because the
individual’s service animal is in a protective posture suggestive of aggression.

Many organizations and individuals stated that in the general dog training
community, “protection” is code for attack or aggression training and should be
removed from the definition. Commenters stated that there appears to be a
broadly held misconception that aggression-trained animals are appropriate
service animals for persons with post traumatic stress disorder (PTSD). While
many individuals with PTSD may benefit by using a service animal, the work or
tasks performed appropriately by such an animal would not involve unprovoked
aggression but could include actively cuing the individual by nudging or pawing
the individual to alert to the onset of an episode and removing the individual
from the anxiety-provoking environment.

The Department recognizes that despite its best efforts to provide
clarification, the “minimal protection” language appears to have been
misinterpreted. While the Department maintains that protection from danger is
one of the key functions that service animals perform for the benefit of persons
with disabilities, the Department recognizes that an animal individually trained
to provide aggressive protection, such as an attack dog, is not appropriately
considered a service animal. Therefore, the Department has decided to modify the
“minimal protection” language to read “nonviolent protection,” thereby excluding
so-called “attack dogs” or dogs with traditional “protection training” as
service animals. The Department believes that this modification to the service
animal definition will eliminate confusion, without restricting unnecessarily
the type of work or tasks that service animals may perform. The Department’s
modification also clarifies that the crime-deterrent effect of a dog’s presence,
by itself, does not qualify as work or tasks for purposes of the service animal
definition.

Alerting to intruders. The phrase “alerting to intruders” is related to the
issues of minimal protection and the work or tasks an animal may perform to meet
the definition of a service animal. In the original 1991 regulatory text, this
phrase was intended to identify service animals that alert individuals who are
deaf or hard of hearing to the presence of others. This language has been
misinterpreted by some to apply to dogs that are trained specifically to provide
aggressive protection, resulting in the assertion that such training qualifies a
dog as a service animal under the ADA. The Department reiterates that title II
entities are not required to admit any animal whose use poses a direct threat
under § 35.139. In addition, the Department has decided to remove the word
“intruders” from the service animal definition and replace it with the phrase
“the presence of people or sounds.” The Department believes this clarifies that
so-called “attack training” or other aggressive response types of training that
cause a dog to provide an aggressive response do not qualify a dog as a service
animal under the ADA.

Conversely, if an individual uses a breed of dog that is perceived to be
aggressive because of breed reputation, stereotype, or the history or experience
the observer may have with other dogs, but the dog is under the control of the
individual with a disability and does not exhibit aggressive behavior, the title
II entity cannot exclude the individual or the animal from a State or local
government program, service, or facility. The animal can only be removed if it
engages in the behaviors mentioned in § 35.136(b) (as revised in the final rule)
or if the presence of the animal constitutes a fundamental alteration to the
nature of the service, program, or activity of the title II entity.

Doing “work” or “performing tasks.” The NPRM proposed that the Department
maintain the requirement, first articulated in the 1991 title III regulation,
that in order to qualify as a service animal, the animal must “perform tasks” or
“do work” for the individual with a disability. The phrases “perform tasks” and
“do work” describe what an animal must do for the benefit of an individual with
a disability in order to qualify as a service animal. The Department received a
number of comments in response to the NPRM proposal urging the removal of the
term “do work” from the definition of a service animal. These commenters argued
that the Department should emphasize the performance of tasks instead. The
Department disagrees. Although the common definition of work includes the
performance of tasks, the definition of work is somewhat broader, encompassing
activities that do not appear to involve physical action.

One service dog user stated that in some cases, “critical forms of assistance
can’t be construed as physical tasks,” noting that the manifestations of
“brain-based disabilities,” such as psychiatric disorders and autism, are as
varied as their physical counterparts. The Department agrees with this statement
but cautions that unless the animal is individually trained to do something that
qualifies as work or a task, the animal is a pet or support animal and does not
qualify for coverage as a service animal. A pet or support animal may be able to
discern that the individual is in distress, but it is what the animal is trained
to do in response to this awareness that distinguishes a service animal from an
observant pet or support animal.

The NPRM contained an example of “doing work” that stated “a psychiatric service
dog can help some individuals with dissociative identity disorder to remain
grounded in time or place.” 73 FR 34466, 34504 (June 17, 2008). Several
commenters objected to the use of this example, arguing that grounding was not a
“task” and therefore, the example inherently contradicted the basic premise that
a service animal must perform a task in order to mitigate a disability. Other
commenters stated that “grounding” should not be included as an example of
“work” because it could lead to some individuals claiming that they should be
able to use emotional support animals in public because the dog makes them feel
calm or safe. By contrast, one commenter with experience in training service
animals explained that grounding is a trained task based upon very specific
behavioral indicators that can be observed and measured. These tasks are based
upon input from mental health practitioners, dog trainers, and individuals with
a history of working with psychiatric service dogs. It is the Department’s view
that an animal that is trained to “ground” a person with a psychiatric disorder
does work or performs a task that would qualify it as a service animal as
compared to an untrained emotional support animal whose presence affects a
person’s disability. It is the fact that the animal is trained to respond to the
individual’s needs that distinguishes an animal as a service animal. The process
must have two steps: Recognition and response. For example, if a service animal
senses that a person is about to have a psychiatric episode and it is trained to
respond for example, by nudging, barking, or removing the individual to a safe
location until the episode subsides, then the animal has indeed performed a task
or done work on behalf of the individual with the disability, as opposed to
merely sensing an event.

One commenter suggested defining the term “task,” presumably to improve the
understanding of the types of services performed by an animal that would be
sufficient to qualify the animal for coverage. The Department believes that the
common definition of the word “task” is sufficiently clear and that it is not
necessary to add to the definitions section. However, the Department has added
examples of other kinds of work or tasks to help illustrate and provide clarity
to the definition. After careful evaluation of this issue, the Department has
concluded that the phrases “do work” and “perform tasks” have been effective
during the past two decades to illustrate the varied services provided by
service animals for the benefit of individuals with all types of disabilities.
Thus, the Department declines to depart from its longstanding approach at this
time.

Species limitations. When the Department originally issued its title III
regulation in the early 1990s, the Department did not define the parameters of
acceptable animal species. At that time, few anticipated the variety of animals
that would be promoted as service animals in the years to come, which ranged
from pigs and miniature horses to snakes, iguanas, and parrots. The Department
has followed this particular issue closely, keeping current with the many
unusual species of animals represented to be service animals. Thus, the
Department has decided to refine further this aspect of the service animal
definition in the final rule.

The Department received many comments from individuals and organizations
recommending species limitations. Several of these commenters asserted that
limiting the number of allowable species would help stop erosion of the public’s
trust, which has resulted in reduced access for many individuals with
disabilities who use trained service animals that adhere to high behavioral
standards. Several commenters suggested that other species would be acceptable
if those animals could meet nationally recognized behavioral standards for
trained service dogs. Other commenters asserted that certain species of animals
(e.g., reptiles) cannot be trained to do work or perform tasks, so these animals
would not be covered.

In the NPRM, the Department used the term “common domestic animal” in the
service animal definition and excluded reptiles, rabbits, farm animals
(including horses, miniature horses, ponies, pigs, and goats), ferrets,
amphibians, and rodents from the service animal definition. 73 FR 34466, 34478
(June 17, 2008). However, the term “common domestic animal” is difficult to
define with precision due to the increase in the number of domesticated species.
Also, several State and local laws define a “domestic” animal as an animal that
is not wild. The Department agrees with commenters’ views that limiting the
number and types of species recognized as service animals will provide greater
predictability for State and local government entities as well as added
assurance of access for individuals with disabilities who use dogs as service
animals. As a consequence, the Department has decided to limit this rule’s
coverage of service animals to dogs, which are the most common service animals
used by individuals with disabilities.

Wild animals, monkeys, and other nonhuman primates. Numerous business entities
endorsed a narrow definition of acceptable service animal species, and asserted
that there are certain animals (e.g., reptiles) that cannot be trained to do
work or perform tasks. Other commenters suggested that the Department should
identify excluded animals, such as birds and llamas, in the final rule. Although
one commenter noted that wild animals bred in captivity should be permitted to
be service animals, the Department has decided to make clear that all wild
animals, whether born or bred in captivity or in the wild, are eliminated from
coverage as service animals. The Department believes that this approach reduces
risks to health or safety attendant with wild animals. Some animals, such as
certain nonhuman primates including certain monkeys, pose a direct threat; their
behavior can be unpredictably aggressive and violent without notice or
provocation. The American Veterinary Medical Association (AVMA) issued a
position statement advising against the use of monkeys as service animals,
stating that “[t]he AVMA does not support the use of nonhuman primates as
assistance animals because of animal welfare concerns, and the potential for
serious injury and zoonotic [animal to human disease transmission] risks.” AVMA
Position Statement, Nonhuman Primates as Assistance Animals, (2005) available at
http://www.avma.org/issues/policy/nonhuman_primates.asp (last visited June 24,
2010).

An organization that trains capuchin monkeys to provide in-home services to
individuals with paraplegia and quadriplegia was in substantial agreement with
the AVMA’s views but requested a limited recognition in the service animal
definition for the capuchin monkeys it trains to provide assistance for persons
with disabilities. The organization commented that its trained capuchin monkeys
undergo scrupulous veterinary examinations to ensure that the animals pose no
health risks, and are used by individuals with disabilities exclusively in their
homes. The organization acknowledged that the capuchin monkeys it trains are not
necessarily suitable for use in State or local government facilities. The
organization noted that several State and local government entities have local
zoning, licensing, health, and safety laws that prohibit nonhuman primates, and
that these prohibitions would prevent individuals with disabilities from using
these animals even in their homes.

The organization argued that including capuchin monkeys under the service animal
umbrella would make it easier for individuals with disabilities to obtain
reasonable modifications of State and local licensing, health, and safety laws
that would permit the use of these monkeys. The organization argued that this
limited modification to the service animal definition was warranted in view of
the services these monkeys perform, which enable many individuals with
paraplegia and quadriplegia to live and function with increased independence.

The Department has carefully considered the potential risks associated with the
use of nonhuman primates as service animals in State and local government
facilities, as well as the information provided to the Department about the
significant benefits that trained capuchin monkeys provide to certain
individuals with disabilities in residential settings. The Department has
determined, however, that nonhuman primates, including capuchin monkeys, will
not be recognized as service animals for purposes of this rule because of their
potential for disease transmission and unpredictable aggressive behavior. The
Department believes that these characteristics make nonhuman primates unsuitable
for use as service animals in the context of the wide variety of public settings
subject to this rule. As the organization advocating the inclusion of capuchin
monkeys acknowledges, capuchin monkeys are not suitable for use in public
facilities.

The Department emphasizes that it has decided only that capuchin monkeys will
not be included in the definition of service animals for purposes of its
regulation implementing the ADA. This decision does not have any effect on the
extent to which public entities are required to allow the use of such monkeys
under other Federal statutes. For example, under the FHAct, an individual with a
disability may have the right to have an animal other than a dog in his or her
home if the animal qualifies as a “reasonable accommodation” that is necessary
to afford the individual equal opportunity to use and enjoy a dwelling, assuming
that the use of the animal does not pose a direct threat. In some cases, the
right of an individual to have an animal under the FHAct may conflict with State
or local laws that prohibit all individuals, with or without disabilities, from
owning a particular species. However, in this circumstance, an individual who
wishes to request a reasonable modification of the State or local law must do so
under the FHAct, not the ADA. Having considered all of the comments about which
species should qualify as service animals under the ADA, the Department has
determined the most reasonable approach is to limit acceptable species to dogs.

Size or weight limitations. The vast majority of commenters did not support a
size or weight limitation. Commenters were typically opposed to a size or weight
limit because many tasks performed by service animals require large, strong
dogs. For instance, service animals may perform tasks such as providing balance
and support or pulling a wheelchair. Small animals may not be suitable for large
adults. The weight of the service animal user is often correlated with the size
and weight of the service animal. Others were concerned that adding a size and
weight limit would further complicate the difficult process of finding an
appropriate service animal. One commenter noted that there is no need for a
limit because “if, as a practical matter, the size or weight of an individual’s
service animal creates a direct threat or fundamental alteration to a particular
public entity or accommodation, there are provisions that allow for the animal’s
exclusion or removal.” Some common concerns among commenters in support of a
size and weight limit were that a larger animal may be less able to fit in
various areas with its handler, such as toilet rooms and public seating areas,
and that larger animals are more difficult to control.

Balancing concerns expressed in favor of and against size and weight
limitations, the Department has determined that such limitations would not be
appropriate. Many individuals of larger stature require larger dogs. The
Department believes it would be inappropriate to deprive these individuals of
the option of using a service dog of the size required to provide the physical
support and stability these individuals may need to function independently.
Since large dogs have always served as service animals, continuing their use
should not constitute fundamental alterations or impose undue burdens on title
II entities.

Breed limitations. A few commenters suggested that certain breeds of dogs should
not be allowed to be used as service animals. Some suggested that the Department
should defer to local laws restricting the breeds of dogs that individuals who
reside in a community may own. Other commenters opposed breed restrictions,
stating that the breed of a dog does not determine its propensity for aggression
and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with
the ADA to defer to local laws that prohibit certain breeds of dogs based on
local concerns that these breeds may have a history of unprovoked aggression or
attacks. Such deference would have the effect of limiting the rights of persons
with disabilities under the ADA who use certain service animals based on where
they live rather than on whether the use of a particular animal poses a direct
threat to the health and safety of others. Breed restrictions differ
significantly from jurisdiction to jurisdiction. Some jurisdictions have no
breed restrictions. Others have restrictions that, while well-meaning, have the
unintended effect of screening out the very breeds of dogs that have
successfully served as service animals for decades without a history of the type
of unprovoked aggression or attacks that would pose a direct threat, e.g.,
German Shepherds. Other jurisdictions prohibit animals over a certain weight,
thereby restricting breeds without invoking an express breed ban. In addition,
deference to breed restrictions contained in local laws would have the
unacceptable consequence of restricting travel by an individual with a
disability who uses a breed that is acceptable and poses no safety hazards in
the individual’s home jurisdiction but is nonetheless banned by other
jurisdictions. State and local government entities have the ability to
determine, on a case-by-case basis, whether a particular service animal can be
excluded based on that particular animal’s actual behavior or history—not based
on fears or generalizations about how an animal or breed might behave. This
ability to exclude an animal whose behavior or history evidences a direct threat
is sufficient to protect health and safety.

Recognition of psychiatric service animals but not “emotional support animals.”
The definition of “service animal” in the NPRM stated the Department’s
longstanding position that emotional support animals are not included in the
definition of “service animal.” The proposed text in § 35.104 provided that
“[a]nimals whose sole function is to provide emotional support, comfort,
therapy, companionship, therapeutic benefits or to promote emotional well-being
are not service animals.” 73 FR 34466, 34504 (June 17, 2008).

Many advocacy organizations expressed concern and disagreed with the exclusion
of comfort and emotional support animals. Others have been more specific,
stating that individuals with disabilities may need their emotional support
animals in order to have equal access. Some commenters noted that individuals
with disabilities use animals that have not been trained to perform tasks
directly related to their disability. These animals do not qualify as service
animals under the ADA. These are emotional support or comfort animals.

Commenters asserted that excluding categories such as “comfort” and “emotional
support” animals recognized by laws such as the FHAct or the Air Carrier Access
Act (ACAA) is confusing and burdensome. Other commenters noted that emotional
support and comfort animals perform an important function, asserting that animal
companionship helps individuals who experience depression resulting from
multiple sclerosis.

Some commenters explained the benefits emotional support animals provide,
including emotional support, comfort, therapy, companionship, therapeutic
benefits, and the promotion of emotional well-being. They contended that without
the presence of an emotional support animal in their lives they would be
disadvantaged and unable to participate in society. These commenters were
concerned that excluding this category of animals will lead to discrimination
against, and the excessive questioning of, individuals with non-visible or
non-apparent disabilities. Other commenters expressing opposition to the
exclusion of individually trained “comfort” or “emotional support” animals
asserted that the ability to soothe or de-escalate and control emotion is “work”
that benefits the individual with the disability.

Many commenters requested that the Department carve out an exception that
permits current or former members of the military to use emotional support
animals. They asserted that a significant number of service members returning
from active combat duty have adjustment difficulties due to combat, sexual
assault, or other traumatic experiences while on active duty. Commenters noted
that some current or former members of the military service have been prescribed
animals for conditions such as PTSD. One commenter stated that service women who
were sexually assaulted while in the military use emotional support animals to
help them feel safe enough to step outside their homes. The Department
recognizes that many current and former members of the military have
disabilities as a result of service-related injuries that may require emotional
support and that such individuals can benefit from the use of an emotional
support animal and could use such animal in their home under the FHAct. However,
having carefully weighed the issues, the Department believes that its final rule
appropriately addresses the balance of issues and concerns of both the
individual with a disability and the public entity. The Department also notes
that nothing in this part prohibits a public entity from allowing current or
former military members or anyone else with disabilities to utilize emotional
support animals if it wants to do so.

Commenters asserted the view that if an animal’s “mere presence” legitimately
provides such benefits to an individual with a disability and if those benefits
are necessary to provide equal opportunity given the facts of the particular
disability, then such an animal should qualify as a “service animal.” Commenters
noted that the focus should be on the nature of a person’s disability, the
difficulties the disability may impose and whether the requested accommodation
would legitimately address those difficulties, not on evaluating the animal
involved. The Department understands this approach has benefitted many
individuals under the FHAct and analogous State law provisions, where the
presence of animals poses fewer health and safety issues, and where emotional
support animals provide assistance that is unique to residential settings. The
Department believes, however, that the presence of such animals is not required
in the context of title II entities such as courthouses, State and local
government administrative buildings, and similar title II facilities. Under the
Department’s previous regulatory framework, some individuals and entities
assumed that the requirement that service animals must be individually trained
to do work or perform tasks excluded all individuals with mental disabilities
from having service animals. Others assumed that any person with a psychiatric
condition whose pet provided comfort to them was covered by the 1991 title II
regulation. The Department reiterates that psychiatric service animals that are
trained to do work or perform a task for individuals whose disability is covered
by the ADA are protected by the Department’s present regulatory approach.
Psychiatric service animals can be trained to perform a variety of tasks that
assist individuals with disabilities to detect the onset of psychiatric episodes
and ameliorate their effects. Tasks performed by psychiatric service animals may
include reminding the individual to take medicine, providing safety checks or
room searches for persons with PTSD, interrupting self-mutilation, and removing
disoriented individuals from dangerous situations. The difference between an
emotional support animal and a psychiatric service animal is the work or tasks
that the animal performs. Traditionally, service dogs worked as guides for
individuals who were blind or had low vision. Since the original regulation was
promulgated, service animals have been trained to assist individuals with many
different types of disabilities.

In the final rule, the Department has retained its position on the exclusion of
emotional support animals from the definition of “service animal.” The
definition states that “[t]he provision of emotional support, well-being,
comfort, or companionship, * * * do[es] not constitute work or tasks for the
purposes of this definition.” The Department notes, however, that the exclusion
of emotional support animals from coverage in the final rule does not mean that
individuals with psychiatric or mental disabilities cannot use service animals
that meet the regulatory definition. The final rule defines service animal as
follows: “[s]ervice animal means any dog that is individually trained to do work
or perform tasks for the benefit of an individual with a disability, including a
physical, sensory, psychiatric, intellectual, or other mental disability.” This
language simply clarifies the Department’s longstanding position.

The Department’s position is based on the fact that the title II and title III
regulations govern a wider range of public settings than the housing and
transportation settings for which the Department of Housing and Urban
Development (HUD) and DOT regulations allow emotional support animals or comfort
animals. The Department recognizes that there are situations not governed by the
title II and title III regulations, particularly in the context of residential
settings and transportation, where there may be a legal obligation to permit the
use of animals that do not qualify as service animals under the ADA, but whose
presence nonetheless provides necessary emotional support to persons with
disabilities. Accordingly, other Federal agency regulations, case law, and
possibly State or local laws governing those situations may provide
appropriately for increased access for animals other than service animals as
defined under the ADA. Public officials, housing providers, and others who make
decisions relating to animals in residential and transportation settings should
consult the Federal, State, and local laws that apply in those areas (e.g., the
FHAct regulations of HUD and the ACAA) and not rely on the ADA as a basis for
reducing those obligations.

Retain term “service animal.” Some commenters asserted that the term “assistance
animal” is a term of art and should replace the term “service animal.” However,
the majority of commenters preferred the term “service animal” because it is
more specific. The Department has decided to retain the term “service animal” in
the final rule. While some agencies, like HUD, use the term “assistance animal,”
“assistive animal,” or “support animal,” these terms are used to denote a
broader category of animals than is covered by the ADA. The Department has
decided that changing the term used in the final rule would create confusion,
particularly in view of the broader parameters for coverage under the FHAct,
cf., preamble to HUD’s Final Rule for Pet Ownership for the Elderly and Persons
with Disabilities, 73 FR 63834–38 (Oct. 27, 2008); HUD Handbook No. 4350.3
Rev–1, Chapter 2, Occupancy Requirements of Subsidized Multifamily Housing
Programs (June 2007), available at
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last visited June
24, 2010). Moreover, as discussed above, the Department’s definition of “service
animal” in the title II final rule does not affect the rights of individuals
with disabilities who use assistance animals in their homes under the FHAct or
who use “emotional support animals” that are covered under the ACAA and its
implementing regulations. See 14 CFR 382.7 et seq.; see also Department of
Transportation, Guidance Concerning Service Animals in Air Transportation, 68 FR
24874, 24877 (May 9, 2003) (discussing accommodation of service animals and
emotional support animals on aircraft).

“Video Remote Interpreting” (VRI) Services

In the NPRM, the Department proposed adding Video Interpreting Services (VIS) to
the list of auxiliary aids available to provide effective communication
described in § 35.104. In the preamble to the NPRM, VIS was defined as “a
technology composed of a video phone, video monitors, cameras, a high-speed
Internet connection, and an interpreter. The video phone provides video
transmission to a video monitor that permits the individual who is deaf or hard
of hearing to view and sign to a video interpreter (i.e., a live interpreter in
another location), who can See and sign to the individual through a camera
located on or near the monitor, while others can communicate by speaking. The
video monitor can display a split screen of two live images, with the
interpreter in one image and the individual who is deaf or hard of hearing in
the other image.” 73 FR 34446, 34479 (June 17, 2008). Comments from advocacy
organizations and individuals unanimously requested that the Department use the
term “video remote interpreting (VRI),” instead of VIS, for consistency with
Federal Communications Commission (FCC) regulations. See FCC Public Notice, DA–
0502417 (Sept. 7, 2005), and with common usage by consumers. The Department has
made that change throughout the regulation to avoid confusion and to make the
regulation more consistent with existing regulations. Many commenters also
requested that the Department distinguish between VRI and “video relay service
(VRS).” Both VRI and VRS use a remote interpreter who is able to See and
communicate with a deaf person and a hearing person, and all three individuals
may be connected by a video link. VRI is a fee-based interpreting service
conveyed via videoconferencing where at least one person, typically the
interpreter, is at a separate location. VRI can be provided as an on-demand
service or by appointment. VRI normally involves a contract in advance for the
interpreter who is usually paid by the covered entity.

VRS is a telephone service that enables persons with disabilities to use the
telephone to communicate using video connections and is a more advanced form of
relay service than the traditional voice to text telephones (TTY) relay systems
that were recognized in the 1991 title II regulation. More specifically, VRS is
a video relay service using interpreters connected to callers by video hook-up
and is designed to provide telephone services to persons who are deaf and use
American Sign Language that are functionally equivalent to those provided to
users who are hearing. VRS is funded through the Interstate Telecommunications
Relay Services Fund and overseen by the FCC. See 47 CFR 64.601(a)(26). There are
no fees for callers to use the VRS interpreters and the video connection,
although there may be relatively inexpensive initial costs to the title II
entities to purchase the videophone or camera for on-line video connection, or
other equipment to connect to the VRS service. The FCC has made clear that VRS
functions as a telephone service and is not intended to be used for interpreting
services where both parties are in the same room; the latter is reserved for
VRI. The Department agrees that VRS cannot be used as a substitute for in-person
interpreters or for VRI in situations that would not, absent one party’s
disability, entail use of the telephone.

Many commenters strongly recommended limiting the use of VRI to circumstances
where it will provide effective communication. Commenters from advocacy groups
and persons with disabilities expressed concern that VRI may not always be
appropriate to provide effective communication, especially in hospitals and
emergency rooms. Examples were provided of patients who are unable to See the
video monitor because they are semi-conscious or unable to focus on the video
screen; other examples were given of cases where the video monitor is out of the
sightline of the patient or the image is out of focus; still other examples were
given of patients who could not See the image because the signal was
interrupted, causing unnatural pauses in the communication, or the image was
grainy or otherwise unclear. Many commenters requested more explicit guidelines
on the use of VRI, and some recommended requirements for equipment maintenance,
high-speed, wide-bandwidth video links using dedicated lines or wireless
systems, and training of staff using VRI, especially in hospital and health care
situations. Several major organizations requested a requirement to include the
interpreter’s face, head, arms, hands, and eyes in all transmissions. Finally,
one State agency asked for additional guidance, outreach, and mandated
advertising about the availability of VRI in title II situations so that local
government entities would budget for and facilitate the use of VRI in libraries,
schools, and other places.

After consideration of the comments and the Department’s own research and
experience, the Department has determined that VRI can be an effective method of
providing interpreting services in certain circumstances, but not in others. For
example, VRI should be effective in many situations involving routine medical
care, as well as in the emergency room where urgent care is important, but no
in-person interpreter is available; however, VRI may not be effective in
situations involving surgery or other medical procedures where the patient is
limited in his or her ability to see the video screen. Similarly, VRI may not be
effective in situations where there are multiple people in a room and the
information exchanged is highly complex and fast-paced. The Department
recognizes that in these and other situations, such as where communication is
needed for persons who are deaf-blind, it may be necessary to summon an
in-person interpreter to assist certain individuals. To ensure that VRI is
effective in situations where it is appropriate, the Department has established
performance standards in § 35.160(d).


SUBPART B—GENERAL REQUIREMENTS


SECTION 35.130(H) SAFETY.

Section 36.301(b) of the 1991 title III regulation provides that a public
accommodation “may impose legitimate safety requirements that are necessary for
safe operation. Safety requirements must be based on actual risks, and not on
mere speculation, stereotypes, or generalizations about individuals with
disabilities.” 28 CFR 36.301(b). Although the 1991 title II regulation did not
include similar language, the Department’s 1993 ADA Title II Technical
Assistance Manual at II–3.5200 makes clear the Department’s view that public
entities also have the right to impose legitimate safety requirements necessary
for the safe operation of services, programs, or activities. To ensure
consistency between the title II and title III regulations, the Department has
added a new § 35.130(h) in the final rule incorporating this longstanding
position relating to imposition of legitimate safety requirements.


SECTION 35.133 MAINTENANCE OF ACCESSIBLE FEATURES.

Section 35.133 in the 1991 title II regulation provides that a public entity
must maintain in operable working condition those features of facilities and
equipment that are required to be readily accessible to and usable by qualified
individuals with disabilities. See 28 CFR 35.133(a). In the NPRM, the Department
clarified the application of this provision and proposed one change to the
section to address the discrete situation in which the scoping requirements
provided in the 2010 Standards reduce the number of required elements below the
requirements of the 1991 Standards. In that discrete event, a public entity may
reduce such accessible features in accordance with the requirements in the 2010
Standards.

The Department received only four comments on this proposed amendment. None of
the commenters opposed the change. In the final rule, the Department has revised
the section to make it clear that if the 2010 Standards reduce either the
technical requirements or the number of required accessible elements below that
required by the 1991 Standards, then the public entity may reduce the technical
requirements or the number of accessible elements in a covered facility in
accordance with the requirements of the 2010 Standards.

One commenter urged the Department to amend § 35.133(b) to expand the language
of the section to restocking of shelves as a permissible activity for isolated
or temporary interruptions in service or access. It is the Department’s position
that a temporary interruption that blocks an accessible route, such as
restocking of shelves, is already permitted by § 35.133(b), which clarifies that
“isolated or temporary interruptions in service or access due to maintenance or
repairs” are permitted. Therefore, the Department will not make any additional
changes in the final rule to the language of § 35.133(b) other than those
discussed in the preceding paragraph.


SECTION 35.136 SERVICE ANIMALS.

The 1991 title II regulation states that “[a] public entity shall make
reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program or activity.” 28 CFR
130(b)(7). Unlike the title III regulation, the 1991 title II regulation did not
contain a specific provision addressing service animals.

In the NPRM, the Department stated the intention of providing the broadest
feasible access to individuals with disabilities and their service animals,
unless a public entity can demonstrate that making the modifications to policies
excluding animals would fundamentally alter the nature of the public entity’s
service, program, or activity. The Department proposed creating a new § 35.136
addressing service animals that was intended to retain the scope of the 1991
title III regulation at § 36.302(c), while clarifying the Department’s
longstanding policies and interpretations, as outlined in published technical
assistance, Commonly Asked Questions About Service Animals in Places of Business
(1996), available at http://archive.ada.gov/qasrvc.htm and ADA Guide for Small
Businesses (1999), available at http://archive.ada.gov/smbustxt.htm, and to add
that a public entity may exclude a service animal in certain circumstances where
the service animal fails to meet certain behavioral standards. The Department
received extensive comments in response to proposed § 35.136 from individuals,
disability advocacy groups, organizations involved in training service animals,
and public entities. Those comments and the Department’s response are discussed
below.

Exclusion of service animals. In the NPRM, the Department proposed incorporating
the title III regulatory language of § 36.302(c) into new § 35.136(a), which
states that “[g]enerally, a public entity shall modify its policies, practices,
or procedures to permit the use of a service animal by an individual with a
disability, unless the public entity can demonstrate that the use of a service
animal would fundamentally alter the public entity’s service, program, or
activity.” The final rule retains this language with some modifications.

In addition, in the NPRM, the Department proposed clarifying those circumstances
where otherwise eligible service animals may be excluded by public entities from
their programs or facilities. The Department proposed in § 35.136(b)(1) of the
NPRM that a public entity may ask an individual with a disability to remove a
service animal from a title II service, program, or activity if: “[t]he animal
is out of control and the animal’s handler does not take effective action to
control it.” 73 FR 34466, 34504 (June 17, 2008).

The Department has long held that a service animal must be under the control of
the handler at all times. Commenters overwhelmingly were in favor of this
language, but noted that there are occasions when service animals are provoked
to disruptive or aggressive behavior by agitators or troublemakers, as in the
case of a blind individual whose service dog is taunted or pinched. While all
service animals are trained to ignore and overcome these types of incidents,
misbehavior in response to provocation is not always unreasonable. In
circumstances where a service animal misbehaves or responds reasonably to a
provocation or injury, the public entity must give the handler a reasonable
opportunity to gain control of the animal. Further, if the individual with a
disability asserts that the animal was provoked or injured, or if the public
entity otherwise has reason to suspect that provocation or injury has occurred,
the public entity should seek to determine the facts and, if provocation or
injury occurred, the public entity should take effective steps to prevent
further provocation or injury, which may include asking the provocateur to leave
the public entity. This language is unchanged in the final rule.

The NPRM also proposed language at § 35.136(b)(2) to permit a public entity to
exclude a service animal if the animal is not housebroken (i.e., trained so
that, absent illness or accident, the animal controls its waste elimination) or
the animal’s presence or behavior fundamentally alters the nature of the service
the public entity provides (e.g., repeated barking during a live performance).
Several commenters were supportive of this NPRM language, but cautioned against
overreaction by the public entity in these instances. One commenter noted that
animals get sick, too, and that accidents occasionally happen. In these
circumstances, simple clean up typically addresses the incident. Commenters
noted that the public entity must be careful when it excludes a service animal
on the basis of “fundamental alteration,” asserting for example that a public
entity should not exclude a service animal for barking in an environment where
other types of noise, such as loud cheering or a child crying, is tolerated. The
Department maintains that the appropriateness of an exclusion can be assessed by
reviewing how a public entity addresses comparable situations that do not
involve a service animal. The Department has retained in § 35.136(b) of the
final rule the exception requiring animals to be housebroken. The Department has
not retained the specific NPRM language stating that animals can be excluded if
their presence or behavior fundamentally alters the nature of the service
provided by the public entity, because the Department believes that this
exception is covered by the general reasonable modification requirement
contained in § 35.130(b)(7).

The NPRM also proposed at § 35.136(b)(3) that a service animal can be excluded
where”[t]he animal poses a direct threat to the health or safety of others that
cannot be eliminated by reasonable modifications.” 73 FR 34466, 34504 (June 17,
2008). Commenters were universally supportive of this provision as it makes
express the discretion of a public entity to exclude a service animal that poses
a direct threat. Several commenters cautioned against the overuse of this
provision and suggested that the Department provide an example of the rule’s
application. The Department has decided not to include regulatory language
specifically stating that a service animal can be excluded if it poses a direct
threat. The Department believes that the addition of new§ 35.139, which
incorporates the language of the title III provisions at § 36.302 relating to
the general defense of direct threat, is sufficient to establish the
availability of this defense to public entities.

Access to a public entity following the proper exclusion of a service animal.
The NPRM proposed that in the event a public entity properly excludes a service
animal, the public entity must give the individual with a disability the
opportunity to access the programs, services, and facilities of the public
entity without the service animal. Most commenters welcomed this provision as a
common sense approach. These commenters noted that they do not wish to preclude
individuals with disabilities from the full and equal enjoyment of the State or
local government’s programs, services, or facilities, simply because of an
isolated problem with a service animal. The Department has elected to retain
this provision in § 35.136(a).

Other requirements. The NPRM also proposed that the regulation include the
following requirements: that the work or tasks performed by the service animal
must be directly related to the handler’s disability; that a service animal must
be individually trained to do work or perform a task, be housebroken, and be
under the control of the handler; and that a service animal must have a harness,
leash, or other tether. Most commenters addressed at least one of these issues
in their responses. Most agreed that these provisions are important to clarify
further the 1991 service animal regulation. The Department has moved the
requirement that the work or tasks performed by the service animal must be
related directly to the individual’s disability to the definition of “service
animal” in § 35.104. In addition, the Department has modified the proposed
language in § 35.136(d) relating to the handler’s control of the animal with a
harness, leash, or other tether to state that “[a] service animal shall have a
harness, leash, or other tether, unless either the handler is unable because of
a disability to use a harness, leash, or other tether, or the use of a harness,
leash, or other tether would interfere with the service animal’s safe, effective
performance of work or tasks, in which case the service animal must be otherwise
under the handler’s control (e.g._*, voice control, signals, or other effective
means).” The Department has retained the requirement that the service animal
must be individually trained (see Appendix A discussion of § 35.104, definition
of “service animal”), as well as the requirement that the service animal be
housebroken.

Responsibility for supervision and care of a service animal. The NPRM proposed
language at § 35.136(e) stating that “[a] public entity is not responsible for
caring for or supervising a service animal.” 73 FR 34466, 34504 (June 17, 2008).
Most commenters did not address this particular provision. The Department
recognizes that there are occasions when a person with a disability is confined
to bed in a hospital for a period of time. In such an instance, the individual
may not be able to walk or feed the service animal. In such cases, if the
individual has a family member, friend, or other person willing to take on these
responsibilities in the place of the individual with disabilities, the
individual’s obligation to be responsible for the care and supervision of the
service animal would be satisfied. The language of this section is retained,
with minor modifications, in § 35.136(e) of the final rule.

Inquiries about service animals. The NPRM proposed language at § 35.136(f)
setting forth parameters about how a public entity may determine whether an
animal qualifies as a service animal. The proposed section stated that a public
entity may ask if the animal is required because of a disability and what task
or work the animal has been trained to do but may not require proof of service
animal certification or licensing. Such inquiries are limited to eliciting the
information necessary to make a decision without requiring disclosure of
confidential disability-related information that a State or local government
entity does not need. This language is consistent with the policy guidance
outlined in two Department publications, Commonly Asked Questions about Service
Animals in Places of Business (1996), available at
http://archive.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, (1999),
available at http://archive.ada.gov/smbustxt.htm.

Although some commenters contended that the NPRM service animal provisions leave
unaddressed the issue of how a public entity can distinguish between a
psychiatric service animal, which is covered under the final rule, and a comfort
animal, which is not, other commenters noted that the Department’s published
guidance has helped public entities to distinguish between service animals and
pets on the basis of an individual’s response to these questions. Accordingly,
the Department has retained the NPRM language incorporating its guidance
concerning the permissible questions into the final rule.

Some commenters suggested that a title II entity be allowed to require current
documentation, no more than one year old, on letterhead from a mental health
professional stating the following: (1) That the individual seeking to use the
animal has a mental health-related disability; (2) that having the animal
accompany the individual is necessary to the individual’s mental health or
treatment or to assist the person otherwise; and (3) that the person providing
the assessment of the individual is a licensed mental health professional and
the individual seeking to use the animal is under that individual’s professional
care. These commenters asserted that this will prevent abuse and ensure that
individuals with legitimate needs for psychiatric service animals may use them.
The Department believes that this proposal would treat persons with psychiatric,
intellectual, and other mental disabilities less favorably than persons with
physical or sensory disabilities. The proposal would also require persons with
disabilities to obtain medical documentation and carry it with them any time
they seek to engage in ordinary activities of daily life in their communities—
something individuals without disabilities have not been required to do.
Accordingly, the Department has concluded that a documentation requirement of
this kind would be unnecessary, burdensome, and contrary to the spirit, intent,
and mandates of the ADA.

Areas of a public entity open to the public, participants in services, programs,
or activities, or invitees. The NPRM proposed at § 35.136(g) that an individual
with a disability who uses a service animal has the same right of access to
areas of a title II entity as members of the public, participants in services,
programs, or activities, or invitees. Commenters indicated that allowing
individuals with disabilities to go with their service animals into the same
areas as members of the public, participants in programs, services, or
activities, or invitees is accepted practice by most State and local government
entities. The Department has included a slightly modified version of this
provision in § 35.136(g) of the final rule.

The Department notes that under the final rule, a healthcare facility must also
permit a person with a disability to be accompanied by a service animal in all
areas of the facility in which that person would otherwise be allowed. There are
some exceptions, however. The Department follows the guidance of the Centers for
Disease Control and Prevention (CDC) on the use of service animals in a hospital
setting. Zoonotic diseases can be transmitted to humans through bites,
scratches, direct contact, arthropod vectors, or aerosols.

Consistent with CDC guidance, it is generally appropriate to exclude a service
animal from limited-access areas that employ general infection-control measures,
such as operating rooms and burn units. See Centers for Disease Control and
Prevention, Guidelines for Environmental Infection Control in Health-Care
Facilities: Recommendations of CDC and the Healthcare Infection Control
Practices Advisory Committee (June 2003), available at
http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited June
24, 2010). A service animal may accompany its handler to such areas as
admissions and discharge offices, the emergency room, inpatient and outpatient
rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas,
the cafeteria and vending areas, the pharmacy, restrooms, and all other areas of
the facility where healthcare personnel, patients, and visitors are permitted
without added precaution.

Prohibition against surcharges for use of a service animal. In the NPRM, the
Department proposed to incorporate the previously mentioned policy guidance,
which prohibits the assessment of a surcharge for the use of a service animal,
into proposed § 35.136(h). Several commenters agreed that this provision makes
clear the obligation of a public entity to admit an individual with a service
animal without surcharges, and that any additional costs imposed should be
factored into the overall cost of administering a program, service, or activity,
and passed on as a charge to all participants, rather than an individualized
surcharge to the service animal user. Commenters also noted that service animal
users cannot be required to comply with other requirements that are not
generally applicable to other persons. If a public entity normally charges
individuals for the damage they cause, an individual with a disability may be
charged for damage caused by his or her service animal. The Department has
retained this language, with minor modifications, in the final rule at §
35.136(h).

Training requirement. Certain commenters recommended the adoption of formal
training requirements for service animals. The Department has rejected this
approach and will not impose any type of formal training requirements or
certification process, but will continue to require that service animals be
individually trained to do work or perform tasks for the benefit of an
individual with a disability. While some groups have urged the Department to
modify this position, the Department has determined that such a modification
would not serve the full array of individuals with disabilities who use service
animals, since individuals with disabilities may be capable of training, and
some have trained, their service animal to perform tasks or do work to
accommodate their disability. A training and certification requirement would
increase the expense of acquiring a service animal and might limit access to
service animals for individuals with limited financial resources.

Some commenters proposed specific behavior or training standards for service
animals, arguing that without such standards, the public has no way to
differentiate between untrained pets and service animals. Many of the suggested
behavior or training standards were lengthy and detailed. The Department
believes that this rule addresses service animal behavior sufficiently by
including provisions that address the obligations of the service animal user and
the circumstances under which a service animal may be excluded, such as the
requirements that an animal be housebroken and under the control of its handler.

Miniature horses. The Department has been persuaded by commenters and the
available research to include a provision that would require public entities to
make reasonable modifications to policies, practices, or procedures to permit
the use of a miniature horse by a person with a disability if the miniature
horse has been individually trained to do work or perform tasks for the benefit
of the individual with a disability. The traditional service animal is a dog,
which has a long history of guiding individuals who are blind or have low
vision, and over time dogs have been trained to perform an even wider variety of
services for individuals with all types of disabilities. However, an
organization that developed a program to train miniature horses, modeled on the
program used for guide dogs, began training miniature horses in 1991.

Although commenters generally supported the species limitations proposed in the
NPRM, some were opposed to the exclusion of miniature horses from the definition
of a service animal. These commenters noted that these animals have been
providing assistance to persons with disabilities for many years. Miniature
horses were suggested by some commenters as viable alternatives to dogs for
individuals with allergies, or for those whose religious beliefs preclude the
use of dogs. Another consideration mentioned in favor of the use of miniature
horses is the longer life span and strength of miniature horses in comparison to
dogs. Specifically, miniature horses can provide service for more than 25 years
while dogs can provide service for approximately 7 years, and, because of their
strength, miniature horses can provide services that dogs cannot provide.
Accordingly, use of miniature horses reduces the cost involved to retire,
replace, and train replacement service animals.

The miniature horse is not one specific breed, but may be one of several breeds,
with distinct characteristics that produce animals suited to service animal
work. The animals generally range in height from 24 inches to 34 inches measured
to the withers, or shoulders, and generally weigh between 70 and 100 pounds.
These characteristics are similar to those of large breed dogs such as Labrador
Retrievers, Great Danes, and Mastiffs. Similar to dogs, miniature horses can be
trained through behavioral reinforcement to be “housebroken.” Most miniature
service horse handlers and organizations recommend that when the animals are not
doing work or performing tasks, the miniature horses should be kept outside in a
designated area, instead of indoors in a house.

According to information provided by an organization that trains service horses,
these miniature horses are trained to provide a wide array of services to their
handlers, primarily guiding individuals who are blind or have low vision,
pulling wheelchairs, providing stability and balance for individuals with
disabilities that impair the ability to walk, and supplying leverage that
enables a person with a mobility disability to get up after a fall. According to
the commenter, miniature horses are particularly effective for large stature
individuals. The animals can be trained to stand (and in some cases, lie down)
at the handler’s feet in venues where space is at a premium, such as assembly
areas or inside some vehicles that provide public transportation. Some
individuals with disabilities have traveled by train and have flown commercially
with their miniature horses.

The miniature horse is not included in the definition of service animal, which
is limited to dogs. However, the Department has added a specific provision at §
35.136(i) of the final rule covering miniature horses. Under this provision, a
public entity must make reasonable modifications in policies, practices, or
procedures to permit the use of a miniature horse by an individual with a
disability if the miniature horse has been individually trained to do work or
perform tasks for the benefit of the individual with a disability. The public
entity may take into account a series of assessment factors in determining
whether to allow a miniature horse into a specific facility. These include the
type, size, and weight of the miniature horse; whether the handler has
sufficient control of the miniature horse; whether the miniature horse is
housebroken; and whether the miniature horse’s presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
operation. In addition, paragraphs (c)–(h) of this section, which are applicable
to dogs, also apply to miniature horses.

Ponies and full-size horses are not covered by § 35.136(i). Also, because
miniature horses can vary in size and can be larger and less flexible than dogs,
covered entities may exclude this type of service animal if the presence of the
miniature horse, because of its larger size and lower level of flexibility,
results in a fundamental alteration to the nature of the programs activities, or
services provided.


SECTION 35.137 MOBILITY DEVICES.

Section 35.137 of the NPRM clarified the scope and circumstances under which
covered entities are legally obligated to accommodate various “mobility
devices.” Section 35.137 set forth specific requirements for the accommodation
of “mobility devices,” including wheelchairs, manually-powered mobility aids,
and other power-driven mobility devices.

In both the NPRM and the final rule, § 35.137(a) states the general rule that in
any areas open to pedestrians, public entities shall permit individuals with
mobility disabilities to use wheelchairs and manually-powered mobility aids,
including walkers, crutches, canes, braces, or similar devices. Because mobility
scooters satisfy the definition of “wheelchair” (i.e., “manually-operated or
power-driven device designed primarily for use by an individual with a mobility
disability for the main purpose of indoor, or of both indoor and outdoor
locomotion”), the reference to them in § 35.137(a) of the final rule has been
omitted to avoid redundancy.

Some commenters expressed concern that permitting the use of other power-driven
mobility devices by individuals with mobility disabilities would make such
devices akin to wheelchairs and would require them to make physical changes to
their facilities to accommodate their use. This concern is misplaced. If a
facility complies with the applicable design requirements in the 1991 Standards
or the 2010 Standards, the public entity will not be required to exceed those
standards to accommodate the use of wheelchairs or other power-driven mobility
devices that exceed those requirements.

Legal standard for other power-driven mobility devices. The NPRM version of §
35.137(b) provided that “[a] public entity shall make reasonable modifications
in its policies, practices, and procedures to permit the use of other
power-driven mobility devices by individuals with disabilities, unless the
public entity can demonstrate that the use of the device is not reasonable or
that its use will result in a fundamental alteration in the public entity’s
service, program, or activity.” 73 FR 34466, 34505 (June 17, 2008). In other
words, public entities are by default required to permit the use of other
power-driven mobility devices; the burden is on them to prove the existence of a
valid exception.

Most commenters supported the notion of assessing whether the use of a
particular device is reasonable in the context of a particular venue.
Commenters, however, disagreed about the meaning of the word “reasonable” as it
is used in § 35.137(b) of the NPRM. Advocacy and nonprofit groups almost
universally objected to the use of a general reasonableness standard with regard
to the assessment of whether a particular device should be allowed at a
particular venue. They argued that the assessment should be based on whether
reasonable modifications could be made to allow a particular device at a
particular venue, and that the only factors that should be part of the calculus
that results in the exclusion of a particular device are undue burden, direct
threat, and fundamental alteration.

A few commenters opposed the proposed provision requiring public entities to
assess whether reasonable modifications can be made to allow other power-driven
mobility devices, preferring instead that the Department issue guidance
materials so that public entities would not have to incur the cost of such
analyses. Another commenter noted a “fox guarding the hen house”-type of concern
with regard to public entities developing and enforcing their own modification
policy.

In response to comments received, the Department has revised § 35.137(b) to
provide greater clarity regarding the development of legitimate safety
requirements regarding other power-driven mobility devices and has added a new §
35.130(h) (Safety) to the title II regulation which specifically permits public
entities to impose legitimate safety requirements necessary for the safe
operation of their services, programs, and activities. (See discussion below.)
The Department has not retained the proposed NPRM language stating that an other
power-driven mobility device can be excluded if a public entity can demonstrate
that its use is unreasonable or will result in a fundamental alteration of the
entity’s service, program, or activity, because the Department believes that
this exception is covered by the general reasonable modification requirement
contained in § 35.130(b)(7).

Assessment factors. Section 35.137(c) of the NPRM required public entities to
“establish policies to permit the use of other power-driven mobility devices”
and articulated four factors upon which public entities must base decisions as
to whether a modification is reasonable to allow the use of a class of other
power-driven mobility devices by individuals with disabilities in specific
venues (e.g., parks, courthouses, office buildings, etc.). 73 FR 34466, 34504
(June 17, 2008).

The Department has relocated and modified the NPRM text that appeared in §
35.137(c) to new paragraph § 35.137(b)(2) to clarify what factors the public
entity shall use in determining whether a particular other power-driven mobility
device can be allowed in a specific facility as a reasonable modification.
Section 35.137(b)(2) now states that “[i]n determining whether a particular
other power-driven mobility device can be allowed in a specific facility as a
reasonable modification under (b)(1), a public entity shall consider” certain
enumerated factors. The assessment factors are designed to assist public
entities in determining whether allowing the use of a particular other
power-driven mobility device in a specific facility is reasonable. Thus, the
focus of the analysis must be on the appropriateness of the use of the device at
a specific facility, rather than whether it is necessary for an individual to
use a particular device.

The NPRM proposed the following specific assessment factors: (1) The dimensions,
weight, and operating speed of the mobility device in relation to a wheelchair;
(2) the potential risk of harm to others by the operation of the mobility
device; (3) the risk of harm to the environment or natural or cultural resources
or conflict with Federal land management laws and regulations; and (4) the
ability of the public entity to stow the mobility device when not in use, if
requested by the user.

Factor 1 was designed to help public entities assess whether a particular device
was appropriate, given its particular physical features, for a particular
location. Virtually all commenters said the physical features of the device
affected their view of whether a particular device was appropriate for a
particular location. For example, while many commenters supported the use of
another power-driven mobility device if the device were a Segway® PT, because of
environmental and health concerns they did not offer the same level of support
if the device were an off-highway vehicle, all-terrain vehicle (ATV), golf car,
or other device with a fuel-powered or combustion engine. Most commenters noted
that indicators such as speed, weight, and dimension really were an assessment
of the appropriateness of a particular device in specific venues and suggested
that factor 1 say this more specifically.

The term “in relation to a wheelchair” in the NPRM’s factor 1 apparently created
some concern that the same legal standards that apply to wheelchairs would be
applied to other power-driven mobility devices. The Department has omitted the
term “in relation to a wheelchair” from § 35.137(b)(2)(i) to clarify that if a
facility that is in compliance with the applicable provisions of the 1991
Standards or the 2010 Standards grants permission for an other power-driven
mobility device to go on-site, it is not required to exceed those standards to
accommodate the use of other power-driven mobility devices.

In response to requests that NPRM factor 1 state more specifically that it
requires an assessment of an other power-driven mobility device’s
appropriateness under particular circumstances or in particular venues, the
Department has added several factors and more specific language. In addition,
although the NPRM made reference to the operation of other power-driven mobility
devices in “specific venues,” the Department’s intent is captured more clearly
by referencing “specific facility” in paragraph (b)(2). The Department also
notes that while speed is included in factor 1, public entities should not rely
solely on a device’s top speed when assessing whether the device can be
accommodated; instead, public entities should also consider the minimum speeds
at which a device can be operated and whether the development of speed limit
policies can be established to address concerns regarding the speed of the
device. Finally, since the ability of the public entity to stow the mobility
device when not in use is an aspect of its design and operational
characteristics, the text proposed as factor 4 in the NPRM has been incorporated
in paragraph (b)(2)(iii).

The NPRM’s version of factor 2 provided that the “risk of potential harm to
others by the operation of the mobility device” is one of the determinants in
the assessment of whether other power-driven mobility devices should be excluded
from a site. The Department intended this requirement to be consistent with the
Department’s longstanding interpretation, expressed in § II–3.5200 (Safety) of
the 1993 Title II Technical Assistance Manual, which provides that public
entities may “impose legitimate safety requirements that are necessary for safe
operation.” (This language parallels the provision in the title III regulation
at § 36.301(b).) However, several commenters indicated that they read this
language, particularly the phrase “risk of potential harm,” to mean that the
Department had adopted a concept of risk analysis different from that which is
in the existing standards. The Department did not intend to create a new
standard and has changed the language in paragraphs (b)(1) and (b)(2) to clarify
the applicable standards, thereby avoiding the introduction of new assessments
of risk beyond those necessary for the safe operation of the public entity. In
addition, the Department has added a new section, 35.130(h), which incorporates
the existing safety standard into the title II regulation.

While all applicable affirmative defenses are available to public entities in
the establishment and execution of their policies regarding other power-driven
mobility devices, the Department did not explicitly incorporate the direct
threat defense into the assessment factors because § 35.130(h) provides public
entities the appropriate framework with which to assess whether legitimate
safety requirements that may preclude the use of certain other power-driven
mobility devices are necessary for the safe operation of the public entities. In
order to be legitimate, the safety requirement must be based on actual risks and
not mere speculation regarding the device or how it will be operated. Of course,
public entities may enforce legitimate safety rules established by the public
entity for the operation of other power-driven mobility devices (e.g.,
reasonable speed restrictions). Finally, NPRM factor 3 concerning environmental
resources and conflicts of law has been relocated to § 35.137(b)(2)(v).

As a result of these comments and requests, NPRM factors 1, 2, 3, and 4 have
been revised and renumbered within paragraph (b)(2) in the final rule.

Several commenters requested that the Department provide guidance materials or
more explicit concepts of which considerations might be appropriate for
inclusion in a policy that allows the use of other power-driven mobility
devices. A public entity that has determined that reasonable modifications can
be made in its policies, practices, or procedures to allow the use of other
power-driven mobility devices should develop a policy that clearly states the
circumstances under which the use of other power-driven mobility devices by
individuals with a mobility disability will be permitted. It also should include
clear, concise statements of specific rules governing the operation of such
devices. Finally, the public entity should endeavor to provide individuals with
disabilities who use other power-driven mobility devices with advanced notice of
its policy regarding the use of such devices and what rules apply to the
operation of these devices.

For example, the U.S. General Services Administration (GSA) has developed a
policy allowing the use of the Segway® PT and other EPAMDs in all Federal
buildings under GSA’s jurisdiction. See General Services Administration, Interim
Segway® Personal Transporter Policy (Dec. 3, 2007), available at
http://www.gsa.gov/graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited
June 24, 2010). The GSA policy defines the policy’s scope of coverage by setting
out what devices are and are not covered by the policy. The policy also sets out
requirements for safe operation, such as a speed limit, prohibits the use of
EPAMDs on escalators, and provides guidance regarding security screening of
these devices and their operators.

A public entity that determines that it can make reasonable modifications to
permit the use of an other power-driven mobility device by an individual with a
mobility disability might include in its policy the procedure by which claims
that the other power-driven mobility device is being used for a mobility
disability will be assessed for legitimacy (i.e., a credible assurance that the
device is being used for a mobility disability, including a verbal
representation by the person with a disability that is not contradicted by
observable fact, or the presentation of a disability parking space placard or
card, or State-issued proof of disability); the type or classes of other
power-driven mobility devices are permitted to be used by individuals with
mobility disabilities; the size, weight, and dimensions of the other
power-driven mobility devices that are permitted to be used by individuals with
mobility disabilities; the speed limit for the other power-driven mobility
devices that are permitted to be used by individuals with mobility disabilities;
the places, times, or circumstances under which the use of the other
power-driven mobility device is or will be restricted or prohibited; safety,
pedestrian, and other rules concerning the use of the other power-driven
mobility device; whether, and under which circumstances, storage for the other
power-driven mobility device will be made available; and how and where
individuals with a mobility disability can obtain a copy of the other
power-driven mobility device policy.

Public entities also might consider grouping other power-driven mobility devices
by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, and other devices).
For example, an amusement park may determine that it is reasonable to allow
individuals with disabilities to use EPAMDs in a variety of outdoor programs and
activities, but that it would not be reasonable to allow the use of golf cars as
mobility devices in similar circumstances. At the same time, the entity may
address its concerns about factors such as space limitations by disallowing use
of EPAMDs by members of the general public who do not have mobility
disabilities.

The Department anticipates that, in many circumstances, public entities will be
able to develop policies that will allow the use of other power-driven mobility
devices by individuals with mobility disabilities. Consider the following
example:

A county courthouse has developed a policy whereby EPAMDs may be operated in the
pedestrian areas of the courthouse if the operator of the device agrees not to
operate the device faster than pedestrians are walking; to yield to pedestrians;
to provide a rack or stand so that the device can stand upright; and to use the
device only in courtrooms that are large enough to accommodate such devices. If
the individual is selected for jury duty in one of the smaller courtrooms, the
county’s policy indicates that if it is not possible for the individual with the
disability to park the device and walk into the courtroom, the location of the
trial will be moved to a larger courtroom.

Inquiry into the use of other power-driven mobility device. The NPRM version of
§ 35.137(d) provided that “[a] public entity may ask a person using a
power-driven mobility device if the mobility device is needed due to the
person’s disability. A public entity shall not ask a person using a mobility
device questions about the nature and extent of the person’s disability.” 73 FR
34466, 34504 (June 17, 2008).

Many environmental, transit system, and government commenters expressed concern
about people feigning mobility disabilities to be able to use other power-driven
mobility devices in public entities in which their use is otherwise restricted.
These commenters felt that a mere inquiry into whether the device is being used
for a mobility disability was an insufficient mechanism by which to detect fraud
by other power-driven mobility device users who do not have mobility
disabilities. These commenters believed they should be given more latitude to
make inquiries of other power-driven mobility device users claiming a mobility
disability than they would be given for wheelchair users. They sought the
ability to establish a policy or method by which public entities may assess the
legitimacy of the mobility disability. They suggested some form of
certification, sticker, or other designation. One commenter suggested a
requirement that a sticker bearing the international symbol for accessibility be
placed on the device or that some other identification be required to signal
that the use of the device is for a mobility disability. Other suggestions
included displaying a disability parking placard on the device or issuing
EPAMDs, like the Segway® PT, a permit that would be similar to permits
associated with parking spaces reserved for those with disabilities.

Advocacy, nonprofit, and several individual commenters balked at the notion of
allowing any inquiry beyond whether the device is necessary for a mobility
disability and encouraged the Department to retain the NPRM’s language on this
topic. Other commenters, however, were empathetic with commenters who had
concerns about fraud. At least one Segway® PT advocate suggested it would be
permissible to seek documentation of the mobility disability in the form of a
simple sign or permit.

The Department has sought to find common ground by balancing the needs of public
entities and individuals with mobility disabilities wishing to use other
power-driven mobility devices with the Department’s longstanding,
well-established policy of not allowing public entities or establishments to
require proof of a mobility disability. There is no question that public
entities have a legitimate interest in ferreting out fraudulent representations
of mobility disabilities, especially given the recreational use of other
power-driven mobility devices and the potential safety concerns created by
having too many such devices in a specific facility at one time. However, the
privacy of individuals with mobility disabilities and respect for those
individuals, is also vitally important.

Neither § 35.137(d) of the NPRM nor § 35.137(c) of the final rule permits
inquiries into the nature of a person’s mobility disability. However, the
Department does not believe it is unreasonable or overly intrusive for an
individual with a mobility disability seeking to use an other power-driven
mobility device to provide a credible assurance to verify that the use of the
other power-driven mobility device is for a mobility disability. The Department
sought to minimize the amount of discretion and subjectivity exercised by public
entities in assessing whether an individual has a mobility disability and to
allow public entities to verify the existence of a mobility disability. The
solution was derived from comments made by several individuals who said they
have been admitted with their Segway® PTs into public entities and public
accommodations that ordinarily do not allow these devices on-site when they have
presented or displayed State-issued disability parking placards. In the examples
provided by commenters, the parking placards were accepted as verification that
the Segway® PTs were being used as mobility devices.

Because many individuals with mobility disabilities avail themselves of State
programs that issue disability parking placards or cards and because these
programs have penalties for fraudulent representations of identity and
disability, utilizing the parking placard system as a means to establish the
existence of a mobility disability strikes a balance between the need for
privacy of the individual and fraud protection for the public entity.
Consequently, the Department has decided to include regulatory text in §
35.137(c)(2) of the final rule that requires public entities to accept the
presentation of a valid, State-issued disability parking placard or card, or
State-issued proof of disability, as verification that an individual uses the
other power-driven mobility device for his or her mobility disability. A “valid”
disability placard or card is one that is presented by the individual to whom it
was issued and is otherwise in compliance with the State of issuance’s
requirements for disability placards or cards. Public entities are required to
accept a valid, State-issued disability parking placard or card, or State-issued
proof of disability as a credible assurance, but they cannot demand or require
the presentation of a valid disability placard or card, or State-issued proof of
disability, as a prerequisite for use of an other power-driven mobility device,
because not all persons with mobility disabilities have such means of proof. If
an individual with a mobility disability does not have such a placard or card,
or State-issued proof of disability, he or she may present other information
that would serve as a credible assurance of the existence of a mobility
disability.

In lieu of a valid, State-issued disability parking placard or card, or
State-issued proof of disability, a verbal representation, not contradicted by
observable fact, shall be accepted as a credible assurance that the other
power-driven mobility device is being used because of a mobility disability.
This does not mean, however, that a mobility disability must be observable as a
condition for allowing the use of an other power-driven mobility device by an
individual with a mobility disability, but rather that if an individual
represents that a device is being used for a mobility disability and that
individual is observed thereafter engaging in a physical activity that is
contrary to the nature of the represented disability, the assurance given is no
longer credible and the individual may be prevented from using the device.

Possession of a valid, State-issued disability parking placard or card or a
verbal assurance does not trump a public entity’s valid restrictions on the use
of other power-driven mobility devices. Accordingly, a credible assurance that
the other power-driven mobility device is being used because of a mobility
disability is not a guarantee of entry to a public entity because,
notwithstanding such credible assurance, use of the device in a particular venue
may be at odds with the legal standard in § 35.137(b)(1) or with one or more of
the § 35.137(b)(2) factors. Only after an individual with a disability has
satisfied all of the public entity’s policies regarding the use of other
power-driven mobility devices does a credible assurance become a factor in
allowing the use of the device. For example, if an individual seeking to use an
other power-driven mobility device fails to satisfy any of the public entity’s
stated policies regarding the use of other power-driven mobility devices, the
fact that the individual legitimately possesses and presents a valid,
State-issued disability parking placard or card, or State-issued proof of
disability, does not trump the policy and require the public entity to allow the
use of the device. In fact, in some instances, the presentation of a
legitimately held placard or card, or State-issued proof of disability, will
have no relevance or bearing at all on whether the other power-driven mobility
device may be used, because the public entity’s policy does not permit the
device in question on-site under any circumstances (e.g., because its use would
create a substantial risk of serious harm to the immediate environment or
natural or cultural resources). Thus, an individual with a mobility disability
who presents a valid disability placard or card, or State-issued proof of
disability, will not be able to use an ATV as an other power-driven mobility
device in a State park if the State park has adopted a policy banning their use
for any or all of the above-mentioned reasons. However, if a public entity
permits the use of a particular other power-driven mobility device, it cannot
refuse to admit an individual with a disability who uses that device if the
individual has provided a credible assurance that the use of the device is for a
mobility disability.


SECTION 35.138 TICKETING

The 1991 title II regulation did not contain specific regulatory language on
ticketing. The ticketing policies and practices of public entities, however, are
subject to title II’s nondiscrimination provisions. Through the investigation of
complaints, enforcement actions, and public comments related to ticketing, the
Department became aware that some venue operators, ticket sellers, and
distributors were violating title II’s nondiscrimination mandate by not
providing individuals with disabilities the same opportunities to purchase
tickets for accessible seating as they provided to spectators purchasing
conventional seats. In the NPRM, the Department proposed § 35.138 to provide
explicit direction and guidance on discriminatory practices for entities
involved in the sale or distribution of tickets.

The Department received comments from advocacy groups, assembly area trade
associations, public entities, and individuals. Many commenters supported the
addition of regulatory language pertaining to ticketing and urged the Department
to retain it in the final rule. Several commenters, however, questioned why
there were inconsistencies between the title II and title III provisions and
suggested that the same language be used for both titles. The Department has
decided to retain ticketing regulatory language and to ensure consistency
between the ticketing provisions in title II and title III.

Because many in the ticketing industry view season tickets and other multi-event
packages differently from individual tickets, the Department bifurcated some
season ticket provisions from those concerning single-event tickets in the NPRM.
This structure, however, resulted in some provisions being repeated for both
types of tickets but not for others even though they were intended to apply to
both types of tickets. The result was that it was not entirely clear that some
of the provisions that were not repeated also were intended to apply to season
tickets. The Department is addressing the issues raised by these commenters
using a different approach. For the purposes of this section, a single event
refers to an individual performance for which tickets may be purchased. In
contrast, a series of events includes, but is not limited to, subscription
events, event packages, season tickets, or any other tickets that may be
purchased for multiple events of the same type over the course of a specified
period of time whose ownership right reverts to the public entity at the end of
each season or time period. Series-of-events tickets that give their holders an
enhanced ability to purchase such tickets from the public entity in seasons or
periods of time that follow, such as a right of first refusal or higher ranking
on waiting lists for more desirable seats, are subject to the provisions in this
section. In addition, the final rule merges together some NPRM paragraphs that
dealt with related topics and has reordered and renamed some of the paragraphs
that were in the NPRM.

Ticket sales. In the NPRM, the Department proposed, in § 35.138(a), a general
rule that a public entity shall modify its policies, practices, or procedures to
ensure that individuals with disabilities can purchase tickets for accessible
seating for an event or series of events in the same way as others (i.e., during
the same hours and through the same distribution methods as other seating is
sold). 73 FR 34466, 34504 (June 17, 2008). “Accessible seating” is defined in §
35.138(a)(1) of the final rule to mean “wheelchair spaces and companion seats
that comply with sections 221 and 802 of the 2010 Standards along with any other
seats required to be offered for sale to the individual with a disability
pursuant to paragraph (d) of this section.” The defined term does not include
designated aisle seats. A “wheelchair space” refers to a space for a single
wheelchair and its occupant.

The NPRM proposed requiring that accessible seats be sold through the “same
methods of distribution” as non-accessible seats. Comments from venue managers
and others in the business community, in general, noted that multiple parties
are involved in ticketing, and because accessible seats may not be allotted to
all parties involved at each stage, such parties should be protected from
liability. For example, one commenter noted that a third-party ticket vendor,
like Ticketmaster, can only sell the tickets it receives from its client.
Because § 35.138(a)(2)(iii) of the final rule requires venue operators to make
available accessible seating through the same methods of distribution they use
for their regular tickets, venue operators that provide tickets to third-party
ticket vendors are required to provide accessible seating to the third-party
ticket vendor. This provision will enhance third-party ticket vendors’ ability
to acquire and sell accessible seating for sale in the future. The Department
notes that once third-party ticket vendors acquire accessible tickets, they are
obligated to sell them in accordance with these rules.

The Department also has received frequent complaints that individuals with
disabilities have not been able to purchase accessible seating over the
Internet, and instead have had to engage in a laborious process of calling a
customer service line, or sending an e-mail to a customer service representative
and waiting for a response. Not only is such a process burdensome, but it puts
individuals with disabilities at a disadvantage in purchasing tickets for events
that are popular and may sell out in minutes. Because § 35.138(e) of the final
rule authorizes venues to release accessible seating in case of a sellout,
individuals with disabilities effectively could be cut off from buying tickets
unless they also have the ability to purchase tickets in real time over the
Internet. The Department’s new regulatory language is designed to address this
problem.

Several commenters representing assembly areas raised concerns about offering
accessible seating for sale over the Internet. They contended that this approach
would increase the incidence of fraud since anyone easily could purchase
accessible seating over the Internet. They also asserted that it would be
difficult technologically to provide accessible seating for sale in real time
over the Internet, or that to do so would require simplifying the rules
concerning the purchase of multiple additional accompanying seats. Moreover,
these commenters argued that requiring an individual purchasing accessible
seating to speak with a customer service representative would allow the venue to
meet the patron’s needs most appropriately and ensure that wheelchair spaces are
reserved for individuals with disabilities who require wheelchair spaces.
Finally, these commenters argued that individuals who can transfer effectively
and conveniently from a wheelchair to a seat with a movable armrest seat could
instead purchase designated aisle seats.

The Department considered these concerns carefully and has decided to continue
with the general approach proposed in the NPRM. Although fraud is an important
concern, the Department believes that it is best combated by other means that
would not have the effect of limiting the ability of individuals with
disabilities to purchase tickets, particularly since restricting the purchase of
accessible seating over the Internet will, of itself, not curb fraud. In
addition, the Department has identified permissible means for covered entities
to reduce the incidence of fraudulent accessible seating ticket purchases in §
35.138(h) of the final rule.

Several commenters questioned whether ticket websites themselves must be
accessible to individuals who are blind or have low vision, and if so, what that
requires. The Department has consistently interpreted the ADA to cover websites
that are operated by public entities and stated that such sites must provide
their services in an accessible manner or provide an accessible alternative to
the website that is available 24 hours a day, seven days a week. The final rule,
therefore, does not impose any new obligation in this area. The accessibility of
websites is discussed in more detail in the section of Appendix A entitled
“Other Issues.”

In § 35.138(b) of the NPRM, the Department also proposed requiring public
entities to make accessible seating available during all stages of tickets sales
including, but not limited to, pre-sales, promotions, lotteries, waitlists, and
general sales. For example, if tickets will be presold for an event that is open
only to members of a fan club, or to holders of a particular credit card, then
tickets for accessible seating must be made available for purchase through those
means. This requirement does not mean that any individual with a disability
would be able to purchase those seats. Rather, it means that an individual with
a disability who meets the requirement for such a sale (e.g., who is a member of
the fan club or holds that credit card) will be able to participate in the
special promotion and purchase accessible seating. The Department has maintained
the substantive provisions of the NPRM’s § 35.138(a) and (b) but has combined
them in a single paragraph at § 35.138(a)(2) of the final rule so that all of
the provisions having to do with the manner in which tickets are sold are
located in a single paragraph.

Identification of available accessible seating. In the NPRM, the Department
proposed § 35.138(c), which, as modified and renumbered as paragraph (b)(3) in
the final rule, requires a facility to identify available accessible seating
through seating maps, brochures, or other methods if that information is made
available about other seats sold to the general public. This rule requires
public entities to provide information about accessible seating to the same
degree of specificity that it provides information about general seating. For
example, if a seating map displays color-coded blocks pegged to prices for
general seating, then accessible seating must be similarly color-coded.
Likewise, if covered entities provide detailed maps that show exact seating and
pricing for general seating, they must provide the same for accessible seating.

The NPRM did not specify a requirement to identify prices for accessible
seating. The final rule requires that if such information is provided for
general seating, it must be provided for accessible seating as well.

In the NPRM, the Department proposed in § 35.138(d) that a public entity, upon
being asked, must inform persons with disabilities and their companions of the
locations of all unsold or otherwise available seating. This provision is
intended to prevent the practice of “steering” individuals with disabilities to
certain accessible seating so that the facility can maximize potential ticket
sales by releasing unsold accessible seating, especially in preferred or
desirable locations, for sale to the general public. The Department received no
significant comment on this proposal. The Department has retained this provision
in the final rule but has added it, with minor modifications, to § 35.138(b) as
paragraph (1).

Ticket prices. In the NPRM, the Department proposed § 35.138(e) requiring that
ticket prices for accessible seating be set no higher than the prices for other
seats in that seating section for that event. The NPRM’s provision also required
that accessible seating be made available at every price range, and if an
existing facility has barriers to accessible seating within a particular price
range, a proportionate amount of seating (determined by the ratio of the total
number of seats at that price level to the total number of seats in the assembly
area) must be offered in an accessible location at that same price. Under this
rule, for example, if a public entity has a 20,000- seat facility built in 1980
with inaccessible seating in the $20-price category, which is on the upper deck,
and it chooses not to put accessible seating in that section, then it must place
a proportionate number of seats in an accessible location for $20. If the upper
deck has 2,000 seats, then the facility must place 10 percent of its accessible
seating in an accessible location for $20 provided that it is part of a seating
section where ticket prices are equal to or more than $20—a facility may not
place the $20-accessible seating in a $10-seating section. The Department
received no significant comment on this rule, and it has been retained, as
amended, in the final rule in § 35.138(c).

Purchase of multiple tickets. In the NPRM, the Department proposed § 35.138(i)
to address one of the most common ticketing complaints raised with the
Department: That individuals with disabilities are not able to purchase more
than two tickets. The Department proposed this provision to facilitate the
ability of individuals with disabilities to attend events with friends,
companions, or associates who may or may not have a disability by enabling
individuals with disabilities to purchase the maximum number of tickets allowed
per transaction to other spectators; by requiring venues to place accompanying
individuals in general seating as close as possible to accessible seating (in
the event that a group must be divided because of the large size of the group);
and by allowing an individual with a disability to purchase up to three
additional contiguous seats per wheelchair space if they are available at the
time of sale. Section 35.138(i)(2) of the NPRM required that a group containing
one or more wheelchair users must be placed together, if possible, and that in
the event that the group could not be placed together, the individuals with
disabilities may not be isolated from the rest of the group.

The Department asked in the NPRM whether this rule was sufficient to effectuate
the integration of individuals with disabilities. Many advocates and individuals
praised it as a welcome and much-needed change, stating that the trade-off of
being able to sit with their family or friends was worth reducing the number of
seats available for individuals with disabilities. Some commenters went one step
further and suggested that the number of additional accompanying seats should
not be restricted to three.

Although most of the substance of the proposed provision on the purchase of
multiple tickets has been maintained in the final rule, it has been renumbered
as § 35.138(d), reorganized, and supplemented. To preserve the availability of
accessible seating for other individuals with disabilities, the Department has
not expanded the rule beyond three additional contiguous seats. Section
35.138(d)(1) of the final rule requires public entities to make available for
purchase three additional tickets for seats in the same row that are contiguous
with the wheelchair space provided that at the time of the purchase there are
three such seats available. The requirement that the additional seats be
“contiguous with the wheelchair space” does not mean that each of the additional
seats must be in actual contact or have a border in common with the wheelchair
space; however, at least one of the additional seats should be immediately
adjacent to the wheelchair space. The Department recognizes that it will often
be necessary to use vacant wheelchair spaces to provide for contiguous seating.

The Department has added paragraphs (d)(2) and (d)(3) to clarify that in
situations where there are insufficient unsold seats to provide three additional
contiguous seats per wheelchair space or a ticket office restricts sales of
tickets to a particular event to less than four tickets per customer, the
obligation to make available three additional contiguous seats per wheelchair
space would be affected. For example, if at the time of purchase, there are only
two additional contiguous seats available for purchase because the third has
been sold already, then the ticket purchaser would be entitled to two such
seats. In this situation, the public entity would be required to make up the
difference by offering one additional ticket for sale that is as close as
possible to the accessible seats. Likewise, if ticket purchases for an event are
limited to two per customer, a person who uses a wheelchair who seeks to
purchase tickets would be entitled to purchase only one additional contiguous
seat for the event.

The Department also has added paragraph (d)(4) to clarify that the requirement
for three additional contiguous seats is not intended to serve as a cap if the
maximum number of tickets that may be purchased by members of the general public
exceeds the four tickets an individual with a disability ordinarily would be
allowed to purchase (i.e., a wheelchair space and three additional contiguous
seats). If the maximum number of tickets that may be purchased by members of the
general public exceeds four, an individual with a disability is to be allowed to
purchase the maximum number of tickets; however, additional tickets purchased by
an individual with a disability beyond the wheelchair space and the three
additional contiguous seats provided in § 35.138(d)(1) do not have to be
contiguous with the wheelchair space.

The NPRM proposed at § 35.138(i)(2) that for group sales, if a group includes
one or more individuals who use a wheelchair, then the group shall be placed in
a seating area with accessible seating so that, if possible, the group can sit
together. If it is necessary to divide the group, it should be divided so that
the individuals in the group who use wheelchairs are not isolated from the rest
of the members of their group. The final rule retains the NPRM language in
paragraph (d)(5).

Hold-and-release of unsold accessible seating. The Department recognizes that
not all accessible seating will be sold in all assembly areas for every event to
individuals with disabilities who need such seating and that public entities may
have opportunities to sell such seating to the general public. The Department
proposed in the NPRM a provision aimed at striking a balance between affording
individuals with disabilities adequate time to purchase accessible seating and
the entity’s desire to maximize ticket sales. In the NPRM, the Department
proposed § 35.138(f), which allowed for the release of accessible seating under
the following circumstances: (i) When all seating in the facility has been sold,
excluding luxury boxes, club boxes, or suites; (ii) when all seating in a
designated area has been sold and the accessible seating being released is in
the same area; or (iii) when all seating in a designated price range has been
sold and the accessible seating being released is within the same price range.

The Department’s NPRM asked “whether additional regulatory guidance is required
or appropriate in terms of a more detailed or set schedule for the release of
tickets in conjunction with the three approaches described above. For example,
does the proposed regulation address the variable needs of assembly areas
covered by the ADA? Is additional regulatory guidance required to eliminate
discriminatory policies, practices and procedures related to the sale, hold, and
release of accessible seating? What considerations should appropriately inform
the determination of when unsold accessible seating can be released to the
general public?” 73 FR 34466, 34484 (June 17, 2008).

The Department received comments both supporting and opposing the inclusion of a
hold-and-release provision. One side proposed loosening the restrictions on the
release of unsold accessible seating. One commenter from a trade association
suggested that tickets should be released regardless of whether there is a
sell-out, and that these tickets should be released according to a set schedule.
Conversely, numerous individuals, advocacy groups, and at least one public
entity urged the Department to tighten the conditions under which unsold tickets
for accessible seating may be released. These commenters suggested that venues
should not be permitted to release tickets during the first two weeks of sale,
or alternatively, that they should not be permitted to be released earlier than
48 hours before a sold-out event. Many of these commenters criticized the
release of accessible seating under the second and third prongs of § 35.138(f)
in the NPRM (when there is a sell-out in general seating in a designated seating
area or in a price range), arguing that it would create situations where general
seating would be available for purchase while accessible seating would not be.

Numerous commenters—both from the industry and from advocacy groups—asked for
clarification of the term “sell-out.” Business groups commented that industry
practice is to declare a sell-out when there are only “scattered singles”
available— isolated seats that cannot be purchased as a set of adjacent pairs.
Many of those same commenters also requested that “sell-out” be qualified with
the phrase “of all seating available for sale” since it is industry practice to
hold back from release tickets to be used for groups connected with that event
(e.g., the promoter, home team, or sports league). They argued that those
tickets are not available for sale and any return of these tickets to the
general inventory happens close to the event date. Noting the practice of
holding back tickets, one advocacy group suggested that covered entities be
required to hold back accessible seating in proportion to the number of tickets
that are held back for later release.

The Department has concluded that it would be inappropriate to interfere with
industry practice by defining what constitutes a “sell-out” and that a public
entity should continue to use its own approach to defining a “sell-out.” If,
however, a public entity declares a sell-out by reference to those seats that
are available for sale, but it holds back tickets that it reasonably anticipates
will be released later, it must hold back a proportional percentage of
accessible seating to be released as well.

Adopting any of the alternatives proposed in the comments summarized above would
have upset the balance between protecting the rights of individuals with
disabilities and meeting venues’ concerns about lost revenue from unsold
accessible seating. As a result, the Department has retained § 35.138(f)
(renumbered as § 35.138(e)) in the final rule.

The Department has, however, modified the regulation text to specify that
accessible seating may be released only when “all nonaccessible tickets in a
designated seating area have been sold and the tickets for accessible seating
are being released in the same designated area.” As stated in the NPRM, the
Department intended for this provision to allow, for example, the release of
accessible seating at the orchestra level when all other seating at the
orchestra level is sold. The Department has added this language to the final
rule at § 35.138(e)(1)(ii) to clarify that venues cannot designate or
redesignate seating areas for the purpose of maximizing the release of unsold
accessible seating. So, for example, a venue may not determine on an ad hoc
basis that a group of seats at the orchestra level is a designated seating area
in order to release unsold accessible seating in that area.

The Department also has maintained the hold-and-release provisions that appeared
in the NPRM but has added a provision to address the release of accessible
seating for series-of-events tickets on a series-of-events basis. Many
commenters asked the Department whether unsold accessible seating may be
converted to general seating and released to the general public on a
season-ticket basis or longer when tickets typically are sold as a season-ticket
package or other long-term basis. Several disability rights organizations and
individual commenters argued that such a practice should not be permitted, and,
if it were, that conditions should be imposed to ensure that individuals with
disabilities have future access to those seats.

The Department interprets the fundamental principle of the ADA as a requirement
to give individuals with disabilities equal, not better, access to those
opportunities available to the general public. Thus, for example, a public
entity that sells out its facility on a season ticket only basis is not required
to leave unsold its accessible seating if no persons with disabilities purchase
those season-ticket seats. Of course, public entities may choose to go beyond
what is required by reserving accessible seating for individuals with
disabilities (or releasing such seats for sale to the general public) on an
individual-game basis.

If a covered entity chooses to release unsold accessible seating for sale on a
season-ticket or other long-term basis, it must meet at least two conditions.
Under § 35.138(g) of the final rule, public entities must leave flexibility for
game-day changeouts to accommodate ticket transfers on the secondary market. And
public entities must modify their ticketing policies so that, in future years,
individuals with disabilities will have the ability to purchase accessible
seating on the same basis as other patrons (e.g., as season tickets). Put
differently, releasing accessible seating to the general public on a
season-ticket or other long-term basis cannot result in that seating being lost
to individuals with disabilities in perpetuity. If, in future years, season
tickets become available and persons with disabilities have reached the top of
the waiting list or have met any other eligibility criteria for seasonticket
purchases, public entities must ensure that accessible seating will be made
available to the eligible individuals. In order to accomplish this, the
Department has added § 35.138(e)(3)(i) to require public entities that release
accessible season tickets to individuals who do not have disabilities that
require the features of accessible seating to establish a process to prevent the
automatic reassignment of such ticket holders to accessible seating. For
example, a public entity could have in place a system whereby accessible seating
that was released because it was not purchased by individuals with disabilities
is not in the pool of tickets available for purchase for the following season
unless and until the conditions for ticket release have been satisfied in the
following season. Alternatively, a public entity might release tickets for
accessible seating only when a purchaser who does not need its features agrees
that he or she has no guarantee of or right to the same seats in the following
season, or that if season tickets are guaranteed for the following season, the
purchaser agrees that the offer to purchase tickets is limited to non-accessible
seats having to the extent practicable, comparable price, view, and amenities to
the accessible seats such individuals held in the prior year. The Department is
aware that this rule may require some administrative changes but believes that
this process will not create undue financial and administrative burdens. The
Department believes that this approach is balanced and beneficial. It will allow
public entities to sell all of their seats and will leave open the possibility,
in future seasons or series of events, that persons who need accessible seating
may have access to it.

The Department also has added § 35.138(e)(3)(ii) to address how season tickets
or series-of-events tickets that have attached ownership rights should be
handled if the ownership right returns to the public entity (e.g., when holders
forfeit their ownership right by failing to purchase season tickets or sell
their ownership right back to a public entity). If the ownership right is for
accessible seating, the public entity is required to adopt a process that allows
an eligible individual with a disability who requires the features of such
seating to purchase the rights and tickets for such seating.

Nothing in the regulatory text prevents a public entity from establishing a
process whereby such ticket holders agree to be voluntarily reassigned from
accessible seating to another seating area so that individuals with mobility
disabilities or disabilities that require the features of accessible seating and
who become newly eligible to purchase season tickets have an opportunity to do
so. For example, a public entity might seek volunteers to relocate to another
location that is at least as good in terms of its location, price, and
amenities, or a public entity might use a seat with forfeited ownership rights
as an inducement to get a ticket holder to give up accessible seating he or she
does not need.

Ticket transfer. The Department received many comments asking whether accessible
seating has the same transfer rights as general seats. The proposed regulation
at § 35.138(e) required that individuals with disabilities must be allowed to
purchase season tickets for accessible seating on the same terms and conditions
as individuals purchasing season tickets for general seating, including the
right—if it exists for other ticket-holders—to transfer individual tickets to
friends or associates. Some commenters pointed out that the NPRM proposed
explicitly allowing individuals with disabilities holding season tickets to
transfer tickets but did not address the transfer of tickets purchased for
individual events. Several commenters representing assembly areas argued that
persons with disabilities holding tickets for an individual event should not be
allowed to sell or transfer them to third parties because such ticket transfers
would increase the risk of fraud or would make unclear the obligation of the
entity to accommodate secondary ticket transfers. They argued that individuals
holding accessible seating should either be required to transfer their tickets
to another individual with a disability or return them to the facility for a
refund.

Although the Department is sympathetic to concerns about administrative burden,
curtailing transfer rights for accessible seating when other ticket holders are
permitted to transfer tickets would be inconsistent with the ADA’s guiding
principle that individuals with disabilities must have rights equal to others.
Thus, the Department has added language in the final rule in § 35.138(f) that
requires that individuals with disabilities holding accessible seating for any
event have the same transfer rights accorded other ticket holders for that
event. Section 35.138(f) also preserves the rights of individuals with
disabilities who hold tickets to accessible seats for a series of events to
transfer individual tickets to others, regardless of whether the transferee
needs accessible seating. This approach recognizes the common practice of
individuals splitting season tickets or other multi-event ticket packages with
friends, colleagues, or other spectators to make the purchase of season tickets
affordable; individuals with disabilities should not be placed in the burdensome
position of having to find another individual with a disability with whom to
share the package.

This provision, however, does not require public entities to seat an individual
who holds a ticket to an accessible seat in such seating if the individual does
not need the accessible features of the seat. A public entity may reserve the
right to switch these individuals to different seats if they are available, but
a public entity is not required to remove a person without a disability who is
using accessible seating from that seating, even if a person who uses a
wheelchair shows up with a ticket from the secondary market for a non-accessible
seat and wants accessible seating.

Secondary ticket market. Section 35.138(g) is a new provision in the final rule
that requires a public entity to modify its policies, practices, or procedures
to ensure that an individual with a disability, who acquires a ticket in the
secondary ticket market, may use that ticket under the same terms and conditions
as other ticket holders who acquire a ticket in the secondary market for an
event or series of events. This principle was discussed in the NPRM in
connection with § 35.138(e), pertaining to season-ticket sales. There, the
Department asked for public comment regarding a public entity’s proposed
obligation to accommodate the transfer of accessible seating tickets on the
secondary ticket market to those who do not need accessible seating and vice
versa.

The secondary ticket market, for the purposes of this rule, broadly means any
transfer of tickets after the public entity’s initial sale of tickets to
individuals or entities. It thus encompasses a wide variety of transactions,
from ticket transfers between friends to transfers using commercial exchange
systems. Many commenters noted that the distinction between the primary and
secondary ticket market has become blurred as a result of agreements between
teams, leagues, and secondary market sellers. These commenters noted that the
secondary market may operate independently of the public entity, and parts of
the secondary market, such as ticket transfers between friends, undoubtedly are
outside the direct jurisdiction of the public entity.

To the extent that venues seat persons who have purchased tickets on the
secondary market, they must similarly seat persons with disabilities who have
purchased tickets on the secondary market. In addition, some public entities may
acquire ADA obligations directly by formally entering the secondary ticket
market.

The Department’s enforcement experience with assembly areas also has revealed
that venues regularly provide for and make last-minute seat transfers. As long
as there are vacant wheelchair spaces, requiring venues to provide wheelchair
spaces for patrons who acquired inaccessible seats and need wheelchair spaces is
an example of a reasonable modification of a policy under title II of the ADA.
Similarly, a person who has a ticket for a wheelchair space but who does not
require its accessible features could be offered non-accessible seating if such
seating is available.

The Department’s longstanding position that title II of the ADA requires venues
to make reasonable modifications in their policies to allow individuals with
disabilities who acquired non-accessible tickets on the secondary ticket market
to be seated in accessible seating, where such seating is vacant, is supported
by the only Federal court to address this issue. See Independent Living
Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). The
Department has incorporated this position into the final rule at § 35.138(g)(2).

The NPRM contained two questions aimed at gauging concern with the Department’s
consideration of secondary ticket market sales. The first question asked whether
a secondary purchaser who does not have a disability and who buys an accessible
seat should be required to move if the space is needed for someone with a
disability.

Many disability rights advocates answered that the individual should move
provided that there is a seat of comparable or better quality available for him
and his companion. Some venues, however, expressed concerns about this
provision, and asked how they are to identify who should be moved and what
obligations apply if there are no seats available that are equivalent or better
in quality.

The Department’s second question asked whether there are particular concerns
about the obligation to provide accessible seating, including a wheelchair
space, to an individual with a disability who purchases an inaccessible seat
through the secondary market.

Industry commenters contended that this requirement would create a “logistical
nightmare,” with venues scrambling to reseat patrons in the short time between
the opening of the venues’ doors and the commencement of the event. Furthermore,
they argued that they might not be able to reseat all individuals and that even
if they were able to do so, patrons might be moved to inferior seats (whether in
accessible or non-accessible seating). These commenters also were concerned that
they would be sued by patrons moved under such circumstances.

These commenters seem to have misconstrued the rule. Covered entities are not
required to seat every person who acquires a ticket for inaccessible seating but
needs accessible seating, and are not required to move any individual who
acquires a ticket for accessible seating but does not need it. Covered entities
that allow patrons to buy and sell tickets on the secondary market must make
reasonable modifications to their policies to allow persons with disabilities to
participate in secondary ticket transfers. The Department believes that there is
no one-size-fits-all rule that will suit all assembly areas. In those
circumstances where a venue has accessible seating vacant at the time an
individual with a disability who needs accessible seating presents his ticket
for inaccessible seating at the box office, the venue must allow the individual
to exchange his ticket for an accessible seat in a comparable location if such
an accessible seat is vacant. Where, however, a venue has sold all of its
accessible seating, the venue has no obligation to provide accessible seating to
the person with a disability who purchased an inaccessible seat on the secondary
market. Venues may encourage individuals with disabilities who hold tickets for
inaccessible seating to contact the box office before the event to notify them
of their need for accessible seating, even though they may not require
ticketholders to provide such notice.

The Department notes that public entities are permitted, though not required, to
adopt policies regarding moving patrons who do not need the features of an
accessible seat. If a public entity chooses to do so, it might mitigate
administrative concerns by marking tickets for accessible seating as such, and
printing on the ticket that individuals who purchase such seats but who do not
need accessible seating are subject to being moved to other seats in the
facility if the accessible seating is required for an individual with a
disability. Such a venue might also develop and publish a ticketing policy to
provide transparency to the general public and to put holders of tickets for
accessible seating who do not require it on notice that they may be moved.

Prevention of fraud in purchase of accessible seating. Assembly area managers
and advocacy groups have informed the Department that the fraudulent purchase of
accessible seating is a pressing concern. Curbing fraud is a goal that public
entities and individuals with disabilities share. Steps taken to prevent fraud,
however, must be balanced carefully against the privacy rights of individuals
with disabilities. Such measures also must not impose burdensome requirements
upon, nor restrict the rights of, individuals with disabilities.

In the NPRM, the Department struck a balance between these competing concerns by
proposing § 35.138(h), which prohibited public entities from asking for proof of
disability before the purchase of accessible seating but provided guidance in
two paragraphs on appropriate measures for curbing fraud. Paragraph (1) proposed
allowing a public entity to ask individuals purchasing single-event tickets for
accessible seating whether they are wheelchair users. Paragraph (2) proposed
allowing a public entity to require the individuals purchasing accessible
seating for season tickets or other multi-event ticket packages to attest in
writing that the accessible seating is for a wheelchair user. Additionally, the
NPRM proposed to permit venues, when they have good cause to believe that an
individual has fraudulently purchased accessible seating, to investigate that
individual.

Several commenters objected to this rule on the ground that it would require a
wheelchair user to be the purchaser of tickets. The Department has reworded this
paragraph to reflect that the individual with a disability does not have to be
the ticket purchaser. The final rule allows third parties to purchase accessible
tickets at the request of an individual with a disability.

Commenters also argued that other individuals with disabilities who do not use
wheelchairs should be permitted to purchase accessible seating. Some individuals
with disabilities who do not use wheelchairs urged the Department to change the
rule, asserting that they, too, need accessible seating. The Department agrees
that such seating, although designed for use by a wheelchair user, may be used
by non-wheelchair users, if those persons are persons with a disability who need
to use accessible seating because of a mobility disability or because their
disability requires the use of the features that accessible seating provides
(e.g., individuals who cannot bend their legs because of braces, or individuals
who, because of their disability, cannot sit in a straight-back chair).

Some commenters raised concerns that allowing venues to ask questions to
determine whether individuals purchasing accessible seating are doing so
legitimately would burden individuals with disabilities in the purchase of
accessible seating. The Department has retained the substance of this provision
in § 35.138(h) of the final rule, but emphasizes that such questions should be
asked at the initial time of purchase. For example, if the method of purchase is
via the Internet, then the question(s) should be answered by clicking a yes or
no box during the transaction. The public entity may warn purchasers that
accessible seating is for individuals with disabilities and that individuals
purchasing such tickets fraudulently are subject to relocation.

One commenter argued that face-to-face contact between the venue and the ticket
holder should be required in order to prevent fraud and suggested that
individuals who purchase accessible seating should be required to pick up their
tickets at the box office and then enter the venue immediately. The Department
has declined to adopt that suggestion. It would be discriminatory to require
individuals with disabilities to pick up tickets at the box office when other
spectators are not required to do so. If the assembly area wishes to make
face-to-face contact with accessible seating ticket holders to curb fraud, it
may do so through its ushers and other customer service personnel located within
the seating area.

Some commenters asked whether it is permissible for assembly areas to have
voluntary clubs where individuals with disabilities self-identify to the public
entity in order to become a member of a club that entitles them to purchase
accessible seating reserved for club members or otherwise receive priority in
purchasing accessible seating. The Department agrees that such clubs are
permissible, provided that a reasonable amount of accessible seating remains
available at all prices and dispersed at all locations for individuals with
disabilities who are non-members.


§ 35.139 DIRECT THREAT.

In Appendix A of the Department’s 1991 title II regulation, the Department
included a detailed discussion of “direct threat” that, among other things,
explained that “the principles established in § 36.208 of the Department’s
[title III] regulation” were “applicable” as well to title II, insofar as
“questions of safety are involved.” 28 CFR part 35, app. A at 565 (2009). In the
final rule, the Department has included specific requirements related to “direct
threat” that parallel those in the title III rule. These requirements are found
in new § 35.139.


SUBPART D—PROGRAM ACCESSIBILITY


SECTION 35.150(B)(2) SAFE HARBOR

The “program accessibility” requirement in regulations implementing title II of
the Americans with Disabilities Act requires that each service, program, or
activity, when viewed in its entirety, be readily accessible to and usable by
individuals with disabilities. 28 CFR 35.150(a). Because title II evaluates a
public entity’s programs, services, and activities in their entirety, public
entities have flexibility in addressing accessibility issues. Program access
does not necessarily require a public entity to make each of its existing
facilities accessible to and usable by individuals with disabilities, and public
entities are not required to make structural changes to existing facilities
where other methods are effective in achieving program access. See id. 3 Public
entities do, however, have program access considerations that are independent
of, but may coexist with, requirements imposed by new construction or alteration
requirements in those same facilities.

Where a public entity opts to alter existing facilities to comply with its
program access requirements, the entity must meet the accessibility requirements
for alterations set out in § 35.151. Under the final rule, these alterations
will be subject to the 2010 Standards. The 2010 Standards introduce technical
and scoping specifications for many elements not covered by the 1991 Standards.
In existing facilities, these supplemental requirements need to be taken into
account by a public entity in ensuring program access. Also included in the 2010
Standards are revised technical and scoping requirements for a number of
elements that were addressed in the 1991 Standards. These revised requirements
reflect incremental changes that were added either because of additional study
by the Access Board or in order to harmonize requirements with the model codes.

Although the program accessibility standard offers public entities a level of
discretion in determining how to achieve program access, in the NPRM, the
Department proposed an addition to § 35.150 at § 35.150(b)(2), denominated “Safe
Harbor,” to clarify that “[i]f a public entity has constructed or altered
elements * * * in accordance with the specifications in either the 1991
Standards or the Uniform Federal Accessibility Standard, such public entity is
not, solely because of the Department’s adoption of the [2010] Standards,
required to retrofit such elements to reflect incremental changes in the
proposed standards.” 73 FR 34466, 34505 (June 17, 2008). In these circumstances,
the public entity would be entitled to a safe harbor for the already compliant
elements until those elements are altered. The safe harbor does not negate a
public entity’s new construction or alteration obligations. A public entity must
comply with the new construction or alteration requirements in effect at the
time of the construction or alteration. With respect to existing facilities
designed and constructed after January 26, 1992, but before the public entities
are required to comply with the 2010 Standards, the rule is that any elements in
these facilities that were not constructed in conformance with UFAS or the 1991
Standards are in violation of the ADA and must be brought into compliance. If
elements in existing facilities were altered after January 26, 1992, and those
alterations were not made in conformance with the alteration requirements in
effect at the time, then those alteration violations must be corrected. Section
35.150(b)(2) of the final rule specifies that until the compliance date for the
Standards (18 months from the date of publication of the rule), facilities or
elements covered by § 35.151(a) or (b) that are noncompliant with either the
1991 Standards or UFAS shall be made accessible in accordance with the 1991
Standards, UFAS, or the 2010 Standards. Once the compliance date is reached,
such noncompliant facilities or elements must be made accessible in accordance
with the 2010 Standards.

The Department received many comments on the safe harbor during the 60-day
public comment period. Advocacy groups were opposed to the safe harbor for
compliant elements in existing facilities. These commenters objected to the
Department’s characterization of revisions between the 1991 and 2010 Standards
as incremental changes and assert that these revisions represent important
advances in accessibility for individuals with disabilities. Commenters saw no
basis for “grandfathering” outdated accessibility standards given the
flexibility inherent in the program access standard. Others noted that title
II’s “undue financial and administrative burdens” and “fundamental alteration”
defenses eliminate any need for further exemptions from compliance. Some
commenters suggested that entities’ past efforts to comply with the program
access standard of 28 CFR 35.150(a) might appropriately be a factor in
determining what is required in the future.

Many public entities welcomed the Department’s proposed safe harbor. These
commenters contend that the safe harbor allows public entities needed time to
evaluate program access in light of the 2010 Standards, and incorporate
structural changes in a careful and thoughtful way toward increasing
accessibility entity-wide. Many felt that it would be an ineffective use of
public funds to update buildings to retrofit elements that had already been
constructed or modified to Department-issued and sanctioned specifications. One
entity pointed to the “possibly budget-breaking” nature of forcing compliance
with incremental changes.

The Department has reviewed and considered all information received during the
60-day public comment period. Upon review, the Department has decided to retain
the title II safe harbor with minor revisions. The Department believes that the
safe harbor provides an important measure of clarity and certainty for public
entities as to the effect of the final rule with respect to existing facilities.
Additionally, by providing a safe harbor for elements already in compliance with
the technical and scoping specifications in the 1991 Standards or UFAS, funding
that would otherwise be spent on incremental changes and repeated retrofitting
is freed up to be used toward increased entity-wide program access. Public
entities may thereby make more efficient use of the resources available to them
to ensure equal access to their services, programs, or activities for all
individuals with disabilities.

The safe harbor adopted with this final rule is a narrow one, as the Department
recognizes that this approach may delay, in some cases, the increased
accessibility that the revised requirements would provide, and that for some
individuals with disabilities the impact may be significant. This safe harbor
operates only with respect to elements that are in compliance with the scoping
and technical specifications in either the 1991 Standards or UFAS; it does not
apply to supplemental requirements, those elements for which scoping and
technical specifications are first provided in the 2010 Standards.

Existing Facilities

Existing play areas. The 1991 Standards do not include specific requirements for
the design and construction of play areas. To meet program accessibility
requirements where structural changes are necessary, public entities have been
required to apply the general new construction and alteration standards to the
greatest extent possible, including with respect to accessible parking, routes
to the playground, playground equipment, and playground amenities (e.g., picnic
tables and restrooms). The Access Board published final guidelines for play
areas in October 2000. The guidelines extended beyond general playground access
to establish specific scoping and technical requirements for ground-level and
elevated play components, accessible routes connecting the components,
accessible ground surfaces, and maintenance of those surfaces. These guidelines
filled a void left by the 1991 Standards. They have been referenced in Federal
playground construction and safety guidelines and have been used voluntarily
when many play areas across the country have been altered or constructed.

In adopting the 2004 ADAAG (which includes the 2000 play area guidelines), the
Department acknowledges both the importance of integrated, full access to play
areas for children and parents with disabilities, as well as the need to avoid
placing an untenable fiscal burden on public entities. In the NPRM, the
Department stated it was proposing two specific provisions to reduce the impact
on existing facilities that undertake structural modifications pursuant to the
program accessibility requirement. First, the Department proposed in §
35.150(b)(4) that existing play areas that are not being altered would be
permitted to meet a reduced scoping requirement with respect to their elevated
play components. Elevated play components, which are found on most playgrounds,
are the individual components that are linked together to form large-scale
composite playground equipment (e.g., the monkey bars attached to the suspension
bridge attached to the tube slide, etc.) The 2010 Standards provide that a play
area that includes both ground level and elevated play components must ensure
that a specified number of the ground-level play components and at least 50
percent of the elevated play components are accessible.

In the NPRM, the Department asked for specific public comment with regard to
whether existing play areas should be permitted to substitute additional
ground-level play components for the elevated play components they would
otherwise have been required to make accessible. The Department also queried if
there were other requirements applicable to play areas in the 2004 ADAAG for
which the Department should consider exemptions or reduced scoping. Many
commenters opposed permitting existing play areas to make such substitutions.
Several commenters stated that the Access Board already completed significant
negotiation and cost balancing in its rulemaking, so no additional exemptions
should be added in either meeting program access requirements or in alterations.
Others noted that elevated components are generally viewed as the more
challenging and exciting by children, so making more ground than elevated play
components accessible would result in discrimination against children with
disabilities in general and older children with disabilities in particular. They
argued that the ground components would be seen as equipment for younger
children and children with disabilities, while elevated components would serve
only older children without disabilities. In addition, commenters advised that
including additional ground-level play components would require more accessible
route and use zone surfacing, which would result in a higher cost burden than
making elevated components accessible.

The Department also asked for public comment on whether it would be appropriate
for the Access Board to consider issuing guidelines for alterations to play and
recreational facilities that would permit reduced scoping of accessible
components or substitution of ground-level play components in lieu of elevated
play components. Most commenters opposed any additional reductions in scoping
and substitutions. These commenters uniformly stated that the Access Board
completed sufficient negotiation during its rulemaking on its play area
guidelines published in 2000 and that those guidelines consequently should stand
as is. One commenter advocated reduced scoping and substitution of ground play
components during alterations only for those play areas built prior to the
finalization of the guidelines.

The Department has considered the comments it has received and has determined
that it is not necessary to provide a specific exemption to the scoping for
components for existing play areas or to recommend reduced scoping or additional
exemptions for alteration, and has deleted the reduced scoping proposed in NPRM
§ 35.150(b)(4)(i) from the final rule. The Department believes that it is
preferable for public entities to try to achieve compliance with the design
standards established in the 2010 Standards. If this is not possible to achieve
in an existing setting, the requirements for program accessibility provide
enough flexibility to permit the covered entity to pursue alternative approaches
to provide accessibility.

Second, in § 35.150(b)(5)(i) of the NPRM, the Department proposed language
stating that existing play areas that are less than 1,000 square feet in size
and are not otherwise being altered, need not comply with the scoping and
technical requirements for play areas in section 240 of the 2004 ADAAG. The
Department stated it selected this size based on the provision in section
1008.2.4.1 of the 2004 ADAAG, Exception 1, which permits play areas less than
1,000 square feet in size to provide accessible routes with a reduced clear
width (44 inches instead of 60 inches). In its 2000 regulatory assessment for
the play area guidelines, the Access Board assumed that such “small” play areas
represented only about 20 percent of the play areas located in public schools,
and none of the play areas located in city and State parks (which the Board
assumed were typically larger than 1,000 square feet).

In the NPRM, the Department asked if existing play areas less than 1,000 square
feet should be exempt from the requirements applicable to play areas. The vast
majority of commenters objected to such an exemption. One commenter stated that
many localities that have parks this size are already making them accessible;
many cited concerns that this would leave all or most public playgrounds in
small towns inaccessible; and two commenters stated that, since many of New York
City’s parks are smaller than 1,000 square feet, only scattered larger parks in
the various boroughs would be obliged to become accessible. Residents with
disabilities would then have to travel substantial distances outside their own
neighborhoods to find accessible playgrounds. Some commenters responded that
this exemption should not apply in instances where the play area is the only one
in the program, while others said that if a play area is exempt for reasons of
size, but is the only one in the area, then it should have at least an
accessible route and 50 percent of its ground-level play components accessible.
One commenter supported the exemption as presented in the question.

The Department is persuaded by these comments that it is inappropriate to exempt
public play areas that are less than 1,000 square feet in size. The Department
believes that the factors used to determine program accessibility, including the
limits established by the undue financial and administrative burdens defense,
provide sufficient flexibility to public entities in determining how to make
their existing play areas accessible. In those cases where a title II entity
believes that present economic concerns make it an undue financial and
administrative burden to immediately make its existing playgrounds accessible in
order to comply with program accessibility requirements, then it may be
reasonable for the entity to develop a multiyear plan to bring its facilities
into compliance.

In addition to requesting public comment about the specific sections in the
NPRM, the Department also asked for public comment about the appropriateness of
a general safe harbor for existing play areas and a safe harbor for public
entities that have complied with State or local standards specific to play
areas. In the almost 200 comments received on title II play areas, the vast
majority of commenters strongly opposed all safe harbors, exemptions, and
reductions in scoping. By contrast, one commenter advocated a safe harbor from
compliance with the 2004 ADAAG play area requirements along with reduced scoping
and exemptions for both program accessibility and alterations; a second
commenter advocated only the general safe harbor from compliance with the
supplemental requirements.

In response to the question of whether the Department should exempt public
entities from specific compliance with the supplemental requirements for play
areas, commenters stated that since no specific standards previously existed,
play areas are more than a decade behind in providing full access for
individuals with disabilities. When accessible play areas were created, public
entities, acting in good faith, built them according to the 2004 ADAAG
requirements; many equipment manufacturers also developed equipment to meet
those guidelines. If existing playgrounds were exempted from compliance with the
supplemental guidelines, commenters said, those entities would be held to a
lesser standard and left with confusion, a sense of wasted resources, and
federally condoned discrimination and segregation. Commenters also cited Federal
agency settlement agreements on play areas that required compliance with the
guidelines. Finally, several commenters observed that the provision of a safe
harbor in this instance was invalid for two reasons: (1) The rationale for other
safe harbors—that entities took action to comply with the 1991 Standards and
should not be further required to comply with new standards—does not exist; and
(2) concerns about financial and administrative burdens are adequately addressed
by program access requirements.

The question of whether accessibility of play areas should continue to be
assessed on the basis of case-by-case evaluations elicited conflicting
responses. One commenter asserted that there is no evidence that the
case-by-case approach is not working and so it should continue until found to be
inconsistent with the ADA’s goals. Another commenter argued that case-by-case
evaluations result in unpredictable outcomes which result in costly and long
court actions. A third commenter, advocating against case-by-case evaluations,
requested instead increased direction and scoping to define what constitutes an
accessible play area program.

The Department has considered all of the comments it received in response to its
questions and has concluded that there is insufficient basis to establish a safe
harbor from compliance with the supplemental guidelines. Thus, the Department
has eliminated the proposed exemption contained in § 35.150(b)(5)(i) of the NPRM
for existing play areas that are less than 1,000 square feet. The Department
believes that the factors used to determine program accessibility, including the
limits established by the undue financial and administrative burdens defense,
provide sufficient flexibility to public entities in determining how to make
their existing play areas accessible.

In the NPRM, the Department also asked whether there are State and local
standards addressing play and recreation area accessibility and, to the extent
that there are such standards, whether facilities currently governed by, and in
compliance with, such State and local standards or codes should be subject to a
safe harbor from compliance with applicable requirements in the 2004 ADAAG. The
Department also asked whether it would be appropriate for the Access Board to
consider the implementation of guidelines that would permit such a safe harbor
with respect to play and recreation areas undertaking alterations. In response,
commenters stated that few State or local governments have standards that
address issues of accessibility in play areas, and one commenter organization
said that it was unaware of any State or local standards written specifically
for accessible play areas. One commenter observed from experience that most
State and local governments were waiting for the Access Board guidelines to
become enforceable standards as they had no standards themselves to follow.
Another commenter offered that public entities across the United States already
include in their playground construction bid specifications language that
requires compliance with the Access Board’s guidelines. A number of commenters
advocated for the Access Board’s guidelines to become comprehensive Federal
standards that would complement any abbreviated State and local standards. One
commenter, however, supported a safe harbor for play areas undergoing
alterations if the areas currently comply with State or local standards.

The Department is persuaded by these comments that there is insufficient basis
to establish a safe harbor for program access or alterations for play areas
built in compliance with State or local laws.

In the NPRM, the Department asked whether “a reasonable number, but at least
one” is a workable standard to determine the appropriate number of existing play
areas that a public entity must make accessible. Many commenters objected to
this standard, expressing concern that the phrase “at least one” would be
interpreted as a maximum rather than a minimum requirement. Such commenters
feared that this language would allow local governments to claim compliance by
making just one public park accessible, regardless of the locality’s size,
budget, or other factors, and would support segregation, forcing children with
disabilities to leave their neighborhoods to enjoy an accessible play area.
While some commenters criticized what they viewed as a new analysis of program
accessibility, others asserted that the requirements of program accessibility
should be changed to address issues related to play areas that are not the main
program in a facility but are essential components of a larger program (e.g.,
drop-in child care for a courthouse).

The Department believes that those commenters who opposed the Department’s
“reasonable number, but at least one” standard for program accessibility
misunderstood the Department’s proposal. The Department did not intend any
change in its longstanding interpretation of the program accessibility
requirement. Program accessibility requires that each service, program, or
activity be operated “so that the service, program, or activity, when viewed in
its entirety, is readily accessible to and usable by individuals with
disabilities,” 28 CFR 35.150(a), subject to the undue financial and
administrative burdens and fundamental alterations defenses provided in 28 CFR
35.150. In determining how many facilities of a multi-site program must be made
accessible in order to make the overall program accessible, the standard has
always been an assessment of what is reasonable under the circumstances to make
the program readily accessible to and usable by individuals with disabilities,
taking into account such factors as the size of the public entity, the
particular program features offered at each site, the geographical distance
between sites, the travel times to the sites, the number of sites, and
availability of public transportation to the sites. In choosing among available
methods for meeting this requirement, public entities are required to give
priority “to those methods that offer services, programs, and activities * * *
in the most integrated setting appropriate.” 28 CFR 35.150(b)(1). As a result,
in cases where the sites are widely dispersed with difficult travel access and
where the program features offered vary widely between sites, program
accessibility will require a larger number of facilities to be accessible in
order to ensure program accessibility than where multiple sites are located in a
concentrated area with easy travel access and uniformity in program offerings.

Commenters responded positively to the Department’s question in the NPRM whether
the final rule should provide a list of factors that a public entity should use
to determine how many of its existing play areas should be made accessible.
Commenters also asserted strongly that the number of existing parks in the
locality should not be the main factor. In addition to the Department’s initial
list—including number of play areas in an area, travel times or geographic
distances between play areas, and the size of the public entity—commenters
recommended such factors as availability of accessible pedestrian routes to the
playgrounds, ready availability of accessible transportation, comparable
amenities and services in and surrounding the play areas, size of the
playgrounds, and sufficient variety in accessible play components within the
playgrounds. The Department agrees that these factors should be considered,
where appropriate, in any determination of whether program accessibility has
been achieved. However, the Department has decided that it need not address
these factors in the final rule itself because the range of factors that might
need to be considered would vary depending upon the circumstances of particular
public entities. The Department does not believe any list would be sufficiently
comprehensive to cover every situation.

The Department also requested public comment about whether there was a “tipping
point” at which the costs of compliance with the new requirements for existing
play areas would be so burdensome that the entity would simply shut down the
playground. Commenters generally questioned the feasibility of determining a
“tipping point.” No commenters offered a recommended “tipping point.” Moreover,
most commenters stated that a “tipping point” is not a valid consideration for
various reasons, including that “tipping points” will vary based upon each
entity’s budget and other mandates, and costs that are too high will be
addressed by the limitations of the undue financial and administrative burdens
defense in the program accessibility requirement and that a “tipping point” must
be weighed against quality of life issues, which are difficult to quantify. The
Department has decided that comments did not establish any clear “tipping point”
and therefore provides no regulatory requirement in this area.

Swimming pools. The 1991 Standards do not contain specific scoping or technical
requirements for swimming pools. As a result, under the 1991 title II
regulation, title II entities that operate programs or activities that include
swimming pools have not been required to provide an accessible route into those
pools via a ramp or pool lift, although they are required to provide an
accessible route to such pools. In addition, these entities continue to be
subject to the general title II obligation to make their programs usable and
accessible to persons with disabilities.

The 2004 ADAAG includes specific technical and scoping requirements for new and
altered swimming pools at sections 242 and 1009. In the NPRM, the Department
sought to address the impact of these requirements on existing swimming pools.
Section 242.2 of the 2004 ADAAG states that swimming pools must provide two
accessible means of entry, except that swimming pools with less than 300 linear
feet of swimming pool wall are only required to provide one accessible means of
entry, provided that the accessible means of entry is either a swimming pool
lift complying with section 1009.2 or a sloped entry complying with section
1009.3.

In the NPRM, the Department proposed, in § 35.150(b)(4)(ii), that for measures
taken to comply with title II’s program accessibility requirements, existing
swimming pools with at least 300 linear feet of swimming pool wall would be
required to provide only one accessible means of access that complied with
section 1009.2 or section 1009.3 of the 2004 ADAAG.

The Department specifically sought comment from public entities and individuals
with disabilities on the question whether the Department should “allow existing
public entities to provide only one accessible means of access to swimming pools
more than 300 linear feet long?” The Department received significant public
comment on this proposal.

Most commenters opposed any reduction in the scoping required in the 2004 ADAAG,
citing the fact that swimming is a common therapeutic form of exercise for many
individuals with disabilities. Many commenters also stated that the cost of a
swimming pool lift, approximately $5,000, or other nonstructural options for
pool access such as transfer steps, transfer walls, and transfer platforms,
would not be an undue financial and administrative burden for most title II
entities. Other commenters pointed out that the undue financial and
administrative burdens defense already provided public entities with a means to
reduce their scoping requirements. A few commenters cited safety concerns
resulting from having just one accessible means of access, and stated that
because pools typically have one ladder for every 75 linear feet of pool wall,
they should have more than one accessible means of access. One commenter stated
that construction costs for a public pool are approximately $4,000– 4,500 per
linear foot, making the cost of a pool with 300 linear feet of swimming pool
wall approximately $1.2 million, compared to $5,000 for a pool lift. Some
commenters did not oppose the one accessible means of access for larger pools so
long as a lift was used. A few commenters approved of the one accessible means
of access for larger pools. The Department also considered the American National
Standard for Public Swimming Pools, ANSI/NSPI–1 2003, section 23 of which states
that all pools should have at least two means of egress.

In the NPRM, the Department also proposed at § 35.150(b)(5)(ii) that existing
swimming pools with less than 300 linear feet of swimming pool wall be exempted
from having to comply with the provisions of section 242.2. The Department’s
NPRM requested public comment about the potential effect of this approach,
asking whether existing swimming pools with less than 300 linear feet of pool
wall should be exempt from the requirements applicable to swimming pools.

Most commenters were opposed to this proposal. A number of commenters stated,
based on the Access Board estimates that 90 percent of public high school pools,
40 percent of public park and community center pools, and 30 percent of public
college and university pools have less than 300 linear feet of pool wall, that a
large number of public swimming pools would fall under this exemption. Other
commenters pointed to the existing undue financial and administrative burdens
defenses as providing public entities with sufficient protection from excessive
compliance costs. Few commenters supported this exemption.

The Department also considered the fact that many existing swimming pools owned
or operated by public entities are recipients of Federal financial assistance
and therefore, are also subject to the program accessibility requirements of
section 504 of the Rehabilitation Act.

The Department has carefully considered all the information available to it
including the comments submitted on these two proposed exemptions for swimming
pools owned or operated by title II entities. The Department acknowledges that
swimming provides important therapeutic, exercise, and social benefits for many
individuals with disabilities and is persuaded that exemption of many publicly
owned or operated pools from the 2010 Standards is neither appropriate nor
necessary. The Department agrees with the commenters that title II already
contains sufficient limitations on public entities’ obligations to make their
programs accessible. In particular, the Department agrees that those public
entities that can demonstrate that making particular existing swimming pools
accessible in accordance with the 2010 Standards would be an undue financial and
administrative burden are sufficiently protected from excessive compliance
costs. Thus, the Department has eliminated proposed §§ 35.150(b)(4)(ii) and
(b)(5)(ii) from the final rule.

In addition, although the NPRM contained no specific proposed regulatory
language on this issue, the NPRM sought comment on what would be a workable
standard for determining the appropriate number of existing swimming pools that
a public entity must make accessible for its program to be accessible. The
Department asked whether a “reasonable number, but at least one” would be a
workable standard and, if not, whether there was a more appropriate specific
standard. The Department also asked if, in the alternative, the Department
should provide “a list of factors that a public entity could use to determine
how many of its existing swimming pools to make accessible, e.g., number of
swimming pools, travel times or geographic distances between swimming pools, and
the size of the public entity?”

A number of commenters expressed concern over the “reasonable number, but at
least one” standard and contended that, in reality, public entities would never
provide more than one accessible existing pool, thus segregating individuals
with disabilities. Other commenters felt that the existing program accessibility
standard was sufficient. Still others suggested that one in every three existing
pools should be made accessible. One commenter suggested that all public pools
should be accessible. Some commenters proposed a list of factors to determine
how many existing pools should be accessible. Those factors include the total
number of pools, the location, size, and type of pools provided, transportation
availability, and lessons and activities available. A number of commenters
suggested that the standard should be based on geographic areas, since pools
serve specific neighborhoods. One commenter argued that each pool should be
examined individually to determine what can be done to improve its
accessibility.

The Department did not include any language in the final rule that specifies the
“reasonable number, but at least one” standard for program access. However, the
Department believes that its proposal was misunderstood by many commenters. Each
service, program, or activity conducted by a public entity, when viewed in its
entirety, must still be readily accessible to and usable by individuals with
disabilities unless doing so would result in a fundamental alteration in the
nature of the program or activity or in undue financial and administrative
burdens. Determining which pool(s) to make accessible and whether more than one
accessible pool is necessary to provide program access requires analysis of a
number of factors, including, but not limited to, the size of the public entity,
geographical distance between pool sites, whether more than one community is
served by particular pools, travel times to the pools, the total number of
pools, the availability of lessons and other programs and amenities at each
pool, and the availability of public transportation to the pools. In many
instances, making one existing swimming pool accessible will not be sufficient
to ensure program accessibility. There may, however, be some circumstances where
a small public entity can demonstrate that modifying one pool is sufficient to
provide access to the public entity’s program of providing public swimming
pools. In all cases, a public entity must still demonstrate that its programs,
including the program of providing public swimming pools, when viewed in their
entirety, are accessible.

Wading pools. The 1991 Standards do not address wading pools. Section 242.3 of
the 2004 ADAAG requires newly constructed or altered wading pools to provide at
least one sloped means of entry to the deepest part of the pool. The Department
was concerned about the potential impact of this new requirement on existing
wading pools. Therefore, in the NPRM, the Department sought comments on whether
existing wading pools that are not being altered should be exempt from this
requirement, asking, “[w]hat site constraints exist in existing facilities that
could make it difficult or infeasible to install a sloped entry in an existing
wading pool? Should existing wading pools that are not being altered be exempt
from the requirement to provide a sloped entry? “ 73 FR 34466, 34487–88 (June
17, 2008). Most commenters agreed that existing wading pools that are not being
altered should be exempt from this requirement. Almost all commenters felt that
during alterations a sloped entry should be provided unless it was technically
infeasible to do so. Several commenters felt that the required clear deck space
surrounding a pool provided sufficient space for a sloped entry during
alterations.

The Department also solicited comments on the possibility of exempting existing
wading pools from the obligation to provide program accessibility. Most
commenters argued that installing a sloped entry in an existing wading pool is
not very feasible. Because covered entities are not required to undertake
modifications that would be technically infeasible, the Department believes that
the rule as drafted provides sufficient protection from unwarranted expense to
the operators of small existing wading pools. Other existing wading pools,
particularly those larger pools associated with facilities such as aquatic
centers or water parks, must be assessed on a case-by-case basis. Therefore, the
Department has not included such an exemption for wading pools in its final
rule.

Saunas and steam rooms. The 1991 Standards do not address saunas and steam
rooms. Section 35.150(b)(5)(iii) of the NPRM exempted existing saunas and steam
rooms that seat only two individuals and were not being altered from section 241
of the 2004 ADAAG, which requires an accessible turning space. Two commenters
objected to this exemption as unnecessary, and argued that the cost of
accessible saunas is not high and public entities still have an undue financial
and administrative burdens defense.

The Department considered these comments and has decided to eliminate the
exemption for existing saunas and steam rooms that seat only two people. Such an
exemption is unnecessary because covered entities will not be subject to program
accessibility requirements to make existing saunas and steam rooms accessible if
doing so constitutes an undue financial and administrative burden. The
Department believes it is likely that because of their prefabricated forms,
which include built-in seats, it would be either technically infeasible or an
undue financial and administrative burden to modify such saunas and steams
rooms. Consequently, a separate exemption for saunas and steam rooms would have
been superfluous. Finally, employing the program accessibility standard for
small saunas and steam rooms is consistent with the Department’s decisions
regarding the proposed exemptions for play areas and swimming pools.

Several commenters also argued in favor of a specific exemption for existing
spas. The Department notes that the technical infeasibility and program
accessibility defenses are applicable equally to existing spas and declines to
adopt such an exemption.

Other recreational facilities. In the NPRM, the Department asked about a number
of issues relating to recreation facilities such as team or player seating
areas, areas of sport activity, exercise machines, boating facilities, fishing
piers and platforms, and miniature golf courses. The Department’s questions
addressed the costs and benefits of applying the 2004 ADAAG to these spaces and
facilities and the application of the specific technical requirements in the
2004 ADAAG for these spaces and facilities. The discussion of the comments
received by the Department on these issues and the Department’s response to
those comments can be found in either the section of Appendix A to this rule
entitled “Other Issues,” or in Appendix B to the final title III rule, which
will be published today elsewhere in this volume.


SECTION 35.151 NEW CONSTRUCTION AND ALTERATIONS

Section 35.151(a), which provided that those facilities that are constructed or
altered by, on behalf of, or for the use of a public entity shall be designed,
constructed, or altered to be readily accessible to and usable by individuals
with disabilities, is unchanged in the final rule, but has been redesignated as
§ 35.151(a)(1). The Department has added a new section, designated as §
35.151(a)(2), to provide that full compliance with the requirements of this
section is not required where an entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be considered
structurally impracticable only in those rare circumstances when the unique
characteristics of terrain prevent the incorporation of accessibility features.
This exception was contained in the title III regulation and in the 1991
Standards (applicable to both public accommodations and facilities used by
public entities), so it has applied to any covered facility that was constructed
under the 1991 Standards since the effective date of the ADA. The Department
added it to the text of § 35.151 to maintain consistency between the design
requirements that apply under title II and those that apply under title III. The
Department received no significant comments about this section.


SECTION 35.151(B) ALTERATIONS

The 1991 title II regulation does not contain any specific regulatory language
comparable to the 1991 title III regulation relating to alterations and path of
travel for covered entities, although the 1991 Standards describe standards for
path of travel during alterations to a primary function. See 28 CFR part 36, app
A., section 4.1.6(a) (2009).

The path of travel requirements contained in the title III regulation are based
on section 303(a)(2) of the ADA, 42 U.S.C. 12183(a)(2), which provides that when
an entity undertakes an alteration to a place of public accommodation or
commercial facility that affects or could affect the usability of or access to
an area that contains a primary function, the entity shall ensure that, to the
maximum extent feasible, the path of travel to the altered area—and the
restrooms, telephones, and drinking fountains serving it—is readily accessible
to and usable by individuals with disabilities, including individuals who use
wheelchairs.

The NPRM proposed amending § 35.151 to add both the path of travel requirements
and the exemption relating to barrier removal (as modified to apply to the
program accessibility standard in title II) that are contained in the title III
regulation to the title II regulation. Proposed § 35.151(b)(4) contained the
requirements for path of travel. Proposed § 35.151(b)(2) stated that the path of
travel requirements of § 35.151(b)(4) shall not apply to measures taken solely
to comply with program accessibility requirements.

Where the specific requirements for path of travel apply under title III, they
are limited to the extent that the cost and scope of alterations to the path of
travel are disproportionate to the cost of the overall alteration, as determined
under criteria established by the Attorney General.

The Access Board included the path of travel requirement for alterations to
facilities covered by the standards (other than those subject to the residential
facilities standards) in section 202.4 of 2004 ADAAG. Section 35.151(b)(4)(iii)
of the final rule establishes the criteria for determining when the cost of
alterations to the path of travel is “disproportionate” to the cost of the
overall alteration.

The NPRM also provided that areas such as supply storage rooms, employee lounges
and locker rooms, janitorial closets, entrances, and corridors are not areas
containing a primary function. Nor are restroom areas considered to contain a
primary function unless the provision of restrooms is a primary purpose of the
facility, such as at a highway rest stop. In that situation, a restroom would be
considered to be an “area containing a primary function” of the facility.

The Department is not changing the requirements for program accessibility. As
provided in § 35.151(b)(2) of the regulation, the path of travel requirements of
§ 35.151(b)(4) only apply to alterations undertaken solely for purposes other
than to meet the program accessibility requirements. The exemption for the
specific path of travel requirement was included in the regulation to ensure
that the specific requirements and disproportionality exceptions for path of
travel are not applied when areas are being altered to meet the title II program
accessibility requirements in § 35.150. In contrast, when areas are being
altered to meet program accessibility requirements, they must comply with all of
the applicable requirements referenced in section 202 of the 2010 Standards. A
covered title II entity must provide accessibility to meet the requirements of §
35.150 unless doing so is an undue financial and administrative burden in
accordance with § 35.150(a)(3). A covered title II entity may not use the
disproportionality exception contained in the path of travel provisions as a
defense to providing an accessible route as part of its obligation to provide
program accessibility. The undue financial and administrative burden standard
does not contain any bright line financial tests.

The Department’s proposed § 35.151(b)(4) adopted the language now contained in §
36.403 of the title III regulation, including the disproportionality limitation
(i.e., alterations made to provide an accessible path of travel to the altered
area would be deemed disproportionate to the overall alteration when the cost
exceeds 20 percent of the cost of the alteration to the primary function area).
Proposed § 35.151(b)(2) provided that the path of travel requirements do not
apply to alterations undertaken solely to comply with program accessibility
requirements.

The Department received a substantial number of comments objecting to the
Department’s adoption of the exemption for the path of travel requirements when
alterations are undertaken solely to meet program accessibility requirements.
These commenters argued that the Department had no statutory basis for providing
this exemption nor does it serve any purpose. In addition, these commenters
argued that the path of travel exemption has the effect of placing new
limitations on the obligations to provide program access. A number of commenters
argued that doing away with the path of travel requirement would render
meaningless the concept of program access. They argued that just as the
requirement to provide an accessible path of travel to an altered area
(regardless of the reason for the alteration), including making the restrooms,
telephones, and drinking fountains that serve the altered area accessible, is a
necessary requirement in other alterations, it is equally necessary for
alterations made to provide program access. Several commenters expressed concern
that a readily accessible path of travel be available to ensure that persons
with disabilities can get to the physical location in which programs are held.
Otherwise, they will not be able to access the public entity’s service, program,
or activity. Such access is a cornerstone of the protections provided by the
ADA. Another commenter argued that it would be a waste of money to create an
accessible facility without having a way to get to the primary area. This
commenter also stated that the International Building Code (IBC) requires the
path of travel to a primary function area, up to 20 percent of the cost of the
project. Another commenter opposed the exemption, stating that the trigger of an
alteration is frequently the only time that a facility must update its
facilities to comply with evolving accessibility standards.

In the Department’s view, the commenters objecting to the path of travel
exemption contained in § 35.151(b)(2) did not understand the intention behind
the exemption. The exemption was not intended to eliminate any existing
requirements related to accessibility for alterations undertaken in order to
meet program access obligations under § 35.149 and § 35.150. Rather, it was
intended to ensure that covered entities did not apply the path of travel
requirements in lieu of the overarching requirements in this Subpart that apply
when making a facility accessible in order to comply with program accessibility.
The exemption was also intended to make it clear that the disproportionality
test contained in the path of travel standards is not applicable in determining
whether providing program access results in an undue financial and
administration burden within the meaning of § 35.150(a)(3). The exemption was
also provided to maintain consistency with the title III path of travel
exemption for barrier removal, See § 36.304(d), in keeping with the Department’s
regulatory authority under title II of the ADA. See 42 U.S.C. 12134(b); See also
H. R Rep. No. 101B485, pt. 2, at 84 (1990) (“The committee intends, however,
that the forms of discrimination prohibited by section 202 be identical to those
set out in the applicable provisions of titles I and III of this legislation.”).

For title II entities, the path of travel requirements are of significance in
those cases where an alteration is being made solely for reasons other than
program accessibility. For example, a public entity might have six courtrooms in
two existing buildings and might determine that only three of those courtrooms
and the public use and common use areas serving those courtrooms in one building
are needed to be made accessible in order to satisfy its program access
obligations. When the public entity makes those courtrooms and the public use
and common use areas serving them accessible in order to meet its program access
obligations, it will have to comply with the 2010 Standards unless the public
entity can demonstrate that full compliance would result in undue financial and
administrative burdens as described in § 35.150(a)(3). If such action would
result in an undue financial or administrative burden, the public entity would
nevertheless be required to take some other action that would not result in such
an alteration or such burdens but would ensure that the benefits and services
provided by the public entity are readily accessible to persons with
disabilities. When the public entity is making modifications to meet its program
access obligation, it may not rely on the path of travel exception under §
35.151(b)(4), which limits the requirement to those alterations where the cost
and scope of the alterations are not disproportionate to the cost and scope of
the overall alterations. If the public entity later decides to alter courtrooms
in the other building, for purposes of updating the facility (and, as previously
stated, has met its program access obligations) then in that case, the public
entity would have to comply with the path of travel requirements in the 2010
Standards subject to the disproportionality exception set forth in §
35.151(b)(4).

The Department has slightly revised proposed § 35.151(b)(2) to make it clearer
that the path of travel requirements only apply when alterations are undertaken
solely for purposes other than program accessibility.


SECTION 35.151(B)(4)(II)(C) PATH OF TRAVEL— SAFE HARBOR

In § 35.151(b)(4)(ii)(C) of the NPRM, the Department included a provision that
stated that public entities that have brought required elements of path of
travel into compliance with the 1991 Standards are not required to retrofit
those elements in order to reflect incremental changes in the 2010 Standards
solely because of an alteration to a primary function area that is served by
that path of travel. In these circumstances, the public entity is entitled to a
safe harbor and is only required to modify elements to comply with the 2010
Standards if the public entity is planning an alteration to the element.

A substantial number of commenters objected to the Department’s imposition of a
safe harbor for alterations to facilities of public entities that comply with
the 1991 Standards. These commenters argued that if a public entity is already
in the process of altering its facility, there should be a legal requirement
that individuals with disabilities be entitled to increased accessibility by
using the 2010 Standards for path of travel work. They also stated that they did
not believe there was a statutory basis for “grandfathering” facilities that
comply with the 1991 Standards.

The ADA is silent on the issue of “grandfathering” or establishing a safe harbor
for measuring compliance in situations where the covered entity is not
undertaking a planned alteration to specific building elements. The ADA
delegates to the Attorney General the responsibility for issuing regulations
that define the parameters of covered entities’ obligations when the statute
does not directly address an issue. This regulation implements that delegation
of authority.

One commenter proposed that a previous record of barrier removal be one of the
factors in determining, prospectively, what renders a facility, when viewed in
its entirety, usable and accessible to persons with disabilities. Another
commenter asked the Department to clarify, at a minimum, that to the extent
compliance with the 1991 Standards does not provide program access, particularly
with regard to areas not specifically addressed in the 1991 Standards, the safe
harbor will not operate to relieve an entity of its obligations to provide
program access.

One commenter supported the proposal to add a safe harbor for path of travel.

The final rule retains the safe harbor for required elements of a path of travel
to altered primary function areas for public entities that have already complied
with the 1991 Standards with respect to those required elements. The Department
believes that this safe harbor strikes an appropriate balance between ensuring
that individuals with disabilities are provided access to buildings and
facilities and potential financial burdens on existing public entities that are
undertaking alterations subject to the 2010 Standards. This safe harbor is not a
blanket exemption for facilities. If a public entity undertakes an alteration to
a primary function area, only the required elements of a path of travel to that
area that already comply with the 1991 Standards are subject to the safe harbor.
If a public entity undertakes an alteration to a primary function area and the
required elements of a path of travel to the altered area do not comply with the
1991 Standards, then the public entity must bring those elements into compliance
with the 2010 Standards.


SECTION 35.151(B)(3) ALTERATIONS TO HISTORIC FACILITIES

The final rule renumbers the requirements for alterations to historic facilities
enumerated in current § 35.151(d)(1) and (2) as § 35.151(b)(3)(i) and (ii).
Currently, the regulation provides that alterations to historic facilities shall
comply to the maximum extent feasible with section 4.1.7 of UFAS or section
4.1.7 of the 1991 Standards. See 28 CFR 35.151(d)(1). Section 35.151(b)(3)(i) of
the final rule eliminates the option of using UFAS for alterations that commence
on or after March 15, 2012. The substantive requirement in current §
35.151(d)(2)—that alternative methods of access shall be provided pursuant to
the requirements of § 35.150 if it is not feasible to provide physical access to
an historic property in a manner that will not threaten or destroy the historic
significance of the building or facility—is contained in § 35.151(b)(3)(ii).


SECTION 35.151(C) ACCESSIBILITY STANDARDS FOR NEW CONSTRUCTION AND ALTERATIONS

Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1, ADA Chapter 2,
and Chapters 3 through 10 of the Americans with Disabilities Act and
Architectural Barriers Act Guidelines (2004 ADAAG) into the ADA Standards for
Accessible Design (2010 Standards). As the Department has noted, the development
of these standards represents the culmination of a lengthy effort by the Access
Board to update its guidelines, to make the Federal guidelines consistent to the
extent permitted by law, and to harmonize the Federal requirements with the
private sector model codes that form the basis of many State and local building
code requirements. The full text of the 2010 Standards is available for public
review on the ADA Home Page (https://www.ada.gov) and on the Access Board’s Web
site (http://www.access-board.gov/gs.htm) (last visited June 24, 2010). The
Access Board site also includes an extensive discussion of the development of
the 2004 ADA/ABA Guidelines, and a detailed comparison of the 1991 Standards,
the 2004 ADA/ABA Guidelines, and the 2003 International Building Code.

Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney General to issue
regulations to implement title II that are consistent with the minimum
guidelines published by the Access Board. The Attorney General (or his designee)
is a statutory member of the Access Board (see 29 U.S.C. 792(a)(1)(B(vii)) and
was involved in the development of the 2004 ADAAG. Nevertheless, during the
process of drafting the NPRM, the Department reviewed the 2004 ADAAG to
determine if additional regulatory provisions were necessary. As a result of
this review, the Department decided to propose new sections, which were
contained in § 35.151(e)–(h) of the NPRM, to clarify how the Department will
apply the proposed standards to social service center establishments, housing at
places of education, assembly areas, and medical care facilities. Each of these
provisions is discussed below.

Congress anticipated that there would be a need for close coordination of the
ADA building requirements with State and local building code requirements.
Therefore, the ADA authorized the Attorney General to establish an ADA code
certification process under title III of the ADA. That process is addressed in
28 CFR part 36, subpart F. Revisions to that process are addressed in the
regulation amending the title III regulation published elsewhere in the Federal
Register today. In addition, the Department operates an extensive technical
assistance program. The Department anticipates that once this rule is final,
revised technical assistance material will be issued to provide guidance about
its implementation.

Section 35.151(c) of the 1991 title II regulation establishes two standards for
accessible new construction and alteration. Under paragraph (c), design,
construction, or alteration of facilities in conformance with UFAS or with the
1991 Standards (which, at the time of the publication of the rule were also
referred to as the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (1991 ADAAG)) is deemed to comply with the requirements
of this section with respect to those facilities (except that if the 1991
Standards are chosen, the elevator exemption does not apply). The 1991 Standards
were based on the 1991 ADAAG, which was initially developed by the Access Board
as guidelines for the accessibility of buildings and facilities that are subject
to title III. The Department adopted the 1991 ADAAG as the standards for places
of public accommodation and commercial facilities under title III of the ADA and
it was published as Appendix A to the Department’s regulation implementing title
III, 56 FR 35592 (July 26, 1991) as amended, 58 FR 17522 (April 5, 1993), and as
further amended, 59 FR 2675 (Jan. 18, 1994), codified at 28 CFR part 36 (2009).

Section 35.151(c) of the final rule adopts the 2010 Standards and establishes
the compliance date and triggering events for the application of those standards
to both new construction and alterations. Appendix B of the final title III rule
(Analysis and Commentary on the 2010 ADA Standards for Accessible Design) (which
will be published today elsewhere in this volume and codified as Appendix B to
28 CFR part 36) provides a description of the major changes in the 2010
Standards (as compared to the 1991 ADAAG) and a discussion of the public
comments that the Department received on specific sections of the 2004 ADAAG. A
number of commenters asked the Department to revise certain provisions in the
2004 ADAAG in a manner that would reduce either the required scoping or specific
technical accessibility requirements. As previously stated, although the ADA
requires the enforceable standards issued by the Department under title II and
title III to be consistent with the minimum guidelines published by the Access
Board, it is the sole responsibility of the Attorney General to promulgate
standards and to interpret and enforce those standards. The guidelines adopted
by the Access Board are “minimum guidelines.” 42 U.S.C. 12186(c).

Compliance date. When the ADA was enacted, the effective dates for various
provisions were delayed in order to provide time for covered entities to become
familiar with their new obligations. Titles II and III of the ADA generally
became effective on January 26, 1992, six months after the regulations were
published. See 42 U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction
under title II and alterations under either title II or title III had to comply
with the design standards on that date. See 42 U.S.C. 12183(a)(1). For new
construction under title III, the requirements applied to facilities designed
and constructed for first occupancy after January 26, 1993—18 months after the
1991 Standards were published by the Department. In the NPRM, the Department
proposed to amend § 35.151(c)(1) by revising the current language to limit the
application of the 1991 standards to facilities on which construction commences
within six months of the final rule adopting revised standards. The NPRM also
proposed adding paragraph (c)(2) to § 35.151, which states that facilities on
which construction commences on or after the date six months following the
effective date of the final rule shall comply with the proposed standards
adopted by that rule.

As a result, under the NPRM, for the first six months after the effective date,
public entities would have the option to use either UFAS or the 1991 Standards
and be in compliance with title II. Six months after the effective date of the
rule, the new standards would take effect. At that time, construction in
accordance with UFAS would no longer satisfy ADA requirements. The Department
stated that in order to avoid placing the burden of complying with both
standards on public entities, the Department would coordinate a government-wide
effort to revise Federal agencies’ section 504 regulations to adopt the 2004
ADAAG as the standard for new construction and alterations.

The purpose of the proposed six-month delay in requiring compliance with the
2010 Standards was to allow covered entities a reasonable grace period to
transition between the existing and the proposed standards. For that reason, if
a title II entity preferred to use the 2010 Standards as the standard for new
construction or alterations commenced within the six-month period after the
effective date of the final rule, such entity would be considered in compliance
with title II of the ADA.

The Department received a number of comments about the proposed six-month
effective date for the title II regulation that were similar in content to those
received on this issue for the proposed title III regulation. Several commenters
supported the six-month effective date. One commenter stated that any revisions
to its State building code becomes effective six months after adoption and that
this has worked well. In addition, this commenter stated that since 2004 ADAAG
is similar to IBC 2006 and ICC/ANSI A117.1– 2003, the transition should be easy.
By contrast, another commenter advocated for a minimum 12-month effective date,
arguing that a shorter effective date could cause substantial economic hardships
to many cities and towns because of the lengthy lead time necessary for
construction projects. This commenter was concerned that a six-month effective
date could lead to projects having to be completely redrawn, rebid, and
rescheduled to ensure compliance with the new standards. Other commenters
advocated that the effective date be extended to at least 18 months after the
publication of the rule. One of these commenters expressed concern that the
kinds of bureaucratic organizations subject to the title II regulations lack the
internal resources to quickly evaluate the regulatory changes, determine whether
they are currently compliant with the 1991 standards, and determine what they
have to do to comply with the new standards. The other commenter argued that 18
months is the minimum amount of time necessary to ensure that projects that have
already been designed and approved do not have to undergo costly design
revisions at taxpayer expense.

The Department is persuaded by the concerns raised by commenters for both the
title II and III regulations that the six-month compliance date proposed in the
NPRM for application of the 2010 Standards may be too short for certain projects
that are already in the midst of the design and permitting process. The
Department has determined that for new construction and alterations, compliance
with the 2010 Standards will not be required until 18 months from the date the
final rule is published. Until the time compliance with the 2010 Standards is
required, public entities will have the option of complying with the 2010
Standards, the UFAS, or the 1991 Standards. However, public entities that choose
to comply with the 2010 Standards in lieu of the 1991 Standards or UFAS prior to
the compliance date described in this rule must choose one of the three
standards, and may not rely on some of the requirements contained in one
standard and some of the requirements contained in the other standards.

Triggering event. In § 35.151(c)(2) of the NPRM, the Department proposed that
the commencement of construction serve as the triggering event for applying the
proposed standards to new construction and alterations under title II. This
language is consistent with the triggering event set forth in § 35.151(a) of the
1991 title II regulation. The Department received only four comments on this
section of the title II rule. Three commenters supported the use of “start of
construction” as the triggering event. One commenter argued that the Department
should use the “last building permit or start of physical construction,
whichever comes first,” stating that “altering a design after a building permit
has been issued can be an undue burden.”

After considering these comments, the Department has decided to continue to use
the commencement of physical construction as the triggering event for
application of the 2010 Standards for entities covered by title II. The
Department has also added clarifying language at § 35.151(c)(4) to the
regulation to make it clear that the date of ceremonial groundbreaking or the
date a structure is razed to make it possible for construction of a facility to
take place does not qualify as the commencement of physical construction.

Section 234 of the 2010 Standards provides accessibility guidelines for newly
designed and constructed amusement rides. The amusement ride provisions do not
provide a “triggering event” for new construction or alteration of an amusement
ride. An industry commenter requested that the triggering event of “first use,”
as noted in the Advisory note to section 234.1 of the 2004 ADAAG, be included in
the final rule. The Advisory note provides that “[a] custom designed and
constructed ride is new upon its first use, which is the first time amusement
park patrons take the ride.” The Department declines to treat amusement rides
differently than other types of new construction and alterations. Under the
final rule, they are subject to § 35.151(c). Thus, newly constructed and altered
amusement rides shall comply with the 2010 Standards if the start of physical
construction or the alteration is on or after 18 months from the publication
date of this rule. The Department also notes that section 234.4.2 of the 2010
Standards only applies where the structural or operational characteristics of an
amusement ride are altered. It does not apply in cases where the only change to
a ride is the theme.

Noncomplying new construction and alterations. The element-by-element safe
harbor referenced in § 35.150(b)(2) has no effect on new or altered elements in
existing facilities that were subject to the 1991 Standards or UFAS on the date
that they were constructed or altered, but do not comply with the technical and
scoping specifications for those elements in the 1991 Standards or UFAS. Section
35.151(c)(5) of the final rule sets forth the rules for noncompliant new
construction or alterations in facilities that were subject to the requirements
of this part. Under those provisions, noncomplying new construction and
alterations constructed or altered after the effective date of the applicable
ADA requirements and before March 15, 2012 shall, before March 15, 2012, be made
accessible in accordance with either the 1991 Standards, UFAS, or the 2010
Standards. Noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and before March 15,
2012, shall, on or after March 15, 2012 be made accessible in accordance with
the 2010 Standards.


SECTION 35.151(D) SCOPE OF COVERAGE

In the NPRM, the Department proposed a new provision, § 35.151(d), to clarify
that the requirements established by § 35.151, including those contained in the
2004 ADAAG, prescribe what is necessary to ensure that buildings and facilities,
including fixed or built-in elements in new or altered facilities, are
accessible to individuals with disabilities. Once the construction or alteration
of a facility has been completed, all other aspects of programs, services, and
activities conducted in that facility are subject to the operational
requirements established in this final rule. Although the Department may use the
requirements of the 2010 Standards as a guide to determining when and how to
make equipment and furnishings accessible, those determinations fall within the
discretionary authority of the Department.

The Department also wishes to clarify that the advisory notes, appendix notes,
and figures that accompany the 1991 and 2010 Standards do not establish
separately enforceable requirements unless specifically stated otherwise in the
text of the standards. This clarification has been made to address concerns
expressed by ANPRM commenters who mistakenly believed that the advisory notes in
the 2004 ADAAG established requirements beyond those established in the text of
the guidelines (e.g., Advisory 504.4 suggests, but does not require, that
covered entities provide visual contrast on stair tread nosing to make them more
visible to individuals with low vision). The Department received no significant
comments on this section and it is unchanged in the final rule.

Definitions of residential facilities and transient lodging. The 2010 Standards
add a definition of “residential dwelling unit” and modify the current
definition of “transient lodging.” Under section 106.5 of the 2010 Standards,
“residential dwelling unit” is defined as “[a] unit intended to be used as a
residence, that is primarily long-term in nature” and does not include transient
lodging, inpatient medical care, licensed long-term care, and detention or
correctional facilities. Additionally, section 106.5 of the 2010 Standards
changes the definition of “transient lodging” to a building or facility
“containing one or more guest room(s) for sleeping that provides accommodations
that are primarily short-term in nature.” “Transient lodging” does not include
residential dwelling units intended to be used as a residence. The references to
“dwelling units” and “dormitories” that are in the definition of the 1991
Standards are omitted from the 2010 Standards.

The comments about the application of transient lodging or residential standards
to social service center establishments, and housing at a place of education are
addressed separately below. The Department received one additional comment on
this issue from an organization representing emergency response personnel
seeking an exemption from the transient lodging accessibility requirements for
crew quarters and common use areas serving those crew quarters (e.g., locker
rooms, exercise rooms, day room) that are used exclusively by on-duty emergency
response personnel and that are not used for any public purpose. The commenter
argued that since emergency response personnel must meet certain physical
qualifications that have the effect of exempting persons with mobility
disabilities, there is no need to build crew quarters and common use areas
serving those crew quarters to meet the 2004 ADAAG. In addition, the commenter
argued that applying the transient lodging standards would impose significant
costs and create living space that is less usable for most emergency response
personnel.

The ADA does not exempt spaces because of a belief or policy that excludes
persons with disabilities from certain work. However, the Department believes
that crew quarters that are used exclusively as a residence by emergency
response personnel and the kitchens and bathrooms exclusively serving those
quarters are more like residential dwelling units and are therefore covered by
the residential dwelling standards in the 2010 Standards, not the transient
lodging standards. The residential dwelling standards address most of the
concerns of the commenter. For example, the commenter was concerned that sinks
in kitchens and lavatories in bathrooms that are accessible under the transient
lodging standards would be too low to be comfortably used by emergency response
personnel. The residential dwelling standards allow such features to be
adaptable so that they would not have to be lowered until accessibility was
needed. Similarly, grab bars and shower seats would not have to be installed at
the time of construction provided that reinforcement has been installed in walls
and located so as to permit their installation at a later date.


SECTION 35.151(E) SOCIAL SERVICE CENTER ESTABLISHMENTS

In the NPRM, the Department proposed a new § 35.151(e) requiring group homes,
halfway houses, shelters, or similar social service center establishments that
provide temporary sleeping accommodations or residential dwelling units to
comply with the provisions of the 2004 ADAAG that apply to residential
facilities, including, but not limited to, the provisions in sections 233 and
809.

The NPRM explained that this proposal was based on two important changes in the
2004 ADAAG. First, for the first time, residential dwelling units are explicitly
covered in the 2004 ADAAG in section 233. Second, the 2004 ADAAG eliminates the
language contained in the 1991 Standards addressing scoping and technical
requirements for homeless shelters, group homes, and similar social service
center establishments. Currently, such establishments are covered in section 9.5
of the transient lodging section of the 1991 Standards. The deletion of section
9.5 creates an ambiguity of coverage that must be addressed.

The NPRM explained the Department’s belief that transferring coverage of social
service center establishments from the transient lodging standards to the
residential facilities standards would alleviate conflicting requirements for
social service center providers. The Department believes that a substantial
percentage of social service center establishments are recipients of Federal
financial assistance from the Department of Housing and Urban Development (HUD).
The Department of Health and Human Services (HHS) also provides financial
assistance for the operation of shelters through the Administration for Children
and Families programs. As such, these establishments are covered both by the ADA
and section 504 of the Rehabilitation Act. UFAS is currently the design standard
for new construction and alterations for entities subject to section 504. The
two design standards for accessibility— the 1991 Standards and UFAS—have
confronted many social service providers with separate, and sometimes
conflicting, requirements for design and construction of facilities. To resolve
these conflicts, the residential facilities standards in the 2004 ADAAG have
been coordinated with the section 504 requirements. The transient lodging
standards, however, are not similarly coordinated. The deletion of section 9.5
of the 1991 Standards from the 2004 ADAAG presented two options: (1) Require
coverage under the transient lodging standards, and subject such facilities to
separate, conflicting requirements for design and construction; or (2) require
coverage under the residential facilities standards, which would harmonize the
regulatory requirements under the ADA and section 504. The Department chose the
option that harmonizes the regulatory requirements: coverage under the
residential facilities standards.

In the NPRM, the Department expressed concern that the residential facilities
standards do not include a requirement for clear floor space next to beds
similar to the requirement in the transient lodging standards and as a result,
the Department proposed adding a provision that would require certain social
service center establishments that provide sleeping rooms with more than 25 beds
to ensure that a minimum of 5 percent of the beds have clear floor space in
accordance with section 806.2.3 of the 2004 ADAAG.

In the NPRM, the Department requested information from providers who operate
homeless shelters, transient group homes, halfway houses, and other social
service center establishments, and from the clients of these facilities who
would be affected by this proposed change, asking, “[t]o what extent have
conflicts between the ADA and section 504 affected these facilities? What would
be the effect of applying the residential dwelling unit requirements to these
facilities, rather than the requirements for transient lodging guest rooms?” 73
FR 34466, 34491 (June 17, 2008).

Many of the commenters supported applying the residential facilities
requirements to social service center establishments, stating that even though
the residential facilities requirements are less demanding in some instances,
the existence of one clear standard will result in an overall increased level of
accessibility by eliminating the confusion and inaction that are sometimes
caused by the current existence of multiple requirements. One commenter also
stated that “it makes sense to treat social service center establishments like
residential facilities because this is how these establishments function in
practice.”

Two commenters agreed with applying the residential facilities requirements to
social service center establishments but recommended adding a requirement for
various bathing options, such as a roll-in shower (which is not required under
the residential standards).

One commenter objected to the change and asked the Department to require that
social service center establishments continue to comply with the transient
lodging standards. One commenter stated that it did not agree that the standards
for residential coverage would serve persons with disabilities as well as the
1991 transient lodging standards. This commenter expressed concern that the
Department had eliminated guidance for social service agencies and that the rule
should be put on hold until those safeguards are restored. Another commenter
argued that the rule that would provide the greatest access for persons with
disabilities should prevail.

Several commenters argued for the application of the transient lodging standards
to all social service center establishments except those that were “intended as
a person’s place of abode,” referencing the Department’s question related to the
definition of “place of lodging” in the title III NPRM. One commenter stated
that the International Building Code requires accessible units in all transient
facilities. The commenter expressed concern that group homes should be built to
be accessible, rather than adaptable.

The Department continues to be concerned about alleviating the challenges for
social service providers that are also subject to section 504 and would likely
be subject to conflicting requirements if the transient lodging standards were
applied. Thus, the Department has retained the requirement that social service
center establishments comply with the residential dwelling standards. The
Department believes, however, that social service center establishments that
provide emergency shelter to large transient populations should be able to
provide bathing facilities that are accessible to persons with mobility
disabilities who need roll-in showers. Because of the transient nature of the
population of these large shelters, it will not be feasible to modify bathing
facilities in a timely manner when faced with a need to provide a roll-in shower
with a seat when requested by an overnight visitor. As a result, the Department
has added a requirement that social service center establishments with sleeping
accommodations for more than 50 individuals must provide at least one roll-in
shower with a seat that complies with the relevant provisions of section 608 of
the 2010 Standards. Transfer-type showers are not permitted in lieu of a roll-in
shower with a seat and the exceptions in sections 608.3 and 608.4 for
residential dwelling units are not permitted. When separate shower facilities
are provided for men and for women, at least one roll-in shower shall be
provided for each group. This supplemental requirement to the residential
facilities standards is in addition to the supplemental requirement that was
proposed in the NPRM for clear floor space in sleeping rooms with more than 25
beds.

The Department also notes that while dwelling units at some social service
center establishments are also subject to the Fair Housing Act (FHAct) design
and construction requirements that require certain features of adaptable and
accessible design, FHAct units do not provide the same level of accessibility
that is required for residential facilities under the 2010 Standards. The FHAct
requirements, where also applicable, should not be considered a substitute for
the 2010 Standards. Rather, the 2010 Standards must be followed in addition to
the FHAct requirements.

The Department also notes that whereas the NPRM used the term “social service
establishment,” the final rule uses the term “social service center
establishment.” The Department has made this editorial change so that the final
rule is consistent with the terminology used in the ADA. See 42 U.S.C.
12181(7)(k).


SECTION 35.151(F) HOUSING AT A PLACE OF EDUCATION

The Department of Justice and the Department of Education share responsibility
for regulation and enforcement of the ADA in postsecondary educational settings,
including its requirements for architectural features. In addition, the
Department of Housing and Urban Development (HUD) has enforcement responsibility
for housing subject to title II of the ADA. Housing facilities in educational
settings range from traditional residence halls and dormitories to apartment or
townhouse-style residences. In addition to title II of the ADA, public
universities and schools that receive Federal financial assistance are also
subject to section 504, which contains its own accessibility requirements
through the application of UFAS. Residential housing in an educational setting
is also covered by the FHAct, which requires newly constructed multifamily
housing to include certain features of accessible and adaptable design. Covered
entities subject to the ADA must always be aware of, and comply with, any other
Federal statutes or regulations that govern the operation of residential
properties.

Although the 1991 Standards mention dormitories as a form of transient lodging,
they do not specifically address how the ADA applies to dormitories or other
types of residential housing provided in an educational setting. The 1991
Standards also do not contain any specific provisions for residential
facilities, allowing covered entities to elect to follow the residential
standards contained in UFAS. Although the 2004 ADAAG contains provisions for
both residential facilities and transient lodging, the guidelines do not
indicate which requirements apply to housing provided in an educational setting,
leaving it to the adopting agencies to make that choice. After evaluating both
sets of standards, the Department concluded that the benefits of applying the
transient lodging standards outweighed the benefits of applying the residential
facilities standards. Consequently, in the NPRM, the Department proposed a new §
35.151(f) that provided that residence halls or dormitories operated by or on
behalf of places of education shall comply with the provisions of the proposed
standards for transient lodging, including, but not limited to, the provisions
in sections 224 and 806 of the 2004 ADAAG.

Both public and private school housing facilities have varied characteristics.
College and university housing facilities typically provide housing for up to
one academic year, but may be closed during school vacation periods. In the
summer, they are often used for short-term stays of one to three days, a week,
or several months. Graduate and faculty housing is often provided year-round in
the form of apartments, which may serve individuals or families with children.
These housing facilities are diverse in their layout. Some are double-occupancy
rooms with a shared toilet and bathing room, which may be inside or outside the
unit. Others may contain cluster, suite, or group arrangements where several
rooms are located inside a defined unit with bathing, kitchen, and similar
common facilities. In some cases, these suites are indistinguishable in features
from traditional apartments. Universities may build their own housing facilities
or enter into agreements with private developers to build, own, or lease housing
to the educational institution or to its students. Academic housing may be
located on the campus of the university or may be located in nearby
neighborhoods.

Throughout the school year and the summer, academic housing can become program
areas in which small groups meet, receptions and educational sessions are held,
and social activities occur. The ability to move between rooms—both accessible
rooms and standard rooms—in order to socialize, to study, and to use all public
use and common use areas is an essential part of having access to these
educational programs and activities. Academic housing is also used for
short-term transient educational programs during the time students are not in
regular residence and may be rented out to transient visitors in a manner
similar to a hotel for special university functions.

The Department was concerned that applying the new construction requirements for
residential facilities to educational housing facilities could hinder access to
educational programs for students with disabilities. Elevators are not generally
required under the 2004 ADAAG residential facilities standards unless they are
needed to provide an accessible route from accessible units to public use and
common use areas, while under the 2004 ADAAG as it applies to other types of
facilities, multistory public facilities must have elevators unless they meet
very specific exceptions. In addition, the residential facilities standards do
not require accessible roll-in showers in bathrooms, while the transient lodging
requirements require some of the accessible units to be served by bathrooms with
roll-in showers. The transient lodging standards also require that a greater
number of units have accessible features for persons with communication
disabilities. The transient lodging standards provide for installation of the
required accessible features so that they are available immediately, but the
residential facilities standards allow for certain features of the unit to be
adaptable. For example, only reinforcements for grab bars need to be provided in
residential dwellings, but the actual grab bars must be installed under the
transient lodging standards. By contrast, the residential facilities standards
do require certain features that provide greater accessibility within units,
such as more usable kitchens, and an accessible route throughout the dwelling.
The residential facilities standards also require 5 percent of the units to be
accessible to persons with mobility disabilities, which is a continuation of the
same scoping that is currently required under UFAS, and is therefore applicable
to any educational institution that is covered by section 504. The transient
lodging standards require a lower percentage of accessible sleeping rooms for
facilities with large numbers of rooms than is required by UFAS. For example, if
a dormitory had 150 rooms, the transient lodging standards would require seven
accessible rooms while the residential standards would require eight. In a large
dormitory with 500 rooms, the transient lodging standards would require 13
accessible rooms and the residential facilities standards would require 25.
There are other differences between the two sets of standards as well with
respect to requirements for accessible windows, alterations, kitchens,
accessible route throughout a unit, and clear floor space in bathrooms allowing
for a side transfer.

In the NPRM, the Department requested public comment on how to scope educational
housing facilities, asking, “[w]ould the residential facility requirements or
the transient lodging requirements in the 2004 ADAAG be more appropriate for
housing at places of education? How would the different requirements affect the
cost when building new dormitories and other student housing?” 73 FR 34466,
34492 (June 17, 2008).

The vast majority of the comments received by the Department advocated using the
residential facilities standards for housing at a place of education instead of
the transient lodging standards, arguing that housing at places of public
education are in fact homes for the students who live in them. These commenters
argued, however, that the Department should impose a requirement for a variety
of options for accessible bathing and should ensure that all floors of
dormitories be accessible so that students with disabilities have the same
opportunities to participate in the life of the dormitory community that are
provided to students without disabilities. Commenters representing persons with
disabilities and several individuals argued that, although the transient lodging
standards may provide a few more accessible features (such as roll-in showers),
the residential facilities standards would ensure that students with
disabilities have access to all rooms in their assigned unit, not just to the
sleeping room, kitchenette, and wet bar. One commenter stated that, in its view,
the residential facilities standards were congruent with overlapping
requirements from HUD, and that access provided by the residential facilities
requirements within alterations would ensure dispersion of accessible features
more effectively. This commenter also argued that while the increased number of
required accessible units for residential facilities as compared to transient
lodging may increase the cost of construction or alteration, this cost would be
offset by a reduced need to adapt rooms later if the demand for accessible rooms
exceeds the supply. The commenter also encouraged the Department to impose a
visitability (accessible doorways and necessary clear floor space for turning
radius) requirement for both the residential facilities and transient lodging
requirements to allow students with mobility impairments to interact and
socialize in a fully integrated fashion.

Two commenters supported the Department’s proposed approach. One commenter
argued that the transient lodging requirements in the 2004 ADAAG would provide
greater accessibility and increase the opportunity of students with disabilities
to participate fully in campus life. A second commenter generally supported the
provision of accessible dwelling units at places of education, and pointed out
that the relevant scoping in the International Building Code requires accessible
units “consistent with hotel accommodations.”

The Department has considered the comments recommending the use of the
residential facilities standards and acknowledges that they require certain
features that are not included in the transient lodging standards and that
should be required for housing provided at a place of education. In addition,
the Department notes that since educational institutions often use their
academic housing facilities as short-term transient lodging in the summers, it
is important that accessible features be installed at the outset. It is not
realistic to expect that the educational institution will be able to adapt a
unit in a timely manner in order to provide accessible accommodations to someone
attending a one-week program during the summer.

The Department has determined that the best approach to this type of housing is
to continue to require the application of transient lodging standards, but at
the same time to add several requirements drawn from the residential facilities
standards related to accessible turning spaces and work surfaces in kitchens,
and the accessible route throughout the unit. This will ensure the maintenance
of the transient lodging standard requirements related to access to all floors
of the facility, roll-in showers in facilities with more than 50 sleeping rooms,
and other important accessibility features not found in the residential
facilities standards, but will also ensure usable kitchens and access to all the
rooms in a suite or apartment.

The Department has added a new definition to § 35.104, “Housing at a Place of
Education,” and has revised § 35.151(f) to reflect the accessible features that
now will be required in addition to the requirements set forth under the
transient lodging standards. The Department also recognizes that some
educational institutions provide some residential housing on a year-round basis
to graduate students and staff which is comparable to private rental housing,
and which contains no facilities for educational programming.

Section 35.151(f)(3) exempts from the transient lodging standards apartments or
townhouse facilities provided by or on behalf of a place of education that are
leased on a year-round basis exclusively to graduate students or faculty, and do
not contain any public use or common use areas available for educational
programming; instead, such housing shall comply with the requirements for
residential facilities in sections 233 and 809 of the 2010 Standards. Section
35.151(f) uses the term “sleeping room” in lieu of the term “guest room,” which
is the term used in the transient lodging standards. The Department is using
this term because it believes that, for the most part, it provides a better
description of the sleeping facilities used in a place of education than “guest
room.” The final rule states that the Department intends the terms to be used
interchangeably in the application of the transient lodging standards to housing
at a place of education.


SECTION 35.151(G) ASSEMBLY AREAS

In the NPRM, the Department proposed § 35.151(g) to supplement the assembly area
requirements of the 2004 ADAAG, which the Department is adopting as part of the
2010 Standards. The NPRM proposed at § 35.151(g)(1) to require wheelchair spaces
and companion seating locations to be dispersed to all levels of the facility
and are served by an accessible route. The Department received no significant
comments on this paragraph and has decided to adopt the proposed language with
minor modifications. The Department has retained the substance of this section
in the final rule but has clarified that the requirement applies to stadiums,
arenas, and grandstands. In addition, the Department has revised the phrase
“wheelchair and companion seating locations” to “wheelchair spaces and companion
seats.”

Section 35.151(g)(1) ensures that there is greater dispersion of wheelchair
spaces and companion seats throughout stadiums, arenas, and grandstands than
would otherwise be required by sections 221 and 802 of the 2004 ADAAG. In some
cases, the accessible route may not be the same route that other individuals use
to reach their seats. For example, if other patrons reach their seats on the
field by an inaccessible route (e.g., by stairs), but there is an accessible
route that complies with section 206.3 of the 2010 Standards that could be
connected to seats on the field, wheelchair spaces and companion seats must be
placed on the field even if that route is not generally available to the public.

Regulatory language that was included in the 2004 ADAAG advisory, but that did
not appear in the NPRM, has been added by the Department in § 35.151(g)(2).
Section 35.151(g)(2) now requires an assembly area that has seating encircling,
in whole or in part, a field of play or performance area such as an arena or
stadium, to place wheelchair spaces and companion seats around the entire
facility. This rule, which is designed to prevent a public entity from placing
wheelchair spaces and companion seats on one side of the facility only, is
consistent with the Department’s enforcement practices and reflects its
interpretation of section 4.33.3 of the 1991 Standards.

In the NPRM, the Department proposed § 35.151(g)(2) which prohibits wheelchair
spaces and companion seating locations from being “located on, (or obstructed
by) temporary platforms or other moveable structures.” Through its enforcement
actions, the Department discovered that some venues place wheelchair spaces and
companion seats on temporary platforms that, when removed, reveal conventional
seating underneath, or cover the wheelchair spaces and companion seats with
temporary platforms on top of which they place risers of conventional seating.
These platforms cover groups of conventional seats and are used to provide
groups of wheelchair seats and companion seats.

Several commenters requested an exception to the prohibition of the use of
temporary platforms for public entities that sell most of their tickets on a
season-ticket or other multi-event basis. Such commenters argued that they
should be able to use temporary platforms because they know, in advance, that
the patrons sitting in certain areas for the whole season do not need wheelchair
spaces and companion seats. The Department declines to adopt such an exception.
As it explained in detail in the NPRM, the Department believes that permitting
the use of movable platforms that seat four or more wheelchair users and their
companions have the potential to reduce the number of available wheelchair
seating spaces below the level required, thus reducing the opportunities for
persons who need accessible seating to have the same choice of ticket prices and
amenities that are available to other patrons in the facility. In addition, use
of removable platforms may result in instances where last minute requests for
wheelchair and companion seating cannot be met because entire sections of
accessible seating will be lost when a platform is removed. See 73 FR 34466,
34493 (June 17, 2008). Further, use of temporary platforms allows facilities to
limit persons who need accessible seating to certain seating areas, and to
relegate accessible seating to less desirable locations. The use of temporary
platforms has the effect of neutralizing dispersion and other seating
requirements (e.g., line of sight) for wheelchair spaces and companion seats.
Cf. Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171
(D. Or. 1998) (holding that while a public accommodation may “infill” wheelchair
spaces with removable seats when the wheelchair spaces are not needed to
accommodate individuals with disabilities, under certain circumstances “[s]uch a
practice might well violate the rule that wheelchair spaces must be dispersed
throughout the arena in a manner that is roughly proportionate to the overall
distribution of seating”). In addition, using temporary platforms to convert
unsold wheelchair spaces to conventional seating undermines the flexibility
facilities need to accommodate secondary ticket markets exchanges as required by
§ 35.138(g) of the final rule.

As the Department explained in the NPRM, however, this provision was not
designed to prohibit temporary seating that increases seating for events (e.g.,
placing temporary seating on the floor of a basketball court for a concert).
Consequently, the final rule, at § 35.151(g)(3), has been amended to clarify
that if an entire seating section is on a temporary platform for a particular
event, then wheelchair spaces and companion seats may be in that seating
section. However, adding a temporary platform to create wheelchair spaces and
companion seats that are otherwise dissimilar from nearby fixed seating and then
simply adding a small number of additional seats to the platform would not
qualify as an “entire seating section” on the platform. In addition, §
35.151(g)(3) clarifies that facilities may fill in wheelchair spaces with
removable seats when the wheelchair spaces are not needed by persons who use
wheelchairs.

The Department has been responsive to assembly areas’ concerns about reduced
revenues due to unused accessible seating. Accordingly, the Department has
reduced scoping requirements significantly—by almost half in large assembly
areas—and determined that allowing assembly areas to infill unsold wheelchair
spaces with readily removable temporary individual seats appropriately balances
their economic concerns with the rights of individuals with disabilities. See
section 221.2 of the 2010 Standards.

For stadium-style movie theaters, in § 35.151(g)(4) of the NPRM the Department
proposed requiring placement of wheelchair seating spaces and companion seats on
a riser or cross-aisle in the stadium section of the theater and placement of
such seating so that it satisfies at least one of the following criteria: (1) It
is located within the rear 60 percent of the seats provided in the auditorium;
or (2) it is located within the area of the auditorium where the vertical
viewing angles are between the 40th to 100th percentile of vertical viewing
angles for all seats in that theater as ranked from the first row (1st
percentile) to the back row (100th percentile). The vertical viewing angle is
the angle between a horizontal line perpendicular to the seated viewer’s eye to
the screen and a line from the seated viewer’s eye to the top of the screen.

The Department proposed this bright-line rule for two reasons: (1) The movie
theater industry petitioned for such a rule; and (2) the Department has acquired
expertise on the design of stadium style theaters from litigation against
several major movie theater chains. See U.S. v. AMC Entertainment, 232 F. Supp.
2d 1092 (C.D. Ca. 2002), rev’d in part, 549 F. 3d 760 (9th Cir. 2008); U.S. v.
Cinemark USA, Inc., 348 F. 3d 569 (6th Cir. 2003), cert. denied, 542 U.S. 937
(2004). Two industry commenters—at least one of whom otherwise supported this
rule—requested that the Department explicitly state that this rule does not
apply retroactively to existing theaters. Although this rule on its face applies
to new construction and alterations, these commenters were concerned that the
rule could be interpreted to apply retroactively because of the Department’s
statement in the ANPRM that this bright-line rule, although newly-articulated,
does not represent a “substantive change from the existing line-of-sight
requirements” of section 4.33.3 of the 1991 Standards. See 69 FR 58768, 58776
(Sept. 30, 2004).

Although the Department intends for § 35.151(g)(4) of this rule to apply
prospectively to new construction and alterations, this rule is not a departure
from, and is consistent with, the line-of-sight requirements in the 1991
Standards. The Department has always interpreted the line-of-sight requirements
in the 1991 Standards to require viewing angles provided to patrons who use
wheelchairs to be comparable to those afforded to other spectators. Section
35.151(g)(4) merely represents the application of these requirements to
stadium-style movie theaters.

One commenter from a trade association sought clarification whether §
35.151(g)(4) applies to stadium-style theaters with more than 300 seats, and
argued that it should not since dispersion requirements apply in those theaters.
The Department declines to limit this rule to stadium-style theaters with 300 or
fewer seats; stadium-style theaters of all sizes must comply with this rule. So,
for example, stadium-style theaters that must vertically disperse wheelchair and
companion seats must do so within the parameters of this rule.

The NPRM included a provision that required assembly areas with more than 5,000
seats to provide at least five wheelchair spaces with at least three companion
seats for each of those five wheelchair spaces. The Department agrees with
commenters who asserted that group seating is better addressed through ticketing
policies rather than design and has deleted that provision from this section of
the final rule.


SECTION 35.151(H) MEDICAL CARE FACILITIES

In the 1991 title II regulation, there was no provision addressing the
dispersion of accessible sleeping rooms in medical care facilities. The
Department is aware, however, of problems that individuals with disabilities
face in receiving full and equal medical care when accessible sleeping rooms are
not adequately dispersed. When accessible rooms are not fully dispersed, a
person with a disability is often placed in an accessible room in an area that
is not medically appropriate for his or her condition, and is thus denied quick
access to staff with expertise in that medical specialty and specialized
equipment. While the Access Board did not establish specific design requirements
for dispersion in the 2004 ADAAG, in response to extensive comments in support
of dispersion it added an advisory note, Advisory 223.1 General, encouraging
dispersion of accessible rooms within the facility so that accessible rooms are
more likely to be proximate to appropriate qualified staff and resources.

In the NPRM, the Department sought additional comment on the issue, asking
whether it should require medical care facilities, such as hospitals, to
disperse their accessible sleeping rooms, and if so, by what method (by
specialty area, floor, or other criteria). All of the comments the Department
received on this issue supported dispersing accessible sleeping rooms
proportionally by specialty area. These comments, from individuals,
organizations, and a building code association, argued that it would not be
difficult for hospitals to disperse rooms by specialty area, given the high
level of regulation to which hospitals are subject and the planning that
hospitals do based on utilization trends. Further, commenters suggested that
without a requirement, it is unlikely that hospitals would disperse the rooms.
In addition, concentrating accessible rooms in one area perpetuates segregation
of individuals with disabilities, which is counter to the purpose of the ADA.

The Department has decided to require medical care facilities to disperse their
accessible sleeping rooms in a manner that is proportionate by type of medical
specialty. This does not require exact mathematical proportionality, which at
times would be impossible. However, it does require that medical care facilities
disperse their accessible rooms by medical specialty so that persons with
disabilities can, to the extent practical, stay in an accessible room within the
wing or ward that is appropriate for their medical needs. The language used in
this rule (“in a manner that is proportionate by type of medical specialty”) is
more specific than that used in the NPRM (“in a manner that enables patients
with disabilities to have access to appropriate specialty services”) and adopts
the concept of proportionality proposed by the commenters. Accessible rooms
should be dispersed throughout all medical specialties, such as obstetrics,
orthopedics, pediatrics, and cardiac care.


SECTION 35.151(I) CURB RAMPS

Section 35.151(e) on curb ramps in the 1991 rule has been redesignated as §
35.151(i). In the NPRM, the Department proposed making a minor editorial change
to this section, deleting the phrase “other sloped areas” from the two places in
which it appears in the 1991 title II regulation. In the NPRM, the Department
stated that the phrase “other sloped areas” lacks technical precision. The
Department received no significant public comments on this proposal. Upon
further consideration, however, the Department has concluded that the regulation
should acknowledge that there are times when there are transitions from sidewalk
to road surface that do not technically qualify as “curb ramps” (sloped surfaces
that have a running slope that exceed 5 percent). Therefore, the Department has
decided not to delete the phrase “other sloped areas.”


SECTION 35.151(J) RESIDENTIAL HOUSING FOR SALE TO INDIVIDUAL OWNERS

Although public entities that operate residential housing programs are subject
to title II of the ADA, and therefore must provide accessible residential
housing, the 1991 Standards did not contain scoping or technical standards that
specifically applied to residential housing units. As a result, under the
Department’s title II regulation, these agencies had the choice of complying
with UFAS, which contains specific scoping and technical standards for
residential housing units, or applying the ADAAG transient lodging standards to
their housing. Neither UFAS nor the 1991 Standards distinguish between
residential housing provided for rent and those provided for sale to individual
owners. Thus, under the 1991 title II regulation, public entities that construct
residential housing units to be sold to individual owners must ensure that some
of those units are accessible. This requirement is in addition to any
accessibility requirements imposed on housing programs operated by public
entities that receive Federal financial assistance from Federal agencies such as
HUD.

The 2010 Standards contain scoping and technical standards for residential
dwelling units. However, section 233.3.2 of the 2010 Standards specifically
defers to the Department and to HUD, the standard-setting agency under the ABA,
to decide the appropriate scoping for those residential dwelling units built by
or on behalf of public entities with the intent that the finished units will be
sold to individual owners. These programs include, for example, HUD’s public
housing and HOME programs as well as State-funded programs to construct units
for sale to individuals. In the NPRM, the Department did not make a specific
proposal for this scoping. Instead, the Department stated that after
consultation and coordination with HUD, the Department would make a
determination in the final rule. The Department also sought public comment on
this issue stating that “[t]he Department would welcome recommendations from
individuals with disabilities, public housing authorities, and other interested
parties that have experience with these programs. Please comment on the
appropriate scoping for residential dwelling units built by or on behalf of
public entities with the intent that the finished units will be sold to
individual owners.” 73 FR 34466, 34492 (June 17, 2008).

All of the public comments received by the Department in response to this
question were supportive of the Department’s ensuring that the residential
standards apply to housing built on behalf of public entities with the intent
that the finished units would be sold to individual owners. The vast majority of
commenters recommended that the Department require that projects consisting of
five or more units, whether or not the units are located on one or multiple
locations, comply with the 2004 ADAAG requirements for scoping of residential
units, which require that 5 percent, and no fewer than one, of the dwelling
units provide mobility features, and that 2 percent, and no fewer than one, of
the dwelling units provide communication features. See 2004 ADAAG Section 233.3.
These commenters argued that the Department should not defer to HUD because HUD
has not yet adopted the 2004 ADAAG and there is ambiguity on the scope of
coverage of pre-built for sale units under HUD’s current section 504
regulations. In addition, these commenters expressed concern that HUD’s current
regulation, 24 CFR 8.29, presumes that a prospective buyer is identified before
design and construction begins so that disability features can be incorporated
prior to construction. These commenters stated that State and Federally funded
homeownership programs typically do not identify prospective buyers before
construction has commenced. One commenter stated that, in its experience, when
public entities build accessible for-sale units, they often sell these units
through a lottery system that does not make any effort to match persons who need
the accessible features with the units that have those features. Thus,
accessible units are often sold to persons without disabilities. This commenter
encouraged the Department to make sure that accessible for-sale units built or
funded by public entities are placed in a separate lottery restricted to
income-eligible persons with disabilities.

Two commenters recommended that the Department develop rules for four types of
for-sale projects: single family pre-built (where buyer selects the unit after
construction), single family post-built (where the buyer chooses the model prior
to its construction), multi-family pre-built, and multi-family post-built. These
commenters recommended that the Department require pre-built units to comply
with the 2004 ADAAG 233.1 scoping requirements. For post-built units, the
commenters recommended that the Department require all models to have an
alternate design with mobility features and an alternate design with
communications features in compliance with 2004 ADAAG. Accessible models should
be available at no extra cost to the buyer. One commenter recommended that, in
addition to required fully accessible units, all ground floor units should be
readily convertible for accessibility or for sensory impairments technology
enhancements.

The Department believes that consistent with existing requirements under title
II, housing programs operated by public entities that design and construct or
alter residential units for sale to individual owners should comply with the
2010 Standards, including the requirements for residential facilities in
sections 233 and 809. These requirements will ensure that a minimum of 5 percent
of the units, but no fewer than one unit, of the total number of residential
dwelling units will be designed and constructed to be accessible for persons
with mobility disabilities. At least 2 percent, but no fewer than one unit, of
the total number of residential dwelling units shall provide communication
features.

The Department recognizes that there are some programs (such as the one
identified by the commenter), in which units are not designed and constructed
until an individual buyer is identified. In such cases, the public entity is
still obligated to comply with the 2010 Standards. In addition, the public
entity must ensure that pre-identified buyers with mobility disabilities and
visual and hearing disabilities are afforded the opportunity to buy the
accessible units. Once the program has identified buyers who need the number of
accessible units mandated by the 2010 Standards, it may have to make reasonable
modifications to its policies, practices, and procedures in order to provide
accessible units to other buyers with disabilities who request such units.

The Department notes that the residential facilities standards allow for
construction of units with certain features of adaptability. Public entities
that are concerned that fully accessible units are less marketable may choose to
build these units to include the allowable adaptable features, and then adapt
them at their own expense for buyers with mobility disabilities who need
accessible units. For example, features such as grab bars are not required but
may be added by the public entity if needed by the buyer at the time of purchase
and cabinets under sinks may be designed to be removable to allow access to the
required knee space for a forward approach.

The Department agrees with the commenters that covered entities may have to make
reasonable modifications to their policies, practices, and procedures in order
to ensure that when they offer pre-built accessible residential units for sale,
the units are offered in a manner that gives access to those units to persons
with disabilities who need the features of the units and who are otherwise
eligible for the housing program. This may be accomplished, for example, by
adopting preferences for accessible units for persons who need the features of
the units, holding separate lotteries for accessible units, or other suitable
methods that result in the sale of accessible units to persons who need the
features of such units. In addition, the Department believes that units designed
and constructed or altered that comply with the requirements for residential
facilities and are offered for sale to individuals must be provided at the same
price as units without such features.


SECTION 35.151(K) DETENTION AND CORRECTIONAL FACILITIES

The 1991 Standards did not contain specific accessibility standards applicable
to cells in correctional facilities. However, correctional and detention
facilities operated by or on behalf of public entities have always been subject
to the nondiscrimination and program accessibility requirements of title II of
the ADA. The 2004 ADAAG established specific requirements for the design and
construction and alterations of cells in correctional facilities for the first
time.

Based on complaints received by the Department, investigations, and compliance
reviews of jails, prisons, and other detention and correctional facilities, the
Department has determined that many detention and correctional facilities do not
have enough accessible cells, toilets, and shower facilities to meet the needs
of their inmates with mobility disabilities and some do not have any at all.
Inmates are sometimes housed in medical units or infirmaries separate from the
general population simply because there are no accessible cells. In addition,
some inmates have alleged that they are housed at a more restrictive
classification level simply because no accessible housing exists at the
appropriate classification level. The Department’s compliance reviews and
investigations have substantiated certain of these allegations.

The Department believes that the insufficient number of accessible cells is, in
part, due to the fact that most jails and prisons were built long before the ADA
became law and, since then, have undergone few alterations that would trigger
the obligation to provide accessible features in accordance with UFAS or the
1991 Standards. In addition, the Department has found that even some new
correctional facilities lack accessible features. The Department believes that
the unmet demand for accessible cells is also due to the changing demographics
of the inmate population. With thousands of prisoners serving life sentences
without eligibility for parole, prisoners are aging, and the prison population
of individuals with disabilities and elderly individuals is growing. A Bureau of
Justice Statistics study of State and Federal sentenced inmates (those sentenced
to more than one year) shows the total estimated count of State and Federal
prisoners aged 55 and older grew by 36,000 inmates from 2000 (44,200) to 2006
(80,200). William J. Sabol et al., Prisoners in 2006, Bureau of Justice
Statistics Bulletin, Dec. 2007, at 23 (app. table 7), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=908 (last visited July 16,
2008); Allen J. Beck et al., Prisoners in 2000, Bureau of Justice Statistics
Bulletin, Aug. 2001, at 10 (Aug. 2001) (Table 14), available at
bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=927 (last visited July 16, 2008).
This jump constitutes an increase of 81 percent in prisoners aged 55 and older
during this period.

In the NPRM, the Department proposed a new section, § 35.152, which combined a
range of provisions relating to both program accessibility and application of
the proposed standards to detention and correctional facilities. In the final
rule, the Department is placing those provisions that refer to design,
construction, and alteration of detention and correction facilities in a new
paragraph (k) of § 35.151, the section of the rule that addresses new
construction and alterations for covered entities. Those portions of the final
rule that address other issues, such as placement policies and program
accessibility, are placed in the new § 35.152.

In the NPRM, the Department also sought input on how best to meet the needs of
inmates with mobility disabilities in the design, construction, and alteration
of detention and correctional facilities. The Department received a number of
comments in response to this question.

New Construction. The NPRM did not expressly propose that new construction of
correctional and detention facilities shall comply with the proposed standards
because the Department assumed it would be clear that the requirements of §
35.151 would apply to new construction of correctional and detention facilities
in the same manner that they apply to other facilities constructed by covered
entities. The Department has decided to create a new section, § 35.151(k)(1),
which clarifies that new construction of jails, prisons, and other detention
facilities shall comply with the requirements of 2010 Standards. Section
35.151(k)(1) also increases the scoping for accessible cells from the 2 percent
specified in the 2004 ADAAG to 3 percent.

Alterations. Although the 2010 Standards contain specifications for alterations
in existing detention and correctional facilities, section 232.2 defers to the
Attorney General the decision as to the extent these requirements will apply to
alterations of cells. The NPRM proposed at § 35.152(c) that “[a]lterations to
jails, prisons, and other detention and correctional facilities will comply with
the requirements of § 35.151(b).” 73 FR 34466, 34507 (June 17, 2008). The final
rule retains that requirement at § 35.151(k)(2), but increases the scoping for
accessible cells from the 2 percent specified in the 2004 ADAAG to 3 percent.

Substitute cells. In the ANPRM, the Department sought public comment about the
most effective means to ensure that existing correctional facilities are made
accessible to prisoners with disabilities and presented three options: (1)
Require all altered elements to be accessible, which would maintain the current
policy that applies to other ADA alteration requirements; (2) permit substitute
cells to be made accessible within the same facility, which would permit
correctional authorities to meet their obligation by providing the required
accessible features in cells within the same facility, other than those specific
cells in which alterations are planned; or (3) permit substitute cells to be
made accessible within a prison system, which would focus on ensuring that
prisoners with disabilities are housed in facilities that best meet their needs,
as alterations within a prison environment often result in piecemeal
accessibility.

In § 35.152(c) of the NPRM, the Department proposed language based on Option 2,
providing that when cells are altered, a covered entity may satisfy its
obligation to provide the required number of cells with mobility features by
providing the required mobility features in substitute cells (i.e., cells other
than those where alterations are originally planned), provided that each
substitute cell is located within the same facility, is integrated with other
cells to the maximum extent feasible, and has, at a minimum, physical access
equal to that of the original cells to areas used by inmates or detainees for
visitation, dining, recreation, educational programs, medical services, work
programs, religious services, and participation in other programs that the
facility offers to inmates or detainees.

The Department received few comments on this proposal. The majority who chose to
comment supported an approach that allowed substitute cells to be made
accessible within the same facility. In their view, such an approach balanced
administrators’ needs, cost considerations, and the needs of inmates with
disabilities. One commenter noted, however, that with older facilities, required
modifications may be inordinately costly and technically infeasible. A large
county jail system supported the proposed approach as the most viable option
allowing modification or alteration of existing cells based on need and
providing a flexible approach to provide program and mobility accessibility. It
noted, as an alternative, that permitting substitute cells to be made accessible
within a prison system would also be a viable option since such an approach
could create a centralized location for accessibility needs and, because that
jail system’s facilities were in close proximity, it would have little impact on
families for visitation or on accessible programming.

A large State department of corrections objected to the Department’s proposal.
The commenter stated that some very old prison buildings have thick walls of
concrete and reinforced steel that are difficult, if not impossible to retrofit,
and to do so would be very expensive. This State system approaches accessibility
by looking at its system as a whole and providing access to programs for inmates
with disabilities at selected prisons. This commenter explained that not all of
its facilities offer the same programs or the same levels of medical or mental
health services. An inmate, for example, who needs education, substance abuse
treatment, and sex offender counseling may be transferred between facilities in
order to meet his needs. The inmate population is always in flux and there are
not always beds or program availability for every inmate at his security level.
This commenter stated that the Department’s proposed language would put the
State in the position of choosing between adding accessible cells and modifying
paths of travel to programs and services at great expense or not altering old
facilities, causing them to become in states of disrepair and obsolescent, which
would be fiscally irresponsible.

The Department is persuaded by these comments and has modified the alterations
requirement in § 35.151(k)(2)(iv) in the final rule to allow that if it is
technically infeasible to provide substitute cells in the same facility, cells
can be provided elsewhere within the corrections system.

Number of accessible cells. Section 232.2.1 of the 2004 ADAAG requires at least
2 percent, but no fewer than one, of the cells in newly constructed detention
and correctional facilities to have accessibility features for individuals with
mobility disabilities. Section 232.3 provides that, where special holding cells
or special housing cells are provided, at least one cell serving each purpose
shall have mobility features. The Department sought input on whether these 2004
ADAAG requirements are sufficient to meet the needs of inmates with mobility
disabilities. A major association representing county jails throughout the
country stated that the 2004 ADAAG 2 percent requirement for accessible cells is
sufficient to meet the needs of county jails. Similarly, a large county
sheriff’s department advised that the 2 percent requirement far exceeds the need
at its detention facility, where the average age of the population is 32. This
commenter stressed that the regulations need to address the differences between
a local detention facility with low average lengths of stay as opposed to a
State prison housing inmates for lengthy periods. This commenter asserted that
more stringent requirements will raise construction costs by requiring
modifications that are not needed. If more stringent requirements are adopted,
the commenter suggested that they apply only to State and Federal prisons that
house prisoners sentenced to long terms. The Department notes that a prisoner
with a mobility disability needs a cell with mobility features regardless of the
length of incarceration. However, the length of incarceration is most relevant
in addressing the needs of an aging population.

The overwhelming majority of commenters responded that the 2 percent ADAAG
requirement is inadequate to meet the needs of the incarcerated. Many commenters
suggested that the requirement be expanded to apply to each area, type, use, and
class of cells in a facility. They asserted that if a facility has separate
areas for specific programs, such as a dog training program or a substance abuse
unit, each of these areas should also have 2 percent accessible cells but not
less than one. These same commenters suggested that 5–7 percent of cells should
be accessible to meet the needs of both an aging population and the larger
number of inmates with mobility disabilities. One organization recommended that
the requirement be increased to 5 percent overall, and that at least 2 percent
of each type and use of cell be accessible. Another commenter recommended that
10 percent of cells be accessible. An organization with extensive corrections
experience noted that the integration mandate requires a sufficient number and
distribution of accessible cells so as to provide distribution of locations
relevant to programs to ensure that persons with disabilities have access to the
programs.

Through its investigations and compliance reviews, the Department has found that
in most detention and correctional facilities, a 2 percent accessible cell
requirement is inadequate to meet the needs of the inmate population with
disabilities. That finding is supported by the majority of the commenters that
recommended a 5–7 percent requirement. Indeed, the Department itself requires
more than 2 percent of the cells to be accessible at its own corrections
facilities. The Federal Bureau of Prisons is subject to the requirements of the
2004 ADAAG through the General Services Administration’s adoption of the 2004
ADAAG as the enforceable accessibility standard for Federal facilities under the
Architectural Barriers Act of 1968. 70 FR 67786, 67846–47 (Nov. 8, 2005).
However, in order to meet the needs of inmates with mobility disabilities, the
Bureau of Prisons has elected to increase that percentage and require that 3
percent of inmate housing at its facilities be accessible. Bureau of Prisons,
Design Construction Branch, Design Guidelines, Attachment A: Accessibility
Guidelines for Design, Construction, and Alteration of Federal Bureau of Prisons
(Oct. 31, 2006).

The Department believes that a 3 percent accessible requirement is reasonable.
Moreover, it does not believe it should impose a higher percentage on detention
and corrections facilities than it utilizes for its own facilities. Thus, the
Department has adopted a 3 percent requirement in § 35.151(k) for both new
construction and alterations. The Department notes that the 3 percent
requirement is a minimum. As corrections systems plan for new facilities or
alterations, the Department urges planners to include numbers of inmates with
disabilities in their population projections in order to take the necessary
steps to provide a sufficient number of accessible cells to meet inmate needs.

Dispersion of Cells. The NPRM did not contain express language addressing
dispersion of cells in a facility. However, Advisory 232.2 of the 2004 ADAAG
recommends that “[a]ccessible cells or rooms should be dispersed among different
levels of security, housing categories, and holding classifications (e.g.,
male/female and adult/ juvenile) to facilitate access.” In explaining the basis
for recommending, but not requiring, this type of dispersal, the Access Board
stated that “[m]any detention and correctional facilities are designed so that
certain areas (e.g., ‘shift’ areas) can be adapted to serve as different types
of housing according to need” and that “[p]lacement of accessible cells or rooms
in shift areas may allow additional flexibility in meeting requirements for
dispersion of accessible cells or rooms.”

The Department notes that inmates are typically housed in separate areas of
detention and correctional facilities based on a number of factors, including
their classification level. In many instances, detention and correctional
facilities have housed inmates in inaccessible cells, even though accessible
cells were available elsewhere in the facility, because there were no cells in
the areas where they needed to be housed, such as in administrative or
disciplinary segregation, the women’s section of the facility, or in a
particular security classification area.

The Department received a number of comments stating that dispersal of
accessible cells together with an adequate number of accessible cells is
necessary to prevent inmates with disabilities from placement in improper
security classification and to ensure integration. Commenters recommended
modification of the scoping requirements to require a percentage of accessible
cells in each program, classification, use or service area. The Department is
persuaded by these comments. Accordingly, § 35.151(k)(1) and (k)(2) of the final
rule require accessible cells in each classification area.

Medical facilities. The NPRM also did not propose language addressing the
application of the 2004 ADAAG to medical and long-term care facilities in
correctional and detention facilities. The provisions of the 2004 ADAAG contain
requirements for licensed medical and long-term care facilities, but not those
that are unlicensed. A disability advocacy group and a number of other
commenters recommended that the Department expand the application of section
232.4 to apply to all such facilities in detention and correctional facilities,
regardless of licensure. They recommended that whenever a correctional facility
has a program that is addressed specifically in the 2004 ADAAG, such as a
long-term care facility, the 2004 ADAAG scoping and design features should apply
for those elements. Similarly, a building code organization noted that its
percentage requirements for accessible units is based on what occurs in the
space, not on the building type.

The Department is persuaded by these comments and has added § 35.151(k)(3),
which states that “[w]ith respect to medical and long-term care facilities in
jails, prisons, and other detention and correctional facilities, public entities
shall apply the 2010 Standards technical and scoping requirements for those
facilities irrespective of whether those facilities are licensed.”


SECTION 35.152 DETENTION AND CORRECTIONAL FACILITIES—PROGRAM REQUIREMENTS

As noted in the discussion of § 35.151(k), the Department has determined that
inmates with mobility and other disabilities in detention and correctional
facilities do not have equal access to prison services. The Department’s
concerns are based not only on complaints it has received, but the Department’s
substantial experience in investigations and compliance reviews of jails,
prisons, and other detention and correctional facilities. Based on that review,
the Department has found that many detention and correctional facilities have
too few or no accessible cells, toilets, and shower facilities to meet the needs
of their inmates with mobility disabilities. These findings, coupled with
statistics regarding the current percentage of inmates with mobility
disabilities and the changing demographics of the inmate population reflecting
thousands of prisoners serving life sentences and increasingly large numbers of
aging inmates who are not eligible for parole, led the Department to conclude
that a new regulation was necessary to address these concerns.

In the NPRM, the Department proposed a new section, § 35.152, which combined a
range of provisions relating to both program accessibility and application of
the proposed standards to detention and correctional facilities. As mentioned
above, in the final rule, the Department is placing those provisions that refer
to design, construction, and alteration of detention and correction facilities
in new paragraph (k) in § 35.151 dealing with new construction and alterations
for covered entities. Those portions of the final rule that address other
program requirements remain in § 35.152.

The Department received many comments in response to the program accessibility
requirements in proposed § 35.152. These comments are addressed below.

Facilities operated through contractual, licensing, or other arrangements with
other public entities or private entities. The Department is aware that some
public entities are confused about the applicability of the title II
requirements to correctional facilities built or run by other public entities or
private entities. It has consistently been the Department’s position that title
II requirements apply to correctional facilities used by State or local
government entities, irrespective of whether the public entity contracts with
another public or private entity to build or run the correctional facility. The
power to incarcerate citizens rests with the State or local government, not a
private entity. As the Department stated in the preamble to the original title
II regulation, “[a]ll governmental activities of public entities are covered,
even if they are carried out by contractors.” 28 CFR part 35, app. A at 558
(2009). If a prison is occupied by State prisoners and is inaccessible, the
State is responsible under title II of the ADA. The same is true for a county or
city jail. In essence, the private builder or contractor that operates the
correctional facility does so at the direction of the government entity.
Moreover, even if the State enters into a contractual, licensing, or other
arrangement for correctional services with a public entity that has its own
title II obligations, the State is still responsible for ensuring that the other
public entity complies with title II in providing these services.

Also, through its experience in investigations and compliance reviews, the
Department has noted that public entities contract for a number of services to
be run by private or other public entities, for example, medical and mental
health services, food services, laundry, prison industries, vocational programs,
and drug treatment and substance abuse programs, all of which must be operated
in accordance with title II requirements.

Proposed § 35.152(a) in the NPRM was designed to make it clear that title II
applies to all State and local detention and correctional facilities, regardless
of whether the detention or correctional facility is directly operated by the
public entity or operated by a private entity through a contractual, licensing,
or other arrangement. Commenters specifically supported the language of this
section. One commenter cited Department of Justice statistics stating that of
the approximately 1.6 million inmates in State and Federal facilities in
December 2006, approximately 114,000 of these inmates were held in private
prison facilities. See William J. Sabol et al., Prisoners in 2006, Bureau of
Justice Statistics Bulletin, Dec. 2007, at 1, 4, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=908. Some commenters wanted
the text “through contracts or other arrangements” changed to read “through
contracts or any other arrangements” to make the intent clear. However, a large
number of commenters recommended that the text of the rule make explicit that it
applies to correctional facilities operated by private contractors. Many
commenters also suggested that the text make clear that the rule applies to
adult facilities, juvenile justice facilities, and community correctional
facilities. In the final rule, the Department is adopting these latter two
suggestions in order to make the section’s intent explicit.

Section 35.152(a) of the final rule states specifically that the requirements of
the section apply to public entities responsible for the operation or management
of correctional facilities, “either directly or through contractual, licensing,
or other arrangements with public or private entities, in whole or in part,
including private correctional facilities.” Additionally, the section explicitly
provides that it applies to adult and juvenile justice detention and
correctional facilities and community correctional facilities.

Discrimination prohibited. In the NPRM, § 35.152(b)(1) proposed language stating
that public entities are prohibited from excluding qualified detainees and
inmates from participation in, or denying, benefits, services, programs, or
activities because a facility is inaccessible to persons with disabilities
“unless the public entity can demonstrate that the required actions would result
in a fundamental alteration or undue burden.” 73 FR 34446, 34507 (June 17,
2008). One large State department of corrections objected to the entire section
applicable to detention and correctional facilities, stating that it sets a
higher standard for correctional and detention facilities because it does not
provide a defense for undue administrative burden. The Department has not
retained the proposed NPRM language referring to the defenses of fundamental
alteration or undue burden because the Department believes that these exceptions
are covered by the general language of 35.150(a)(3), which states that a public
entity is not required 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.” The Department has revised the
language of § 35.152(b)(1) accordingly.

Integration of inmates and detainees with disabilities. In the NPRM, the
Department proposed language in § 35.152(b)(2) specifically applying the ADA’s
general integration mandate to detention and correctional facilities. The
proposed language would have required public entities to ensure that individuals
with disabilities are housed in the most integrated setting appropriate to the
needs of the individual. It further stated that unless the public entity can
demonstrate that it is appropriate to make an exception for a specific
individual, a public entity:

(1) Should not place inmates or detainees with disabilities in locations that
exceed their security classification because there are no accessible cells or
beds in the appropriate classification;

(2) should not place inmates or detainees with disabilities in designated
medical areas unless they are actually receiving medical care or treatment;

(3) should not place inmates or detainees with disabilities in facilities that
do not offer the same programs as the facilities where they would ordinarily be
housed; and

(4) should not place inmates or detainees with disabilities in facilities
farther away from their families in order to provide accessible cells or beds,
thus diminishing their opportunity for visitation based on their disability. 73
FR 34466, 34507 (June 17, 2008).

In the NPRM, the Department recognized that there are a wide range of
considerations that affect decisions to house inmates or detainees and that in
specific cases there may be compelling reasons why a placement that does not
meet the general requirements of § 35.152(b)(2) may, nevertheless, comply with
the ADA. However, the Department noted that it is essential that the planning
process initially assume that inmates or detainees with disabilities will be
assigned within the system under the same criteria that would be applied to
inmates who do not have disabilities. Exceptions may be made on a case-by-case
basis if the specific situation warrants different treatment. For example, if an
inmate is deaf and communicates only using sign language, a prison may consider
whether it is more appropriate to give priority to housing the prisoner in a
facility close to his family that houses no other deaf inmates, or if it would
be preferable to house the prisoner in a setting where there are sign language
interpreters and other sign language users with whom he can communicate.

In general, commenters strongly supported the NPRM’s clarification that the
title II integration mandate applies to State and local corrections agencies and
the facilities in which they house inmates. Commenters pointed out that inmates
with disabilities continue to be segregated based on their disabilities and also
excluded from participation in programs. An organization actively involved in
addressing the needs of prisoners cited a number of recent lawsuits in which
prisoners allege such discrimination.

The majority of commenters objected to the language in proposed § 35.152(b)(2)
that creates an exception to the integration mandate when the “public entity can
demonstrate that it is appropriate to make an exception for a specific
individual.” 73 FR 34466, 34507 (June 17, 2008). The vast majority of commenters
asserted that, given the practice of many public entities to segregate and
cluster inmates with disabilities, the exception will be used to justify the
status quo. The commenters acknowledged that the intent of the section is to
ensure that an individual with a disability who can be better served in a less
integrated setting can legally be placed in that setting. They were concerned,
however, that the proposed language would allow certain objectionable practices
to continue, e.g., automatically placing persons with disabilities in
administrative segregation. An advocacy organization with extensive experience
working with inmates recommended that the inmate have “input” in the placement
decision.

Others commented that the exception does not provide sufficient guidance on when
a government entity may make an exception, citing the need for objective
standards. Some commenters posited that a prison administration may want to
house a deaf inmate at a facility designated and equipped for deaf inmates that
is several hundred miles from the inmate’s home. Although under the exception
language, such a placement may be appropriate, these commenters argued that this
outcome appears to contradict the regulation’s intent to eliminate or reduce the
segregation of inmates with disabilities and prevent them from being placed far
from their families. The Department notes that in some jurisdictions, the
likelihood of such outcomes is diminished because corrections facilities with
different programs and levels of accessibility are clustered in close proximity
to one another, so that being far from family is not an issue. The Department
also takes note of advancements in technology that will ease the visitation
dilemma, such as family visitation through the use of videoconferencing.

Only one commenter, a large State department of corrections, objected to the
integration requirement. This commenter stated it houses all maximum security
inmates in maximum security facilities. Inmates with lower security levels may
or may not be housed in lower security facilities depending on a number of
factors, such as availability of a bed, staffing, program availability, medical
and mental health needs, and enemy separation. The commenter also objected to
the proposal to prohibit housing inmates with disabilities in medical areas
unless they are receiving medical care. This commenter stated that such housing
may be necessary for several days, for example, at a stopover facility for an
inmate with a disability who is being transferred from one facility to another.
Also, this commenter stated that inmates with disabilities in disciplinary
status may be housed in the infirmary because not every facility has accessible
cells in disciplinary housing. Similarly the commenter objected to the
prohibition on placing inmates in facilities without the same programs as
facilities where they normally would be housed. Finally, the commenter objected
to the prohibition on placing an inmate at a facility distant from where the
inmate would normally be housed. The commenter stressed that in its system,
there are few facilities near most inmates’ homes. The commenter noted that most
inmates are housed at facilities far from their homes, a fact shared by all
inmates, not just inmates with disabilities. Another commenter noted that in
some jurisdictions, inmates who need assistance in activities of daily living
cannot obtain that assistance in the general population, but only in medical
facilities where they must be housed.

The Department has considered the concerns raised by the commenters with respect
to this section and recognizes that corrections systems may move inmates
routinely and for a variety of reasons, such as crowding, safety, security,
classification change, need for specialized programs, or to provide medical
care. Sometimes these moves are within the same facility or prison system. On
other occasions, inmates may be transferred to facilities in other cities,
counties, and States. Given the nature of the prison environment, inmates have
little say in their placement and administrators must have flexibility to meet
the needs of the inmates and the system. The Department has revised the language
of the exception contained in renumbered § 35.152(b)(2) to better accommodate
corrections administrators’ need for flexibility in making placement decisions
based on legitimate, specific reasons. Moreover, the Department believes that
temporary, short-term moves that are necessary for security or administrative
purposes (e.g., placing an inmate with a disability in a medical area at a
stopover facility during a transfer from one facility to another) do not violate
the requirements of § 35.152(b)(2).

The Department notes that § 35.150(a)(3) states that a public entity is not
required 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.” Thus, corrections systems would not
have to comply with the requirements of § 35.152(b)(1) in any specific
circumstance where these defenses are met.

Several commenters recommended that the word “should” be changed to “shall” in
the subparts to § 35.152(b)(2). The Department agrees that because the rule
contains a specific exception and because the integration requirement is subject
to the defenses provided in paragraph (a) of that section, it is more
appropriate to use the word “shall” and the Department accordingly is making
that change in the final rule.

Program requirements. In a unanimous decision, the Supreme Court, in
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), stated
explicitly that the ADA covers the operations of State prisons; accordingly,
title II’s program accessibility requirements apply to State and local
correctional and detention facilities. In the NPRM, in addressing the
accessibility of existing correctional and detention facilities, the Department
considered the challenges of applying the title II program access requirement
for existing facilities under § 31.150(a) in light of the realities of many
inaccessible correctional facilities and strained budgets.

Correctional and detention facilities commonly provide a variety of different
programs for education, training, counseling, or other purposes related to
rehabilitation. Some examples of programs generally available to inmates include
programs to obtain GEDs, computer training, job skill training and on-the-job
training, religious instruction and guidance, alcohol and substance abuse
groups, anger management, work assignments, work release, halfway houses, and
other programs. Historically, individuals with disabilities have been excluded
from such programs because they are not located in accessible locations, or
inmates with disabilities have been segregated in units without equivalent
programs. In light of the Supreme Court’s decision in Yeskey and the
requirements of title II, however, it is critical that public entities provide
these opportunities to inmates with disabilities. In proposed § 35.152, the
Department sought to clarify that title II required equal access for inmates
with disabilities to participate in programs offered to inmates without
disabilities.

The Department wishes to emphasize that detention and correctional facilities
are unique facilities under title II. Inmates cannot leave the facilities and
must have their needs met by the corrections system, including needs relating to
a disability. If the detention and correctional facilities fail to accommodate
prisoners with disabilities, these individuals have little recourse,
particularly when the need is great (e.g., an accessible toilet; adequate
catheters; or a shower chair). It is essential that corrections systems fulfill
their nondiscrimination and program access obligations by adequately addressing
the needs of prisoners with disabilities, which include, but are not limited to,
proper medication and medical treatment, accessible toilet and shower
facilities, devices such as a bed transfer or a shower chair, and assistance
with hygiene methods for prisoners with physical disabilities.

In the NPRM, the Department also sought input on whether it should establish a
program accessibility requirement that public entities modify additional cells
at a detention or correctional facility to incorporate the accessibility
features needed by specific inmates with mobility disabilities when the number
of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate
to meet the needs of their inmate population.

Commenters supported a program accessibility requirement, viewing it as a
flexible and practical means of allowing facilities to meet the needs of inmates
in a cost effective and expedient manner. One organization supported a
requirement to modify additional cells when the existing number of accessible
cells is inadequate. It cited the example of a detainee who was held in a
hospital because the local jail had no accessible cells. Similarly, a State
agency recommended that the number of accessible cells should be sufficient to
accommodate the population in need. One group of commenters voiced concern about
accessibility being provided in a timely manner and recommended that the rule
specify that the program accessibility requirement applies while waiting for the
accessibility modifications. A group with experience addressing inmate needs
recommended the inmate’s input should be required to prevent inappropriate
segregation or placement in an inaccessible or inappropriate area.

The Department is persuaded by these comments. Accordingly, § 35.152(b)(3)
requires public entities to “implement reasonable policies, including physical
modifications to additional cells in accordance with the 2010 Standards, so as
to ensure that each inmate with a disability is housed in a cell with the
accessible elements necessary to afford the inmate access to safe, appropriate
housing.”

Communication. Several large disability advocacy organizations commented on the
2004 ADAAG section 232.2.2 requirement that at least 2 percent of the general
holding cells and housing cells must be equipped with audible emergency alarm
systems. Permanently installed telephones within these cells must have volume
control. Commenters said that the communication features in the 2004 ADAAG do
not address the most common barriers that deaf and hard-of-hearing inmates face.
They asserted that few cells have telephones and the requirements to make them
accessible is limited to volume control, and that emergency alarm systems are
only a small part of the amplified information that inmates need. One large
association commented that it receives many inmate complaints that announcements
are made over loudspeakers or public address systems, and that inmates who do
not hear announcements for inmate count or other instructions face disciplinary
action for failure to comply. They asserted that inmates who miss announcements
miss meals, exercise, showers, and recreation. They argued that systems that
deliver audible announcements, signals, and emergency alarms must be made
accessible and that TTYs must be made available. Commenters also recommended
that correctional facilities should provide access to advanced forms of
telecommunications. Additional commenters noted that few persons now use TTYs,
preferring instead to communicate by email, texting, and videophones.

The Department agrees with the commenters that correctional facilities and jails
must ensure that inmates who are deaf or hard of hearing actually receive the
same information provided to other inmates. The Department believes, however,
that the reasonable modifications, program access, and effective communications
requirements of title II are sufficient to address the needs of individual deaf
and hard of hearing inmates, and as a result, declines to add specific
requirements for communications features in cells for deaf and hard of hearing
inmates at this time. The Department notes that as part of its ongoing
enforcement of the reasonable modifications, program access, and effective
communications requirements of title II, the Department has required
correctional facilities and jails to provide communication features in cells
serving deaf and hard of hearing inmates.


SUBPART E—COMMUNICATIONS


SECTION 35.160 COMMUNICATIONS.

Section 35.160 of the 1991 title II regulation requires a public entity to take
appropriate steps to ensure that communications with applicants, participants,
and members of the public with disabilities are as effective as communications
with others. 28 CFR 35.160(a). In addition, a public entity must “furnish
appropriate auxiliary aids and services where necessary to afford an individual
with a disability an equal opportunity to participate in, and enjoy the benefits
of, a service, program, or activity conducted by a public entity.” 28 CFR
35.160(b)(1). Moreover, the public entity must give “primary consideration to
the requests of the individual with disabilities” in determining what type of
auxiliary aid and service is necessary. 28 CFR 35.160(b)(2).

Since promulgation of the 1991 title II regulation, the Department has
investigated hundreds of complaints alleging failures by public entities to
provide effective communication, and many of these investigations resulted in
settlement agreements and consent decrees. From these investigations, the
Department has concluded that public entities sometimes misunderstand the scope
of their obligations under the statute and the regulation. Section 35.160 in the
final rule codifies the Department’s longstanding policies in this area and
includes provisions that reflect technological advances in the area of auxiliary
aids and services.

In the NPRM, the Department proposed adding “companion” to the scope of coverage
under § 35.160 to codify the Department’s longstanding position that a public
entity’s obligation to ensure effective communication extends not just to
applicants, participants, and members of the public with disabilities, but to
companions as well, if any of them are individuals with disabilities. The NPRM
defined companion as a person who is a family member, friend, or associate of a
program participant, who, along with the program participant, is “an appropriate
person with whom the public entity should communicate.” 73 FR 34466, 34507 (June
17, 2008).

Many commenters supported inclusion of “companions” in the rule, and urged even
more specific language about public entities’ obligations. Some commenters asked
the Department to clarify that a companion with a disability may be entitled to
effective communication from a public entity even though the applicants,
participants, or members of the general public seeking access to, or
participating in, the public entity’s services, programs, or activities are not
individuals with disabilities. Others requested that the Department explain the
circumstances under which auxiliary aids and services should be provided to
companions. Still others requested explicit clarification that where the
individual seeking access to or participating in the public entity’s program,
services, or activities requires auxiliary aids and services, but the companion
does not, the public entity may not seek out, or limit its communications to,
the companion instead of communicating directly with the individual with a
disability when it would be appropriate to do so.

Some in the medical community objected to the inclusion of any regulatory
language regarding companions, asserting that such language is overbroad, seeks
services for individuals whose presence is not required by the public entity, is
not necessary for the delivery of the services or participation in the program,
and places additional burdens on the medical community. These commenters asked
that the Department limit the public entity’s obligation to communicate
effectively with a companion to situations where such communications are
necessary to serve the interests of the person who is receiving the public
entity’s services.

After consideration of the many comments on this issue, the Department believes
that explicit inclusion of “companions” in the final rule is appropriate to
ensure that public entities understand the scope of their effective
communication obligations. There are many situations in which the interests of
program participants without disabilities require that their companions with
disabilities be provided effective communication. In addition, the program
participant need not be physically present to trigger the public entity’s
obligations to a companion. The controlling principle is that auxiliary aids and
services must be provided if the companion is an appropriate person with whom
the public entity should or would communicate.

Examples of such situations include back-to- school nights or parent-teacher
conferences at a public school. If the faculty writes on the board or otherwise
displays information in a visual context during a back-to-school night, this
information must be communicated effectively to parents or guardians who are
blind or have low vision. At a parent-teacher conference, deaf parents or
guardians must be provided with appropriate auxiliary aids and services to
communicate effectively with the teacher and administrators. It makes no
difference that the child who attends the school does not have a disability.
Likewise, when a deaf spouse attempts to communicate with public social service
agencies about the services necessary for the hearing spouse, appropriate
auxiliary aids and services to the deaf spouse must be provided by the public
entity to ensure effective communication. Parents or guardians, including foster
parents, who are individuals with disabilities, may need to interact with child
services agencies on behalf of their children; in such a circumstance, the child
services agencies would need to provide appropriate auxiliary aids and services
to those parents or guardians.

Effective communication with companions is particularly critical in health care
settings where miscommunication may lead to misdiagnosis and improper or delayed
medical treatment. The Department has encountered confusion and reluctance by
medical care providers regarding the scope of their obligation with respect to
such companions. Effective communication with a companion is necessary in a
variety of circumstances. For example, a companion may be legally authorized to
make health care decisions on behalf of the patient or may need to help the
patient with information or instructions given by hospital personnel. A
companion may be the patient’s next-of-kin or health care surrogate with whom
hospital personnel must communicate about the patient’s medical condition. A
companion could be designated by the patient to communicate with hospital
personnel about the patient’s symptoms, needs, condition, or medical history. Or
the companion could be a family member with whom hospital personnel normally
would communicate.

Accordingly, § 35.160(a)(1) in the final rule now reads, “[a] public entity
shall take appropriate steps to ensure that communications with applicants,
participants, members of the public, and companions with disabilities are as
effective as communications with others.” Section 35.160(a)(2) further defines
“companion” as “a family member, friend, or associate of an individual seeking
access to a service, program, or activity of a public entity, who, along with
the individual, is an appropriate person with whom the public entity should
communicate.” Section 35.160(b)(1) clarifies that the obligation to furnish
auxiliary aids and services extends to companions who are individuals with
disabilities, whether or not the individual accompanied also is an individual
with a disability. The provision now states that “[a] public entity shall
furnish appropriate auxiliary aids and services where necessary to afford
individuals with disabilities, including applicants, participants, companions,
and members of the public, an equal opportunity to participate in, and enjoy the
benefits of, a service, program, or activity of a public entity.”

These provisions make clear that if the companion is someone with whom the
public entity normally would or should communicate, then the public entity must
provide appropriate auxiliary aids and services to that companion to ensure
effective communication with the companion. This common-sense rule provides the
guidance necessary to enable public entities to properly implement the
nondiscrimination requirements of the ADA.

As set out in the final rule, § 35.160(b)(2) states, in pertinent part, that
“[t]he type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of communication used by
the individual, the nature, length, and complexity of the communication
involved, and the context in which the communication is taking place. In
determining what types of auxiliary aids and services are necessary, a public
entity shall give primary consideration to the requests of individuals with
disabilities.”

The second sentence of § 35.160(b)(2) of the final rule restores the “primary
consideration” obligation set out at § 35.160(b)(2) in the 1991 title II
regulation. This provision was inadvertently omitted from the NPRM, and the
Department agrees with the many commenters on this issue that this provision
should be retained. As noted in the preamble to the 1991 title II regulation,
and reaffirmed here: “The public entity shall honor the choice [of the
individual with a disability] unless it can demonstrate that another effective
means of communication exists or that use of the means chosen would not be
required under § 35.164. Deference to the request of the individual with a
disability is desirable because of the range of disabilities, the variety of
auxiliary aids and services, and different circumstances requiring effective
communication.” 28 CFR part 35, app. A at 580 (2009).

The first sentence in § 35.160(b)(2) codifies the axiom that the type of
auxiliary aid or service necessary to ensure effective communication will vary
with the situation, and provides factors for consideration in making the
determination, including the method of communication used by the individual; the
nature, length, and complexity of the communication involved; and the context in
which the communication is taking place. Inclusion of this language under title
II is consistent with longstanding policy in this area. See, e.g., The Americans
with Disabilities Act Title II Technical Assistance Manual Covering State and
Local Government Programs and Services, section II–7.1000, available at
https://archive.ada.gov/taman2.html (“The type of auxiliary aid or service
necessary to ensure effective communication will vary in accordance with the
length and complexity of the communication involved. * * * Sign language or oral
interpreters, for example, may be required when the information being
communicated in a transaction with a deaf individual is complex, or is exchanged
for a lengthy period of time. Factors to be considered in determining whether an
interpreter is required include the context in which the communication is taking
place, the number of people involved, and the importance of the
communication.”); See also 28 CFR part 35, app. A at 580 (2009). As explained in
the NPRM, an individual who is deaf or hard of hearing may need a qualified
interpreter to communicate with municipal hospital personnel about diagnoses,
procedures, tests, treatment options, surgery, or prescribed medication (e.g.,
dosage, side effects, drug interactions, etc.), or to explain follow-up
treatments, therapies, test results, or recovery. In comparison, in a simpler,
shorter interaction, the method to achieve effective communication can be more
basic. An individual who is seeking local tax forms may only need an exchange of
written notes to achieve effective communication.

Section 35.160(c)(1) has been added to the final rule to make clear that a
public entity shall not require an individual with a disability to bring another
individual to interpret for him or her. The Department receives many complaints
from individuals who are deaf or hard of hearing alleging that public entities
expect them to provide their own sign language interpreters. Proposed §
35.160(c)(1) was intended to clarify that when a public entity is interacting
with a person with a disability, it is the public entity’s responsibility to
provide an interpreter to ensure effective communication. It is not appropriate
to require the person with a disability to bring another individual to provide
such services.

Section 35.160(c)(2) of the NPRM proposed codifying the Department’s position
that there are certain limited instances when a public entity may rely on an
accompanying individual to interpret or facilitate communication: (1) In an
emergency involving a threat to the public safety or welfare; or (2) if the
individual with a disability specifically requests it, the accompanying
individual agrees to provide the assistance, and reliance on that individual for
this assistance is appropriate under the circumstances.

Many commenters supported this provision, but sought more specific language to
address what they See as a particularly entrenched problem. Some commenters
requested that the Department explicitly require the public entity first to
notify the individual with a disability that the individual has a right to
request and receive appropriate auxiliary aids and services without charge from
the public entity before using that person’s accompanying individual as a
communication facilitator. Advocates stated that an individual who is unaware of
his or her rights may decide to use a third party simply because he or she
believes that is the only way to communicate with the public entity.

The Department has determined that inclusion of specific language requiring
notification is unnecessary. Section 35.160(b)(1) already states that is the
responsibility of the public entity to provide auxiliary aids and services.
Moreover, § 35.130(f) already prohibits the public entity from imposing a
surcharge on a particular individual with a disability or on any group of
individuals with disabilities to cover the costs of auxiliary aids. However, the
Department strongly advises public entities that they should first inform the
individual with a disability that the public entity can and will provide
auxiliary aids and services, and that there would be no cost for such aids or
services.

Many commenters requested that the Department make clear that the public entity
cannot request, rely upon, or coerce an adult accompanying an individual with a
disability to provide effective communication for that individual with a
disability—that only a voluntary offer is acceptable. The Department states
unequivocally that consent of, and for, the adult accompanying the individual
with a disability to facilitate communication must be provided freely and
voluntarily both by the individual with a disability and the accompanying third
party—absent an emergency involving an imminent threat to the safety or welfare
of an individual or the public where there is no interpreter available. The
public entity may not coerce or attempt to persuade another adult to provide
effective communication for the individual with a disability. Some commenters
expressed concern that the regulation could be read by public entities,
including medical providers, to prevent parents, guardians, or caregivers from
providing effective communication for children or that a child, regardless of
age, would have to specifically request that his or her caregiver act as
interpreter. The Department does not intend § 35.160(c)(2) to prohibit parents,
guardians, or caregivers from providing effective communication for children
where so doing would be appropriate. Rather, the rule prohibits public entities,
including medical providers, from requiring, relying on, or forcing adults
accompanying individuals with disabilities, including parents, guardians, or
caregivers, to facilitate communication.

Several commenters asked that the Department make absolutely clear that children
are not to be used to provide effective communication for family members and
friends, and that it is the public entity’s responsibility to provide effective
communication, stating that often interpreters are needed in settings where it
would not be appropriate for children to be interpreting, such as those
involving medical issues, domestic violence, or other situations involving the
exchange of confidential or adult-related material. Commenters observed that
children are often hesitant to turn down requests to provide communication
services, and that such requests put them in a very difficult position vis-a-vis
family members and friends. The Department agrees. It is the Department’s
position that a public entity shall not rely on a minor child to facilitate
communication with a family member, friend, or other individual, except in an
emergency involving imminent threat to the safety or welfare of an individual or
the public where there is no interpreter available. Accordingly, the Department
has revised the rule to state: “A public entity shall not rely on a minor child
to interpret or facilitate communication, except in an emergency involving
imminent threat to the safety or welfare of an individual or the public where
there is no interpreter available.” § 35.160(c)(3). Sections 35.160(c)(2) and
(3) have no application in circumstances where an interpreter would not
otherwise be required in order to provide effective communication (e.g., in
simple transactions such as purchasing movie tickets at a theater). The
Department stresses that privacy and confidentiality must be maintained but
notes that covered entities, such as hospitals, that are subject to the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law
104–191, Privacy Rules are permitted to disclose to a patient’s relative, close
friend, or any other person identified by the patient (such as an interpreter)
relevant patient information if the patient agrees to such disclosures. See 45
CFR parts 160 and 164. The agreement need not be in writing. Covered entities
should consult the HIPAA Privacy Rules regarding other ways disclosures might be
able to be made to such persons.

With regard to emergency situations, the NPRM proposed permitting reliance on an
individual accompanying an individual with a disability to interpret or
facilitate communication in an emergency involving a threat to the public safety
or welfare. Commenters requested that the Department make clear that often a
public entity can obtain appropriate auxiliary aids and services in advance of
an emergency by making necessary advance arrangements, particularly in
anticipated emergencies such as predicted dangerous weather or certain medical
situations such as childbirth. These commenters did not want public entities to
be relieved of their responsibilities to provide effective communication in
emergency situations, noting that the obligation to provide effective
communication may be more critical in such situations. Several commenters
requested a separate rule that requires public entities to provide timely and
effective communication in the event of an emergency, noting that the need for
effective communication escalates in an emergency.

Commenters also expressed concern that public entities, particularly law
enforcement authorities and medical personnel, would apply the “emergency
situation” provision in inappropriate circumstances and would rely on
accompanying individuals without making any effort to seek appropriate auxiliary
aids and services. Other commenters asked that the Department narrow this
provision so that it would not be available to entities that are responsible for
emergency preparedness and response. Some commenters noted that certain exigent
circumstances, such as those that exist during and perhaps immediately after, a
major hurricane, temporarily may excuse public entities of their
responsibilities to provide effective communication. However, they asked that
the Department clarify that these obligations are ongoing and that, as soon as
such situations begin to abate or stabilize, the public entity must provide
effective communication.

The Department recognizes that the need for effective communication is critical
in emergency situations. After due consideration of all of these concerns raised
by commenters, the Department has revised § 35.160(c) to narrow the exception
permitting reliance on individuals accompanying the individual with a disability
during an emergency to make it clear that it only applies to emergencies
involving an “imminent threat to the safety or welfare of an individual or the
public.” See § 35.160(c)(2)–(3). Arguably, all visits to an emergency room or
situations to which emergency workers respond are by definition emergencies.
Likewise, an argument can be made that most situations that law enforcement
personnel respond to involve, in one way or another, a threat to the safety or
welfare of an individual or the public. The imminent threat exception in §
35.160(c)(2)– (3) is not intended to apply to the typical and foreseeable
emergency situations that are part of the normal operations of these
institutions. As such, a public entity may rely on an accompanying individual to
interpret or facilitate communication under the § 35.160(c)(2)–(3) imminent
threat exception only where in truly exigent circumstances, i.e., where any
delay in providing immediate services to the individual could have life-altering
or life-ending consequences.

Many commenters urged the Department to stress the obligation of State and local
courts to provide effective communication. The Department has received many
complaints that State and local courts often do not provide needed qualified
sign language interpreters to witnesses, litigants, jurors, potential jurors,
and companions and associates of persons participating in the legal process. The
Department cautions public entities that without appropriate auxiliary aids and
services, such individuals are denied an opportunity to participate fully in the
judicial process, and denied benefits of the judicial system that are available
to others.

Another common complaint about access to State and local court systems is the
failure to provide effective communication in deferral programs that are
intended as an alternative to incarceration, or for other court-ordered
treatment programs. These programs must provide effective communication, and
courts referring individuals with disabilities to such programs should only
refer individuals with disabilities to programs or treatment centers that
provide effective communication. No person with a disability should be denied
access to the benefits conferred through participation in a court-ordered
referral program on the ground that the program purports to be unable to provide
effective communication.

The general nondiscrimination provision in § 35.130(a) provides that no
individual with a disability shall, on the basis of disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity. The Department consistently interprets this
provision and § 35.160 to require effective communication in courts, jails,
prisons, and with law enforcement officers. Persons with disabilities who are
participating in the judicial process as witnesses, jurors, prospective jurors,
parties before the court, or companions of persons with business in the court,
should be provided auxiliary aids and services as needed for effective
communication. The Department has developed a variety of technical assistance
and guidance documents on the requirements for title II entities to provide
effective communication; those materials are available on the Department Web
site at: http://www.ada.gov.

Many advocacy groups urged the Department to add language in the final rule that
would require public entities to provide accessible material in a manner that is
timely, accurate, and private. The Department has included language in §
35.160(b)(2) stating that “[i]n order to be effective, auxiliary aids and
services must be provided in accessible formats, in a timely manner, and in such
a way so as to protect the privacy and independence of the individual with a
disability.”

Because the appropriateness of particular auxiliary aids and services may vary
as a situation changes, the Department strongly encourages public entities to do
a communication assessment of the individual with a disability when the need for
auxiliary aids and services is first identified, and to reassess communication
effectiveness regularly throughout the communication. For example, a deaf
individual may go to an emergency department of a public community health center
with what is at first believed to be a minor medical emergency, such as a sore
knee, and the individual with a disability and the public community health
center both believe that exchanging written notes will be effective. However,
during that individual’s visit, it is determined that the individual is, in
fact, suffering from an anterior cruciate ligament tear and must have surgery to
repair the torn ligament. As the situation develops and the diagnosis and
recommended course of action evolve into surgery, an interpreter most likely
will be necessary. A public entity has a continuing obligation to assess the
auxiliary aids and services it is providing, and should consult with individuals
with disabilities on a continuing basis to assess what measures are required to
ensure effective communication. Public entities are further advised to keep
individuals with disabilities apprised of the status of the expected arrival of
an interpreter or the delivery of other requested or anticipated auxiliary aids
and services.

Video remote interpreting (VRI) services. In § 35.160(d) of the NPRM, the
Department proposed the inclusion of four performance standards for VRI (which
the NPRM termed video interpreting services (VIS)), for effective communication:
(1) High-quality, clear, real-time, full-motion video and audio over a dedicated
high-speed Internet connection; (2) a clear, sufficiently large, and sharply
delineated picture of the participating individual’s head, arms, hands, and
fingers, regardless of his body position; (3) clear transmission of voices; and
(4) persons who are trained to set up and operate the VRI quickly. Commenters
generally approved of those performance standards, but recommended that some
additional standards be included in the final rule. Some State agencies and
advocates for persons with disabilities requested that the Department add more
detail in the description of the first standard, including modifying the term
“dedicated high-speed Internet connection” to read “dedicated high-speed,
wide-bandwidth video connection.” These commenters argued that this change was
necessary to ensure a high-quality video image that will not produce lags,
choppy images, or irregular pauses in communication. The Department agrees with
those comments and has amended the provision in the final rule accordingly.

For persons who are deaf with limited vision, commenters requested that the
Department include an explicit requirement that interpreters wear high-contrast
clothing with no patterns that might distract from their hands as they are
interpreting, so that a person with limited vision can see the signs made by the
interpreter. While the Department reiterates the importance of such practices in
the delivery of effective VRI, as well as in-person interpreting, the Department
declines to adopt such performance standards as part of this rule. In general,
professional interpreters already follow such practices—the Code of Professional
Conduct for interpreters developed by the Registry of Interpreters for the Deaf,
Inc. and the National Association of the Deaf incorporates attire considerations
into their standards of professionalism and conduct. (This code is available at
http://www.vid.org/userfiles/file/pdfs/codeofethics (Last visited July 18,
2010). Moreover, as a result of this code, many VRI agencies have adopted
detailed dress standards that interpreters hired by the agency must follow. In
addition, commenters urged that a clear image of the face and eyes of the
interpreter and others be explicitly required. Because the face includes the
eyes, the Department has amended § 35.160(d)(2) of the final rule to include a
requirement that the interpreter’s face be displayed.

In response to comments seeking more training for users and non-technicians
responsible for VRI in title II facilities, the Department is extending the
requirement in § 35.160(d)(4) to require training for “users of the technology”
so that staff who would have reason to use the equipment in an emergency room,
State or local court, or elsewhere are properly trained. Providing for such
training will enhance the success of VRI as means of providing effective
communication.

Captioning at sporting venues. In the NPRM at § 35.160(e), the Department
proposed that sports stadiums that have a capacity of 25,000 or more shall
provide captioning for safety and emergency information on scoreboards and video
monitors. In addition, the Department posed four questions about captioning of
information, especially safety and emergency information announcements, provided
over public address (PA) systems. The Department received many extremely
detailed and divergent responses to each of the four questions and the proposed
regulatory text. Because comments submitted on the Department’s title II and
title III proposals were intertwined, because of the similarity of issues
involved for title II entities and title III entities, and in recognition of the
fact that many large sports stadiums are covered by both title II and title III
as joint operations of State or local governments and one or more public
accommodations, the Department presents here a single consolidated review and
summary of the issues raised in comments.

The Department asked whether requiring captioning of safety and emergency
information made over the public address system in stadiums seating fewer than
25,000 would create an undue burden for smaller entities, whether it would be
feasible for small stadiums, or whether a larger threshold, such as sports
stadiums with a capacity of 50,000 or more, would be appropriate.

There was a consensus among the commenters, including disability advocates as
well as venue owners and stadium designers and operators, that using the stadium
size or seating capacity as the exclusive deciding factor for any obligation to
provide captioning for safety and emergency information broadcast over the PA
system is not preferred. Most disability advocacy organizations and individuals
with disabilities complained that using size or seating capacity as a threshold
for captioning safety and emergency information would undermine the “undue
burden” defense found in both titles II and III. Many commenters provided
examples of facilities like professional hockey arenas that seat less than
25,000 fans but which, commenters argued, should be able to provide real-time
captioning. Other commenters suggested that some high school or college
stadiums, for example, may hold 25,000 fans or more and yet lack the resources
to provide real-time captioning. Many commenters noted that real-time captioning
would require trained stenographers and that most high school and college sports
facilities rely upon volunteers to operate scoreboards and PA systems, and they
would not be qualified stenographers, especially in case of an emergency. One
national association noted that the typical stenographer expense for a
professional football game in Washington, DC is about $550 per game. Similarly,
one trade association representing venues estimated that the cost for a
professional stenographer at a sporting event runs between $500 and $1,000 per
game or event, the cost of which, they argued, would be unduly burdensome in
many cases. Some commenters posited that schools that do not sell tickets to
athletic events would find it difficult to meet such expenses, in contrast to
major college athletic programs and professional sports teams, which would be
less likely to prevail using an “undue burden” defense.

Some venue owners and operators and other covered entities argued that stadium
size should not be the key consideration when requiring scoreboard captioning.
Instead, these entities suggested that equipment already installed in the
stadium, including necessary electrical equipment and backup power supply,
should be the determining factor for whether captioning is mandated. Many
commenters argued that the requirement to provide captioning should only apply
to stadiums with scoreboards that meet the National Fire Protection Association
(NFPA) National Fire Alarm Code (NFPA 72). Commenters reported that NFPA 72
requires at least two independent and reliable power supplies for emergency
information systems, including one source that is a generator or battery
sufficient to run the system in the event the primary power fails.
Alternatively, some stadium designers and title II entities commented that the
requirement should apply when the facility has at least one elevator providing
firefighter emergency operation, along with approval of authorities with
responsibility for fire safety. Other commenters argued for flexibility in the
requirements for providing captioning and that any requirement should only apply
to stadiums constructed after the effective date of the regulation.

In the NPRM, the Department also asked whether the rule should address the
specific means of captioning equipment, whether it should be provided through
any effective means (scoreboards, line boards, handheld devices, or other
means), or whether some means, such as handheld devices, should be eliminated as
options. This question elicited many comments from advocates for persons with
disabilities as well as from covered entities. Advocacy organizations and
individuals with experience using handheld devices argue that such devices do
not provide effective communication. These commenters noted that information is
often delayed in the transmission to such devices, making them hard to use when
following action on the playing field or in the event of an emergency when the
crowd is already reacting to aural information provided over the PA system well
before it is received on the handheld device.

Several venue owners and operators and others commented that handheld technology
offers advantages of flexibility and portability so that it may be used
successfully regardless of where in the facility the user is located, even when
not in the line of sight of a scoreboard or other captioning system. Still other
commenters urged the Department not to regulate in such a way as to limit
innovation and use of such technology now and in the future. Cost considerations
were included in some comments from some stadium designers and venue owners and
operators, who reported that the cost of providing handheld systems is far less
than the cost of real-time captioning on scoreboards, especially in facilities
that do not currently have the capacity to provide real-time captions on
existing equipment. Others noted that handheld technology is not covered by fire
and safety model codes, including the NFPA, and thus would be more easily
adapted into existing facilities if captioning were required by the Department.

The Department also asked about providing open captioning of all public address
announcements, and not limiting captioning to safety and emergency information.
A variety of advocates and persons with disabilities argued that all information
broadcast over a PA system should be captioned in real time at all facilities in
order to provide effective communication and that a requirement only to provide
emergency and safety information would not be sufficient. A few organizations
for persons with disabilities commented that installation of new systems should
not be required, but that all systems within existing facilities that are
capable of providing captioning must be utilized to the maximum extent possible
to provide captioning of as much information as possible. Several organizations
representing persons with disabilities commented that all facilities must
include in safety planning the requirement to caption all aurally-provided
information for patrons with communication disabilities. Some advocates
suggested that demand for captions will only increase as the number of deaf and
hard of hearing persons grows with the aging of the general population and with
increasing numbers of veterans returning from war with disabilities. Multiple
comments noted that the captioning would benefit others as well as those with
communication disabilities.

By contrast, venue owners and operators and others commented that the action on
the sports field is self-explanatory and does not require captioning and they
objected to an explicit requirement to provide real-time captioning for all
information broadcast on the PA system at a sporting event. Other commenters
objected to requiring captioning even for emergency and safety information over
the scoreboard rather than through some other means. By contrast, venue
operators, State government agencies, and some model code groups, including
NFPA, commented that emergency and safety information must be provided in an
accessible format and that public safety is a paramount concern. Other
commenters argued that the best method to deliver safety and emergency
information would be television monitors showing local TV broadcasts with
captions already mandated by the FCC. Some commenters posited that the most
reliable information about a major emergency would be provided on the television
news broadcasts. Several commenters argued that television monitors may be
located throughout the facility, improving line of sight for patrons, some of
whom might not be able to See the scoreboard from their seats or elsewhere in
the facility. Some stadium designers, venue operators, and model code groups
pointed out that video monitors are not regulated by the NFPA or other agencies,
so that such monitors could be more easily provided. Video monitors may receive
transmissions from within the facility and could provide real-time captions if
there is the necessary software and equipment to feed the captioning signal to a
closed video network within the facility. Several comments suggested that using
monitors would be preferable to requiring captions on the scoreboard if the
regulation mandates realtime captioning. Some venue owners and operators argued
that retrofitting existing stadiums with new systems could easily cost hundreds
of thousands of dollars per scoreboard or system. Some stadium designers and
others argued that captioning should only be required in stadiums built after
the effective date of the regulation. For stadiums with existing systems that
allow for real-time captioning, one commenter posited that dedicating the system
exclusively to real-time captioning would lead to an annual loss of between $2
and $3 million per stadium in revenue from advertising currently running in that
space.

After carefully considering the wide range of public comments on this issue, the
Department has concluded that the final rule will not provide additional
requirements for effective communication or emergency information provided at
sports stadiums at this time. The 1991 title II and title III regulations and
statutory requirements are not in any way affected by this decision. The
decision to postpone rulemaking on this complex issue is based on a number of
factors, including the multiple layers of existing regulation by various
agencies and levels of government, and the wide array of information, requests,
and recommendations related to developing technology offered by the public. In
addition, there is a huge variety of covered entities, information and
communication systems, and differing characteristics among sports stadiums. The
Department has concluded that further consideration and review would be prudent
before it issues specific regulatory requirements.


SECTION 35.161 TELECOMMUNICATIONS.

The Department proposed to retitle this section “Telecommunications” to reflect
situations in which the public entity must provide an effective means to
communicate by telephone for individuals with disabilities. First, the NPRM
proposed redesignating § 35.161 as § 35.161(a) and replacing the term
“Telecommunications devices for the deaf (TDD)” with “Text telephones (TTY).”
Public comment was universally supportive of this change in nomenclature to TTY.

In the NPRM, at § 35.161(b), the Department addressed automated-attendant
systems that handle telephone calls electronically. Often individuals with
disabilities, including persons who are deaf or hard of hearing, are unable to
use such automated systems. Some systems are not compatible with TTYs or the
telecommunications relay service. Automated systems can and often do disconnect
calls from TTYs or relay calls, making it impossible for persons using a TTY or
relay system to do business with title II entities in the same manner as others.
The Department proposed language that would require a telecommunications service
to permit persons using relay or TTYs or other assistive technology to use the
automated-attendant system provided by the public entity. The FCC raised this
concern with the Department after the 1991 title II regulation went into effect,
and the Department acted upon that request in the NPRM. Comments from disability
advocates and persons with disabilities consistently requested the provision be
amended to cover “voice mail, messaging, auto-attendant, and interactive voice
response systems.” The Department recognizes that those are important features
of widely used telecommunications technology that should be as accessible to
persons who are deaf or hard of hearing as they are to others, and has amended
the section in the final rule to include the additional features.

Many commenters, including advocates and persons with disabilities, as well as
State agencies and national organizations, asked that all automated systems have
an option for the caller to bypass the automated system and speak to a live
person who could communicate using relay services. The Department understands
that automated telecommunications systems typically do not offer the opportunity
to avoid or bypass the automated system and speak to a live person. The
Department believes that at this time it is inappropriate to add a requirement
that all such systems provide an override capacity that permits a TTY or relay
caller to speak with a live clerk on a telecommunications relay system. However,
if a system already provides an option to speak to a person, that system must
accept TTY and relay calls and must not disconnect or refuse to accept such
calls.

Other comments from advocacy organizations and individuals urged the Department
to require specifications for the operation of such systems that would involve
issuing technical requirements for encoding and storage of automated text, as
well as controls for speed, pause, rewind, and repeat, and prompts without any
background noise. The same comments urged that these requirements should be
consistent with a pending advisory committee report to the Access Board,
submitted in April 2008. See Telecommunications and Electronic Information
Technology Advisory Committee, Report to the Access Board Refreshed
Accessibility Standards and Guidelines in Telecommunications and Electronic and
Information Technology (Apr. 2008) available at
http://www.access-board.gov/sec508/refresh/report/. The Department is declining
at this time to preempt ongoing consideration of these issues by the Board.
Instead, the Department will monitor activity by the Board. The Department is
convinced that the general requirement to make such automated systems usable by
persons with disabilities is appropriate at this time and title II entities
should evaluate their automated systems in light of concerns about providing
systems that offer effective communication to persons with disabilities.

Finally, the Department has adopted in § 35.161(c) of the final rule the
requirement that all such systems must not disconnect or refuse to take calls
from all forms of FCC-approved telecommunications relay systems, including
Internet-based relay systems. (Internet-based relay systems refer to the
mechanism by which the message is relayed). They do not require a public entity
to have specialized computer equipment. Commenters from some State agencies,
many advocacy organizations, and individuals strongly urged the Department to
mandate such action because of the high proportion of TTY calls and relay
service calls that are not completed because the title II entity’s phone system
or employees do not take the calls. This presents a serious obstacle for persons
doing business with State and local government and denies persons with
disabilities access to use the telephone for business that is typically handled
over the phone for others.

In addition, commenters requested that the Department include “real-time” before
any mention of “computer-aided” technology to highlight the value of
simultaneous translation of any communication. The Department has added
“real-time” before “computer-aided transcription services” in the definition of
“auxiliary aids in § 35.104 and before “communication” in § 35.161(b).


SUBPART F—COMPLIANCE PROCEDURES


SECTION 35.171 ACCEPTANCE OF COMPLAINTS.

In the NPRM, the Department proposed changing the current language in §
35.171(a)(2)(i) regarding misdirected complaints to make it clear that if an
agency receives a complaint for which it lacks jurisdiction either under section
504 or as a designated agency under the ADA, the agency may refer the complaint
to the appropriate agency with title II or section 504 jurisdiction or to the
Department of Justice. The language of the 1991 title II regulation only
requires the agency to refer such a complaint to the Department, which in turn
refers the complaint to the appropriate designated agency. The proposed
revisions to § 35.171 made it clear that an agency can refer a misdirected
complaint either directly to the appropriate agency or to the Department. This
amendment was intended to protect against the unnecessary backlogging of
complaints and to prevent undue delay in an agency taking action on a complaint.

Several commenters supported this amendment as a more efficient means of
directing title II complaints to the appropriate enforcing agency. One commenter
requested that the Department emphasize the need for timeliness in referring a
complaint. The Department does not believe it is appropriate to adopt a specific
time frame but will continue to encourage designated agencies to make timely
referrals. The final rule retains, with minor modifications, the language in
proposed § 35.171(a)(2)(i). The Department has also amended § 35.171(a)(2)(ii)
to be consistent with the changes in the rule at § 35.190(e), as discussed
below.


SECTION 35.172 INVESTIGATIONS AND COMPLIANCE REVIEWS.

In the NPRM, the Department proposed a number of changes to language in § 35.172
relating to the resolution of complaints. Subtitle A of title II of the ADA
defines the remedies, procedures, and rights provided for qualified individuals
with disabilities who are discriminated against on the basis of disability in
the services, programs, or activities of State and local governments. 42 U.S.C.
12131–12134. Subpart F of the current regulation establishes administrative
procedures for the enforcement of title II of the ADA. 28 CFR 35.170–35.178.
Subpart G identifies eight “designated agencies,” including the Department, that
have responsibility for investigating complaints under title II. See 28 CFR
35.190(b).

The Department’s 1991 title II regulation is based on the enforcement procedures
established in regulations implementing section 504. Thus, the Department’s 1991
title II regulation provides that the designated agency “shall investigate each
complete complaint” alleging a violation of title II and shall “attempt informal
resolution” of such complaint. 28 CFR 35.172(a). The full range of remedies
(including compensatory damages) that are available to the Department when it
resolves a complaint or resolves issues raised in a compliance review are
available to designated agencies when they are engaged in informal complaint
resolution or resolution of issues raised in a compliance review under title II.

In the years since the 1991 title II regulation went into effect, the Department
has received many more complaints alleging violations of title II than its
resources permit it to resolve. The Department has reviewed each complaint that
the Department has received and directed its resources to resolving the most
critical matters. In the NPRM, the Department proposed deleting the word “each”
as it appears before “complaint” in § 35.172(a) of the 1991 title II regulation
as a means of clarifying that designated agencies may exercise discretion in
selecting title II complaints for resolution.

Many commenters opposed the removal of the term “each,” requesting that all
title II complaints be investigated. The commenters explained that complaints
against title II entities implicate the fundamental right of access to
government facilities and programs, making an administrative enforcement
mechanism critical. Rather than aligning enforcement discretion of title II
complaints with the discretion under the enforcement procedures of title III,
the commenters favored obtaining additional resources to address more
complaints. The commenters highlighted the advantage afforded by Federal
involvement in complaint investigations in securing favorable voluntary
resolutions. When Federal involvement results in settlement agreements,
commenters believed those agreements are more persuasive to other public
entities than private settlements. Private litigation as a viable alternative
was rejected by the commenters because of the financial limitations of many
complainants, and because in some scenarios legal barriers foreclose private
litigation as an option.

Several of those opposing this amendment argued that designated agencies are
required to investigate each complaint under section 504, and a departure for
title II complaints would be an inconsistency. The Department believes that §
35.171(a) of the final rule is consistent with the obligation to evaluate all
complaints. However, there is no statutory requirement that every title II
complaint receive a full investigation. Section 203 of the ADA, 42 U.S.C. 12133,
adopts the “remedies, procedures, and rights set forth in section 505 of the
Rehabilitation Act of 1973” (29 U.S.C. 794a). Section 505 of the Rehabilitation
Act, in turn, incorporates the remedies available under title VI of the Civil
Rights Act of 1964 into section 504. Under these statutes, agencies may engage
in conscientious enforcement without fully investigating each citizen complaint.
An agency’s decision to conduct a full investigation requires a complicated
balancing of a number of factors that are particularly within its expertise.
Thus, the agency must not only assess whether a violation may have occurred, but
also whether agency resources are best spent on this complaint or another,
whether the agency is likely to succeed if it acts, and whether the particular
enforcement action requested best fits the agency’s overall policies.
Availability of resources will always be a factor, and the Department believes
discretion to maximize these limited resources will result in the most effective
enforcement program. If agencies are bound to investigate each complaint fully,
regardless of merit, such a requirement could have a deleterious effect on their
overall enforcement efforts. The Department continues to expect that each
designated agency will review the complaints the agency receives to determine
whether further investigation is appropriate.

The Department also proposed revising § 35.172 to add a new paragraph (b) that
provided explicit authority for compliance reviews consistent with the
Department’s longstanding position that such authority exists. The proposed
section stated, “[t]he designated agency may conduct compliance reviews of
public entities based on information indicating a possible failure to comply
with the nondiscrimination requirements of this part.” Several commenters
supported this amendment, identifying title III compliance reviews as having
been a successful means for the Department and designated agencies to improve
accessibility. The Department has retained this section. However, the Department
has modified the language of the section to make the authority to conduct
compliance reviews consistent with that available under section 504 and title
VI. See, e.g., 28 CFR 42.107(a). The new provision reads as follows: “(b) The
designated agency may conduct compliance reviews of public entities in order to
ascertain whether there has been a failure to comply with the nondiscrimination
requirements of this part.” The Department has also added a provision to §
35.172(c)(2) clarifying the Department’s longstanding view that agencies may
obtain compensatory damages on behalf of complainants as the result of a finding
of discrimination pursuant to a compliance review or in informal resolution of a
complaint.

Finally, in the NPRM, the Department proposed revising the requirements for
letters of findings for clarification and to reflect current practice. Section
35.172(a) of the 1991 title II regulation required designated agencies to issue
a letter of findings at the conclusion of an investigation if the complaint was
not resolved informally, and to attempt to negotiate a voluntary compliance
agreement if a violation was found. The Department’s proposed changes to the
1991 title II regulation moved the discussion of letters of findings to a new
paragraph (c) in the NPRM, and clarified that letters of findings are only
required when a violation is found.

One commenter opposed the proposal to eliminate the obligation of the Department
and designated agencies to issue letters of finding at the conclusion of every
investigation. The commenter argued that it is beneficial for public entities,
as well as complainants, for the Department to provide a reasonable explanation
of both compliance and noncompliance findings.

The Department has considered this comment but continues to believe that this
change will promote the overall effectiveness of its enforcement program. The
final rule retains the proposed language.


SUBPART G—DESIGNATED AGENCIES


SECTION 35.190 DESIGNATED AGENCIES.

Subpart G of the 1991 title II regulation designates specific Federal agencies
to investigate certain title II complaints. Paragraph 35.190(b) specifies these
agency designations. Paragraphs 35.190(c) and (d), respectively, grant the
Department discretion to designate further oversight responsibilities for
matters not specifically assigned or where there are apparent conflicts of
jurisdiction. The NPRM proposed adding a new § 35.190(e) further refining
procedures for complaints filed with the Department of Justice. Proposed §
35.190(e) provides that when the Department receives a complaint alleging a
violation of title II that is directed to the Attorney General but may fall
within the jurisdiction of a designated agency or another Federal agency with
jurisdiction under section 504, the Department may exercise its discretion to
retain the complaint for investigation under this part. The Department would, of
course, consult with the designated agency when the Department plans to retain a
complaint. In appropriate circumstances, the Department and the designated
agency may conduct a joint investigation.

Several commenters supported this amendment as a more efficient means of
processing title II complaints. The commenters supported the Department using
its discretion to conduct timely investigations of such complaints. The language
of the proposed § 35.190(e) remains unchanged in the final rule.


OTHER ISSUES


QUESTIONS POSED IN THE NPRM REGARDING COSTS AND BENEFITS OF COMPLYING WITH THE
2010 STANDARDS

In the NPRM, the Department requested comment on various cost and benefit issues
related to eight requirements in the Department’s Initial Regulatory Impact
Analysis (Initial RIA), (available at
https://archive.ada.gov/archive/NPRM2008/ria.htm, that were projected to have
incremental costs exceeding monetized benefits by more than $100 million when
using the 1991 Standards as the comparative baseline, i.e., side reach, water
closet clearances in single-user toilet rooms with in-swinging doors, stairs,
elevators, location of accessible routes to stages, accessible attorney areas
and witness stands, assistive listening systems, and accessible teeing grounds,
putting greens, and weather shelters at golf courses. 73 FR 34466, 34469 (June
17, 2008). The Department noted that pursuant to the ADA, the Department does
not have statutory authority to modify the 2004 ADAAG and is required instead to
issue regulations implementing the ADA that are consistent with the Board’s
guidelines. In that regard, the Department also requested comment about whether
any of these eight elements in the 2010 Standards should be returned to the
Access Board for further consideration, in particular as applied to alterations.
Many of the comments received by the Department in response to these questions
addressed both titles II and III. As a result, the Department’s discussion of
these comments and its response are collectively presented for both titles.

Side reach. The 1991 Standards at section 4.2.6 establish a maximum side-reach
height of 54 inches. The 2010 Standards at section 308.3 reduce that maximum
height to 48 inches. The 2010 Standards also add exceptions for certain elements
to the scoping requirement for operable parts.

The vast majority of comments the Department received were in support of the
lower side-reach maximum of 48 inches in the 2010 Standards. Most of these
comments, but not all, were received from individuals of short stature,
relatives of individuals of short stature, or organizations representing the
interests of persons with disabilities, including individuals of short stature.
Comments from individuals with disabilities and disability advocacy groups
stated that the 48-inch side reach would permit independence in performing many
activities of daily living for individuals with disabilities, including
individuals of short stature, persons who use wheelchairs, and persons who have
limited upper body strength. In this regard, one commenter who is a business
owner pointed out that as a person of short stature there were many occasions
when he was unable to exit a public restroom independently because he could not
reach the door handle. The commenter said that often elevator control buttons
are out of his reach and, if he is alone, he often must wait for someone else to
enter the elevator so that he can ask that person to press a floor button for
him. Another commenter, who is also a person of short stature, said that he has
on several occasions pulled into a gas station only to find that he was unable
to reach the credit card reader on the gas pump. Unlike other customers who can
reach the card reader, swipe their credit or debit cards, pump their gas and
leave the station, he must use another method to pay for his gas. Another
comment from a person of short stature pointed out that as more businesses take
steps to reduce labor costs—a trend expected to continue—staffed booths are
being replaced with automatic machines for the sale, for example, of parking
tickets and other products. He observed that the “ability to access and operate
these machines becomes ever more critical to function in society,” and, on that
basis, urged the Department to adopt the 48-inch side-reach requirement. Another
individual commented that persons of short stature should not have to carry with
them adaptive tools in order to access building or facility elements that are
out of their reach, any more than persons in wheelchairs should have to carry
ramps with them in order to gain access to facilities.

Many of the commenters who supported the revised side-reach requirement pointed
out that lowering the side-reach requirement to 48 inches would avoid a problem
sometimes encountered in the built environment when an element was mounted for a
parallel approach at 54 inches only to find afterwards that a parallel approach
was not possible. Some commenters also suggested that lowering the maximum
unobstructed side reach to 48 inches would reduce confusion among design
professionals by making the unobstructed forward and side-reach maximums the
same (the unobstructed forward reach in both the 1991 and 2010 Standards is 48
inches maximum). These commenters also pointed out that the ICC/ANSI A117.1
Standard, which is a private sector model accessibility standard, has included a
48-inch maximum high side-reach requirement since 1998. Many jurisdictions have
already incorporated this requirement into their building codes, which these
commenters believed would reduce the cost of compliance with the 2010 Standards.
Because numerous jurisdictions have already adopted the 48-inch side-reach
requirement, the Department’s failure to adopt the 48-inch side-reach
requirement in the 2010 Standards, in the view of many commenters, would result
in a significant reduction in accessibility, and would frustrate efforts that
have been made to harmonize private sector model construction and accessibility
codes with Federal accessibility requirements. Given these concerns, they
overwhelmingly opposed the idea of returning the revised side-reach requirement
to the Access Board for further consideration.

The Department also received comments in support of the 48-inch side-reach
requirement from an association of professional commercial property managers and
operators and from State governmental entities. The association of property
managers pointed out that the revised side-reach requirement provided a
reasonable approach to “regulating elevator controls and all other operable
parts” in existing facilities in light of the manner in which the safe harbor,
barrier removal, and alterations obligations will operate in the 2010 Standards.
One governmental entity, while fully supporting the 48-inch side-reach
requirement, encouraged the Department to adopt an exception to the lower reach
range for existing facilities similar to the exception permitted in the ICC/ANSI
A117.1 Standard. In response to this latter concern, the Department notes that
under the safe harbor, existing facilities that are in compliance with the 1991
Standards, which require a 54-inch side-reach maximum, would not be required to
comply with the lower side-reach requirement, unless there is an alteration. See
§ 35.150(b)(2).

A number of commenters expressed either concern with, or opposition to, the
48-inch side-reach requirement and suggested that it be returned to the Access
Board for further consideration. These commenters included trade and business
associations, associations of retail stores, associations of restaurant owners,
retail and convenience store chains, and a model code organization. Several
businesses expressed the view that the lower side-reach requirement would
discourage the use of their products and equipment by most of the general
public. In particular, concerns were expressed by a national association of pay
phone service providers regarding the possibility that pay telephones mounted at
the lower height would not be used as frequently by the public to place calls,
which would result in an economic burden on the pay phone industry. The
commenter described the lower height required for side reach as creating a new
“barrier” to pay phone use, which would reduce revenues collected from pay
phones and, consequently, further discourage the installation of new pay
telephones. In addition, the commenter expressed concern that phone service
providers would simply decide to remove existing pay phones rather than incur
the costs of relocating them at the lower height. With regard to this latter
concern, the commenter misunderstood the manner in which the safe harbor
obligation will operate in the revised title II regulation for elements that
comply with the 1991 Standards. If the pay phones comply with the 1991 Standards
or UFAS, the adoption of the 2010 Standards does not require retrofitting of
these elements to reflect incremental changes in the 2010 Standards (see §
35.150(b)(2)). However, pay telephones that were required to meet the 1991
Standards as part of new construction or alterations, but do not in fact comply
with those standards, will need to be brought into compliance with the 2010
Standards as of 18 months from the publication date of this final rule. See §
35.151(c)(5)(ii).

The Department does not agree with the concerns expressed by the commenter about
reduced revenues from pay phones mounted at lower heights. The Department
believes that, while given the choice some individuals may prefer to use a pay
phone that is at a higher height, the availability of some phones at a lower
height will not deter individuals from making needed calls.

The 2010 Standards will not require every pay phone to be installed or moved to
a lowered height. The table accompanying section 217.2 of the 2010 Standards
makes clear that, where one or more telephones are provided on a floor, level,
or an exterior site, only one phone per floor, level, or exterior site must be
placed at an accessible height. Similarly, where there is one bank of phones per
floor, level, or exterior site, only one phone per floor, level, or exterior
site must be accessible. And if there are two or more banks of phones per floor,
level, or exterior site, only one phone per bank must be placed at an accessible
height.

Another comment in opposition to the lower reach range requirement was submitted
on behalf of a chain of convenience stores with fuel stops. The commenter
expressed the concern that the 48-inch side reach “will make it uncomfortable
for the majority of the public,” including persons of taller stature who would
need to stoop to use equipment such as fuel dispensers mounted at the lower
height. The commenter offered no objective support for the observation that a
majority of the public would be rendered uncomfortable if, as required in the
2010 Standards, at least one of each type of fuel dispenser at a facility was
made accessible in compliance with the lower reach range. Indeed, the Department
received no comments from any individuals of tall stature expressing concern
about accessible elements or equipment being mounted at the 48-inch height.

Several convenience store, restaurant, and amusement park commenters expressed
concern about the burden the lower side-reach requirement would place on their
businesses in terms of self-service food stations and vending areas if the
48-inch requirement were applied retroactively. The cost of lowering counter
height, in combination with the lack of control businesses exercise over certain
prefabricated service or vending fixtures, outweighed, they argued, any benefits
to persons with disabilities. For this reason, they suggested the lower
side-reach requirement be referred back to the Access Board.

These commenters misunderstood the safe harbor and barrier removal obligations
that will be in effect under the 2010 Standards. Those existing self-service
food stations and vending areas that already are in compliance with the 1991
Standards will not be required to satisfy the 2010 Standards unless they engage
in alterations. With regard to prefabricated vending machines and food service
components that will be purchased and installed in businesses after the 2010
Standards become effective, the Department expects that companies will design
these machines and fixtures to comply with the 2010 Standards in the future, as
many have already done in the 10 years since the 48- inch side-reach requirement
has been a part of the model codes and standards used by many jurisdictions as
the basis for their construction codes.

A model code organization commented that the lower side-reach requirement would
create a significant burden if it required entities to lower the mounting height
for light switches, environmental controls, and outlets when an alteration did
not include the walls where these elements were located, such as when “an area
is altered or as a path of travel obligation.” The Department believes that the
final rule adequately addresses those situations about which the commenter
expressed concern by not requiring the relocation of existing elements, such as
light switches, environmental controls, and outlets, unless they are altered.
Moreover, under § 35.151(b)(4)(iii) of the final rule, costs for altering the
path of travel to an altered area of primary function that exceed 20 percent of
the overall costs of the alteration will be deemed disproportionate.

The Department has determined that the revised side-reach requirement should not
be returned to the Access Board for further consideration, based in large part
on the views expressed by a majority of the commenters regarding the need for,
and importance of, the lower side-reach requirement to ensure access for persons
with disabilities.


ALTERATIONS AND WATER CLOSET CLEARANCES IN SINGLE-USER TOILET ROOMS WITH
IN-SWINGING DOORS

The 1991 Standards allow a lavatory to be placed a minimum of 18 inches from the
water closet centerline and a minimum of 36 inches from the side wall adjacent
to the water closet, which precludes side transfers. The 1991 Standards do not
allow an in-swinging door in a toilet or bathing room to overlap the required
clear floor space at any accessible fixture. To allow greater transfer options,
section 604.3.2 of the 2010 Standards prohibits lavatories from overlapping the
clear floor space at water closets, except in residential dwelling units.
Section 603.2.3 of the 2010 Standards maintains the prohibition on doors
swinging into the clear floor space or clearance required for any fixture,
except that they permit the doors of toilet or bathing rooms to swing into the
required turning space, provided that there is sufficient clearance space for
the wheelchair outside the door swing. In addition, in single-user toilet or
bathing rooms, exception 2 of section 603.2.3 of the 2010 Standards permits the
door to swing into the clear floor space of an accessible fixture if a clear
floor space that measures at least 30 inches by 48 inches is available outside
the arc of the door swing.

The majority of commenters believed that this requirement would increase the
number of toilet rooms accessible to individuals with disabilities who use
wheelchairs or mobility scooters, and will make it easier for them to transfer.
A number of commenters stated that there was no reason to return this provision
to the Access Board. Numerous commenters noted that this requirement is already
included in other model accessibility standards and many State and local
building codes and that the adoption of the 2010 Standards is an important part
of harmonization efforts.

Other commenters, mostly trade associations, opposed this requirement, arguing
that the added cost to the industry outweighs any increase in accessibility. Two
commenters stated that these proposed requirements would add two feet to the
width of an accessible single-user toilet room; however, another commenter said
the drawings in the proposed regulation demonstrated that there would be no
substantial increase in the size of the toilet room. Several commenters stated
that this requirement would require moving plumbing fixtures, walls, or doors at
significant additional expense. Two commenters wanted the permissible overlap
between the door swing and clearance around any fixture eliminated. One
commenter stated that these new requirements will result in fewer alterations to
toilet rooms to avoid triggering the requirement for increased clearances, and
suggested that the Department specify that repairs, maintenance, or minor
alterations would not trigger the need to provide increased clearances. Another
commenter requested that the Department exempt existing guest room bathrooms and
single-user toilet rooms that comply with the 1991 Standards from complying with
the increased clearances in alterations.

After careful consideration of these comments, the Department believes that the
revised clearances for single-user toilet rooms will allow safer and easier
transfers for individuals with disabilities, and will enable a caregiver, aide,
or other person to accompany an individual with a disability into the toilet
room to provide assistance. The illustrations in Appendix B to the final title
III rule, “Analysis and Commentary on the 2010 ADA Standards for Accessible
Design,” published elsewhere in this volume and codified as Appendix B to 28 CFR
part 36, describe several ways for public entities and public accommodations to
make alterations while minimizing additional costs or loss of space. Further, in
any isolated instances where existing structural limitations may entail loss of
space, the public entity and public accommodation may have a technical
infeasibility defense for that alteration. The Department also recognizes that
in attempting to create the required clear floor space pursuant to section
604.3.2, there may be certain specific circumstances where it would be
technically infeasible for a covered entity to comply with the clear floor space
requirement, such as where an entity must move a plumbing wall in a multistory
building where the mechanical chase for plumbing is an integral part of a
building’s structure or where the relocation of a wall or fixture would violate
applicable plumbing codes. In such circumstances, the required clear floor space
would not have to be provided although the covered entity would have to provide
accessibility to the maximum extent feasible. The Department has, therefore,
decided not to return this requirement to the Access Board.

Alterations to stairs. The 1991 Standards only require interior and exterior
stairs to be accessible when they provide access to levels that are not
connected by an elevator, ramp, or other accessible means of vertical access. In
contrast, section 210.1 of the 2010 Standards requires all newly constructed
stairs that are part of a means of egress to be accessible. However, exception 2
of section 210.1 of the 2010 Standards provides that in alterations, stairs
between levels connected by an accessible route need not be accessible, except
that handrails shall be provided. Most commenters were in favor of this
requirement for handrails in alterations, and stated that adding handrails to
stairs during alterations was not only feasible and not cost-prohibitive, but
also provided important safety benefits. One commenter stated that making all
points of egress accessible increased the number of people who could use the
stairs in an emergency. A majority of the commenters did not want this
requirement returned to the Access Board for further consideration.

The International Building Code (IBC), which is a private sector model
construction code, contains a similar provision, and most jurisdictions enforce
a version of the IBC as their building code, thereby minimizing the impact of
this provision on public entities and public accommodations. The Department
believes that by requiring only the addition of handrails to altered stairs
where levels are connected by an accessible route, the costs of compliance for
public entities and public accommodations are minimized, while safe egress for
individuals with disabilities is increased. Therefore, the Department has
decided not to return this requirement to the Access Board.

Alterations to elevators. Under the 1991 Standards, if an existing elevator is
altered, only that altered elevator must comply with the new construction
requirements for accessible elevators to the maximum extent feasible. It is
therefore possible that a bank of elevators controlled by a single call system
may contain just one accessible elevator, leaving an individual with a
disability with no way to call an accessible elevator and thus having to wait
indefinitely until an accessible elevator happens to respond to the call system.
In the 2010 Standards, when an element in one elevator is altered, section
206.6.1 will require the same element to be altered in all elevators that are
programmed to respond to the same call button as the altered elevator.

Most commenters favored the proposed requirement. This requirement, according to
these commenters, is necessary so a person with a disability need not wait until
an accessible elevator responds to his or her call. One commenter suggested that
elevator owners could also comply by modifying the call system so the accessible
elevator could be summoned independently. One commenter suggested that this
requirement would be difficult for small businesses located in older buildings,
and one commenter suggested that this requirement be sent back to the Access
Board.

After considering the comments, the Department agrees that this requirement is
necessary to ensure that when an individual with a disability presses a call
button, an accessible elevator will arrive in a timely manner. The IBC contains
a similar provision, and most jurisdictions enforce a version of the IBC as
their building code, minimizing the impact of this provision on public entities
and public accommodations. Public entities and businesses located in older
buildings need not comply with this requirement where it is technically
infeasible to do so. Further, as pointed out by one commenter, modifying the
call system so the accessible elevator can be summoned independently is another
means of complying with this requirement in lieu of altering all other elevators
programmed to respond to the same call button. Therefore, the Department has
decided not to return this requirement to the Access Board.

Location of accessible routes to stages. The 1991 Standards at section 4.33.5
require an accessible route to connect the accessible seating and the stage, as
well as other ancillary spaces used by performers. The 2010 Standards at section
206.2.6 provide in addition that where a circulation path directly connects the
seating area and the stage, the accessible route must directly connect the
accessible seating and the stage, and, like the 1991 Standards, an accessible
route must connect the stage with the ancillary spaces used by performers.

In the NPRM, the Department asked operators of auditoria about the extent to
which auditoria already provide direct access to stages and whether there were
planned alterations over the next 15 years that included accessible direct
routes to stages. The Department also asked how to quantify the benefits of this
requirement for persons with disabilities, and invited commenters to provide
illustrative anecdotal experiences about the requirement’s benefits. The
Department received many comments regarding the costs and benefits of this
requirement. Although little detail was provided, many industry and governmental
entity commenters anticipated that the costs of this requirement would be great
and that it would be difficult to implement. They noted that premium seats may
have to be removed and that load-bearing walls may have to be relocated. These
commenters suggested that the significant costs would deter alterations to the
stage area for a great many auditoria. Some commenters suggested that ramps to
the front of the stage may interfere with means of egress and emergency exits.
Several commenters requested that the requirement apply to new construction
only, and one industry commenter requested an exemption for stages used in
arenas or amusement parks where there is no audience participation or where the
stage is a work area for performers only. One commenter requested that the
requirement not apply to temporary stages.

The final rule does not require a direct accessible route to be constructed
where a direct circulation path from the seating area to the stage does not
exist. Consequently, those commenters who expressed concern about the burden
imposed by the revised requirement (i.e., where the stage is constructed with no
direct circulation path connecting the general seating and performing area)
should note that the final rule will not require the provision of a direct
accessible route under these circumstances. The final rule applies to permanent
stages, as well as “temporary stages,” if there is a direct circulation path
from the seating area to the stage. However, the Department does recognize that
in some circumstances, such as an alteration to a primary function area, the
ability to provide a direct accessible route to a stage may be costly or
technically infeasible, the auditorium owner is not precluded by the revised
requirement from asserting defenses available under the regulation. In addition,
the Department notes that since section 4.33.5 of the 1991 Standards requires an
accessible route to a stage, the safe harbor will apply to existing facilities
whose stages comply with the 1991 Standards.

Several governmental entities supported accessible auditoria and the revised
requirement. One governmental entity noted that its State building code already
required direct access, that it was possible to provide direct access, and that
creative solutions had been found to do so.

Many advocacy groups and individual commenters strongly supported the revised
requirement, discussing the acute need for direct access to stages as it impacts
a great number of people at important life events such as graduations and awards
ceremonies, at collegiate and competitive performances and other school events,
and at entertainment events that include audience participation. Many commenters
expressed the belief that direct access is essential for integration mandates to
be satisfied and that separate routes are stigmatizing and unequal. The
Department agrees with these concerns.

Commenters described the impact felt by persons in wheelchairs who are unable to
access the stage at all when others are able to do so. Some of these commenters
also discussed the need for performers and production staff who use wheelchairs
to have direct access to the stage and provided a number of examples that
illustrated the importance of the rule proposed in the NPRM. Personal anecdotes
were provided in comments and at the Department’s public hearing on the NPRM.
One mother spoke passionately and eloquently about the unequal treatment
experienced by her daughter, who uses a wheelchair, at awards ceremonies and
band concerts. Her daughter was embarrassed and ashamed to be carried by her
father onto a stage at one band concert. When the venue had to be changed for
another concert to an accessible auditorium, the band director made sure to
comment that he was unhappy with the switch. Rather than endure the
embarrassment and indignities, her child dropped out of band the following year.
Another father commented about how he was unable to speak from the stage at a
PTA meeting at his child’s school. Speaking from the floor limited his line of
sight and his participation. Several examples were provided of children who
could not participate on stage during graduation, awards programs, or special
school events, such as plays and festivities. One student did not attend his
college graduation because he would not be able to get on stage. Another student
was unable to participate in the class Christmas programs or end-of-year parties
unless her father could attend and lift her onto the stage. These commenters did
not provide a method to quantify the benefits that would accrue by having direct
access to stages. One commenter stated, however, that “the cost of dignity and
respect is without measure.”

Many industry commenters and governmental entities suggested that the
requirement be sent back to the Access Board for further consideration. One
industry commenter mistakenly noted that some international building codes do
not incorporate the requirement and that therefore there is a need for further
consideration. However, the Department notes that both the 2003 and 2006
editions of the IBC include scoping provisions that are almost identical to this
requirement and that these editions of the model code are the most frequently
used. Many individuals and advocacy group commenters requested that the
requirement be adopted without further delay. These commenters spoke of the
acute need for direct access to stages and the amount of time it would take to
resubmit the requirement to the Access Board. Several commenters noted that the
2004 ADAAG tracks recent model codes and thus there is no need for further
consideration. The Department agrees that no further delay is necessary and
therefore has decided not to return the requirement to the Access Board for
further consideration.

Attorney areas and witness stands. The 1991 Standards do not require that public
entities meet specific architectural standards with regard to the construction
and alteration of courtrooms and judicial facilities. Because it is apparent
that the judicial facilities of State and local governments have often been
inaccessible to individuals with disabilities, as part of the NPRM, the
Department proposed the adoption of sections 206.2.4, 231.2, 808, 304, 305, and
902 of the 2004 ADAAG concerning judicial facilities and courtrooms, including
requirements for accessible courtroom stations and accessible jury boxes and
witness stands.

Those who commented on access to judicial facilities and courtrooms uniformly
favored the adoption of the 2010 Standards. Virtually all of the commenters
stated that accessible judicial facilities are crucial to ensuring that
individuals with disabilities are afforded due process under law and have an
equal opportunity to participate in the judicial process. None of the commenters
favored returning this requirement to the Access Board for further
consideration.

The majority of commenters, including many disability rights and advocacy
organizations, stated that it is crucial for individuals with disabilities to
have effective and meaningful access to our judicial system so as to afford them
due process under law. They objected to asking the Access Board to reconsider
this requirement. In addition to criticizing the initial RIA for virtually
ignoring the intangible and non-monetary benefits associated with accessible
courtrooms, these commenters frequently cited the Supreme Court’s decision in
Tennessee v. Lane, 541 U.S. 509, 531 (2004), 4 as ample justification for the
requirement, noting the Court’s finding that “[t]he unequal treatment of
disabled persons in the administration of judicial services has a long history,
and has persisted despite several legislative efforts to remedy the problem of
disability discrimination.” Id. at 531. These commenters also made a number of
observations, including the following: providing effective access to individuals
with mobility impairments is not possible when architectural barriers impede
their path of travel and negatively emphasize an individual’s disability; the
perception generated by makeshift accommodations discredits witnesses and
attorneys with disabilities, who should not be stigmatized or treated like
second-class citizens; the cost of accessibility modifications to existing
courthouses can often be significantly decreased by planning ahead, by focusing
on low-cost options that provide effective access, and by addressing existing
barriers when reasonable modifications to the courtroom can be made; by planning
ahead and by following best practices, jurisdictions can avoid those situations
where it is apparent that someone’s disability is the reason why ad hoc
arrangements have to be made prior to the beginning of court proceedings; and
accessibility should be a key concern during the planning and construction
process so as to ensure that both courtroom grandeur and accessibility are
achieved. One commenter stated that, in order for attorneys with disabilities to
perform their professional duties to their clients and the court, it is
essential that accessible courtrooms, conference rooms, law libraries, judicial
chambers, and other areas of a courthouse be made barrier-free by taking
accessible design into account prior to construction.

Numerous commenters identified a variety of benefits that would accrue as a
result of requiring judicial facilities to be accessible. These included the
following: maintaining the decorum of the courtroom and eliminating the
disruption of court proceedings when individuals confront physical barriers;
providing an accessible route to the witness stand and attorney area and clear
floor space to accommodate a wheelchair within the witness area; establishing
crucial lines of sight between the judge, jury, witnesses, and attorneys—which
commenters described as crucial; ensuring that the judge and the jury will not
miss key visual indicators of a witness; maintaining a witness’s or attorney’s
dignity and credibility; shifting the focus from a witness’s disability to the
substance of that person’s testimony; fostering the independence of an
individual with disability; allowing persons with mobility impairments to
testify as witnesses, including as expert witnesses; ensuring the safety of
various participants in a courtroom proceeding; and avoiding unlawful
discrimination. One commenter stated that equal access to the well of the
courtroom for both attorney and client is important for equal participation and
representation in our court system. Other commenters indicated that accessible
judicial facilities benefit a wide range of people, including many persons
without disabilities, senior citizens, parents using strollers with small
children, and attorneys and court personnel wheeling documents into the
courtroom. One commenter urged the adoption of the work area provisions because
they would result in better workplace accessibility and increased productivity.
Several commenters urged the adoption of the rule because it harmonizes the
ADAAG with the model IBC, the standards developed by the American National
Standards Institute (ANSI), and model codes that have been widely adopted by
State and local building departments, thus increasing the prospects for better
understanding and compliance with the ADAAG by architects, designers, and
builders.

Several commenters mentioned the report “Justice for All: Designing Accessible
Courthouses” (Nov. 15, 2006), available at http://www.access-board.gov/caac/
report.htm (Nov. 24, 2009) (last visited June 24, 2010). The report, prepared by
the Courthouse Access Advisory Committee for the Access Board, contained
recommendations for the Board’s use in developing and disseminating guidance on
accessible courthouse design under the ADA and the ABA. These commenters
identified some of the report’s best practices concerning courtroom
accessibility for witness stands, jury boxes, and attorney areas; addressed the
costs and benefits arising from the use of accessible courtrooms; and
recommended that the report be incorporated into the Department’s final rule.
With respect to existing courtrooms, one commenter in this group suggested that
consideration be given to ensuring that there are barrier-free emergency
evacuation routes for all persons in the courtroom, including different
evacuation routes for different classes of individuals given the unique nature
of judicial facilities and courtrooms.

The Department declines to incorporate the report into the regulation. However,
the Department encourages State and local governments to consult the Committee
report as a useful guide on ways to facilitate and increase accessibility of
their judicial facilities. The report includes many excellent examples of
accessible courtroom design.

One commenter proposed that the regulation also require a sufficient number of
accessible benches for judges with disabilities. Under section 206.2.4 of the
2004 ADAAG, raised courtroom stations used by judges and other judicial staff
are not required to provide full vertical access when first constructed or
altered, as long as the required clear floor space, maneuvering space, and any
necessary electrical service for future installation of a means of vertical
access, is provided at the time of new construction or can be achieved without
substantial reconstruction during alterations. The Department believes that this
standard easily allows a courtroom station to be adapted to provide vertical
access in the event a judge requires an accessible judge’s bench.

The Department received several anecdotal accounts of courtroom experiences of
individuals with disabilities. One commenter recalled numerous difficulties that
her law partner faced as the result of inaccessible courtrooms, and their
concerns that the attention of judge and jury was directed away from the merits
of case to the lawyer and his disability. Among other things, the lawyer had to
ask the judges on an appellate panel to wait while he maneuvered through
insufficient space to the counsel table; ask judges to relocate bench
conferences to accessible areas; and make last-minute preparations and
rearrangements that his peers without disabilities did not have to make. Another
commenter with extensive experience as a lawyer, witness, juror, and consultant
observed that it is common practice for a witness who uses mobility devices to
sit in front of the witness stand. He described how disconcerting and unsettling
it has been for him to testify in front of the witness stand, which allowed
individuals in the courtroom to See his hands or legs shaking because of
spasticity, making him feel like a second-class citizen.

Two other commenters with mobility disabilities described their experiences
testifying in court. One accessibility consultant stated that she was able to
represent her clients successfully when she had access to an accessible witness
stand because it gave her the ability “to look the judge in the eye, speak
comfortably and be heard, hold up visual aids that could be seen by the judge,
and perform without an architectural stigma.” She did not believe that she was
able to achieve a comparable outcome or have meaningful access to the justice
system when she testified from an inaccessible location. Similarly, a licensed
clinical social worker indicated that she has testified in several cases in
accessible courtrooms, and that having full access to the witness stand in the
presence of the judge and the jury was important to her effectiveness as an
expert witness. She noted that accessible courtrooms often are not available,
and that she was aware of instances in which victims, witnesses, and attorneys
with disabilities have not been able to obtain needed disability accommodations
in order to fulfill their roles at trial.

Two other commenters indicated that they had been chosen for jury duty but that
they were effectively denied their right to participate as jurors because the
courtrooms were not accessible. Another commenter indicated that he has had to
sit apart from the other jurors because the jury box was inaccessible.

A number of commenters expressed approval of actions taken by States to
facilitate access in judicial facilities. A member of a State commission on
disability noted that the State had been working toward full accessibility since
1997 when the Uniform Building Code required interior accessible routes. This
commenter stated that the State’s district courts had been renovated to the
maximum extent feasible to provide greater access. This commenter also noted
that a combination of Community Development Block Grant money and State funds
are often awarded for renovations of courtroom areas. One advocacy group that
has dealt with court access issues stated that members of the State legal
community and disability advocates have long been promoting efforts to ensure
that the State courts are accessible to individuals with disabilities. The
comment cited a publication distributed to the Washington State courts by the
State bar association entitled, “Ensuring Equal Access to the Courts for Persons
with Disabilities.” (Aug. 2006), available at
http://www.wsba.org/ensuringaccessguidebook.pdf (last visited July 20, 2010). In
addition, the commenter also indicated that the State supreme court had
promulgated a new rule governing how the courts should respond to requests of
accommodation based upon disability; the State legislature had created the
position of Disability Access Coordinator for Courts to facilitate accessibility
in the court system; and the State legislature had passed a law requiring that
all planned improvements and alterations to historic courthouses be approved by
the ADA State facilities program manager and committee in order to ensure that
the alterations will enhance accessibility.

The Department has decided to adopt the requirements in the 2004 ADAAG with
respect to judicial facilities and courtrooms and will not ask the Access Board
to review these requirements. The final rule is wholly consistent with the
objectives of the ADA. It addresses a well-documented history of discrimination
with respect to judicial administration and significantly increases
accessibility for individuals with disabilities. It helps ensure that they will
have an opportunity to participate equally in the judicial process. As stated,
the final rule is consistent with a number of model and local building codes
that have been widely adopted by State and local building departments and
provides greater uniformity for planners, architects, and builders.

Assistive listening systems. The 1991 Standards at sections 4.33.6 and 4.33.7
require assistive listening systems (ALS) in assembly areas and prescribe
general performance standards for ALS systems. In the NPRM, the Department
proposed adopting the technical specifications in the 2004 ADAAG for ALS that
are intended to ensure better quality and effective delivery of sound and
information for persons with hearing impairments, especially those using hearing
aids. The Department noted in the NPRM that since 1991, advancements in ALS and
the advent of digital technology have made these systems more amenable to
uniform standards, which, among other things, should ensure that a certain
percentage of required ALS systems are hearing-aid compatible. 73 FR 34466,
34471 (June 17, 2008). The 2010 Standards at section 219 provide scoping
requirements and at section 706 address receiver jacks, hearing aid
compatibility, sound pressure level, signal-to-noise ratio, and peak clipping
level. The Department requested comments specifically from arena and assembly
area administrators on the cost and maintenance issues associated with ALS,
asked generally about the costs and benefits of ALS, and asked whether, based
upon the expected costs of ALS, the issue should be returned to the Access Board
for further consideration.

Comments from advocacy organizations noted that persons who develop significant
hearing loss often discontinue their normal routines and activities, including
meetings, entertainment, and large group events, due to a sense of isolation
caused by the hearing loss or embarrassment. Individuals with longstanding
hearing loss may never have participated in group activities for many of the
same reasons. Requiring ALS may allow individuals with disabilities to
contribute to the community by joining in government and public events, and
increasing economic activity associated with community activities and
entertainment. Making public events and entertainment accessible to persons with
hearing loss also brings families and other groups that include persons with
hearing loss into more community events and activities, thus exponentially
increasing the benefit from ALS.

Many commenters noted that when a person has significant hearing loss, that
person may be able to hear and understand information in a quiet situation with
the use of hearing aids or cochlear implants; however, as background noise
increases and the distance between the source of the sound and the listener
grows, and especially where there is distortion in the sound, an ALS becomes
essential for basic comprehension and understanding. Commenters noted that among
the 31 million Americans with hearing loss, and with a projected increase to
over 78 million Americans with hearing loss by 2030, the benefit from ALS is
huge and growing. Advocates for persons with disabilities and individuals
commented that they appreciated the improvements in the 2004 ADAAG standards for
ALS, including specifications for the ALS systems and performance standards.
They noted that neckloops that translate the signal from the ALS transmitter to
a frequency that can be heard on a hearing aid or cochlear implant are much more
effective than separate ALS system headsets, which sometimes create feedback,
often malfunction, and may create distractions for others seated nearby.
Comments from advocates and users of ALS systems consistently noted that the
Department’s regulation should, at a minimum, be consistent with the 2004 ADAAG.
Although there were requests for adjustments in the scoping requirements from
advocates seeking increased scoping requirements, and from large venue operators
seeking fewer requirements, there was no significant concern expressed by
commenters about the technical specifications for ALS in the 2004 ADAAG.

Some commenters from trade associations and large venue owners criticized the
scoping requirements as too onerous and one commenter asked for a remand to the
Access Board for new scoping rules. However, one State agency commented that the
2004 ADAAG largely duplicates the requirements in the 2006 IBC and the 2003 ANSI
codes, which means that entities that comply with those standards would not
incur additional costs associated with ADA compliance.

According to one State office of the courts, the cost to install either an
infrared system or an FM system at average-sized facilities, including most
courtrooms covered by title II, would be between $500 and $2,000, which the
agency viewed as a small price in comparison to the benefits of inclusion.
Advocacy organizations estimated wholesale costs of ALS systems at about $250
each and individual neckloops to link the signal from the ALS transmitter to
hearing aids or cochlear implants at less than $50 per unit. Many commenters
pointed out that if a facility already is using induction neckloops, it would
already be in compliance and would not have any additional installation costs.
One major city commented that annual maintenance is about $2,000 for the entire
system of performance venues in the city. A trade association representing very
large venues estimated annual maintenance and upkeep expenses, including labor
and replacement parts, to be at most about $25,000 for a very large professional
sports stadium.

One commenter suggested that the scoping requirements for ALS in the 2004 ADAAG
were too stringent and that the Department should return them to the Access
Board for further review and consideration. Others commented that the
requirement for new ALS systems should mandate multichannel receivers capable of
receiving audio description for persons who are blind, in addition to a channel
for amplification for persons who are hard of hearing. Some comments suggested
that the Department should require a set schedule and protocol of mandatory
maintenance. Department regulations already require maintenance of accessible
features at § 35.133(a) of the title II regulation, which obligates a title II
entity to maintain ALS in good working order. The Department recognizes that
maintenance of ALS is key to its usability. Necessary maintenance will vary
dramatically from venue to venue based upon a variety of factors including
frequency of use, number of units, quality of equipment, and others items.
Accordingly, the Department has determined that it is not appropriate to mandate
details of maintenance, but notes that failure to maintain ALS would violate §
35.133(a) of this rule.

The NPRM asked whether the Department should return the issue of ALS
requirements to the Access Board. The Department has received substantial
feedback on the technical and scoping requirements for ALS and is convinced that
these requirements are reasonable and that the benefits justify the
requirements. In addition, the Department believes that the new specifications
will make ALS work more effectively for more persons with disabilities, which,
together with a growing population of new users, will increase demand for ALS,
thus mooting criticism from some large venue operators about insufficient
demand. Thus, the Department has determined that it is unnecessary to refer this
issue back to the Access Board for reconsideration.

Accessible teeing grounds, putting greens, and weather shelters. In the NPRM,
the Department sought public input on the proposed requirements for accessible
golf courses. These requirements specifically relate to accessible routes within
the boundaries of courses, as well as the accessibility of golfing elements
(e.g., teeing grounds, putting greens, weather shelters).

In the NPRM, the Department sought information from the owners and operators of
golf courses, both public and private, on the extent to which their courses
already have golf car passages, and, if so, whether they intended to avail
themselves of the proposed accessible route exception for golf car passages. 73
FR 34466, 34471 (June 17, 2008).

Most commenters expressed support for the adoption of an accessible route
requirement that includes an exception permitting golf car passage as all or
part of an accessible route. Comments in favor of the proposed standard came
from golf course owners and operators, individuals, organizations, and
disability rights groups, while comments opposing adoption of the golf course
requirements generally came from golf courses and organizations representing the
golf course industry.

The majority of commenters expressed the general viewpoint that nearly all golf
courses provide golf cars and have either well-defined paths or permit golf cars
to drive on the course where paths are not present, thus meeting the accessible
route requirement. Several commenters disagreed with the assumption in the
initial RIA, that virtually every tee and putting green on an existing course
would need to be regraded in order to provide compliant accessible routes.
According to one commenter, many golf courses are relatively flat with little
slope, especially those heavily used by recreational golfers. This commenter
concurred with the Department that it is likely that most existing golf courses
have a golf car passage to tees and greens, thereby substantially minimizing the
cost of bringing an existing golf course into compliance with the proposed
standards. One commenter reported that golf course access audits found that the
vast majority of public golf courses would have little difficulty in meeting the
proposed golf course requirements. In the view of some commenters, providing
access to golf courses would increase golf participation by individuals with
disabilities.

The Department also received many comments requesting clarification of the term
“golf car passage.” For example, one commenter requesting clarification of the
term “golf car passage” argued that golf courses typically do not provide golf
car paths or pedestrian paths onto the actual teeing grounds or greens, many of
which are higher or lower than the car path. This commenter argued that if golf
car passages were required to extend onto teeing grounds and greens in order to
qualify for an exception, then some golf courses would have to substantially
regrade teeing grounds and greens at a high cost.

After careful consideration of the comments, the Department has decided to adopt
the 2010 Standards specific to golf facilities. The Department believes that in
order for individuals with mobility disabilities to have an opportunity to play
golf that is equal to golfers without disabilities, it is essential that golf
courses provide an accessible route or accessible golf car passage to connect
accessible elements and spaces within the boundary of the golf course, including
teeing grounds, putting greens, and weather shelters.


PUBLIC COMMENTS ON OTHER NPRM ISSUES

Equipment and furniture. In the 1991 title II regulation, there are no specific
provisions addressing equipment and furniture, although § 35.150(b) states that
one means by which a public entity can make its program accessible to
individuals with disabilities is “redesign of equipment.” In the NPRM, the
Department announced its intention not to regulate equipment, proposing instead
to continue with the current approach, under which equipment and furniture are
covered by other provisions, including those requiring reasonable modifications
of policies, practices, or procedures, program accessibility, and effective
communication. The Department suggested that entities apply the accessibility
standards for fixed equipment in the 2004 ADAAG to analogous free-standing
equipment in order to ensure that such equipment is accessible, and that
entities consult relevant portions of the 2004 ADAAG and standards from other
Federal agencies to make equipment accessible to individuals who are blind or
have low vision (e.g., the communication-related standards for ATMs in the 2004
ADAAG).

The Department received numerous comments objecting to this decision and urging
the Department to issue equipment and furniture regulations. Based on these
comments, the Department has decided that it needs to revisit the issuance of
equipment and furniture regulations and it intends to do so in future
rulemaking.

Among the commenters’ key concerns, many from the disability community and some
public entities, were objections to the Department’s earlier decision not to
issue equipment regulations, especially for medical equipment. These groups
recommended that the Department list by name certain types of medical equipment
that must be accessible, including exam tables (that lower to 15 inches above
floor or lower), scales, medical and dental chairs, and radiologic equipment
(including mammography equipment). These commenters emphasized that the
provision of medically related equipment and furniture should also be
specifically regulated since they are not included in the 2004 ADAAG (while
depositories, change machines, fuel dispensers, and ATMs were) and because of
their crucial role in the provision of healthcare. Commenters described how the
lack of accessible medical equipment negatively affects the health of
individuals with disabilities. For example, some individuals with mobility
disabilities do not get thorough medical care because their health providers do
not have accessible examination tables or scales.

Commenters also said that the Department’s stated plan to assess the financial
impact of free-standing equipment on businesses was not necessary, as any
regulations could include a financial balancing test. Other commenters
representing persons who are blind or have low vision urged the Department to
mandate accessibility for a wide range of equipment— including household
appliances (stoves, washers, microwaves, and coffee makers), audiovisual
equipment (stereos and DVD players), exercise machines, vending equipment, ATMs,
computers at Internet cafes or hotel business centers, reservations kiosks at
hotels, and point-of-sale devices— through speech output and tactile labels and
controls. They argued that modern technology allows such equipment to be made
accessible at minimal cost. According to these commenters, the lack of such
accessibility in point-of-sale devices is particularly problematic because it
forces blind individuals to provide personal or sensitive information (such as
personal identification numbers) to third parties, which exposes them to
identity fraud. Because the ADA does not apply directly to the manufacture of
products, the Department lacks the authority to issue design requirements for
equipment designed exclusively for use in private homes. See Department of
Justice, Americans with Disabilities Act, ADA Title III Technical Assistance
Manual Covering Public Accommodations and Commercial Facilities, III–4.4200,
available at http://archive.ada.gov/taman3.htm.

Some commenters urged the Department to require swimming pool operators to
provide aquatic wheelchairs for the use of persons with disabilities when the
swimming pool has a sloped entry. If there is a sloped entry, a person who uses
a wheelchair would require a wheelchair designed for use in the water in order
to gain access to the pool because taking a personal wheelchair into water would
rust and corrode the metal on the chair and damage any electrical components of
a power wheelchair. Providing an aquatic wheelchair made of non-corrosive
materials and designed for access into the water will protect the water from
contamination and avoid damage to personal wheelchairs or other mobility aids.

Additionally, many commenters urged the Department to regulate the height of
beds in accessible hotel guest rooms and to ensure that such beds have clearance
at the floor to accommodate a mechanical lift. These commenters noted that in
recent years, hotel beds have become higher as hotels use thicker mattresses,
thereby making it difficult or impossible for many individuals who use
wheelchairs to transfer onto hotel beds. In addition, many hotel beds use a
solid-sided platform base with no clearance at the floor, which prevents the use
of a portable lift to transfer an individual onto the bed. Consequently,
individuals who bring their own lift to transfer onto the bed cannot
independently get themselves onto the bed. Some commenters suggested various
design options that might avoid these situations.

The Department intends to provide specific guidance relating to both hotel beds
and aquatic wheelchairs in a future rulemaking. For the present, the Department
reminds covered entities that they have an obligation to undertake reasonable
modifications to their current policies and to make their programs accessible to
persons with disabilities. In many cases, providing aquatic wheelchairs or
adjusting hotel bed heights may be necessary to comply with those requirements.

The Department has decided not to add specific scoping or technical requirements
for equipment and furniture in this final rule. Other provisions of the
regulation, including those requiring reasonable modifications of policies,
practices, or procedures, program accessibility, and effective communication may
require the provision of accessible equipment in individual circumstances. The
1991 title II regulation at § 35.150(a) requires that entities operate each
service, program, or activity so that, when viewed in its entirety, each is
readily accessible to, and usable by, individuals with disabilities, subject to
a defense of fundamental alteration or undue financial and administrative
burdens. Section 35.150(b) specifies that such entities may meet their program
accessibility obligation through the “redesign of equipment.” The Department
expects to undertake a rulemaking to address these issues in the near future.

Accessible golf cars. An accessible golf car means a device that is designed and
manufactured to be driven on all areas of a golf course, is independently usable
by individuals with mobility disabilities, has a hand-operated brake and
accelerator, carries golf clubs in an accessible location, and has a seat that
both swivels and raises to put the golfer in a standing or semi-standing
position.

The 1991 title II regulation contained no language specifically referencing
accessible golf cars. After considering the comments addressing the ANPRM’s
proposed requirement that golf courses make at least one specialized golf car
available for the use of individuals with disabilities, and the safety of
accessible golf cars and their use on golf course greens, the Department stated
in the NPRM that it would not issue regulations specific to golf cars.

The Department received many comments in response to its decision to propose no
new regulation specific to accessible golf cars. The majority of commenters
urged the Department to require golf courses to provide accessible golf cars.
These comments came from individuals, disability advocacy and recreation groups,
a manufacturer of accessible golf cars, and representatives of local government.
Comments supporting the Department’s decision not to propose a new regulation
came from golf course owners, associations, and individuals.

Many commenters argued that while the existing title II regulation covered the
issue, the Department should nonetheless adopt specific regulatory language
requiring golf courses to provide accessible golf cars. Some commenters noted
that many local governments and park authorities that operate public golf
courses have already provided accessible golf cars. Experience indicates that
such golf cars may be used without damaging courses. Some argued that having
accessible golf cars would increase golf course revenue by enabling more golfers
with disabilities to play the game. Several commenters requested that the
Department adopt a regulation specifically requiring each golf course to provide
one or more accessible golf cars. Other commenters recommended allowing golf
courses to make “pooling” arrangements to meet demands for such cars. A few
commenters expressed support for using accessible golf cars to accommodate
golfers with and without disabilities. Commenters also pointed out that the
Departments of the Interior and Defense have already mandated that golf courses
under their jurisdictional control must make accessible golf cars available
unless it can be demonstrated that doing so would change the fundamental nature
of the game.

While an industry association argued that at least two models of accessible golf
cars meet the specifications recognized in the field, and that accessible golf
cars cause no more damage to greens or other parts of golf courses than players
standing or walking across the course, other commenters expressed concerns about
the potential for damage associated with the use of accessible golf cars. Citing
safety concerns, golf organizations recommended that an industry safety standard
be developed.

Although the Department declines to add specific scoping or technical
requirements for golf cars to this final rule, the Department expects to address
requirements for accessible golf cars in future rulemaking. In the meantime, the
Department believes that golfers with disabilities who need accessible golf cars
are protected by other existing provisions in the title II regulation, including
those requiring reasonable modifications of policies, practices, or procedures,
and program accessibility.

Web site accessibility. Many commenters expressed disappointment that the NPRM
did not require title II entities to make their Web sites, through which they
offer programs and services, accessible to individuals with disabilities,
including those who are blind or have low vision. Commenters argued that the
cost of making Web sites accessible, through Web site design, is minimal, yet
critical to enabling individuals with disabilities to benefit from the entity’s
programs and services. Internet Web sites, when accessible, provide individuals
with disabilities great independence, and have become an essential tool for many
Americans. Commenters recommended that the Department require covered entities,
at a minimum, to meet the section 508 Standard for Electronic and Information
Technology for Internet accessibility. Under section 508 of the Rehabilitation
Act of 1973, Federal agencies are required to make their Web sites accessible.
29 U.S.C. 794(d); 36 CFR 1194.

The Department agrees that the ability to access, on an equal basis, the
programs and activities offered by public entities through Internet-based Web
sites is of great importance to individuals with disabilities, particularly
those who are blind or who have low vision. When the ADA was enacted in 1990,
the Internet was unknown to most Americans. Today, the Internet plays a critical
role in daily life for personal, civic, commercial, and business purposes. In a
period of shrinking resources, public entities increasingly rely on the web as
an efficient and comprehensive way to deliver services and to inform and
communicate with their citizens and the general public. In light of the growing
importance Web sites play in providing access to public services and to
disseminating the information citizens need to participate fully in civic life,
accessing the Web sites of public entities can play a significant role in
fulfilling the goals of the ADA.

Although the language of the ADA does not explicitly mention the Internet, the
Department has taken the position that title II covers Internet Web site access.
Public entities that choose to provide services through web-based applications
(e.g., renewing library books or driver’s licenses) or that communicate with
their constituents or provide information through the Internet must ensure that
individuals with disabilities have equal access to such services or information,
unless doing so would result in an undue financial and administrative burden or
a fundamental alteration in the nature of the programs, services, or activities
being offered. The Department has issued guidance on the ADA as applied to the
Web sites of public entities in a 2003 publication entitled, Accessibility of
State and Local Government Web sites to People with Disabilities, (June 2003)
available at http://archive.ada.gov/websites2.htm. As the Department stated in
that publication, an agency with an inaccessible Web site may also meet its
legal obligations by providing an alternative accessible way for citizens to use
the programs or services, such as a staffed telephone information line. However,
such an alternative must provide an equal degree of access in terms of hours of
operation and the range of options and programs available. For example, if job
announcements and application forms are posted on an inaccessible Web site that
is available 24 hours a day, seven days a week to individuals without
disabilities, then the alternative accessible method must also be available 24
hours a day, 7 days a week. Additional guidance is available in the Web Content
Accessibility Guidelines (WCAG), (May 5, 1999) available at
http://www.w3.org/TR/WAI–WEBCONTENT (last visited June 24, 2010) which are
developed and maintained by the Web Accessibility Initiative, a subgroup of the
World Wide Web Consortium (W3C®).

The Department expects to engage in rulemaking relating to website accessibility
under the ADA in the near future. The Department has enforced the ADA in the
area of website accessibility on a case-by-case basis under existing rules
consistent with the guidance noted above, and will continue to do so until the
issue is addressed in a final regulation.

Multiple chemical sensitivities. The Department received comments from a number
of individuals asking the Department to add specific language to the final rule
addressing the needs of individuals with chemical sensitivities. These
commenters expressed concern that the presence of chemicals interferes with
their ability to participate in a wide range of activities. These commenters
also urged the Department to add multiple chemical sensitivities to the
definition of a disability.

The Department has determined not to include specific provisions addressing
multiple chemical sensitivities in the final rule. In order to be viewed as a
disability under the ADA, an impairment must substantially limit one or more
major life activities. An individual’s major life activities of respiratory or
neurological functioning may be substantially limited by allergies or
sensitivity to a degree that he or she is a person with a disability. When a
person has this type of disability, a covered entity may have to make reasonable
modifications in its policies and practices for that person. However, this
determination is an individual assessment and must be made on a case-by-case
basis.

Examinations and Courses. The Department received one comment requesting that it
specifically include language regarding examinations and courses in the title II
regulation. Because section 309 of the ADA 42 U.S.C. 12189, reaches “[a]ny
person that offers examinations or courses related to applications, licensing,
certification, or credentialing for secondary or post secondary education,
professional, or trade purposes,” public entities also are covered by this
section of the ADA. Indeed, the requirements contained in title II (including
the general prohibitions against discrimination, the program access
requirements, the reasonable modifications requirements, and the communications
requirements) apply to courses and examinations administered by public entities
that meet the requirements of section 309. While the Department considers these
requirements to be sufficient to ensure that examinations and courses
administered by public entities meet the section 309 requirements, the
Department acknowledges that the title III regulation, because it addresses
examinations in some detail, is useful as a guide for determining what
constitutes discriminatory conduct by a public entity in testing situations. See
28 CFR 36.309.

Hotel Reservations. In the NPRM, at § 36.302(e), the Department proposed adding
specific language to title III addressing the requirements that hotels,
timeshare resorts, and other places of lodging make reasonable modifications to
their policies, practices, or procedures, when necessary to ensure that
individuals with disabilities are able to reserve accessible hotel rooms with
the same efficiency, immediacy, and convenience as those who do not need
accessible guest rooms. The NPRM did not propose adding comparable language to
the title II regulation as the Department believes that the general
nondiscrimination, program access, effective communication, and reasonable
modifications requirements of title II provide sufficient guidance to public
entities that operate places of lodging (i.e., lodges in State parks, hotels on
public college campuses). The Department received no public comments suggesting
that it add language on hotel reservations comparable to that proposed for the
title III regulation. Although the Department continues to believe that it is
unnecessary to add specific language to the title II regulation on this issue,
the Department acknowledges that the title III regulation, because it addresses
hotel reservations in some detail, is useful as a guide for determining what
constitutes discriminatory conduct by a public entity that operates a
reservation system serving a place of lodging. See 28 CFR 36.302(e).

18. Revise the heading to Appendix B to read as follows:

Appendix B to Part 35—Guidance on ADA Regulation on Nondiscrimination on the
Basis of Disability in State and Local Government Services Originally Published
July 26, 1991

Dated: July 23, 2010.

Eric H. Holder, Jr., Attorney General.


TITLE II REGULATIONS; 1991 PREAMBLE AND SECTION-BY-SECTION ANALYSIS


APPENDIX B TO PART 35—GUIDANCE ON ADA REGULATION ON NONDISCRIMINATION ON THE
BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES ORIGINALLY PUBLISHED
JULY 26, 1991

Note: For the convenience of the reader, this appendix contains the text of the
preamble to the final regulation on nondiscrimination on the basis of disability
in State and local government services beginning at the heading
“Section-by-Section Analysis” and ending before “List of Subjects in 28 CFR Part
35” (56 FR 35696, July 26, 1991).


SECTION-BY-SECTION ANALYSIS


SUBPART A-GENERAL


§35.101 PURPOSE.

Section 35.101 states the purpose of the rule, which is to effectuate subtitle A
of title II of the Americans with Disabilities Act of 1990 (the Act), which
prohibits discrimination on the basis of disability by public entities. This
part does not, however, apply to matters within the scope of the authority of
the Secretary of Transportation under subtitle B of title II of the Act.


§35.102 APPLICATION.

This provision specifies that, except as provided in paragraph (b), the
regulation applies to all services, programs, and activities provided or made
available by public entities, as that term is defined in §35.104. Section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794), which prohibits discrimination
on the basis of handicap in federally assisted programs and activities, already
covers those programs and activities of public entities that receive Federal
financial assistance. Title II of the ADA extends this prohibition of
discrimination to include all services, programs, and activities provided or
made available by State and local governments or any of their instrumentalities
or agencies, regardless of the receipt of Federal financial assistance. Except
as provided in §35.134, this part does not apply to private entities.

The scope of title II’s coverage of public entities is comparable to the
coverage of Federal Executive agencies under the 1978 amendment to section 504,
which extended section 504’s application to all programs and activities
"conducted by" Federal Executive agencies, in that title II applies to anything
a public entity does. Title II coverage, however, is not limited to "Executive"
agencies, but includes activities of the legislative and judicial branches of
State and local governments. All governmental activities of public entities are
covered, even if they are carried out by contractors. For example, a State is
obligated by title II to ensure that the services, programs, and activities of a
State park inn operated under contract by a private entity are in compliance
with title II’s requirements. The private entity operating the inn would also be
subject to the obligations of public accommodations under title III of the Act
and the Department’s title III regulations at 28 CFR Part 36.

Aside from employment, which is also covered by title I of the Act, there are
two major categories of programs or activities covered by this regulation: those
involving general public contact as part of ongoing operations of the entity and
those directly administered by the entities for program beneficiaries and
participants. Activities in the first category include communication with the
public (telephone contacts, office walk-ins, or interviews) and the public’s use
of the entity’s facilities. Activities in the second category include programs
that provide State or local government services or benefits.

Paragraph (b) of §35.102 explains that to the extent that the public
transportation services, programs, and activities of public entities are covered
by subtitle B of title II of the Act, they are subject to the regulation of the
Department of Transportation (DOT) at 49 CFR Part 37, and are not covered by
this part. The Department of Transportation’s ADA regulation establishes
specific requirements for construction of transportation facilities and
acquisition of vehicles. Matters not covered by subtitle B, such as the
provision of auxiliary aids, are covered by this rule. For example, activities
that are covered by the Department of Transportation’s regulation implementing
subtitle B are not required to be included in the self-evaluation required by
§35.105. In addition, activities not specifically addressed by DOT’s ADA
regulation may be covered by DOT’s regulation implementing section 504 for its
federally assisted programs and activities at 49 CFR Part 27. Like other
programs of public entities that are also recipients of Federal financial
assistance, those programs would be covered by both the section 504 regulation
and this part. Although airports operated by public entities are not subject to
DOT’s ADA regulation, they are subject to subpart A of title II and to this
rule.

Some commenters asked for clarification about the responsibilities of public
school systems under section 504 and the ADA with respect to programs, services,
and activities that are not covered by the Individuals with Disabilities
Education Act (IDEA), including, for example, programs open to parents or to the
public, graduation ceremonies, parent-teacher organization meetings, plays and
other events open to the public, and adult education classes. Public school
systems must comply with the ADA in all of their services, programs, or
activities, including those that are open to parents or to the public. For
instance, public school systems must provide program accessibility to parents
and guardians with disabilities to these programs, activities, or services, and
appropriate auxiliary aids and services whenever necessary to ensure effective
communication, as long as the provision of the auxiliary aids results neither in
an undue burden or in a fundamental alteration of the program.


§35.103 RELATIONSHIP TO OTHER LAWS.

Section 35.103 is derived from sections 501(a) and (b) of the ADA. Paragraph (a)
of this section provides that, except as otherwise specifically provided by this
part, title II of the ADA is not intended to apply lesser standards than are
required under title V of the Rehabilitation Act of 1973, as amended (29 U.S.C.
790-94), or the regulations implementing that title. The standards of title V of
the Rehabilitation Act apply for purposes of the ADA to the extent that the ADA
has not explicitly adopted a different standard than title V. Because title II
of the ADA essentially extends the antidiscrimination prohibition embodied in
section 504 to all actions of State and local governments, the standards adopted
in this part are generally the same as those required under section 504 for
federally assisted programs. Title II, however, also incorporates those
provisions of titles I and III of the ADA that are not inconsistent with the
regulations implementing section 504. Judiciary Committee report, H.R. Rep. No.
485, 101st Cong., 2d Sess., pt.3, at 51 (1990) [hereinafter "Judiciary report"];
Education and Labor Committee report, H.R. Rep. No. 485, 101st Cong., 2d Sess.,
pt. 2, at 84 (1990) [hereinafter "Education and Labor report"]. Therefore, this
part also includes appropriate provisions derived from the regulations
implementing those titles. The inclusion of specific language in this part,
however, should not be interpreted as an indication that a requirement is not
included under a regulation implementing section 504.

Paragraph (b) makes clear that Congress did not intend to displace any of the
rights or remedies provided by other Federal laws (including section 504) or
other State laws (including State common law) that provide greater or equal
protection to individuals with disabilities. As discussed above, the standards
adopted by title II of the ADA for State and local government services are
generally the same as those required under section 504 for federally assisted
programs and activities. Subpart F of the regulation establishes compliance
procedures for processing complaints covered by both this part and section 504.

With respect to State law, a plaintiff may choose to pursue claims under a State
law that does not confer greater substantive rights, or even confers fewer
substantive rights, if the alleged violation is protected under the alternative
law and the remedies are greater. For example, a person with a physical
disability could seek damages under a State law that allows compensatory and
punitive damages for discrimination on the basis of physical disability, but not
on the basis of mental disability. In that situation, the State law would
provide narrower coverage, by excluding mental disabilities, but broader
remedies, and an individual covered by both laws could choose to bring an action
under both laws. Moreover, State tort claims confer greater remedies and are not
preempted by the ADA. A plaintiff may join a State tort claim to a case brought
under the ADA. In such a case, the plaintiff must, of course, prove all the
elements of the State tort claim in order to prevail under that cause of action.

§ 35.104 Definitions.

"Act." The word "Act" is used in this part to refer to the Americans with
Disabilities Act of 1990, Pub. L. 101-336, which is also referred to as the
"ADA."

"Assistant Attorney General." The term "Assistant Attorney General" refers to
the Assistant Attorney General of the Civil Rights Division of the Department of
Justice.

"Auxiliary aids and services." Auxiliary aids and services include a wide range
of services and devices for ensuring effective communication. The proposed
definition in §35.104 provided a list of examples of auxiliary aids and services
that was taken from the definition of auxiliary aids and services in section
3(1) of the ADA and was supplemented by examples from regulations implementing
section 504 in federally conducted programs ( See 28 CFR 39.103).

A substantial number of commenters suggested that additional examples be added
to this list. The Department has added several items to this list but wishes to
clarify that the list is not an all-inclusive or exhaustive catalogue of
possible or available auxiliary aids or services. It is not possible to provide
an exhaustive list, and an attempt to do so would omit the new devices that will
become available with emerging technology.

Subparagraph (1) lists several examples, which would be considered auxiliary
aids and services to make aurally delivered materials available to individuals
with hearing impairments. The Department has changed the phrase used in the
proposed rules, "orally delivered materials," to the statutory phrase, "aurally
delivered materials," to track section 3 of the ADA and to include non-verbal
sounds and alarms, and computer generated speech.

The Department has added videotext displays, transcription services, and closed
and open captioning to the list of examples. Videotext displays have become an
important means of accessing auditory communications through a public address
system. Transcription services are used to relay aurally delivered material
almost simultaneously in written form to persons who are deaf or
hearing-impaired. This technology is often used at conferences, conventions, and
hearings. While the proposed rule expressly included television decoder
equipment as an auxiliary aid or service, it did not mention captioning itself.
The final rule rectifies this omission by mentioning both closed and open
captioning.

Several persons and organizations requested that the Department replace the term
"telecommunications devices for deaf persons" or "TDD’s" with the term "text
telephone." The Department has declined to do so. The Department is aware that
the Architectural and Transportation Barriers Compliance Board (ATBCB) has used
the phrase "text telephone" in lieu of the statutory term "TDD" in its final
accessibility guidelines. Title IV of the ADA, however, uses the term
"Telecommunications Device for the Deaf" and the Department believes it would be
inappropriate to abandon this statutory term at this time.

Several commenters urged the Department to include in the definition of
"auxiliary aids and services" devices that are now available or that may become
available with emerging technology. The Department declines to do so in the
rule. The Department, however, emphasizes that, although the definition would
include "state of the art" devices, public entities are not required to use the
newest or most advanced technologies as long as the auxiliary aid or service
that is selected affords effective communication.

Subparagraph (2) lists examples of aids and services for making visually
delivered materials accessible to persons with visual impairments. Many
commenters proposed additional examples, such as signage or mapping, audio
description services, secondary auditory programs, telebraillers, and reading
machines. While the Department declines to add these items to the list, they are
auxiliary aids and services and may be appropriate depending on the
circumstances.

Subparagraph (3) refers to acquisition or modification of equipment or devices.
Several commenters suggested the addition of current technological innovations
in microelectronics and computerized control systems (e.g., voice recognition
systems, automatic dialing telephones, and infrared elevator and light control
systems) to the list of auxiliary aids. The Department interprets auxiliary aids
and services as those aids and services designed to provide effective
communications, i.e., making aurally and visually delivered information
available to persons with hearing, speech, and vision impairments. Methods of
making services, programs, or activities accessible to, or usable by,
individuals with mobility or manual dexterity impairments are addressed by other
sections of this part, including the provision for modifications in policies,
practices, or procedures (§35.130(b)(7)).

Paragraph (b)(4) deals with other similar services and actions. Several
commenters asked for clarification that "similar services and actions" include
retrieving items from shelves, assistance in reaching a marginally accessible
seat, pushing a barrier aside in order to provide an accessible route, or
assistance in removing a sweater or coat. While retrieving an item from a shelf
might be an "auxiliary aid or service" for a blind person who could not locate
the item without assistance, it might be a method of providing program access
for a person using a wheelchair who could not reach the shelf, or a reasonable
modification to a self-service policy for an individual who lacked the ability
to grasp the item. As explained above, auxiliary aids and services are those
aids and services required to provide effective communications. Other forms of
assistance are more appropriately addressed by other provisions of the final
rule.

"Complete complaint." "Complete complaint" is defined to include all the
information necessary to enable the Federal agency designated under subpart G as
responsible for investigation of a complaint to initiate its investigation.

"Current illegal use of drugs." The phrase "current illegal use of drugs" is
used in §35.131. Its meaning is discussed in the preamble for that section.

"Designated agency." The term "designated agency" is used to refer to the
Federal agency designated under subpart G of this rule as responsible for
carrying out the administrative enforcement responsibilities established by
subpart F of the rule.

"Disability." The definition of the term "disability" is the same as the
definition in the title III regulation codified at 28 CFR Part 36. It is
comparable to the definition of the term "individual with handicaps" in section
7(8) of the Rehabilitation Act and section 802(h) of the Fair Housing Act. The
Education and Labor Committee report makes clear that the analysis of the term
"individual with handicaps" by the Department of Health, Education, and Welfare
(HEW) in its regulations implementing section 504 (42 FR 22685 (May 4, 1977))
and the analysis by the Department of Housing and Urban Development in its
regulation implementing the Fair Housing Amendments Act of 1988 (54 FR 3232
(Jan. 23, 1989)) should also apply fully to the term "disability" (Education and
Labor report at 50).

The use of the term "disability" instead of "handicap" and the term "individual
with a disability" instead of "individual with handicaps" represents an effort
by Congress to make use of up-to-date, currently accepted terminology. As with
racial and ethnic epithets, the choice of terms to apply to a person with a
disability is overlaid with stereotypes, patronizing attitudes, and other
emotional connotations. Many individuals with disabilities, and organizations
representing such individuals, object to the use of such terms as "handicapped
person" or "the handicapped." In other recent legislation, Congress also
recognized this shift in terminology, e.g., by changing the name of the National
Council on the Handicapped to the National Council on Disability (Pub. L. 100-
630).

In enacting the Americans with Disabilities Act, Congress concluded that it was
important for the current legislation to use terminology most in line with the
sensibilities of most Americans with disabilities. No change in definition or
substance is intended nor should one be attributed to this change in
phraseology.

The term "disability" means, with respect to an individual -

(A) A physical or mental impairment that substantially limits one or more of the
major life activities of such individual;

(B) A record of such an impairment; or

(C) Being regarded as having such an impairment.

If an individual meets any one of these three tests, he or she is considered to
be an individual with a disability for purposes of coverage under the Americans
with Disabilities Act.

Congress adopted this same basic definition of "disability," first used in the
Rehabilitation Act of 1973 and in the Fair Housing Amendments Act of 1988, for a
number of reasons. First, it has worked well since it was adopted in 1974.
Second, it would not be possible to guarantee comprehensiveness by providing a
list of specific disabilities, especially because new disorders may be
recognized in the future, as they have since the definition was first
established in 1974.

Test A – A physical or mental impairment that substantially limits one or more
of the major life activities of such individual

Physical or mental impairment. Under the first test, an individual must have a
physical or mental impairment. As explained in paragraph (1)(i) of the
definition, "impairment" means any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs (which would
include speech organs that are not respiratory such as vocal cords, soft palate,
tongue, etc.); respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and
endocrine. It also means any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and specific
learning disabilities. This list closely tracks the one used in the regulations
for section 504 of the Rehabilitation Act of 1973 (see, e.g., 45 CFR
84.3(j)(2)(i)).

Many commenters asked that "traumatic brain injury" be added to the list in
paragraph (1)(i). Traumatic brain injury is already included because it is a
physiological condition affecting one of the listed body systems, i.e.,
"neurological." Therefore, it was unnecessary to add the term to the regulation,
which only provides representative examples of physiological disorders.

It is not possible to include a list of all the specific conditions, contagious
and noncontagious diseases, or infections that would constitute physical or
mental impairments because of the difficulty of ensuring the comprehensiveness
of such a list, particularly in light of the fact that other conditions or
disorders may be identified in the future. However, the list of examples in
paragraph (1)(ii) of the definition includes: orthopedic, visual, speech and
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation, emotional
illness, specific learning disabilities, HIV disease (symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase
"symptomatic or asymptomatic" was inserted in the final rule after "HIV disease"
in response to commenters who suggested the clarification was necessary.

The examples of "physical or mental impairments" in paragraph (1)(ii) are the
same as those contained in many section 504 regulations, except for the addition
of the phrase "contagious and noncontagious" to describe the types of diseases
and conditions included, and the addition of "HIV disease (symptomatic or
asymptomatic)" and "tuberculosis" to the list of examples. These additions are
based on the committee reports, caselaw, and official legal opinions
interpreting section 504. In School Board of Nassau County v. Arline, 480 U.S.
273 (1987), a case involving an individual with tuberculosis, the Supreme Court
held that people with contagious diseases are entitled to the protections
afforded by section 504. Following the Arline decision, this Department’s Office
of Legal Counsel issued a legal opinion that concluded that symptomatic HIV
disease is an impairment that substantially limits a major life activity;
therefore it has been included in the definition of disability under this part.
The opinion also concluded that asymptomatic HIV disease is an impairment that
substantially limits a major life activity, either because of its actual effect
on the individual with HIV disease or because the reactions of other people to
individuals with HIV disease cause such individuals to be treated as though they
are disabled. See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Arthur B.
Culvahouse, Jr., Counsel to the President (Sept. 27, 1988), reprinted in
Hearings on S. 933, the Americans with Disabilities Act, Before the Subcomm. on
the Handicapped of the Senate Comm. on Labor and Human Resources, 101st. Cong.,
1st Sess. 346 (1989).

Paragraph (1)(iii) states that the phrase "physical or mental impairment" does
not include homosexuality or bisexuality. These conditions were never considered
impairments under other Federal disability laws. Section 511(a) of the statute
makes clear that they are likewise not to be considered impairments under the
Americans with Disabilities Act.

Physical or mental impairment does not include simple physical characteristics,
such as blue eyes or black hair. Nor does it include environmental, cultural,
economic, or other disadvantages, such as having a prison record, or being poor.
Nor is age a disability. Similarly, the definition does not include common
personality traits such as poor judgment or a quick temper where these are not
symptoms of a mental or psychological disorder. However, a person who has these
characteristics and also has a physical or mental impairment may be considered
as having a disability for purposes of the Americans with Disabilities Act based
on the impairment.

Substantial limitation of a major life activity. Under Test A, the impairment
must be one that "substantially limits a major life activity." Major life
activities include such things as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

For example, a person who is paraplegic is substantially limited in the major
life activity of walking, a person who is blind is substantially limited in the
major life activity of seeing, and a person who is mentally retarded is
substantially limited in the major life activity of learning. A person with
traumatic brain injury is substantially limited in the major life activities of
caring for one’s self, learning, and working because of memory deficit,
confusion, contextual difficulties, and inability to reason appropriately.

A person is considered an individual with a disability for purposes of Test A,
the first prong of the definition, when the individual’s important life
activities are restricted as to the conditions, manner, or duration under which
they can be performed in comparison to most people. A person with a minor,
trivial impairment, such as a simple infected finger, is not impaired in a major
life activity. A person who can walk for 10 miles continuously is not
substantially limited in walking merely because, on the eleventh mile, he or she
begins to experience pain, because most people would not be able to walk eleven
miles without experiencing some discomfort.

The Department received many comments on the proposed rule’s inclusion of the
word "temporary" in the definition of "disability." The preamble indicated that
impairments are not necessarily excluded from the definition of "disability"
simply because they are temporary, but that the duration, or expected duration,
of an impairment is one factor that may properly be considered in determining
whether the impairment substantially limits a major life activity. The preamble
recognized, however, that temporary impairments, such as a broken leg, are not
commonly regarded as disabilities, and only in rare circumstances would the
degree of the limitation and its expected duration be substantial. Nevertheless,
many commenters objected to inclusion of the word "temporary" both because it is
not in the statute and because it is not contained in the definition of
"disability" set forth in the title I regulations of the Equal Employment
Opportunity Commission (EEOC). The word "temporary" has been deleted from the
final rule to conform with the statutory language.

The question of whether a temporary impairment is a disability must be resolved
on a case-by-case basis, taking into consideration both the duration (or
expected duration) of the impairment and the extent to which it actually limits
a major life activity of the affected individual.

The question of whether a person has a disability should be assessed without
regard to the availability of mitigating measures, such as reasonable
modifications or auxiliary aids and services. For example, a person with hearing
loss is substantially limited in the major life activity of hearing, even though
the loss may be improved through the use of a hearing aid. Likewise, persons
with impairments, such as epilepsy or diabetes, that substantially limit a major
life activity, are covered under the first prong of the definition of
disability, even if the effects of the impairment are controlled by medication.

Many commenters asked that environmental illness (also known as multiple
chemical sensitivity) as well as allergy to cigarette smoke be recognized as
disabilities. The Department, however, declines to state categorically that
these types of allergies or sensitivities are disabilities, because the
determination as to whether an impairment is a disability depends on whether,
given the particular circumstances at issue, the impairment substantially limits
one or more major life activities (or has a history of, or is regarded as having
such an effect).

Sometimes respiratory or neurological functioning is so severely affected that
an individual will satisfy the requirements to be considered disabled under the
regulation. Such an individual would be entitled to all of the protections
afforded by the Act and this part. In other cases, individuals may be sensitive
to environmental elements or to smoke but their sensitivity will not rise to the
level needed to constitute a disability. For example, their major life activity
of breathing may be somewhat, but not substantially, impaired. In such
circumstances, the individuals are not disabled and are not entitled to the
protections of the statute despite their sensitivity to environmental agents.

In sum, the determination as to whether allergies to cigarette smoke, or
allergies or sensitivities characterized by the commenters as environmental
illness are disabilities covered by the regulation must be made using the same
case-by-case analysis that is applied to all other physical or mental
impairments. Moreover, the addition of specific regulatory provisions relating
to environmental illness in the final rule would be inappropriate at this time
pending future consideration of the issue by the Architectural and
Transportation Barriers Compliance Board, the Environmental Protection Agency,
and the Occupational Safety and Health Administration of the Department of
Labor.

Test B – A record of such an impairment

This test is intended to cover those who have a record of an impairment. As
explained in paragraph (3) of the rule’s definition of disability, this includes
a person who has a history of an impairment that substantially limited a major
life activity, such as someone who has recovered from an impairment. It also
includes persons who have been misclassified as having an impairment.

This provision is included in the definition in part to protect individuals who
have recovered from a physical or mental impairment that previously
substantially limited them in a major life activity. Discrimination on the basis
of such a past impairment is prohibited. Frequently occurring examples of the
first group (those who have a history of an impairment) are persons with
histories of mental or emotional illness, heart disease, or cancer; examples of
the second group (those who have been misclassified as having an impairment) are
persons who have been misclassified as having mental retardation or mental
illness.

Test C – Being regarded as having such an impairment

This test, as contained in paragraph (4) of the definition, is intended to cover
persons who are treated by a public entity as having a physical or mental
impairment that substantially limits a major life activity. It applies when a
person is treated as if he or she has an impairment that substantially limits a
major life activity, regardless of whether that person has an impairment.

The Americans with Disabilities Act uses the same "regarded as" test set forth
in the regulations implementing section 504 of the Rehabilitation Act. See,
e.g., 28 CFR 42.540(k)(2)(iv), which provides:

(iv) "Is regarded as having an impairment" means (A) Has a physical or mental
impairment that does not substantially limit major life activities but that is
treated by a recipient as constituting such a limitation; (B) Has a physical or
mental impairment that substantially limits major life activities only as a
result of the attitudes of others toward such impairment; or (C) Has none of the
impairments defined in paragraph (k)(2)(i) of this section but is treated by a
recipient as having such an impairment.

The perception of the covered entity is a key element of this test. A person who
perceives himself or herself to have an impairment, but does not have an
impairment, and is not treated as if he or she has an impairment, is not
protected under this test.

A person would be covered under this test if a public entity refused to serve
the person because it perceived that the person had an impairment that limited
his or her enjoyment of the goods or services being offered.

For example, persons with severe burns often encounter discrimination in
community activities, resulting in substantial limitation of major life
activities. These persons would be covered under this test based on the
attitudes of others towards the impairment, even if they did not view themselves
as "impaired."

The rationale for this third test, as used in the Rehabilitation Act of 1973,
was articulated by the Supreme Court in Arline, 480 U.S. 273 (1987). The Court
noted that although an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of others may prove just
as disabling. "Such an impairment might not diminish a person’s physical or
mental capabilities, but could nevertheless substantially limit that person’s
ability to work as a result of the negative reactions of others to the
impairment." Id. at 283. The Court concluded that, by including this test in the
Rehabilitation Act’s definition, "Congress acknowledged that society’s
accumulated myths and fears about disability and diseases are as handicapping as
are the physical limitations that flow from actual impairment." Id. at 284.

Thus, a person who is denied services or benefits by a public entity because of
myths, fears, and stereotypes associated with disabilities would be covered
under this third test whether or not the person’s physical or mental condition
would be considered a disability under the first or second test in the
definition.

If a person is refused admittance on the basis of an actual or perceived
physical or mental condition, and the public entity can articulate no legitimate
reason for the refusal (such as failure to meet eligibility criteria), a
perceived concern about admitting persons with disabilities could be inferred
and the individual would qualify for coverage under the "regarded as" test. A
person who is covered because of being regarded as having an impairment is not
required to show that the public entity’s perception is inaccurate (e.g., that
he will be accepted by others) in order to receive benefits from the public
entity.

Paragraph (5) of the definition lists certain conditions that are not included
within the definition of "disability." The excluded conditions are:
transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender
identity disorders not resulting from physical impairments, other sexual
behavior disorders, compulsive gambling, kleptomania, pyromania, and
psychoactive substance use disorders resulting from current illegal use of
drugs. Unlike homosexuality and bisexuality, which are not considered
impairments under either section 504 or the Americans with Disabilities Act (see
the definition of "disability," paragraph (1)(iv)), the conditions listed in
paragraph (5), except for transvestism, are not necessarily excluded as
impairments under section 504. (Transvestism was excluded from the definition of
disability for section 504 by the Fair Housing Amendments Act of 1988, Pub. L.
100-430, section 6(b)).

"Drug." The definition of the term "drug" is taken from section 510(d)(2) of the
ADA.

"Facility." "Facility" means all or any portion of buildings, structures, sites,
complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots, or other real or personal property, including the
site where the building, property, structure, or equipment is located. It
includes both indoor and outdoor areas where human-constructed improvements,
structures, equipment, or property have been added to the natural environment.

Commenters raised questions about the applicability of this part to activities
operated in mobile facilities, such as bookmobiles or mobile health screening
units. Such activities would be covered by the requirement for program
accessibility in §35.150, and would be included in the definition of "facility"
as "other real or personal property," although standards for new construction
and alterations of such facilities are not yet included in the accessibility
standards adopted by §35.151. Sections 35.150 and 35.151 specifically address
the obligations of public entities to ensure accessibility by providing curb
ramps at pedestrian walkways.

"Historic preservation programs" and "Historic properties" are defined in order
to aid in the interpretation of §§35.150(a)(2) and (b)(2), which relate to
accessibility of historic preservation programs, and §35.151(d), which relates
to the alteration of historic properties.

"Illegal use of drugs." The definition of "illegal use of drugs" is taken from
section 510(d)(1) of the Act and clarifies that the term includes the illegal
use of one or more drugs.

"Individual with a disability" means a person who has a disability but does not
include an individual who is currently illegally using drugs, when the public
entity acts on the basis of such use. The phrase "current illegal use of drugs"
is explained in §35.131.

"Public entity." The term "public entity" is defined in accordance with section
201(1) of the ADA as any State or local government; any department, agency,
special purpose district, or other instrumentality of a State or States or local
government; or the National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service Act).

"Qualified individual with a disability." The definition of "qualified
individual with a disability" is taken from section 201(2) of the Act, which is
derived from the definition of "qualified handicapped person" in the Department
of Health and Human Services’ regulation implementing section 504 (45 CFR
{84.3(k)). It combines the definition at 45 CFR 84.3(k)(1) for employment ("a
handicapped person who, with reasonable accommodation, can perform the essential
functions of the job in question") with the definition for other services at 45
CFR 84.3(k)(4) ("a handicapped person who meets the essential eligibility
requirements for the receipt of such services").

Some commenters requested clarification of the term "essential eligibility
requirements." Because of the variety of situations in which an individual’s
qualifications will be at issue, it is not possible to include more specific
criteria in the definition. The "essential eligibility requirements" for
participation in some activities covered under this part may be minimal. For
example, most public entities provide information about their operations as a
public service to anyone who requests it. In such situations, the only
"eligibility requirement" for receipt of such information would be the request
for it. Where such information is provided by telephone, even the ability to use
a voice telephone is not an "essential eligibility requirement," because §35.161
requires a public entity to provide equally effective telecommunication systems
for individuals with impaired hearing or speech.

For other activities, identification of the "essential eligibility requirements"
may be more complex. Where questions of safety are involved, the principles
established in §36.208 of the Department’s regulation implementing title III of
the ADA, to be codified at 28 CFR Part 36, will be applicable. That section
implements section 302(b)(3) of the Act, which provides that a public
accommodation is not required to permit an individual to participate in or
benefit from the goods, services, facilities, privileges, advantages and
accommodations of the public accommodation, if that individual poses a direct
threat to the health or safety of others.

A "direct threat" is a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices, or procedures, or
by the provision of auxiliary aids or services. In School Board of Nassau County
v. Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there is a
need to balance the interests of people with disabilities against legitimate
concerns for public safety. Although persons with disabilities are generally
entitled to the protection of this part, a person who poses a significant risk
to others will not be "qualified," if reasonable modifications to the public
entity’s policies, practices, or procedures will not eliminate that risk.

The determination that a person poses a direct threat to the health or safety of
others may not be based on generalizations or stereotypes about the effects of a
particular disability. It must be based on an individualized assessment, based
on reasonable judgment that relies on current medical evidence or on the best
available objective evidence, to determine: the nature, duration, and severity
of the risk; the probability that the potential injury will actually occur; and
whether reasonable modifications of policies, practices, or procedures will
mitigate the risk. This is the test established by the Supreme Court in Arline.
Such an inquiry is essential if the law is to achieve its goal of protecting
disabled individuals from discrimination based on prejudice, stereotypes, or
unfounded fear, while giving appropriate weight to legitimate concerns, such as
the need to avoid exposing others to significant health and safety risks. Making
this assessment will not usually require the services of a physician. Sources
for medical knowledge include guidance from public health authorities, such as
the U.S. Public Health Service, the Centers for Disease Control, and the
National Institutes of Health, including the National Institute of Mental
Health.

"Qualified interpreter." The Department received substantial comment regarding
the lack of a definition of "qualified interpreter." The proposed rule defined
auxiliary aids and services to include the statutory term, "qualified
interpreters" (§35.104), but did not define it. Section 35.160 requires the use
of auxiliary aids including qualified interpreters and commenters stated that a
lack of guidance on what the term means would create confusion among those
trying to secure interpreting services and often result in less than effective
communication.

Many commenters were concerned that, without clear guidance on the issue of
"qualified" interpreter, the rule would be interpreted to mean "available,
rather than qualified" interpreters. Some claimed that few public entities would
understand the difference between a qualified interpreter and a person who
simply knows a few signs or how to fingerspell.

In order to clarify what is meant by "qualified interpreter" the Department has
added a definition of the term to the final rule. A qualified interpreter means
an interpreter who is able to interpret effectively, accurately, and impartially
both receptively and expressively, using any necessary specialized vocabulary.
This definition focuses on the actual ability of the interpreter in a particular
interpreting context to facilitate effective communication between the public
entity and the individual with disabilities.

Public comment also revealed that public entities have at times asked persons
who are deaf to provide family members or friends to interpret. In certain
circumstances, notwithstanding that the family member of friend is able to
interpret or is a certified interpreter, the family member or friend may not be
qualified to render the necessary interpretation because of factors such as
emotional or personal involvement or considerations of confidentiality that may
adversely affect the ability to interpret "effectively, accurately, and
impartially."

The definition of "qualified interpreter" in this rule does not invalidate or
limit standards for interpreting services of any State or local law that are
equal to or more stringent than those imposed by this definition. For instance,
the definition would not supersede any requirement of State law for use of a
certified interpreter in court proceedings.

"Section 504." The Department added a definition of "section 504" because the
term is used extensively in subpart F of this part.

"State." The definition of "State" is identical to the statutory definition in
section 3(3) of the ADA.


§35.105 SELF-EVALUATION.

Section 35.105 establishes a requirement, based on the section 504 regulations
for federally assisted and federally conducted programs, that a public entity
evaluate its current policies and practices to identify and correct any that are
not consistent with the requirements of this part. As noted in the discussion of
§35.102, activities covered by the Department of Transportation’s regulation
implementing subtitle B of title II are not required to be included in the
self-evaluation required by this section.

Experience has demonstrated the self-evaluation process to be a valuable means
of establishing a working relationship with individuals with disabilities, which
has promoted both effective and efficient implementation of section 504. The
Department expects that it will likewise be useful to public entities newly
covered by the ADA.

All public entities are required to do a self-evaluation. However, only those
that employ 50 or more persons are required to maintain the self- evaluation on
file and make it available for public inspection for three years. The number 50
was derived from the Department of Justice’s section 504 regulations for
federally assisted programs, 28 CFR 42.505(c). The Department received comments
critical of this limitation, some suggesting the requirement apply to all public
entities and others suggesting that the number be changed from 50 to 15. The
final rule has not been changed. Although many regulations implementing section
504 for federally assisted programs do use 15 employees as the cut-off for this
record-keeping requirement, the Department believes that it would be
inappropriate to extend it to those smaller public entities covered by this
regulation that do not receive Federal financial assistance. This approach has
the benefit of minimizing paperwork burdens on small entities.

Paragraph (d) provides that the self-evaluation required by this section shall
apply only to programs not subject to section 504 or those policies and
practices, such as those involving communications access, that have not already
been included in a self-evaluation required under an existing regulation
implementing section 504. Because most self-evaluations were done from five to
twelve years ago, however, the Department expects that a great many public
entities will be reexamining all of their policies and programs. Programs and
functions may have changed, and actions that were supposed to have been taken to
comply with section 504 may not have been fully implemented or may no longer be
effective. In addition, there have been statutory amendments to section 504
which have changed the coverage of section 504, particularly the Civil Rights
Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), which
broadened the definition of a covered "program or activity."

Several commenters suggested that the Department clarify public entities’
liability during the one-year period for compliance with the self-evaluation
requirement. The self-evaluation requirement does not stay the effective date of
the statute nor of this part. Public entities are, therefore, not shielded from
discrimination claims during that time.

Other commenters suggested that the rule require that every self-evaluation
include an examination of training efforts to assure that individuals with
disabilities are not subjected to discrimination because of insensitivity,
particularly in the law enforcement area. Although the Department has not added
such a specific requirement to the rule, it would be appropriate for public
entities to evaluate training efforts because, in many cases, lack of training
leads to discriminatory practices, even when the policies in place are
nondiscriminatory.


§35.106 NOTICE.

Section 35.106 requires a public entity to disseminate sufficient information to
applicants, participants, beneficiaries, and other interested persons to inform
them of the rights and protections afforded by the ADA and this regulation.
Methods of providing this information include, for example, the publication of
information in handbooks, manuals, and pamphlets that are distributed to the
public to describe a public entity’s programs and activities; the display of
informative posters in service centers and other public places; or the broadcast
of information by television or radio. In providing the notice, a public entity
must comply with the requirements for effective communication in §35.160. The
preamble to that section gives guidance on how to effectively communicate with
individuals with disabilities.


§35.107 DESIGNATION OF RESPONSIBLE EMPLOYEE AND ADOPTION OF GRIEVANCE
PROCEDURES.

Consistent with §35.105, Self-evaluation, the final rule requires that public
entities with 50 or more employees designate a responsible employee and adopt
grievance procedures. Most of the commenters who suggested that the requirement
that self-evaluation be maintained on file for three years not be limited to
those employing 50 or more persons made a similar suggestion concerning §35.107.
Commenters recommended either that all public entities be subject to section
35.107, or that "50 or more persons" be changed to "15 or more persons." As
explained in the discussion of §35.105, the Department has not adopted this
suggestion.

The requirement for designation of an employee responsible for coordination of
efforts to carry out responsibilities under this part is derived from the HEW
regulation implementing section 504 in federally assisted programs. The
requirement for designation of a particular employee and dissemination of
information about how to locate that employee helps to ensure that individuals
dealing with large agencies are able to easily find a responsible person who is
familiar with the requirements of the Act and this part and can communicate
those requirements to other individuals in the agency who may be unaware of
their responsibilities. This paragraph in no way limits a public entity’s
obligation to ensure that all of its employees comply with the requirements of
this part, but it ensures that any failure by individual employees can be
promptly corrected by the designated employee.

Section 35.107(b) requires public entities with 50 or more employees to
establish grievance procedures for resolving complaints of violations of this
part. Similar requirements are found in the section 504 regulations for
federally assisted programs (see, e.g., 45 CFR 84.7(b)). The rule, like the
regulations for federally assisted programs, provides for investigation and
resolution of complaints by a Federal enforcement agency. It is the view of the
Department that public entities subject to this part should be required to
establish a mechanism for resolution of complaints at the local level without
requiring the complainant to resort to the Federal complaint procedures
established under subpart F. Complainants would not, however, be required to
exhaust the public entity’s grievance procedures before filing a complaint under
subpart F. Delay in filing the complaint at the Federal level caused by pursuit
of the remedies available under the grievance procedure would generally be
considered good cause for extending the time allowed for filing under
§35.170(b).


SUBPART B – GENERAL REQUIREMENTS


§35.130 GENERAL PROHIBITIONS AGAINST DISCRIMINATION.

The general prohibitions against discrimination in the rule are generally based
on the prohibitions in existing regulations implementing section 504 and,
therefore, are already familiar to State and local entities covered by section
504. In addition, §35.130 includes a number of provisions derived from title III
of the Act that are implicit to a certain degree in the requirements of
regulations implementing section 504.

Several commenters suggested that this part should include the section of the
proposed title III regulation that implemented section 309 of the Act, which
requires that courses and examinations related to applications, licensing,
certification, or credentialing be provided in an accessible place and manner or
that alternative accessible arrangements be made. The Department has not adopted
this suggestion. The requirements of this part, including the general
prohibitions of discrimination in this section, the program access requirements
of subpart D, and the communications requirements of subpart E, apply to courses
and examinations provided by public entities. The Department considers these
requirements to be sufficient to ensure that courses and examinations
administered by public entities meet the requirements of section 309. For
example, a public entity offering an examination must ensure that modifications
of policies, practices, or procedures or the provision of auxiliary aids and
services furnish the individual with a disability an equal opportunity to
demonstrate his or her knowledge or ability. Also, any examination specially
designed for individuals with disabilities must be offered as often and in as
timely a manner as are other examinations. Further, under this part, courses and
examinations must be offered in the most integrated setting appropriate. The
analysis of §35.130(d) is relevant to this determination.

A number of commenters asked that the regulation be amended to require training
of law enforcement personnel to recognize the difference between criminal
activity and the effects of seizures or other disabilities such as mental
retardation, cerebral palsy, traumatic brain injury, mental illness, or
deafness. Several disabled commenters gave personal statements about the abuse
they had received at the hands of law enforcement personnel. Two organizations
that commented cited the Judiciary report at 50 as authority to require law
enforcement training.

The Department has not added such a training requirement to the regulation.
Discriminatory arrests and brutal treatment are already unlawful police
activities. The general regulatory obligation to modify policies, practices, or
procedures requires law enforcement to make changes in policies that result in
discriminatory arrests or abuse of individuals with disabilities. Under this
section law enforcement personnel would be required to make appropriate efforts
to determine whether perceived strange or disruptive behavior or unconsciousness
is the result of a disability. The Department notes that a number of States have
attempted to address the problem of arresting disabled persons for noncriminal
conduct resulting from their disability through adoption of the Uniform Duties
to Disabled Persons Act, and encourages other jurisdictions to consider that
approach.

Paragraph (a) restates the nondiscrimination mandate of section 202 of the ADA.
The remaining paragraphs in §35.130 establish the general principles for
analyzing whether any particular action of the public entity violates this
mandate.

Paragraph (b) prohibits overt denials of equal treatment of individuals with
disabilities. A public entity may not refuse to provide an individual with a
disability with an equal opportunity to participate in or benefit from its
program simply because the person has a disability.

Paragraph (b)(1)(i) provides that it is discriminatory to deny a person with a
disability the right to participate in or benefit from the aid, benefit, or
service provided by a public entity. Paragraph (b)(1)(ii) provides that the
aids, benefits, and services provided to persons with disabilities must be equal
to those provided to others, and paragraph (b)(1)(iii) requires that the aids,
benefits, or services provided to individuals with disabilities must be as
effective in affording equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement as those provided to
others. These paragraphs are taken from the regulations implementing section 504
and simply restate principles long established under section 504.

Paragraph (b)(1)(iv) permits the public entity to develop separate or different
aids, benefits, or services when necessary to provide individuals with
disabilities with an equal opportunity to participate in or benefit from the
public entity’s programs or activities, but only when necessary to ensure that
the aids, benefits, or services are as effective as those provided to others.
Paragraph (b)(1)(iv) must be read in conjunction with paragraphs (b)(2), (d),
and (e). Even when separate or different aids, benefits, or services would be
more effective, paragraph (b)(2) provides that a qualified individual with a
disability still has the right to choose to participate in the program that is
not designed to accommodate individuals with disabilities. Paragraph (d)
requires that a public entity administer services, programs, and activities in
the most integrated setting appropriate to the needs of qualified individuals
with disabilities.

Paragraph (b)(2) specifies that, notwithstanding the existence of separate or
different programs or activities provided in accordance with this section, an
individual with a disability shall not be denied the opportunity to participate
in such programs or activities that are not separate or different. Paragraph
(e), which is derived from section 501(d) of the Americans with Disabilities
Act, states that nothing in this part shall be construed to require an
individual with a disability to accept an accommodation, aid, service,
opportunity, or benefit that he or she chooses not to accept.

Taken together, these provisions are intended to prohibit exclusion and
segregation of individuals with disabilities and the denial of equal
opportunities enjoyed by others, based on, among other things, presumptions,
patronizing attitudes, fears, and stereotypes about individuals with
disabilities. Consistent with these standards, public entities are required to
ensure that their actions are based on facts applicable to individuals and not
on presumptions as to what a class of individuals with disabilities can or
cannot do.

Integration is fundamental to the purposes of the Americans with Disabilities
Act. Provision of segregated accommodations and services relegates persons with
disabilities to second-class status. For example, it would be a violation of
this provision to require persons with disabilities to eat in the back room of a
government cafeteria or to refuse to allow a person with a disability the full
use of recreation or exercise facilities because of stereotypes about the
person’s ability to participate.

Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) as allowing
continued segregation of individuals with disabilities. The Department
recognizes that promoting integration of individuals with disabilities into the
mainstream of society is an important objective of the ADA and agrees that, in
most instances, separate programs for individuals with disabilities will not be
permitted. Nevertheless, section 504 does permit separate programs in limited
circumstances, and Congress clearly intended the regulations issued under title
II to adopt the standards of section 504.

Furthermore, Congress included authority for separate programs in the specific
requirements of title III of the Act. Section 302(b)(1)(A)(iii) of the Act
provides for separate benefits in language similar to that in §35.130(b)(1)(iv),
and section 302(b)(1)(B) includes the same requirement for "the most integrated
setting appropriate" as in §35.130(d).

Even when separate programs are permitted, individuals with disabilities cannot
be denied the opportunity to participate in programs that are not separate or
different. This is an important and overarching principle of the Americans with
Disabilities Act. Separate, special, or different programs that are designed to
provide a benefit to persons with disabilities cannot be used to restrict the
participation of persons with disabilities in general, integrated activities.

For example, a person who is blind may wish to decline participating in a
special museum tour that allows persons to touch sculptures in an exhibit and
instead tour the exhibit at his or her own pace with the museum’s recorded tour.
It is not the intent of this section to require the person who is blind to avail
himself or herself of the special tour. Modified participation for persons with
disabilities must be a choice, not a requirement.

In addition, it would not be a violation of this section for a public entity to
offer recreational programs specially designed for children with mobility
impairments. However, it would be a violation of this section if the entity then
excluded these children from other recreational services for which they are
qualified to participate when these services are made available to nondisabled
children, or if the entity required children with disabilities to attend only
designated programs.

Many commenters asked that the Department clarify a public entity’s obligations
within the integrated program when it offers a separate program but an
individual with a disability chooses not to participate in the separate program.
It is impossible to make a blanket statement as to what level of auxiliary aids
or modifications would be required in the integrated program. Rather, each
situation must be assessed individually. The starting point is to question
whether the separate program is in fact necessary or appropriate for the
individual. Assuming the separate program would be appropriate for a particular
individual, the extent to which that individual must be provided with
modifications in the integrated program will depend not only on what the
individual needs but also on the limitations and defenses of this part. For
example, it may constitute an undue burden for a public accommodation, which
provides a full-time interpreter in its special guided tour for individuals with
hearing impairments, to hire an additional interpreter for those individuals who
choose to attend the integrated program. The Department cannot identify
categorically the level of assistance or aid required in the integrated program.

Paragraph (b)(1)(v) provides that a public entity may not aid or perpetuate
discrimination against a qualified individual with a disability by providing
significant assistance to an agency, organization, or person that discriminates
on the basis of disability in providing any aid, benefit, or service to
beneficiaries of the public entity’s program. This paragraph is taken from the
regulations implementing section 504 for federally assisted programs.

Paragraph (b)(1)(vi) prohibits the public entity from denying a qualified
individual with a disability the opportunity to participate as a member of a
planning or advisory board.

Paragraph (b)(1)(vii) prohibits the public entity from limiting a qualified
individual with a disability in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others receiving any aid, benefit, or
service.

Paragraph (b)(3) prohibits the public entity from utilizing criteria or methods
of administration that deny individuals with disabilities access to the public
entity’s services, programs, and activities or that perpetuate the
discrimination of another public entity, if both public entities are subject to
common administrative control or are agencies of the same State. The phrase
"criteria or methods of administration" refers to official written policies of
the public entity and to the actual practices of the public entity. This
paragraph prohibits both blatantly exclusionary policies or practices and
nonessential policies and practices that are neutral on their face, but deny
individuals with disabilities an effective opportunity to participate. This
standard is consistent with the interpretation of section 504 by the U.S.
Supreme Court in ‘Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate
explained that members of Congress made numerous statements during passage of
section 504 regarding eliminating architectural barriers, providing access to
transportation, and eliminating discriminatory effects of job qualification
procedures. The Court then noted: "These statements would ring hollow if the
resulting legislation could not rectify the harms resulting from action that
discriminated by effect as well as by design." ‘Id. at 297 (footnote omitted).

Paragraph (b)(4) specifically applies the prohibition enunciated in
§35.130(b)(3) to the process of selecting sites for construction of new
facilities or selecting existing facilities to be used by the public entity.
Paragraph (b)(4) does not apply to construction of additional buildings at an
existing site.

Paragraph (b)(5) prohibits the public entity, in the selection of procurement
contractors, from using criteria that subject qualified individuals with
disabilities to discrimination on the basis of disability.

Paragraph (b)(6) prohibits the public entity from discriminating against
qualified individuals with disabilities on the basis of disability in the
granting of licenses or certification. A person is a "qualified individual with
a disability" with respect to licensing or certification if he or she can meet
the essential eligibility requirements for receiving the license or
certification (see §35.104).

A number of commenters were troubled by the phrase "essential eligibility
requirements" as applied to State licensing requirements, especially those for
health care professions. Because of the variety of types of programs to which
the definition of "qualified individual with a disability" applies, it is not
possible to use more specific language in the definition. The phrase "essential
eligibility requirements," however, is taken from the definitions in the
regulations implementing section 504, so caselaw under section 504 will be
applicable to its interpretation. In Southeastern Community College v. Davis,
442 U.S. 397, for example, the Supreme Court held that section 504 does not
require an institution to "lower or effect substantial modifications of
standards to accommodate a handicapped person," 442 U.S. at 413, and that the
school had established that the plaintiff was not "qualified" because she was
not able to "serve the nursing profession in all customary ways," ‘id. Whether a
particular requirement is "essential" will, of course, depend on the facts of
the particular case.

In addition, the public entity may not establish requirements for the programs
or activities of licensees or certified entities that subject qualified
individuals with disabilities to discrimination on the basis of disability. For
example, the public entity must comply with this requirement when establishing
safety standards for the operations of licensees. In that case the public entity
must ensure that standards that it promulgates do not discriminate against the
employment of qualified individuals with disabilities in an impermissible
manner.

Paragraph (b)(6) does not extend the requirements of the Act or this part
directly to the programs or activities of licensees or certified entities
themselves. The programs or activities of licensees or certified entities are
not themselves programs or activities of the public entity merely by virtue of
the license or certificate.

Paragraph (b)(7) is a specific application of the requirement under the general
prohibitions of discrimination that public entities make reasonable
modifications in policies, practices, or procedures where necessary to avoid
discrimination on the basis of disability. Section 302(b)(2)(A)(ii) of the ADA
sets out this requirement specifically for public accommodations covered by
title III of the Act, and the House Judiciary Committee Report directs the
Attorney General to include those specific requirements in the title II
regulation to the extent that they do not conflict with the regulations
implementing section 504. Judiciary report at 52.

Paragraph (b)(8), a new paragraph not contained in the proposed rule, prohibits
the imposition or application of eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program, or activity,
unless such criteria can be shown to be necessary for the provision of the
service, program, or activity being offered. This prohibition is also a specific
application of the general prohibitions of discrimination and is based on
section 302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal
treatment of individuals with disabilities, or establishment of exclusive or
segregative criteria that would bar individuals with disabilities from
participation in services, benefits, or activities.

Paragraph (b)(8) also prohibits policies that unnecessarily impose requirements
or burdens on individuals with disabilities that are not placed on others. For
example, public entities may not require that a qualified individual with a
disability be accompanied by an attendant. A public entity is not, however,
required to provide attendant care, or assistance in toileting, eating, or
dressing to individuals with disabilities, except in special circumstances, such
as where the individual is an inmate of a custodial or correctional institution.

In addition, paragraph (b)(8) prohibits the imposition of criteria that "tend
to" screen out an individual with a disability. This concept, which is derived
from current regulations under section 504 (see, e.g., 45 CFR 84.13), makes it
discriminatory to impose policies or criteria that, while not creating a direct
bar to individuals with disabilities, indirectly prevent or limit their ability
to participate. For example, requiring presentation of a driver’s license as the
sole means of identification for purposes of paying by check would violate this
section in situations where, for example, individuals with severe vision
impairments or developmental disabilities or epilepsy are ineligible to receive
a driver’s license and the use of an alternative means of identification, such
as another photo I.D. or credit card, is feasible.

A public entity may, however, impose neutral rules and criteria that screen out,
or tend to screen out, individuals with disabilities if the criteria are
necessary for the safe operation of the program in question. Examples of safety
qualifications that would be justifiable in appropriate circumstances would
include eligibility requirements for drivers’ licenses, or a requirement that
all participants in a recreational rafting expedition be able to meet a
necessary level of swimming proficiency. Safety requirements must be based on
actual risks and not on speculation, stereotypes, or generalizations about
individuals with disabilities.

Paragraph (c) provides that nothing in this part prohibits a public entity from
providing benefits, services, or advantages to individuals with disabilities, or
to a particular class of individuals with disabilities, beyond those required by
this part. It is derived from a provision in the section 504 regulations that
permits programs conducted pursuant to Federal statute or Executive order that
are designed to benefit only individuals with disabilities or a given class of
individuals with disabilities to be limited to those individuals with
disabilities. Section 504 ensures that federally assisted programs are made
available to all individuals, without regard to disabilities, unless the Federal
program under which the assistance is provided is specifically limited to
individuals with disabilities or a particular class of individuals with
disabilities. Because coverage under this part is not limited to federally
assisted programs, paragraph (c) has been revised to clarify that State and
local governments may provide special benefits, beyond those required by the
nondiscrimination requirements of this part, that are limited to individuals
with disabilities or a particular class of individuals with disabilities,
without thereby incurring additional obligations to persons without disabilities
or to other classes of individuals with disabilities.

Paragraphs (d) and (e), previously referred to in the discussion of paragraph
(b)(1)(iv), provide that the public entity must administer services, programs,
and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities, i.e., in a setting that enables
individuals with disabilities to interact with nondisabled persons to the
fullest extent possible, and that persons with disabilities must be provided the
option of declining to accept a particular accommodation.

Some commenters expressed concern that §35.130(e), which states that nothing in
the rule requires an individual with a disability to accept special
accommodations and services provided under the ADA, could be interpreted to
allow guardians of infants or older people with disabilities to refuse medical
treatment for their wards. Section 35.130(e) has been revised to make it clear
that paragraph (e) is inapplicable to the concern of the commenters. A new
paragraph (e)(2) has been added stating that nothing in the regulation
authorizes the representative or guardian of an individual with a disability to
decline food, water, medical treatment, or medical services for that individual.
New paragraph (e) clarifies that neither the ADA nor the regulation alters
current Federal law ensuring the rights of incompetent individuals with
disabilities to receive food, water, and medical treatment. See, e.g., Child
Abuse Amendments of 1984 (42 U.S.C. 5106a(b)(10), 5106g(10)); Rehabilitation Act
of 1973, as amended (29 U.S.C. 794); the Developmentally Disabled Assistance and
Bill of Rights Act (42 U.S.C. 6042).

Sections 35.130(e)(1) and (2) are based on section 501(d) of the ADA. Section
501(d) was designed to clarify that nothing in the ADA requires individuals with
disabilities to accept special accommodations and services for individuals with
disabilities that may segregate them:

The Committee added this section [501(d)] to clarify that nothing in the ADA is
intended to permit discriminatory treatment on the basis of disability, even
when such treatment is rendered under the guise of providing an accommodation,
service, aid or benefit to the individual with disability. For example, a blind
individual may choose not to avail himself or herself of the right to go to the
front of a line, even if a particular public accommodation has chosen to offer
such a modification of a policy for blind individuals. Or, a blind individual
may choose to decline to participate in a special museum tour that allows
persons to touch sculptures in an exhibit and instead tour the exhibits at his
or her own pace with the museum’s recorded tour.

Judiciary report at 71-72. The Act is not to be construed to mean that an
individual with disabilities must accept special accommodations and services for
individuals with disabilities when that individual can participate in the
regular services already offered. Because medical treatment, including treatment
for particular conditions, is not a special accommodation or service for
individuals with disabilities under section 501(d), neither the Act nor this
part provides affirmative authority to suspend such treatment. Section 501(d) is
intended to clarify that the Act is not designed to foster discrimination
through mandatory acceptance of special services when other alternatives are
provided; this concern does not reach to the provision of medical treatment for
the disabling condition itself.

Paragraph (f) provides that a public entity may not place a surcharge on a
particular individual with a disability, or any group of individuals with
disabilities, to cover any costs of measures required to provide that individual
or group with the nondiscriminatory treatment required by the Act or this part.
Such measures may include the provision of auxiliary aids or of modifications
required to provide program accessibility.

Several commenters asked for clarification that the costs of interpreter
services may not be assessed as an element of "court costs." The Department has
already recognized that imposition of the cost of courtroom interpreter services
is impermissible under section 504. The preamble to the Department’s section 504
regulation for its federally assisted programs states that where a court system
has an obligation to provide qualified interpreters, "it has the corresponding
responsibility to pay for the services of the interpreters." (45 FR 37630 (June
3, 1980)). Accordingly, recouping the costs of interpreter services by assessing
them as part of court costs would also be prohibited.

Paragraph (g), which prohibits discrimination on the basis of an individual’s or
entity’s known relationship or association with an individual with a disability,
is based on sections 102(b)(4) and 302(b)(1)(E) of the ADA. This paragraph was
not contained in the proposed rule. The individuals covered under this paragraph
are any individuals who are discriminated against because of their known
association with an individual with a disability. For example, it would be a
violation of this paragraph for a local government to refuse to allow a theater
company to use a school auditorium on the grounds that the company had recently
performed for an audience of individuals with HIV disease.

This protection is not limited to those who have a familial relationship with
the individual who has a disability. Congress considered, and rejected,
amendments that would have limited the scope of this provision to specific
associations and relationships. Therefore, if a public entity refuses admission
to a person with cerebral palsy and his or her companions, the companions have
an independent right of action under the ADA and this section.

During the legislative process, the term "entity" was added to section
302(b)(l)(E) to clarify that the scope of the provision is intended to encompass
not only persons who have a known association with a person with a disability,
but also entities that provide services to or are otherwise associated with such
individuals. This provision was intended to ensure that entities such as health
care providers, employees of social service agencies, and others who provide
professional services to persons with disabilities are not subjected to
discrimination because of their professional association with persons with
disabilities.


§35.131 ILLEGAL USE OF DRUGS.

Section 35.131 effectuates section 510 of the ADA, which clarifies the Act’s
application to people who use drugs illegally. Paragraph (a) provides that this
part does not prohibit discrimination based on an individual’s current illegal
use of drugs.

The Act and the regulation distinguish between illegal use of drugs and the
legal use of substances, whether or not those substances are "controlled
substances," as defined in the Controlled Substances Act (21 U.S.C. 812). Some
controlled substances are prescription drugs that have legitimate medical uses.
Section 35.131 does not affect use of controlled substances pursuant to a valid
prescription under supervision by a licensed health care professional, or other
use that is authorized by the Controlled Substances Act or any other provision
of Federal law. It does apply to illegal use of those substances, as well as to
illegal use of controlled substances that are not prescription drugs. The key
question is whether the individual’s use of the substance is illegal, not
whether the substance has recognized legal uses. Alcohol is not a controlled
substance, so use of alcohol is not addressed by §35.131 (although alcoholics
are individuals with disabilities, subject to the protections of the statute).

A distinction is also made between the use of a substance and the status of
being addicted to that substance. Addiction is a disability, and addicts are
individuals with disabilities protected by the Act. The protection, however,
does not extend to actions based on the illegal use of the substance. In other
words, an addict cannot use the fact of his or her addiction as a defense to an
action based on illegal use of drugs. This distinction is not artificial.
Congress intended to deny protection to people who engage in the illegal use of
drugs, whether or not they are addicted, but to provide protection to addicts so
long as they are not currently using drugs.

A third distinction is the difficult one between current use and former use. The
definition of "current illegal use of drugs" in §35.104, which is based on the
report of the Conference Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d
Sess. 64 (1990) [hereinafter "Conference report"], is "illegal use of drugs that
occurred recently enough to justify a reasonable belief that a person’s drug use
is current or that continuing use is a real and ongoing problem."

Paragraph (a)(2)(i) specifies that an individual who has successfully completed
a supervised drug rehabilitation program or has otherwise been rehabilitated
successfully and who is not engaging in current illegal use of drugs is
protected. Paragraph (a)(2)(ii) clarifies that an individual who is currently
participating in a supervised rehabilitation program and is not engaging in
current illegal use of drugs is protected. Paragraph (a)(2)(iii) provides that a
person who is erroneously regarded as engaging in current illegal use of drugs,
but who is not engaging in such use, is protected.

Paragraph (b) provides a limited exception to the exclusion of current illegal
users of drugs from the protections of the Act. It prohibits denial of health
services, or services provided in connection with drug rehabilitation to an
individual on the basis of current illegal use of drugs, if the individual is
otherwise entitled to such services. A health care facility, such as a hospital
or clinic, may not refuse treatment to an individual in need of the services it
provides on the grounds that the individual is illegally using drugs, but it is
not required by this section to provide services that it does not ordinarily
provide. For example, a health care facility that specializes in a particular
type of treatment, such as care of burn victims, is not required to provide drug
rehabilitation services, but it cannot refuse to treat a individual’s burns on
the grounds that the individual is illegally using drugs.

Some commenters pointed out that abstention from the use of drugs is an
essential condition of participation in some drug rehabilitation programs, and
may be a necessary requirement in inpatient or residential settings. The
Department believes that this comment is well-founded. Congress clearly intended
to prohibit exclusion from drug treatment programs of the very individuals who
need such programs because of their use of drugs, but, once an individual has
been admitted to a program, abstention may be a necessary and appropriate
condition to continued participation. The final rule therefore provides that a
drug rehabilitation or treatment program may prohibit illegal use of drugs by
individuals while they are participating in the program.

Paragraph (c) expresses Congress’ intention that the Act be neutral with respect
to testing for illegal use of drugs. This paragraph implements the provision in
section 510(b) of the Act that allows entities "to adopt or administer
reasonable policies or procedures, including but not limited to drug testing,"
that ensure that an individual who is participating in a supervised
rehabilitation program, or who has completed such a program or otherwise been
rehabilitated successfully is no longer engaging in the illegal use of drugs.
The section is not to be "construed to encourage, prohibit, restrict, or
authorize the conducting of testing for the illegal use of drugs."

Paragraph 35.131(c) clarifies that it is not a violation of this part to adopt
or administer reasonable policies or procedures to ensure that an individual who
formerly engaged in the illegal use of drugs is not currently engaging in
illegal use of drugs. Any such policies or procedures must, of course, be
reasonable, and must be designed to identify accurately the illegal use of
drugs. This paragraph does not authorize inquiries, tests, or other procedures
that would disclose use of substances that are not controlled substances or are
taken under supervision by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions of Federal law,
because such uses are not included in the definition of "illegal use of drugs."
A commenter argued that the rule should permit testing for lawful use of
prescription drugs, but most commenters preferred that tests must be limited to
‘unlawful use in order to avoid revealing the lawful use of prescription
medicine used to treat disabilities.


§35.132 SMOKING.

Section 35.132 restates the clarification in section 501(b) of the Act that the
Act does not preclude the prohibition of, or imposition of restrictions on,
smoking in transportation covered by title II. Some commenters argued that this
section is too limited in scope, and that the regulation should prohibit smoking
in all facilities used by public entities. The reference to smoking in section
501, however, merely clarifies that the Act does not require public entities to
accommodate smokers by permitting them to smoke in transportation facilities.


§35.133 MAINTENANCE OF ACCESSIBLE FEATURES.

Section 35.133 provides that a public entity shall maintain in operable working
condition those features of facilities and equipment that are required to be
readily accessible to and usable by persons with disabilities by the Act or this
part. The Act requires that, to the maximum extent feasible, facilities must be
accessible to, and usable by, individuals with disabilities. This section
recognizes that it is not sufficient to provide features such as accessible
routes, elevators, or ramps, if those features are not maintained in a manner
that enables individuals with disabilities to use them. Inoperable elevators,
locked accessible doors, or "accessible" routes that are obstructed by
furniture, filing cabinets, or potted plants are neither "accessible to" nor
"usable by" individuals with disabilities.

Some commenters objected that this section appeared to establish an absolute
requirement and suggested that language from the preamble be included in the
text of the regulation. It is, of course, impossible to guarantee that
mechanical devices will never fail to operate. Paragraph (b) of the final
regulation provides that this section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs. This paragraph
is intended to clarify that temporary obstructions or isolated instances of
mechanical failure would not be considered violations of the Act or this part.
However, allowing obstructions or "out of service" equipment to persist beyond a
reasonable period of time would violate this part, as would repeated mechanical
failures due to improper or inadequate maintenance. Failure of the public entity
to ensure that accessible routes are properly maintained and free of
obstructions, or failure to arrange prompt repair of inoperable elevators or
other equipment intended to provide access would also violate this part.

Other commenters requested that this section be expanded to include specific
requirements for inspection and maintenance of equipment, for training staff in
the proper operation of equipment, and for maintenance of specific items. The
Department believes that this section properly establishes the general
requirement for maintaining access and that further details are not necessary.


§35.134 RETALIATION OR COERCION.

Section 35.134 implements section 503 of the ADA, which prohibits retaliation
against any individual who exercises his or her rights under the Act. This
section is unchanged from the proposed rule. Paragraph (a) of §35.134 provides
that no private or public entity shall discriminate against any individual
because that individual has exercised his or her right to oppose any act or
practice made unlawful by this part, or because that individual made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under the Act or this part.

Paragraph (b) provides that no private or public entity shall coerce,
intimidate, threaten, or interfere with any individual in the exercise of his or
her rights under this part or because that individual aided or encouraged any
other individual in the exercise or enjoyment of any right granted or protected
by the Act or this part.

This section protects not only individuals who allege a violation of the Act or
this part, but also any individuals who support or assist them. This section
applies to all investigations or proceedings initiated under the Act or this
part without regard to the ultimate resolution of the underlying allegations.
Because this section prohibits any act of retaliation or coercion in response to
an individual’s effort to exercise rights established by the Act and this part
(or to support the efforts of another individual), the section applies not only
to public entities subject to this part, but also to persons acting in an
individual capacity or to private entities. For example, it would be a violation
of the Act and this part for a private individual to harass or intimidate an
individual with a disability in an effort to prevent that individual from
attending a concert in a State-owned park. It would, likewise, be a violation of
the Act and this part for a private entity to take adverse action against an
employee who appeared as a witness on behalf of an individual who sought to
enforce the Act.


§35.135 PERSONAL DEVICES AND SERVICES.

The final rule includes a new §35.135, entitles "Personal devices and services,"
which states that the provision of personal devices and services is not required
by title II. This new section, which serves as a limitation on all of the
requirements of the regulation, replaces §35.160(b)(2) of the proposed rule,
which addressed the issue of personal devices and services explicitly only in
the context of communications. The personal devices and services limitation was
intended to have general application in the proposed rule in all contexts where
it was relevant. The final rule, therefore, clarifies this point by including a
general provision that will explicitly apply not only to auxiliary aids and
services but across-the-board to include other relevant areas such as, for
example, modifications in policies, practices, and procedures (§35.130(b)(7)).
The language of §35.135 parallels an analogous provision in the Department’s
title III regulations (28 CFR §36.306) but preserves the explicit reference to
"readers for personal use or study" in §35.160(b)(2) of the proposed rule. This
section does not preclude the short-term loan of personal receivers that are
part of an assistive listening system.


SUBPART C – EMPLOYMENT


§35.140 EMPLOYMENT DISCRIMINATION PROHIBITED.

Title II of the ADA applies to all activities of public entities, including
their employment practices. The proposed rule cross-referenced the definitions,
requirements, and procedures of title I of the ADA, as established by the Equal
Employment Opportunity Commission in 29 CFR Part 1630. This proposal would have
resulted in use, under §35.140, of the title I definition of "employer," so that
a public entity with 25 or more employees would have become subject to the
requirements of §35.140 on July 26, 1992, one with 15 to 24 employees on July
26, 1994, and one with fewer than 15 employees would have been excluded
completely.

The Department received comments objecting to this approach. The commenters
asserted that Congress intended to establish nondiscrimination requirements for
employment by all public entities, including those that employ fewer than 15
employees; and that Congress intended the employment requirements of title II to
become effective at the same time that the other requirements of this regulation
become effective, January 26, 1992. The Department has reexamined the statutory
language and legislative history of the ADA on this issue and has concluded that
Congress intended to cover the employment practices of all public entities and
that the applicable effective date is that of title II.

The statutory language of section 204(b) of the ADA requires the Department to
issue a regulation that is consistent with the ADA and the Department’s
coordination regulation under section 504, 28 CFR part 41. The coordination
regulation specifically requires nondiscrimination in employment, 28 CFR §§
41.52-41.55, and does not limit coverage based on size of employer. Moreover,
under all section 504 implementing regulations issued in accordance with the
Department’s coordination regulation, employment coverage under section 504
extends to all employers with federally assisted programs or activities,
regardless of size, and the effective date for those employment requirements has
always been the same as the effective date for nonemployment requirements
established in the same regulations. The Department therefore concludes that
§35.140 must apply to all public entities upon the effective date of this

regulation.

In the proposed regulation the Department cross-referenced the regulations
implementing title I of the ADA, issued by the Equal Employment Opportunity
Commission at 29 CFR part 1630, as a compliance standard for §35.140 because, as
proposed, the scope of coverage and effective date of coverage under title II
would have been coextensive with title I. In the final regulation this language
is modified slightly. Subparagraph (1) of new paragraph (b) makes it clear that
the standards established by the Equal Employment Opportunity Commission in 29
CFR part 1630 will be the applicable compliance standards if the public entity
is subject to title I. If the public entity is not covered by title I, or until
it is covered by title I, subparagraph (b)(2) cross- references section 504
standards for what constitutes employment discrimination, as established by the
Department of Justice in 28 CFR part 41. Standards for title I of the ADA and
section 504 of the Rehabilitation Act are for the most part identical because
title I of the ADA was based on requirements set forth in regulations
implementing section 504.

The Department, together with the other Federal agencies responsible for the
enforcement of Federal laws prohibiting employment discrimination on the basis
of disability, recognizes the potential for jurisdictional overlap that exists
with respect to coverage of public entities and the need to avoid problems
related to overlapping coverage. The other Federal agencies include the Equal
Employment Opportunity Commission, which is the agency primarily responsible for
enforcement of title I of the ADA, the Department of Labor, which is the agency
responsible for enforcement of section 503 of the Rehabilitation Act of 1973,
and 26 Federal agencies with programs of Federal financial assistance, which are
responsible for enforcing section 504 in those programs. Section 107 of the ADA
requires that coordination mechanisms be developed in connection with the
administrative enforcement of complaints alleging discrimination under title I
and complaints alleging discrimination in employment in violation of the
Rehabilitation Act. Although the ADA does not specifically require inclusion of
employment complaints under title II in the coordinating mechanisms required by
title I, Federal investigations of title II employment complaints will be
coordinated on a government-wide basis also. The Department is currently working
with the EEOC and other affected Federal agencies to develop effective
coordinating mechanisms, and final regulations on this issue will be issued on
or before January 26, 1992.


SUBPART D – PROGRAM ACCESSIBILITY


§35.149 DISCRIMINATION PROHIBITED.

Section 35.149 states the general nondiscrimination principle underlying the
program accessibility requirements of §§ 35.150 and

35.151.


§35.150 EXISTING FACILITIES.

Consistent with section 204(b) of the Act, this regulation adopts the program
accessibility concept found in the section 504 regulations for federally
conducted programs or activities (e.g., 28 CFR Part 39). The concept of "program
accessibility" was first used in the section 504 regulation adopted by the
Department of Health, Education, and Welfare for its federally assisted programs
and activities in 1977. It allowed recipients to make their federally assisted
programs and activities available to individuals with disabilities without
extensive retrofitting of their existing buildings and facilities, by offering
those programs through alternative methods. Program accessibility has proven to
be a useful approach and was adopted in the regulations issued for programs and
activities conducted by Federal Executive agencies. The Act provides that the
concept of program access will continue to apply with respect to facilities now
in existence, because the cost of retrofitting existing facilities is often
prohibitive.

Section 35.150 requires that each service, program, or activity conducted by a
public entity, when viewed in its entirety, be readily accessible to and usable
by individuals with disabilities. The regulation makes clear, however, that a
public entity is not required to make each of its existing facilities accessible
(§35.150(a)(1)). Unlike title III of the Act, which requires public
accommodations to remove architectural barriers where such removal is "readily
achievable," or to provide goods and services through alternative methods, where
those methods are "readily achievable," title II requires a public entity to
make its programs accessible in all cases, except where to do so would result in
a fundamental alteration in the nature of the program or in undue financial and
administrative burdens. Congress intended the "undue burden" standard in title
II to be significantly higher than the "readily achievable" standard in title
III. Thus, although title II may not require removal of barriers in some cases
where removal would be required under title III, the program access requirement
of title II should enable individuals with disabilities to participate in and
benefit from the services, programs, or activities of public entities in all but
the most unusual cases.

Paragraph (a)(2), which establishes a special limitation on the obligation to
ensure program accessibility in historic preservation programs, is discussed
below in connection with paragraph (b).

Paragraph (a)(3), which is taken from the section 504 regulations for federally
conducted programs, generally codifies case law that defines the scope of the
public entity’s obligation to ensure program accessibility. This paragraph
provides that, in meeting the program accessibility requirement, a public entity
is not required to take any action that would result in a fundamental alteration
in the nature of its service, program, or activity or in undue financial and
administrative burdens. A similar limitation is provided in §35.164.

This paragraph does not establish an absolute defense; it does not relieve a
public entity of all obligations to individuals with disabilities. Although a
public entity is not required to take actions that would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens, it nevertheless must take any other steps
necessary to ensure that individuals with disabilities receive the benefits or
services provided by the public entity.

It is the Department’s view that compliance with §35.150(a), like compliance
with the corresponding provisions of the section 504 regulations for federally
conducted programs, would in most cases not result in undue financial and
administrative burdens on a public entity. In determining whether financial and
administrative burdens are undue, all public entity resources available for use
in the funding and operation of the service, program, or activity should be
considered. The burden of proving that compliance with paragraph (a) of §35.150
would fundamentally alter the nature of a service, program, or activity or would
result in undue financial and administrative burdens rests with the public
entity.

The decision that compliance would result in such alteration or burdens must be
made by the head of the public entity or his or her designee and must be
accompanied by a written statement of the reasons for reaching that conclusion.
The Department recognizes the difficulty of identifying the official responsible
for this determination, given the variety of organizational forms that may be
taken by public entities and their components. The intention of this paragraph
is that the determination must be made by a high level official, no lower than a
Department head, having budgetary authority and responsibility for making
spending decisions.

Any person who believes that he or she or any specific class of persons has been
injured by the public entity head’s decision or failure to make a decision may
file a complaint under the compliance procedures established in subpart F.

Paragraph (b)(1) sets forth a number of means by which program accessibility may
be achieved, including redesign of equipment, reassignment of services to
accessible buildings, and provision of aides.

The Department wishes to clarify that, consistent with longstanding
interpretation of section 504, carrying an individual with a disability is
considered an ineffective and therefore an unacceptable method for achieving
program accessibility. Department of Health, Education, and Welfare, Office of
Civil Rights, Policy Interpretation No. 4, 43 Fed. Reg. 36035 (August 14, 1978).
Carrying will be permitted only in manifestly exceptional cases, and only if all
personnel who are permitted to participate in carrying an individual with a
disability are formally instructed on the safest and least humiliating means of
carrying. "Manifestly exceptional" cases in which carrying would be permitted
might include, for example, programs conducted in unique facilities, such as an
oceanographic vessel, for which structural changes and devices necessary to
adapt the facility for use by individuals with mobility impairments are
unavailable or prohibitively expensive. Carrying is not permitted as an
alternative to structural modifications such as installation of a ramp or a
chairlift.

In choosing among methods, the public entity shall give priority consideration
to those that will be consistent with provision of services in the most
integrated setting appropriate to the needs of individuals with disabilities.
Structural changes in existing facilities are required only when there is no
other feasible way to make the public entity’s program accessible. (It should be
noted that "structural changes" include all physical changes to a facility; the
term does not refer only to changes to structural features, such as removal of
or alteration to a load-bearing structural member.) The requirements of §35.151
for alterations apply to structural changes undertaken to comply with this
section. The public entity may comply with the program accessibility requirement
by delivering services at alternate accessible sites or making home visits as
appropriate.

Historic preservation programs. In order to avoid possible conflict between the
congressional mandates to preserve historic properties, on the one hand, and to
eliminate discrimination against individuals with disabilities on the other,
paragraph (a)(2) provides that a public entity is not required to take any
action that would threaten or destroy the historic significance of an historic
property. The special limitation on program accessibility set forth in paragraph
(a)(2) is applicable only to historic preservation programs, as defined in
§35.104, that is, programs that have preservation of historic properties as a
primary purpose. Narrow application of the special limitation is justified
because of the inherent flexibility of the program accessibility requirement.
Where historic preservation is not a primary purpose of the program, the public
entity is not required to use a particular facility. It can relocate all or part
of its program to an accessible facility, make home visits, or use other
standard methods of achieving program accessibility without making structural
alterations that might threaten or destroy significant historic features of the
historic property. Thus, government programs located in historic properties,
such as an historic State capitol, are not excused from the requirement for
program access.

Paragraph (a)(2), therefore, will apply only to those programs that uniquely
concern the preservation and experience of the historic property itself. Because
the primary benefit of an historic preservation program is the experience of the
historic property, paragraph (b)(2) requires the public entity to give priority
to methods of providing program accessibility that permit individuals with
disabilities to have physical access to the historic property. This priority on
physical access may also be viewed as a specific application of the general
requirement that the public entity administer programs in the most integrated
setting appropriate to the needs of qualified individuals with disabilities
(§35.130(d)). Only when providing physical access would threaten or destroy the
historic significance of an historic property, or would result in a fundamental
alteration in the nature of the program or in undue financial and administrative
burdens, may the public entity adopt alternative methods for providing program
accessibility that do not ensure physical access. Examples of some alternative
methods are provided in paragraph (b)(2).

Time periods. Paragraphs (c) and (d) establish time periods for complying with
the program accessibility requirement. Like the regulations for federally
assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c) requires the public
entity to make any necessary structural changes in facilities as soon as
practicable, but in no event later than three years after the effective date of
this regulation.

The proposed rule provided that, aside from structural changes, all other
necessary steps to achieve compliance with this part must be taken within sixty
days. The sixty day period was taken from regulations implementing section 504,
which generally were effective no more than thirty days after publication.
Because this regulation will not be effective until January 26, 1992, the
Department has concluded that no additional transition period for non-structural
changes is necessary, so the sixty day period has been omitted in the final
rule. Of course, this section does not reduce or eliminate any obligations that
are already applicable to a public entity under section 504.

Where structural modifications are required, paragraph (d) requires that a
transition plan be developed by an entity that employs 50 or more persons,
within six months of the effective date of this regulation. The legislative
history of title II of the ADA makes it clear that, under title II, "local and
state governments are required to provide curb cuts on public streets."
Education and Labor report at 84. As the rationale for the provision of curb
cuts, the House report explains, "The employment, transportation, and public
accommodation sections of . . . [the ADA] would be meaningless if people who use
wheelchairs were not afforded the opportunity to travel on and between the
streets." Id. Section 35.151(e), which establishes accessibility requirements
for new construction and alterations, requires that all newly constructed or
altered streets, roads, or highways must contain curb ramps or other sloped
areas at any intersection having curbs or other barriers to entry from a street
level pedestrian walkway, and all newly constructed or altered street level
pedestrian walkways must have curb ramps or other sloped areas at intersections
to streets, roads, or highways. A new paragraph (d)(2) has been added to the
final rule to clarify the application of the general requirement for program
accessibility to the provision of curb cuts at existing crosswalks. This
paragraph requires that the transition plan include a schedule for providing
curb ramps or other sloped areas at existing pedestrian walkways, giving
priority to walkways serving entities covered by the Act, including State and
local government offices and facilities, transportation, public accommodations,
and employers, followed by walkways serving other areas.

Pedestrian "walkways" include locations where access is required for use of
public transportation, such as bus stops that are not located at intersections
or crosswalks.

Similarly, a public entity should provide an adequate number of accessible
parking spaces in existing parking lots or garages over which it has
jurisdiction.

Paragraph (d)(3) provides that, if a public entity has already completed a
transition plan required by a regulation implementing section 504, the
transition plan required by this part will apply only to those policies and
practices that were not covered by the previous transition plan. Some commenters
suggested that the transition plan should include all aspects of the public
entity’s operations, including those that may have been covered by a previous
transition plan under section 504. The Department believes that such a
duplicative requirement would be inappropriate. Many public entities may find,
however, that it will be simpler to include all of their operations in the
transition plan than to attempt to identify and exclude specifically those that
were addressed in a previous plan. Of course, entities covered under section 504
are not shielded from their obligations under that statute merely because they
are included under the transition plan developed under this section.


§35.151 NEW CONSTRUCTION AND ALTERATIONS.

Section 35.151 provides that those buildings that are constructed or altered by,
on behalf of, or for the use of a public entity shall be designed, constructed,
or altered to be readily accessible to and usable by individuals with
disabilities if the construction was commenced after the effective date of this
part. Facilities under design on that date will be governed by this section if
the date that bids were invited falls after the effective date. This
interpretation is consistent with Federal practice under section 504.

Section 35.151(c) establishes two standards for accessible new construction and
alteration. Under paragraph (c), design, construction, or alteration of
facilities in conformance with the Uniform Federal Accessibility Standards
(UFAS) or with the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (hereinafter ADAAG) shall be deemed to comply with the
requirements of this section with respect to those facilities except that, if
ADAAG is chosen, the elevator exemption contained at §§ 36.401(d) and 36.404
does not apply. ADAAG is the standard for private buildings and was issued as
guidelines by the Architectural and Transportation Barriers Compliance Board
(ATBCB) under title III of the ADA. It has been adopted by the Department of
Justice and is published as Appendix A to the Department’s title III rule in
today’s Federal Register. Departures from particular requirements of these
standards by the use of other methods shall be permitted when it is clearly
evident that equivalent access to the facility or part of the facility is
thereby provided. Use of two standards is a departure from the proposed rule.

The proposed rule adopted UFAS as the only interim accessibility standard
because that standard was referenced by the regulations implementing section 504
of the Rehabilitation Act promulgated by most Federal funding agencies. It is,
therefore, familiar to many State and local government entities subject to this
rule. The Department, however, received many comments objecting to the adoption
of UFAS. Commenters pointed out that, except for the elevator exemption, UFAS is
not as stringent as ADAAG. Others suggested that the standard should be the same
to lessen confusion.

Section 204(b) of the Act states that title II regulations must be consistent
not only with section 504 regulations but also with "this Act." Based on this
provision, the Department has determined that a public entity should be entitled
to choose to comply either with ADAAG or UFAS.

Public entities who choose to follow ADAAG, however, are not entitled to the
elevator exemption contained in title III of the Act and implemented in the
title III regulation at §36.401(d) for new construction and §36.404 for
alterations. Section 303(b) of title III states that, with some exceptions,
elevators are not required in facilities that are less than three stories or
have less than 3000 square feet per story. The section 504 standard, UFAS,
contains no such exemption. Section 501 of the ADA makes clear that nothing in
the Act may be construed to apply a lesser standard to public entities than the
standards applied under section 504. Because permitting the elevator exemption
would clearly result in application of a lesser standard than that applied under
section 504, paragraph (c) states that the elevator exemption does not apply
when public entities choose to follow ADAAG. Thus, a two-story courthouse,
whether built according to UFAS or ADAAG, must be constructed with an elevator.
It should be noted that Congress did not include an elevator exemption for
public transit facilities covered by subtitle B of title II, which covers public
transportation provided by public entities, providing further evidence that
Congress intended that public buildings have elevators.

Section 504 of the ADA requires the ATBCB to issue supplemental Minimum
Guidelines and Requirements for Accessible Design of buildings and facilities
subject to the Act, including title II. Section 204(c) of the ADA provides that
the Attorney General shall promulgate regulations implementing title II that are
consistent with the ATBCB’s ADA guidelines. The ATBCB has announced its
intention to issue title II guidelines in the future. The Department anticipates
that, after the ATBCB’s title II guidelines have been published, this rule will
be amended to adopt new accessibility standards consistent with the ATBCB’s
rulemaking. Until that time, however, public entities will have a choice of
following UFAS or ADAAG, without the elevator exemption.

Existing buildings leased by the public entity after the effective date of this
part are not required by the regulation to meet accessibility standards simply
by virtue of being leased. They are subject, however, to the program
accessibility standard for existing facilities in §35.150. To the extent the
buildings are newly constructed or altered, they must also meet the new
construction and alteration requirements of §35.151.

The Department received many comments urging that the Department require that
public entities lease only accessible buildings. Federal practice under section
504 has always treated newly leased buildings as subject to the existing
facility program accessibility standard. Section 204(b) of the Act states that,
in the area of "program accessibility, existing facilities," the title II
regulations must be consistent with section 504 regulations. Thus, the
Department has adopted the section 504 principles for these types of leased
buildings. Unlike the construction of new buildings where architectural barriers
can be avoided at little or no cost, the application of new construction
standards to an existing building being leased raises the same prospect of
retrofitting buildings as the use of an existing Federal facility, and the same
program accessibility standard should apply to both owned and leased existing
buildings. Similarly, requiring that public entities only lease accessible space
would significantly restrict the options of State and local governments in
seeking leased space, which would be particularly burdensome in rural or
sparsely populated areas.

On the other hand, the more accessible the leased space is, the fewer structural
modifications will be required in the future for particular employees whose
disabilities may necessitate barrier removal as a reasonable accommodation.
Pursuant to the requirements for leased buildings contained in the Minimum
Guidelines and Requirements for Accessible Design published under the
Architectural Barriers Act by the ATBCB, 36 CFR 1190.34, the Federal Government
may not lease a building unless it contains (1) one accessible route from an
accessible entrance to those areas in which the principal activities for which
the building is leased are conducted, (2) accessible toilet facilities, and (3)
accessible parking facilities, if a parking area is included within the lease
(36 CFR 1190.34). Although these requirements are not applicable to buildings
leased by public entities covered by this regulation, such entities are
encouraged to look for the most accessible space available to lease and to
attempt to find space complying at least with these minimum Federal
requirements.

Section 35.151(d) gives effect to the intent of Congress, expressed in section
504(c) of the Act, that this part recognize the national interest in preserving
significant historic structures. Commenters criticized the Department’s use of
descriptive terms in the proposed rule that are different from those used in the
ADA to describe eligible historic properties. In addition, some commenters
criticized the Department’s decision to use the concept of "substantially
impairing" the historic features of a property, which is a concept employed in
regulations implementing section 504 of the Rehabilitation Act of 1973. Those
commenters recommended that the Department adopt the criteria of "adverse
effect" published by the Advisory Council on Historic Preservation under the
National Historic Preservation Act, 36 CFR 800.9, as the standard for
determining whether an historic property may be altered.

The Department agrees with these comments to the extent that they suggest that
the language of the rule should conform to the language employed by Congress in
the ADA. A definition of "historic property," drawn from section 504 of the ADA,
has been added to §35.104 to clarify that the term applies to those properties
listed or eligible for listing in the National Register of Historic Places, or
properties designated as historic under State or local law.

The Department intends that the exception created by this section be applied
only in those very rare situations in which it is not possible to provide access
to an historic property using the special access provisions established by UFAS
and ADAAG. Therefore, paragraph (d)(1) of §35.151 has been revised to clearly
state that alterations to historic properties shall comply, to the maximum
extent feasible, with section 4.1.7 of UFAS or section 4.1.7 of ADAAG. Paragraph
(d)(2) has been revised to provide that, if it has been determined under the
procedures established in UFAS and ADAAG that it is not feasible to provide
physical access to an historic property in a manner that will not threaten or
destroy the historic significance of the property, alternative methods of access
shall be provided pursuant to the requirements of §35.150.

In response to comments, the Department has added to the final rule a new
paragraph (e) setting out the requirements of §36.151 as applied to curb ramps.
Paragraph (e) is taken from the statement contained in the preamble to the
proposed rule that all newly constructed or altered streets, roads, and highways
must contain curb ramps at any intersection having curbs or other barriers to
entry from a street level pedestrian walkway, and that all newly constructed or
altered street level pedestrian walkways must have curb ramps at intersections
to streets, roads, or highways.


SUBPART E – COMMUNICATIONS


§35.160 GENERAL.

Section 35.160 requires the public entity to take such steps as may be necessary
to ensure that communications with applicants, participants, and members of the
public with disabilities are as effective as communications with others.

Paragraph (b)(1) requires the public entity to furnish appropriate auxiliary
aids and services when necessary to afford an individual with a disability an
equal opportunity to participate in, and enjoy the benefits of, the public
entity’s service, program, or activity. The public entity must provide an
opportunity for individuals with disabilities to request the auxiliary aids and
services of their choice. This expressed choice shall be given primary
consideration by the public entity (Sec.35.160(b)(2)). The public entity shall
honor the choice unless it can demonstrate that another effective means of
communication exists or that use of the means chosen would not be required under
Sec.35.164.

Deference to the request of the individual with a disability is desirable
because of the range of disabilities, the variety of auxiliary aids and
services, and different circumstances requiring effective communication. For
instance, some courtrooms are now equipped for “computer-assisted transcripts,”
which allow virtually instantaneous transcripts of courtroom argument and
testimony to appear on displays. Such a system might be an effective auxiliary
aid or service for a person who is deaf or has a hearing loss who uses speech to
communicate, but may be useless for someone who uses sign language.

Although in some circumstances a notepad and written materials may be sufficient
to permit effective communication, in other circumstances they may not be
sufficient. For example, a qualified interpreter may be necessary when the
information being communicated is complex, or is exchanged for a lengthy period
of time. Generally, factors to be considered in determining whether an
interpreter is required include the context in which the communication is taking
place, the number of people involved, and the importance of the communication.

Several commenters asked that the rule clarify that the provision of readers is
sometimes necessary to ensure access to a public entity’s services, programs or
activities. Reading devices or readers should be provided when necessary for
equal participation and opportunity to benefit from any governmental service,
program, or activity, such as reviewing public documents, examining
demonstrative evidence, and filling out voter registration forms or forms needed
to receive public benefits. The importance of providing qualified readers for
examinations administered by public entities is discussed under Sec.35.130.
Reading devices and readers are appropriate auxiliary aids and services where
necessary to permit an individual with a disability to participate in or benefit
from a service, program, or activity.

Section 35.160(b)(2) of the proposed rule, which provided that a public entity
need not furnish individually prescribed devices, readers for personal use or
study, or other devices of a personal nature, has been deleted in favor of a new
section in the final rule on personal devices and services (see Sec.35.135).

In response to comments, the term “auxiliary aids and services” is used in place
of “auxiliary aids” in the final rule. This phrase better reflects the range of
aids and services that may be required under this section.

A number of comments raised questions about the extent of a public entity’s
obligation to provide access to television programming for persons with hearing
impairments. Television and videotape programming produced by public entities
are covered by this section. Access to audio portions of such programming may be
provided by closed captioning.


§35.161 TELECOMMUNICATION DEVICES FOR THE DEAF (TDD’S)

Section 35.161 requires that, where a public entity communicates with applicants
and beneficiaries by telephone, TDD’s or equally effective telecommunication
systems be used to communicate with individuals with impaired speech or hearing.

Problems arise when a public entity which does not have a TDD needs to
communicate with an individual who uses a TDD or vice versa. Title IV of the ADA
addresses this problem by requiring establishment of telephone relay services to
permit communications between individuals who communicate by TDD and individuals
who communicate by the telephone alone. The relay services required by title IV
would involve a relay operator using both a standard telephone and a TDD to type
the voice messages to the TDD user and read the TDD messages to the standard
telephone user.

Section 204(b) of the ADA requires that the regulation implementing title II
with respect to communications be consistent with the Department’s regulation
implementing section 504 for its federally conducted programs and activities at
28 CFR part 39. Section 35.161, which is taken from Sec.39.160(a)(2) of that
regulation, requires the use of TDD’s or equally effective telecommunication
systems for communication with people who use TDD’s. Of course, where relay
services, such as those required by title IV of the ADA are available, a public
entity may use those services to meet the requirements of this section.

Many commenters were concerned that public entities should not rely heavily on
the establishment of relay services. The commenters explained that while relay
services would be of vast benefit to both public entities and individuals who
use TDD’s, the services are not sufficient to provide access to all telephone
services. First, relay systems do not provide effective access to the
increasingly popular automated systems that require the caller to respond by
pushing a button on a touch tone phone. Second, relay systems cannot operate
fast enough to convey messages on answering machines, or to permit a TDD user to
leave a recorded message. Third, communication through relay systems may not be
appropriate in cases of crisis lines pertaining to rape, domestic violence,
child abuse, and drugs. The Department believes that it is more appropriate for
the Federal Communications Commission to address these issues in its rulemaking
under title IV.

Some commenters requested that those entities with frequent contacts with
clients who use TDD’s have on-site TDD’s to provide for direct communication
between the entity and the individual. The Department encourages those entities
that have extensive telephone contact with the public such as city halls, public
libraries, and public aid offices, to have TDD’s to insure more immediate
access. Where the provision of telephone service is a major function of the
entity, TDD’s should be available.


§35.162 TELEPHONE EMERGENCY SERVICES

Many public entities provide telephone emergency services by which individuals
can seek immediate assistance from police, fire, ambulance, and other emergency
services. These telephone emergency services – including “911” services – are
clearly an important public service whose reliability can be a matter of life or
death. The legislative history of title II specifically reflects congressional
intent that public entities must ensure that telephone emergency services,
including 911 services, be accessible to persons with impaired hearing and
speech through telecommunication technology (Conference report at 67; Education
and Labor report at 84 - 85).

Proposed Sec.35.162 mandated that public entities provide emergency telephone
services to persons with disabilities that are “functionally equivalent” to
voice services provided to others. Many commenters urged the Department to
revise the section to make clear that direct access to telephone emergency
services is required by title II of the ADA as indicated by the legislative
history (Conference report at 67 - 68; Education and Labor report at 85). In
response, the final rule mandates ‘direct access,” instead of “access that is
functionally equivalent” to that provided to all other telephone users.
Telephone emergency access through a third party or through a relay service
would not satisfy the requirement for direct access.

Several commenters asked about a separate seven-digit emergency call number for
the 911 services. The requirement for direct access disallows the use of a
separate seven-digit number where 911 service is available. Separate seven-digit
emergency call numbers would be unfamiliar to many individuals and also more
burdensome to use. A standard emergency 911 number is easier to remember and
would save valuable time spent in searching in telephone books for a local
seven-digit emergency number.

Many commenters requested the establishment of minimum standards of service
(e.g., the quantity and location of TDD’s and computer modems needed in a given
emergency center). Instead of establishing these scoping requirements, the
Department has established a performance standard through the mandate for direct
access.

Section 35.162 requires public entities to take appropriate steps, including
equipping their emergency systems with modern technology, as may be necessary to
promptly receive and respond to a call from users of TDD’s and computer modems.
Entities are allowed the flexibility to determine what is the appropriate
technology for their particular needs. In order to avoid mandating use of
particular technologies that may become outdated, the Department has eliminated
the references to the Baudot and ASCII formats in the proposed rule.

Some commenters requested that the section require the installation of a voice
amplification device on the handset of the dispatcher’s telephone to amplify the
dispatcher’s voice. In an emergency, a person who has a hearing loss may be
using a telephone that does not have an amplification device. Installation of
speech amplification devices on the handsets of the dispatchers’ telephones
would respond to that situation. The Department encourages their use.

Several commenters emphasized the need for proper maintenance of TDD’s used in
telephone emergency services. Section 35.133, which mandates maintenance of
accessible features, requires public entities to maintain in operable working
condition TDD’s and other devices that provide direct access to the emergency
system.


§35.163 INFORMATION AND SIGNAGE

Section 35.163(a) requires the public entity to provide information to
individuals with disabilities concerning accessible services, activities, and
facilities. Paragraph (b) requires the public entity to provide signage at all
inaccessible entrances to each of its facilities that directs users to an
accessible entrance or to a location with information about accessible
facilities.

Several commenters requested that, where TDD-equipped pay phones or portable
TDD’s exist, clear signage should be posted indicating the location of the TDD.
The Department believes that this is required by paragraph (a). In addition, the
Department recommends that, in large buildings that house TDD’s, directional
signage indicating the location of available TDD’s should be placed adjacent to
banks of telephones that do not contain a TDD.


§35.164 DUTIES

Section 35.164, like paragraph (a)(3) of Sec.35.150, is taken from the section
504 regulations for federally conducted programs. Like paragraph (a)(3), it
limits the obligation of the public entity to ensure effective communication in
accordance with Davis and the circuit court opinions interpreting it. It also
includes specific requirements for determining the existence of undue financial
and administrative burdens. The preamble discussion of Sec.35.150(a) regarding
that determination is applicable to this section and further explains the public
entity’s obligation to comply with Sec.35.160 - 35.164. Because of the essential
nature of the services provided by telephone emergency systems, the Department
assumes that Sec.35.164 will rarely be applied to Sec.35.162.


SUBPART F – COMPLIANCE PROCEDURES

Subpart F sets out the procedures for administrative enforcement of this part.
Section 203 of the Act provides that the remedies, procedures, and rights set
forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) for
enforcement of section 504 of the Rehabilitation Act, which prohibits
discrimination on the basis of handicap in programs and activities that receive
Federal financial assistance, shall be the remedies, procedures, and rights for
enforcement of title II. Section 505, in turn, incorporates by reference the
remedies, procedures, and rights set forth in title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000d to 2000d - 4a). Title VI, which prohibits
discrimination on the basis of race, color, or national origin in federally
assisted programs, is enforced by the Federal agencies that provide the Federal
financial assistance to the covered programs and activities in question. If
voluntary compliance cannot be achieved, Federal agencies enforce title VI
either by the termination of Federal funds to a program that is found to
discriminate, following an administrative hearing, or by a referral to this
Department for judicial enforcement.

Title II of the ADA extended the requirements of section 504 to all services,
programs, and activities of State and local governments, not only those that
receive Federal financial assistance. The House Committee on Education and Labor
explained the enforcement provisions as follows:

It is the Committee’s intent that administrative enforcement of section 202 of
the legislation should closely parallel the Federal government’s experience with
section 504 of the Rehabilitation Act of 1973. The Attorney General should use
section 504 enforcement procedures and the Department’s coordination role under
Executive Order 12250 as models for regulation in this area.

The Committee envisions that the Department of Justice will identify appropriate
Federal agencies to oversee compliance activities for State and local
governments. As with section 504, these Federal agencies, including the
Department of Justice, will receive, investigate, and where possible, resolve
complaints of discrimination. If a Federal agency is unable to resolve a
complaint by voluntary means, . . . the major enforcement sanction for the
Federal government will be referral of cases by these Federal agencies to the
Department of Justice.

The Department of Justice may then proceed to file suits in Federal district
court. As with section 504, there is also a private right of action for persons
with disabilities, which includes the full panoply of remedies. Again,
consistent with section 504, it is not the Committee’s intent that persons with
disabilities need to exhaust Federal administrative remedies before exercising
their private right of action. Education & Labor report at 98. See also S. Rep.
No. 116, 101st Cong., 1st Sess., at 57-58 (1989).

Subpart F effectuates the congressional intent by deferring to section 504
procedures where those procedures are applicable, that is, where a Federal
agency has jurisdiction under section 504 by virtue of its provision of Federal
financial assistance to the program or activity in which the discrimination is
alleged to have occurred. Deferral to the 504 procedures also makes the sanction
of fund termination available where necessary to achieve compliance. Because the
Civil Rights Restoration Act (Pub. L. 100-259) extended the application of
section 504 to all of the operations of the public entity receiving the Federal
financial assistance, many activities of State and local governments are already
covered by section 504. The procedures in subpart F apply to complaints
concerning services, programs, and activities of public entities that are
covered by the ADA.

Subpart G designates the Federal agencies responsible for enforcing the ADA with
respect to specific components of State and local government. It does not,
however, displace existing jurisdiction under section 504 of the various funding
agencies. Individuals may still file discrimination complaints against
recipients of Federal financial assistance with the agencies that provide that
assistance, and the funding agencies will continue to process those complaints
under their existing procedures for enforcing section 504. The substantive
standards adopted in this part for title II of the ADA are generally the same as
those required under section 504 for federally assisted programs, and public
entities covered by the ADA are also covered by the requirements of section 504
to the extent that they receive Federal financial assistance. To the extent that
title II provides greater protection to the rights of individuals with
disabilities, however, the funding agencies will also apply the substantive
requirements established under title II and this part in processing complaints
covered by both this part and section 504, except that fund termination
procedures may be used only for violations of section 504.

Subpart F establishes the procedures to be followed by the agencies designated
in subpart G for processing complaints against State and local government
entities when the designated agency does not have jurisdiction under section
504.


§35.170 COMPLAINTS.

Section 35.170 provides that any individual who believes that he or she or a
specific class of individuals has been subjected to discrimination on the basis
of disability by a public entity may, by himself or herself or by an authorized
representative, file a complaint under this part within 180 days of the date of
the alleged discrimination, unless the time for filing is extended by the agency
for good cause. Although §35.107 requires public entities that employ 50 or more
persons to establish grievance procedures for resolution of complaints,
exhaustion of those procedures is not a prerequisite to filing a complaint under
this section. If a complainant chooses to follow the public entity’s grievance
procedures, however, any resulting delay may be considered good cause for
extending the time allowed for filing a complaint under this part.

Filing the complaint with any Federal agency will satisfy the requirement for
timely filing. As explained below, a complaint filed with an agency that has
jurisdiction under section 504 will be processed under the agency’s procedures
for enforcing section 504.

Some commenters objected to the complexity of allowing complaints to be filed
with different agencies. The multiplicity of enforcement jurisdiction is the
result of following the statutorily mandated enforcement scheme. The Department
has, however, attempted to simplify procedures for complainants by making the
Federal agency that receives the complaint responsible for referring it to an
appropriate agency.

The Department has also added a new paragraph (c) to this section providing that
a complaint may be filed with any agency designated under subpart G of this
part, or with any agency that provides funding to the public entity that is the
subject of the complaint, or with the Department of Justice. Under
§35.171(a)(2), the Department of Justice will refer complaints for which it does
not have jurisdiction under section 504 to an agency that does have jurisdiction
under section 504, or to the agency designated under subpart G as responsible
for complaints filed against the public entity that is the subject of the
complaint or in the case of an employment complaint that is also subject to
title I of the Act, to the Equal Employment Opportunity Commission. Complaints
filed with the Department of Justice may be sent to the Coordination and Review
Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice,
Washington, D.C. 20035-6118.


§35.171 ACCEPTANCE OF COMPLAINTS.

Section 35.171 establishes procedures for determining jurisdiction and
responsibility for processing complaints against public entities. The final rule
provides complainants an opportunity to file with the Federal funding agency of
their choice. If that agency does not have jurisdiction under section 504,
however, and is not the agency designated under subpart G as responsible for
that public entity, the agency must refer the complaint to the Department of
Justice, which will be responsible for referring it either to an agency that
does have jurisdiction under section 504 or to the appropriate designated
agency, or in the case of an employment complaint that is also subject to title
I of the Act, to the Equal Employment Opportunity Commission.

Whenever an agency receives a complaint over which it has jurisdiction under
section 504, it will process the complaint under its section 504 procedures.
When the agency designated under subpart G receives a complaint for which it
does not have jurisdiction under section 504, it will treat the complaint as an
ADA complaint under the procedures established in this subpart.

Section 35.171 also describes agency responsibilities for the processing of
employment complaints. As described in connection with §35.140, additional
procedures regarding the coordination of employment complaints will be
established in a coordination regulation issued by DOJ and EEOC. Agencies with
jurisdiction under section 504 for complaints alleging employment discrimination
also covered by title I will follow the procedures established by the
coordination regulation for those complaints. Complaints covered by title I but
not section 504 will be referred to the EEOC, and complaints covered by this
part but not title I will be processed under the procedures in this part.


§35.172 RESOLUTION OF COMPLAINTS.

Section 35.172 requires the designated agency to either resolve the complaint or
issue to the complainant and the public entity a Letter of Findings containing
findings of fact and conclusions of law and a description of a remedy for each
violation found.

The Act requires the Department of Justice to establish administrative
procedures for resolution of complaints, but does not require complainants to
exhaust these administrative remedies. The Committee Reports make clear that
Congress intended to provide a private right of action with the full panoply of
remedies for individual victims of discrimination. Because the Act does not
require exhaustion of administrative remedies, the complainant may elect to
proceed with a private suit at any time.


§35.173 VOLUNTARY COMPLIANCE AGREEMENTS.

Section 35.173 requires the agency to attempt to resolve all complaints in which
it finds noncompliance through voluntary compliance agreements enforceable by
the Attorney General.


§35.174 REFERRAL.

Section 35.174 provides for referral of the matter to the Department of Justice
if the agency is unable to obtain voluntary compliance.


§35.175 ATTORNEY’S FEES.

Section 35.175 states that courts are authorized to award attorneys fees,
including litigation expenses and costs, as provided in section 505 of the Act.
Litigation expenses include items such as expert witness fees, travel expenses,
etc. The Judiciary Committee Report specifies that such items are included under
the rubric of "attorneys fees" and not "costs" so that such expenses will be
assessed against a plaintiff only under the standard set forth in
‘Christiansburg Garment Co. v. Equal Employment Opportunity

Commission, 434 U.S. 412 (1978). (Judiciary report at 73.)


§35.176 ALTERNATIVE MEANS OF DISPUTE RESOLUTION.

Section 35.176 restates section 513 of the Act, which encourages use of
alternative means of dispute resolution.


§35.177 EFFECT OF UNAVAILABILITY OF TECHNICAL ASSISTANCE.

Section 35.177 explains that, as provided in section 506(e) of the Act, a public
entity is not excused from compliance with the requirements of this part because
of any failure to receive technical assistance.


§35.178 STATE IMMUNITY.

Section 35.178 restates the provision of section 502 of the Act that a State is
not immune under the eleventh amendment to the Constitution of the United States
from an action in Federal or State court for violations of the Act, and that the
same remedies are available for any such violations as are available in an
action against an entity other than a State.


SUBPART G – DESIGNATED AGENCIES


§35.190 DESIGNATED AGENCIES.

Subpart G designates the Federal agencies responsible for investigating
complaints under this part. At least 26 agencies currently administer programs
of Federal financial assistance that are subject to the nondiscrimination
requirements of section 504 as well as other civil rights statutes. A majority
of these agencies administer modest programs of Federal financial assistance
and/or devote minimal resources exclusively to "external" civil rights
enforcement activities. Under Executive Order 12250, the Department of Justice
has encouraged the use of delegation agreements under which certain civil rights
compliance responsibilities for a class of recipients funded by more than one
agency are delegated by an agency or agencies to a "lead" agency. For example,
many agencies that fund institutions of higher education have signed agreements
that designate the Department of Education as the "lead" agency for this class
of recipients.

The use of delegation agreements reduces overlap and duplication of effort, and
thereby strengthens overall civil rights enforcement. However, the use of these
agreements to date generally has been limited to education and health care
recipients. These classes of recipients are funded by numerous agencies and the
logical connection to a lead agency is clear (e.g., the Department of Education
for colleges and universities, and the Department of Health and Human Services
for hospitals).

The ADA’s expanded coverage of State and local government operations further
complicates the process of establishing Federal agency jurisdiction for the
purpose of investigating complaints of discrimination on the basis of
disability. Because all operations of public entities now are covered
irrespective of the presence or absence of Federal financial assistance, many
additional State and local government functions and organizations now are
subject to Federal jurisdiction. In some cases, there is no historical or single
clear-cut subject matter relationship with a Federal agency as was the case in
the education example described above. Further, the 33,000 governmental
jurisdictions subject to the ADA differ greatly in their organization, making a
detailed and workable division of Federal agency jurisdiction by individual
State, county, or municipal entity unrealistic.

This regulation applies the delegation concept to the investigation of
complaints of discrimination on the basis of disability by public entities under
the ADA. It designates eight agencies, rather than all agencies currently
administering programs of Federal financial assistance, as responsible for
investigating complaints under this part. These "designated agencies" generally
have the largest civil rights compliance staffs, the most experience in
complaint investigations and disability issues, and broad yet clear subject area
responsibilities. This division of responsibilities is made functionally rather
than by public entity type or name designation. For example, all entities
(regardless of their title) that exercise responsibilities, regulate, or
administer services or programs relating to lands and natural resources fall
within the jurisdiction of the Department of Interior.

Complaints under this part will be investigated by the designated agency most
closely related to the functions exercised by the governmental component against
which the complaint is lodged. For example, a complaint against a State medical
board, where such a board is a recognizable entity, will be investigated by the
Department of Health and Human Services (the designated agency for regulatory
activities relating to the provision of health care), even if the board is part
of a general umbrella department of planning and regulation (for which the
Department of Justice is the designated agency). If two or more agencies have
apparent responsibility over a complaint, section 35.190(c) provides that the
Assistant Attorney General shall determine which one of the agencies shall be
the designated agency for purposes of that complaint.

Thirteen commenters, including four proposed designated agencies, addressed the
Department of Justice’s identification in the proposed regulation of nine
"designated agencies" to investigate complaints under this part. Most comments
addressed the proposed specific delegations to the various individual agencies.
The Department of Justice agrees with several commenters who pointed out that
responsibility for "historic and cultural preservation" functions appropriately
belongs with the Department of Interior rather than the Department of Education.
The Department of Justice also agrees with the Department of Education that
"museums" more appropriately should be delegated to the Department of Interior,
and that "preschool and daycare programs" more appropriately should be assigned
to the Department of Health and Human Services, rather than to the Department of
Education. The final rule reflects these decisions.

The Department of Commerce opposed its listing as the designated agency for
"commerce and industry, including general economic development, banking and
finance, consumer protection, insurance, and small business". The Department of
Commerce cited its lack of a substantial existing section 504 enforcement
program and experience with many of the specific functions to be delegated. The
Department of Justice accedes to the Department of Commerce’s position, and has
assigned itself as the designated agency for these functions.

In response to a comment from the Department of Health and Human Services, the
regulation’s category of "medical and nursing schools" has been clarified to
read "schools of medicine, dentistry, nursing, and other health-related fields".
Also in response to a comment from the Department of Health and Human Services,
"correctional institutions" have been specifically added to the public safety
and administration of justice functions assigned to the Department of Justice.

The regulation also assigns the Department of Justice as the designated agency
responsible for all State and local government functions not assigned to other
designated agencies. The Department of Justice, under an agreement with the
Department of the Treasury, continues to receive and coordinate the
investigation of complaints filed under the Revenue Sharing Act. This
entitlement program, which was terminated in 1986, provided civil rights
compliance jurisdiction for a wide variety of complaints regarding the use of
Federal funds to support various general activities of local governments. In the
absence of any similar program of Federal financial assistance administered by
another Federal agency, placement of designated agency responsibilities for
miscellaneous and otherwise undesignated functions with the Department of
Justice is an appropriate continuation of current practice.

The Department of Education objected to the proposed rule’s inclusion of the
functional area of "arts and humanities" within its responsibilities, and the
Department of Housing and Urban Development objected to its proposed designation
as responsible for activities relating to rent control, the real estate
industry, and housing code enforcement. The Department has deleted these areas
from the lists assigned to the Departments of Education and Housing and Urban
Development, respectively, and has added a new paragraph (c) to section 35.190,
which provides that the Department of Justice may assign responsibility for
components of State or local governments that exercise responsibilities,
regulate, or administer services, programs, or activities relating to functions
not assigned to specific designated agencies by paragraph (b) of this section to
other appropriate agencies. The Department believes that this approach will
provide more flexibility in determining the appropriate agency for investigation
of complaints involving those components of State and local governments not
specifically addressed by the listings in paragraph (b). As provided in §§35.170
and 35.171, complaints filed with the Department of

Justice will be referred to the apropriate agency.

Several commenters proposed a stronger role for the Department of Justice,
especially with respect to the receipt and assignment of complaints, and the
overall monitoring of the effectiveness of the enforcement activities of Federal
agencies. As discussed above, §§ 35.170 and 35.171 have been revised to provide
for referral of complaints by the Department of Justice to appropriate
enforcement agencies. Also, language has been added to §35.190(a) of the final
regulation stating that the Assistant Attorney General shall provide policy
guidance and interpretations to designated agencies to ensure the consistent and
effective implementation of this part.


TITLE II REGULATIONS; POOL EXTENSION FINAL RULE GUIDANCE AND SECTION-BY SECTION
ANALYSIS

NOTE: The Guidance and Section-by-Section Analysis for the updates made by the
Pool Extension Final Rule can be found at:

https://archive.ada.gov/regs2010/ADAregs2012/finalrule_existingpools_FR_may21.htm.


TITLE II REGULATIONS; ADA AMENDMENTS ACT FINAL RULE GUIDANCE AND
SECTION-BY-SECTION ANALYSIS

APPENDIX C TO PART 35—GUIDANCE TO REVISIONS TO ADA TITLE II AND TITLE III
REGULATIONS REVISING THE MEANING AND INTERPRETATION OF THE DEFINITION OF
“DISABILITY” AND OTHER PROVISIONS IN ORDER TO INCORPORATE THE REQUIREMENTS OF
THE ADA AMENDMENTS ACT

NOTE: This appendix contains guidance providing a section-by-section analysis of
the revisions to 28 CFR parts 35 and 36 published on August 11, 2016.

Guidance and Section-by-Section Analysis

This section provides a detailed description of the Department’s changes to the
meaning and interpretation of the definition of "disability" in the title II and
title III regulations, the reasoning behind those changes, and responses to
public comments received on these topics. See Office of the Attorney General;
Amendment of Americans with Disabilities Act Title II and Title III Regulations
to Implement ADA Amendments Act of 2008, 79 FR 4839 (Jan. 30, 2014) (NPRM).

Sections 35.101 and 36.101—Purpose and broad coverage.

Sections 35.101 and 36.101 set forth the purpose of the ADA title II and title
III regulations. In the NPRM, the Department proposed revising these sections by
adding references to the ADA Amendments Act in renumbered §§ 35.101(a) and
36.101(a) and by adding new §§ 35.101(b) and 36.101(b), which explain that the
ADA is intended to have broad coverage and that the definition of "disability"
shall be construed broadly. The proposed language in paragraph (b) stated that
the primary purpose of the ADA Amendments Act is to make it easier for people
with disabilities to obtain protection under the ADA. Consistent with the ADA
Amendments Act’s purpose of reinstating a broad scope of protection under the
ADA, the definition of "disability" in this part shall be construed broadly in
favor of expansive coverage to the maximum extent permitted by the terms of the
ADA. The primary object of attention in ADA cases should be whether covered
entities have complied with their obligations and whether discrimination has
occurred, not whether the individual meets the definition of "disability." The
question of whether an individual meets the definition of "disability" should
not demand extensive analysis”.

Many commenters supported inclusion of this information as reiterating the
statutory language evincing Congress’ intention “to restore a broad definition
of ‘disability’ under the ADA….” Several commenters asked the Department to
delete the last sentence in §§ 35.101(b) and 36.101(b), arguing that inclusion
of this language is inconsistent with the individualized assessment required
under the ADA. Some of these commenters acknowledged, however, that this
language is drawn directly from the “Purposes” of the ADA Amendments Act. See
Public Law 110–325, sec. 2(b)(5). The Department declines to remove this
sentence from the final rule. In addition to directly quoting the statute, the
Department believes that this language neither precludes nor is inconsistent
with conducting an individualized assessment of whether an individual is covered
by the ADA.

Some commenters recommended that the Department add a third paragraph to these
sections expressly stating that “not all impairments are covered disabilities.”
These commenters contended that “[t]here is a common misperception that having a
diagnosed impairment automatically triggers coverage under the ADA.” While the
Department does not agree that such a misperception is common, it agrees that it
would be appropriate to include such a statement in the final rule, and has
added it to the rules of construction explaining the phrase “substantially
limits” at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v).

Sections 35.104 and 36.104—Definitions.

The current title II and title III regulations include the definition of
“disability” in regulatory sections that contain all enumerated definitions in
alphabetical order. Given the expanded length of the definition of “disability”
and the number of additional subsections required in order to give effect to the
requirements of the ADA Amendments Act, the Department, in the NPRM, proposed
moving the definition of “disability” from the general definitional sections at
§§ 35.104 and 36.104 to a new section in each regulation, §§ 35.108 and 36.105,
respectively.

The Department received no public comments in response to this proposal and the
definition of "disability" remains in its own sections in the final rule.

Sections 35.108(a)(1) and 36.105(a)(1) Definition of "disability"—General.

In the ADA, Congress originally defined “disability” as “(A) a physical or
mental impairment that substantially limits one or more major life activities of
an individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment.” Public Law 101–336, sec. 3 (1990). This three-part
definition—the “actual,” “record of,” and “regarded as” prongs—was modeled after
the definition of “handicap” found in the Rehabilitation Act of 1973. H.R. Rep.
No. 110–730, pt. 2, at 6 (2008). The Department’s 1991 title II and title III
ADA regulations reiterate this three-part basic definition as follows:

Disability means, with respect to an individual,

 * a physical or mental impairment that substantially limits one or more of the
   major life activities of such individual;
 * a record of such an impairment; or
 * being regarded as having such an impairment.

56 FR 35694, 35717 (July 26, 1991); 56 FR 35544, 35548 (July 26, 1991).

While the ADA Amendments Act did not amend the basic structure or terminology of
the original statutory definition of "disability", the Act revised the third
prong to incorporate by reference two specific provisions construing this prong.
42 U.S.C. 12102(3)(A)–(B). The first statutory provision clarified the scope of
the “regarded as” prong by explaining that “[a]n individual meets the
requirement of ‘being regarded as having such an impairment’ if the individual
establishes that he or she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life activity.”
42 U.S.C. 12102(3)(A). The second statutory provision provides an exception to
the “regarded as” prong for impairments that are both transitory and minor. A
transitory impairment is defined as “an impairment with an actual or expected
duration of 6 months or less.”  42 U.S.C. 12102(3)(B).  In the NPRM, the
Department proposed revising the “regarded as” prong in §§ 35.108(a)(1)(iii) and
36.105(a)(1)(iii) to reference the regulatory provisions that implement
42 U.S.C. 12102(3).   The NPRM proposed, at §§ 35.108(f) and 36.105(f), that
“regarded as” having an impairment would mean that the individual has been
subjected to an action prohibited by the ADA because of an actual or perceived
impairment that is not both “transitory and minor.”

The first proposed sentence directed that the meaning of the “regarded as prong”
shall be understood in light of the requirements in §§ 35.108(f) and 36.105(f).
The second proposed sentence merely provided a summary restatement of the
requirements of §§ 35.108(f) and 36.105(f). The Department received no comments
in response to this proposed language. Upon consideration, however, the
Department decided to retain the first proposed sentence but omit the second as
superfluous. Because the first sentence explicitly incorporates and directs the
public to the requirements set out in §§ 35.108(f) and 36.105(f), the Department
believes that summarizing those requirements here is unnecessary. Accordingly,
in the final rule, §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference
paragraph (f) of the respective section.” See also, discussion in the Guidance
and Section-by-Section analysis of §§ 35.108(f) and 36.105(f), below.

Sections 35.108(a)(2) and 36.105(a)(2) Definition of "disability" —Rules of
construction.

In the NPRM, the Department proposed §§ 35.108(a)(2) and 36.105(a)(2), which set
forth rules of construction on how to apply the definition of "disability."
Proposed §§ 35.108(a)(2)(i) and 36.105(a)(2)(i) state that an individual may
establish coverage under any one or more of the prongs in the definition of
"disability"—the “actual disability” prong in paragraph (a)(1)(i), the “record
of” prong in paragraph (a)(1)(ii) or the “regarded as” prong in paragraph
(a)(1)(iii). See §§ 35.108(a)(1)(i) through (iii); 36.105(a)(1)(i) through
(iii). The NPRM’s inclusion of rules of construction stemmed directly from the
ADA Amendments Act, which amended the ADA to require that the definition of
"disability" be interpreted in conformance with several specific directives and
an overarching mandate to ensure “broad coverage … to the maximum extent
permitted by the terms of [the ADA].”  42 U.S.C. 12102(4)(A).

To be covered under the ADA, an individual must satisfy only one prong. The term
“actual disability” is used in these rules of construction as shorthand
terminology to refer to an impairment that substantially limits a major life
activity within the meaning of the first prong of the definition of
"disability." See §§ 35.108(a)(1)(i); 36.105(a)(1)(i). The terminology selected
is for ease of reference. It is not intended to suggest that an individual with
a disability who is covered under the first prong has any greater rights under
the ADA than an individual who is covered under the “record of” or “regarded as”
prongs, with the exception that the ADA Amendments Act revised the ADA to
expressly state that an individual who meets the definition of "disability"
solely under the “regarded as” prong is not entitled to reasonable modifications
of policies, practices, or procedures. See 42 U.S.C. 12201(h).

Proposed §§ 35.108(a)(2)(ii) and 36.105(a)(2)(ii) were intended to incorporate
Congress’s expectation that consideration of coverage under the “actual
disability” and “record of disability” prongs of the definition of  “disability”
will generally be unnecessary except in cases involving requests for reasonable
modifications.  See 154 Cong. Rec. H6068 (daily ed. June 25, 2008) (joint
statement of Reps. Steny Hoyer and Jim Sensenbrenner).  Accordingly, these
provisions state that, absent a claim that a covered entity has failed to
provide reasonable modifications, typically it is not necessary to rely on the
“actual disability” or “record of” disability prongs. Instead, in such cases,
the coverage can be evaluated exclusively under the “regarded as” prong,” which
does not require a showing of an impairment that substantially limits a major
life activity or a record of such an impairment. Whether or not an individual is
challenging a covered entity’s failure to provide reasonable modifications, the
individual may nevertheless proceed under the “actual disability” or “record of”
prong.  The Department notes, however, that where an individual is challenging a
covered entity’s failure to provide effective communication, that individual
cannot rely solely on the “regarded as prong” because the entitlement to an
auxiliary aid or service is contingent on a disability-based need for the
requested auxiliary aid or service.  See 28 CFR 35.160(b), 28 CFR 36.303(c).

The Department received no comments objecting to these proposed rules of
construction. The final rule retains these provisions but renumbers them as
paragraphs (ii) and (iii) of §§ 35.108(a)(2) and 36.105(a)(2) and replaces the
reference to “covered entity” in the title III regulatory text with “public
accommodation.”

The Department has added a third rule of construction at the beginning of
§§ 35.108(a)(2) and 36.105(a)(2), numbered §§ 35.108(a)(2)(i) and
36.105(a)(2)(i). Closely tracking the amended statutory language, these
provisions state that “[t]he definition of disability shall be construed broadly
in favor of expansive coverage, to the maximum extent permitted by the terms of
the ADA.” See 42 U.S.C. 12102(4)(A). This principle is referenced in other
portions of the final rule, but the Department believes it is important to
include here underscore Congress’s intent that it be applied throughout the
determination of whether an individual falls within the ADA definition of
"disability."

Sections 35.108(b) and 36.105(b)—Physical or mental impairment.

The ADA Amendments Act did not change the meaning of the term “physical or
mental impairment.” Thus, in the NPRM, the Department proposed only minor
modifications to the general regulatory definitions for this term at
§§ 35.108(b)(1)(i) and 36.105(b)(1)(i) by adding examples of two additional body
systems—the immune system and the circulatory system—that may be affected by a
physical impairment.

In addition, the Department proposed adding “dyslexia” to §§ 35.108(b)(2) and
36.105(b)(2) as an example of a specific learning disability that falls within
the meaning of the phrase “physical or mental impairment.” Although dyslexia is
a specific diagnosable learning disability that causes difficulties in reading,
unrelated to intelligence and education, the Department became aware that some
covered entities mistakenly believe that dyslexia is not a clinically
diagnosable impairment. Therefore, the Department sought public comment
regarding its proposed inclusion of a reference to dyslexia in these sections.

The Department received a significant number of comments in response to this
proposal. Many commenters supported inclusion of the reference to dyslexia. Some
of these commenters also asked the Department to include other examples of
specific learning disabilities such as dysgraphia20 and dyscalculia.21 Several
commenters remarked that as “research and practice bear out, dyslexia is just
one of the specific learning disabilities that arise from ‘neurological
differences in brain structure and function and affect a person’s ability to
receive, store, process, retrieve or communicate information.’” These commenters
identified the most common specific learning disabilities as: “dyslexia,
dysgraphia, dyscalculia, auditory processing disorder, visual processing
disorder and non-verbal learning disabilities,” and recommended that the
Department rephrase its reference to specific learning disabilities to make
clear that there are many other specific learning disabilities besides dyslexia.
The Department has considered all of these comments and has decided to use the
phrase “dyslexia and other specific learning disabilities” in the final rule.

Another commenter asked the Department to add a specific definition of dyslexia
to the regulatory text itself. The Department declines to do so as it does not
give definitions for any other physical or mental impairment in the regulations.

Other commenters recommended that the Department add ADHD to the list of
examples of “physical or mental impairments” in §§ 35.108(b)(2) and
36.105(b)(2).22 Some commenters stated that ADHD, which is not a specific
learning disability, is a very commonly diagnosed impairment that is not always
well understood. These commenters expressed concern that excluding ADHD from the
list of physical and mental impairments could be construed to mean that ADHD is
less likely to support an assertion of disability as compared to other
impairments. On consideration, the Department agrees that, due to the prevalence
of ADHD but lack of public understanding of the condition, inclusion of ADHD
among the examples set forth in §§ 35.108(b)(2) and 36.105(b)(2) will provide
appropriate and helpful guidance to the public.

Other commenters asked the Department to include arthritis, neuropathy, and
other examples of physical or mental impairments that could substantially impair
a major life activity. The Department declines to add any other examples
because, while it notes the value in clarifying the existence of impairments
such as ADHD, it also recognizes that the regulation need not elaborate an
inclusive list of all impairments, particularly those that are very prevalent,
such as arthritis, or those that may be symptomatic of other underlying
impairments already referenced in the list, such as neuropathy, which may be
caused by cancer or diabetes. The list is merely illustrative and not
exhaustive. The regulations clearly state that the phrase “physical or mental
impairment” includes, but is not limited to” the examples provided. No negative
implications should be drawn from the omission of any specific impairment in
§§ 35.108(b) and 36.105(b).

The Department notes that it is important to distinguish between conditions that
are impairments and physical, environmental, cultural, or economic
characteristics that are not impairments.  The definition of the term
“impairment” does not include physical characteristics such as eye color, hair
color, or left-handedness, or height, weight, or muscle tone that are within
“normal” range. Moreover, conditions that are not themselves physiological
disorders, such as pregnancy, are not impairments. However, even if an
underlying condition or characteristic is not itself a physical or mental
impairment, it may give rise to a physical or mental impairment that
substantially limits a major life activity. In such a case, an individual would
be able to establish coverage under the ADA. For example, while pregnancy itself
is not an impairment, a pregnancy-related impairment that substantially limits a
major life activity will constitute a disability under the first prong of the
definition. 23 Major life activities that might be substantially limited by
pregnancy-related impairments could include walking, standing, and lifting, as
well as major bodily functions such as the musculoskeletal, neurological,
cardiovascular, circulatory, endocrine, and reproductive functions.
Alternatively, a pregnancy-related impairment may constitute a “record of” a
substantially limiting impairment, or may be covered under the “regarded as”
prong if it is the basis for a prohibited action and is not both “transitory and
minor.”

Sections 35.108(c) and 36.105(c)—Major life activities.

Prior to the passage of the ADA Amendments Act, the ADA did not define “major
life activities,” leaving delineation of illustrative examples to agency
regulations. Paragraph 2 of the definition of “disability” in the Department’s
current title II and title III regulations at 28 CFR 35.104 and 36.104 states
that “major life activities" means functions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.

The ADA Amendments Act significantly expanded the range of major life activities
by directing that “major” be interpreted in a more expansive fashion, by adding
a significant new category of major life activities, and by providing
non-exhaustive lists of examples of major life activities. The amended statute’s
first list of major life activities includes, but is not limited to, “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” 42 U.S.C. 12102(2)(A). The
ADA Amendments Act also broadened the definition of “major life activity” to
include physical or mental impairments that substantially limit the operation of
a “major bodily function,” which include, but are not limited to, the “functions
of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions.” 42 U.S.C. 12102(2)(B). These expanded lists of examples of major
life activities reflect Congress’s directive to expand the meaning of the term
“major” in response to court decisions that interpreted the term more narrowly
than Congress intended. See Public Law 110–25, sec. 3 (b)(4).

Examples of major life activities, other than the operations of a major bodily
function.

In the NPRM, at §§ 35.108(c) and 36.105(c), the Department proposed revisions of
the title II and title III lists of examples of major life activities (other
than the operations of a major bodily function) to incorporate all of the
statutory examples, as well as to provide additional examples included in the
EEOC title I final regulation—reaching, sitting, and interacting with others.
 See 29 CFR 1630.2(i)(1)(i).

A number of commenters representing persons with disabilities or the elderly
recommended that the Department add a wide variety of other activities to this
first list. Some commenters asked the Department to include references to test
taking, writing, typing, keyboarding, or executive function.24 Several
commenters asked the Department to include other activities as well, such as the
ability to engage in sexual activity, perform mathematical calculations, travel,
or drive. One commenter asked the Department to recognize that, depending upon
where people live, other life activities may fall within the category of major
life activities. This commenter asserted, for example, that tending livestock or
operating farm equipment can be a major life activity in a farming or ranching
community, and that maintaining septic, well or water systems, or gardening,
composting, or hunting may be a major life activity in a rural community.

On consideration of the legislative history and the relevant public comments,
the Department decided to include “writing” as an additional example in its
non-exhaustive list of examples of major life activities in the final rule. The
Department notes Congress repeatedly stressed that writing is one of the major
life activities that is often affected by a covered learning disability. See,
e.g., 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the
Managers); H.R. Rep. No. 110–730 pt. 1, at 10–11 (2008).

Other than “writing,” the Department declines to add additional examples of
major life activities to these provisions in the final rule. This list is
illustrative, and the Department believes that it is neither necessary nor
possible to list every major life activity. Moreover, the Department notes that
many of the commenters’ suggested inclusions implicate life activities already
included on the list. For example, although, as commenters pointed out, some
courts have concluded that test taking is a major life activity,25 the
Department notes that one or more already-included major life activities—such as
reading, writing, concentrating, or thinking, among others—will virtually always
be implicated in test taking. Similarly, activities such as operating farm
equipment, or maintaining a septic or well system, implicate already-listed
major life activities such as reaching, lifting, bending, walking, standing, and
performing manual tasks.

The commenters’ suggested additions also implicate the operations of various
bodily systems that may already be recognized as major life activities. See
discussion of §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii), below. For example, it
is the Department’s view that individuals who have cognitive or other
impairments that affect the range of abilities that are often described as part
of “executive function” will likely be able to assert that they have impairments
that substantially limit brain function, which is one of the major bodily
functions listed among the examples of major life activities.

Examples of major life activities—operations of a major bodily function.

In the NPRM, the Department proposed revising the regulatory definitions of
disability at §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii) to make clear that the
operations of major bodily functions are major life activities, and to include a
non-exhaustive list of examples of major bodily functions, consistent with the
language of the ADA as amended. Because the statutory list is non-exhaustive,
the Department also proposed further expanding the list to include the following
examples of major bodily functions: the functions of the special sense organs
and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal
systems. These six major bodily functions also are specified in the EEOC title I
final regulation. 29 CFR 1630.2(i)(1)(i).

One commenter objected to the Department’s inclusion of additional examples of
major life activities in both these lists, suggesting that the Department
include only those activities and conditions specifically set forth in the ADA
as amended. The Department believes that providing other examples of major life
activities, including major bodily functions, is within the Attorney General’s
authority to both interpret titles II and III of the ADA and promulgate
implementing regulations and that these examples provide helpful guidance to the
public. Therefore, the Department declines to limit its lists of major life
activities to those specified in the statute. Further, the Department notes that
even the expanded lists of major life activities and major bodily functions are
illustrative and non-exhaustive. The absence of a particular life activity or
bodily function from the list should not create a negative implication as to
whether such activity or function constitutes a major life activity under the
statute or the implementing regulation.

Rules of Construction for Major Life Activities.

In the NPRM, proposed §§ 35.108(c)(2) and 36.105(c)(2) set out two specific
principles applicable to major life activities: “[i]n determining other examples
of major life activities, the term ‘major’ shall not be interpreted strictly to
create a demanding standard for disability,” and “[w]hether an activity is a
‘major life activity’ is not determined by reference to whether it is of
‘central importance to daily life.’”  The proposed language furthered a main
purpose of the ADA Amendments Act—to reject the standards enunciated by the
Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that (1)
strictly interpreted the terms “substantially” and “major” in the definition of
"disability" to create a demanding standard for qualifying as disabled under the
ADA, and that (2) required an individual to have an impairment that prevents or
severely restricts the individual from doing activities that are of central
importance to most people’s daily lives to be considered as “substantially
limited” in performing a major life activity under the ADA.  Public Law 110–325,
sec. 2(b)(4). 

The Department did not receive any comments objecting to its proposed language.
In the final rule, the Department retained these principles but has numbered
each principle individually and deemed them “rules of construction” because they
are intended to inform the determination of whether a particular activity is a
major life activity.

Sections 35.108(d)(1) and 36.105(d)(1)—Substantially limits.

Overview. The ADA as amended directs that the term “substantially limits” shall
be “interpreted consistently with the findings and purposes of the ADA
Amendments Act.” 42 U.S.C. 12102(4)(B). See also Findings and Purposes of the
ADA Amendments Act, Public Law 110–325, sec. 2(a)–(b). In the NPRM, the
Department proposed to add nine rules of construction at §§ 35.108(d) and
36.105(d) clarifying how to interpret the meaning of “substantially limits” when
determining whether an individual’s impairment substantially limits a major life
activity. These rules of construction are based on the requirements of the ADA
as amended and the clear mandates of the legislative history. Due to the
insertion of the rules of construction, these provisions are renumbered in the
final rule.

Sections 35.108(d)(1)(i) and 36.105(d)(1)(i)—Broad construction, not a demanding
standard.

In accordance with Congress’s overarching directive to construe the term
“disability” broadly, see 42 U.S.C. 12102(4)(A), the Department, in its NPRM,
proposed §§ 35.108(d)(1)(i) and 36.105(d)(1)(i), which state: “The term
‘substantially limits’ shall be construed broadly in favor of expansive
coverage, to the maximum extent permitted by the terms of the ADA.” These
provisions are also rooted in the Findings and Purposes of the ADA Amendments
Act, in which Congress instructed that “the question of whether an individual’s
impairment is a disability under the ADA should not demand extensive analysis.”
See Public Law 110–325, sec. 2(b)(1), (4)-(5).

Several commenters on these provisions supported the Department’s proposal to
include these rules of construction, noting that they were in keeping with both
the statutory language and Congress’s intent to broaden the definition of
"disability" and restore expansive protection under the ADA. Some of these
commenters stated that, even after the passage of the ADA Amendments Act, some
covered entities continued to apply a narrow definition of "disability."

Other commenters expressed concerns that the proposed language would undermine
congressional intent by weakening the meaning of the word “substantial.” One of
these commenters asked the Department to define the term “substantially limited”
to include an element of materiality, while other commenters objected to the
breadth of these provisions and argued that it would make the pool of people who
might claim disabilities too large, allowing those without substantial
limitations to be afforded protections under the law. Another commenter
expressed concern about the application of the regulatory language to the
diagnosis of learning disabilities and ADHD.

The Department considered all of these comments and declines to provide a
definition of the term “substantially limits” or make any other changes to these
provisions in the final rule. The Department notes that Congress considered and
expressly rejected including language defining the term “substantially limits”:
 “We have concluded that adopting a new, undefined term that is subject to
widely disparate meanings is not the best way to achieve the goal of ensuring
consistent and appropriately broad coverage under this Act. The resulting need
for further judicial scrutiny and construction will not help move the focus from
the threshold issue of disability to the primary issue of discrimination.” 154
Cong. Rec. S8441. (daily ed. Sept. 16, 2008) (Statement of the Managers).

The Department believes that the nine rules of construction interpreting the
term “substantially limits” provide ample guidance on determining whether an
impairment substantially limits a major life activity and are sufficient to
ensure that covered entities will be able to understand and apply Congress’s
intentions with respect to the breadth of the definition of "disability."

Moreover, the commenters’ arguments that these provisions would undermine
congressional intent are unsupported. To the contrary, Congress clearly intended
the ADA Amendments Act to expand coverage: “The managers have introduced the ADA
Amendments Act of 2008 to restore the proper balance and application of the ADA
by clarifying and broadening the definition of disability, and to increase
eligibility for the protections of the ADA. It is our expectation that because
this bill makes the definition of disability more generous, some people who were
not covered before will now be covered.” 154 Cong. Rec. S8441 (daily ed. Sept.
16, 2008) (Statement of the Managers).

The Department has also considered the comments expressed about the interplay
between the proposed regulatory language and the diagnosis of learning
disabilities and ADHD disorders. The Department believes that the revised
definition of "disability," including, in particular, the provisions construing
“substantially limits,” strikes the appropriate balance to effectuate Congress’s
intent when it passed the ADA Amendments Act, and will not modify its regulatory
language in response to these comments.

Sections 35.108(d)(1)(ii) and 36.105(d)(1)(ii)—Primary object of ADA cases.

In the ADA Amendments Act, Congress directed that rules of construction should
ensure that “substantially limits” is construed in accordance with the findings
and purposes of the statute. See 42 U.S.C. 12102(4)(B). One of the purposes of
the Act was to convey that “the primary object of attention in cases brought
under the ADA should be whether entities covered under the ADA have complied
with the obligations and to convey that the question of whether an individuals’
impairment is a disability should not demand extensive analysis.” Public Law
110–325, sec. 2(b)(5). The legislative history clarifies that: “Through this
broad mandate [of the ADA], Congress sought to protect anyone who is treated
less favorably because of a current, past, or perceived disability. Congress did
not intend for the threshold question of disability to be used as a means of
excluding individuals from coverage. Nevertheless, as the courts began
interpreting and applying the definition of disability strictly, individuals
have been excluded from the protections that the ADA affords because they are
unable to meet the demanding judicially imposed standard for qualifying as
disabled.”). H.R. Rep. No. 110–730, pt. 2, at 5 (2008) (House Committee on the
Judiciary).

In keeping with Congress’s intent and the language of the ADA Amendments Act,
the rules of construction at proposed §§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii)
make clear that the primary object of attention in ADA cases should be whether
public or other covered entities have complied with their obligations and
whether discrimination has occurred, not the extent to which an individual’s
impairment substantially limits a major life activity. In particular, the
threshold issue of whether an impairment substantially limits a major life
activity should not demand extensive analysis.

A number of commenters expressed support for these rules of construction, noting
that they reinforced Congress’s intent in ensuring that the primary focus will
be on compliance. Several commenters objected to the use of the word “cases” in
these provisions, stating that it lacked clarity. The word “cases” tracks the
language of the ADA Amendments Act and the Department declines to change the
term.

A few commenters objected to these provisions because they believed that the
language would be used to supersede or otherwise change the required analysis of
requests for reasonable modifications or testing accommodations. See
28 CFR 35.130(b)(7), 36.302, 36.309. The Department disagrees with these
commenters. These rules of construction relate only to the determination of
coverage under the ADA. They do not change the analysis of whether a
discriminatory act has taken place, including the determination as to whether an
individual is entitled to a reasonable modification or testing accommodation.
See discussion of §§ 35.108(d)(1)(vii) and 36.105(d)(1)(vii) below.

The Department retained the language of these rules of construction in the final
rule except that in the title III regulatory text it has changed the reference
from “covered entity” to “public accommodation.” The Department also renumbered
these provisions as §§ 35.108(d)(1)(ii) and 36.105(d)(1)(ii).

Sections 35.108(d)(1)(iii) and 36.105(d)(1)(iii) —Impairment need not
substantially limit more than one major life activity.

Proposed §§ 35.108(d)(1)(viii) and 36.105(d)(1)(viii) stated that “[a]n
impairment that substantially limits one major life activity need not
substantially limit other major life activities in order to be considered a
substantially limiting impairment.” See 42 U.S.C. 12102(4)(C). This language
reflected the statutory intent to reject court decisions that had required
individuals to show that an impairment substantially limits more than one major
life activity. See 154 Cong. Rec. S8841–44 (daily ed. Sept. 16, 2008) (Statement
of the Managers). Applying this principle, for example, an individual seeking to
establish coverage under the ADA need not show a substantial limitation in the
ability to learn if that individual is substantially limited in another major
life activity, such as walking, or the functioning of the nervous or endocrine
systems. The proposed rule also was intended to clarify that the ability to
perform one or more particular tasks within a broad category of activities does
not preclude coverage under the ADA. See H.R. Rep. No. 110–730, pt. 2, at 19 &
n.52 (2008) (House Committee on the Judiciary). For instance, an individual with
cerebral palsy could have a capacity to perform certain manual tasks yet
nonetheless show a substantial limitation in the ability to perform a “broad
range” of manual tasks.

The Department received one comment specifically supporting this provision and
none opposing it. The Department is retaining this language in the final rule
although it is renumbered and is found at §§ 35.108(d)(1)(iii) and
36.105(d)(1)(iii).

Sections 35.108(d)(1)(iv) and 36.105(d)(1)(iv)—Impairments that are episodic or
in remission.

The ADA as amended provides that “an impairment that is episodic or in remission
is a disability if it would substantially limit a major life activity when
active.” 42 U.S.C. 12102(4)(D). In the NPRM, the Department proposed
§§ 35.108(d)(1)(vii) and 36.105(d)(1)(vii) to directly incorporate this
language. These provisions are intended to reject the reasoning of court
decisions concluding that certain individuals with certain conditions—such as
epilepsy or post traumatic stress disorder—were not protected by the ADA because
their conditions were episodic or intermittent. The legislative history provides
that “[t]his … rule of construction thus rejects the reasoning of the courts in
cases like Todd v. Academy Corp. [57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)]
where the court found that the plaintiff’s epilepsy, which resulted in short
seizures during which the plaintiff was unable to speak and experienced tremors,
was not sufficiently limiting, at least in part because those seizures occurred
episodically. It similarly rejects the results reached in cases [such as
Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 182–83 (D.N.H.
2002)] where the courts have discounted the impact of an impairment [such as
cancer] that may be in remission as too short-lived to be substantially
limiting. It is thus expected that individuals with impairments that are
episodic or in remission (e.g., epilepsy, multiple sclerosis, cancer) will be
able to establish coverage if, when active, the impairment or the manner in
which it manifests (e.g., seizures) substantially limits a major life activity.”
H.R. Rep. No. 110–730, pt. 2, at 19-20 (2008) (House Committee on the
Judiciary).

Some examples of impairments that may be episodic include hypertension,
diabetes, asthma, major depressive disorder, bipolar disorder, and
schizophrenia.  The fact that the periods during which an episodic impairment is
active and substantially limits a major life activity may be brief or occur
infrequently is no longer relevant to determining whether the impairment
substantially limits a major life activity. For example, a person with
post-traumatic stress disorder who experiences intermittent flashbacks to
traumatic events is substantially limited in brain function and thinking.

The Department received three comments in response to these provisions. Two
commenters supported this provision and one commenter questioned about how
school systems should provide reasonable modifications to students with
disabilities that are episodic or in remission. As discussed elsewhere in this
guidance, the determination of what is an appropriate modification is separate
and distinct from the determination of whether an individual is covered by the
ADA, and the Department will not modify its regulatory language in response to
this comment.

Sections 35.108(d)(1)(v) and 36.105(d)(1)(v)—Comparisons to most people in the
population, and impairment need not prevent or significantly or severely
restrict a major life activity.

In the legislative history of the ADA Amendments Act, Congress explicitly
recognized that it had always intended that determinations of whether an
impairment substantially limits a major life activity should be based on a
comparison to most people in the population. The Senate Managers Report
approvingly referenced the discussion of this requirement in the committee
report from 1989. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement
of the Managers) (citing S. Rep. No. 101–116, at 23 (1989)). The preamble to the
Department’s 1990 title II and title III regulations also referenced that the
impact of an individual’s impairment should be based on a comparison to most
people. See 56 FR 35694, 35699 (July 26, 1991).

Consistent with its longstanding intent, Congress directed, in the ADA
Amendments Act, that disability determinations “should not demand extensive
analysis” and that impairments do not need to rise to the level of “prevent[ing]
or severely restrict[ing] the individual from doing activities that are of
central importance to most people’s daily lives.” See Public Law 110–325,
sec. 2(b)(4)–(5). In giving this direction, Congress sought to correct the
standard that courts were applying to determinations of disability after Toyota,
which had created “a situation in which physical or mental impairments that
would previously have been found to constitute disabilities are not considered
disabilities under the Supreme Court’s narrower standard.” 154 Cong. Rec.
S8840–8841 (daily ed. Sept. 16, 2008) (Statement of the Managers). The ADA
Amendments Act thus abrogates Toyota’s holding by mandating that “substantially
limited” must no longer create “an inappropriately high level of limitation.”
See Public Law 110–325, sec. 2(b)(4)–(5) and 42 U.S.C. 12102(4)(B). For example,
an individual with carpal tunnel syndrome, a physical impairment, can
demonstrate that the impairment substantially limits the major life activity of
writing even if the impairment does not prevent or severely restrict the
individual from writing.

Accordingly, proposed §§ 35.108(d)(1)(ii) and 36.105(d)(1)(ii) state that an
impairment is a disability if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in the
general population. However, an impairment does not need to prevent, or
significantly or severely restrict, an individual from performing a major life
activity in order to be substantially limiting.” The proposed language in the
NPRM was rooted in the corrective nature of the ADA Amendments Act and its
explicit rejection of the strict standards imposed under Toyota and its progeny.
See Public Law 110–325, sec. 2(b)(4).

The Department received several comments on these provisions, none of which
recommended modification of the regulatory language. A few commenters raised
concerns that are further addressed in the “Condition, manner, or duration”
section below, regarding the Department’s inclusion in the NPRM preamble of a
reference to possibly using similarly situated individuals as the basis of
comparison. The Department has removed this discussion and clarified that it
does not endorse reliance on similarly situated individuals to demonstrate
substantial limitations. For example, the Department recognizes that when
determining whether an elderly person is substantially limited in a major life
activity, the proper comparison is most people in the general population, and
not similarly situated elderly individuals. Similarly, someone with ADHD should
be compared to most people in the general population, most of whom do not have
ADHD. Other commenters expressed interest in the possibility that, in some
cases, evidence to support an assertion that someone has an impairment might
simultaneously be used to demonstrate that the impairment is substantially
limiting. These commenters approvingly referenced the EEOC’s interpretive
guidance for its ADA Amendments Act regulation, which provided an example of an
individual with a learning disability. See 76 FR 16978, 17009 (Mar. 25, 2011).
In that example, evidence gathered to demonstrate the impairment of a learning
disability showed a discrepancy between the person’s age, measured intelligence,
and education and that person’s actual versus expected achievement. The EEOC
noted that such individuals also likely would be able to demonstrate substantial
limitations caused by that impairment to the major life activities of learning,
reading, or thinking, when compared to most people in the general population,
especially when the ameliorative effects of mitigating measures were set aside.
The Department concurs with this view.

Finally, the Department added an explicit statement recognizing that not every
impairment will constitute a disability within the meaning of the section. This
language echoes the Senate Statement of Managers, which clarified that: “[N]ot
every individual with a physical or mental impairment is covered by the first
prong of the definition of disability in the ADA. An impairment that does not
substantially limit a major life activity is not a disability under this prong.”
154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers).

Sections 35.108(d)(1)(vi) and 36.105(d)(1)(vi)—“Substantially limits” shall be
interpreted to require a lesser degree of functional limitation than that
required prior to the ADA Amendments Act.

In the NPRM, proposed §§ 35.108(d)(1)(iv) and 36.105(d)(1)(iv) state that
determining whether an impairment substantially limits a major life activity
requires an individualized assessment. But, the interpretation and application
of the term “substantially limits” for this assessment requires a lower degree
of functional limitation than the standard applied prior to the ADA Amendments
Act.

These rules of construction reflect Congress’s concern that prior to the
adoption of the ADA Amendments Act, courts were using too high a standard to
determine whether an impairment substantially limited a major life activity.
 See Public Law 110–325, sec. 2(b)(4)–(5); see also 154 Cong. Rec. S8841 (daily
ed. Sept. 16, 2008) (Statement of the Managers) (“This bill lowers the standard
for determining whether an impairment constitute[s] a disability and reaffirms
the intent of Congress that the definition of disability in the ADA is to be
interpreted broadly and inclusively.”).

The Department received no comments on these provisions. The text of these
provisions is unchanged in the final rule, although they have been renumbered as
§§ 35.108(d)(1)(vi) and 36.105(d)(1)(vi).

Sections §§ 35.108(d)(1)(vii) and 36.105(d)(1)(vii)—Comparison of individual’s
performance of major life activity usually will not require scientific, medical,
or statistical analysis.

In the NPRM, the Department proposed at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v)
rules of construction making clear that the comparison of an individual’s
performance of a major life activity to that of most people in the general
population usually will not require scientific, medical, or statistical
evidence. However, this rule is not intended to prohibit or limit the use of
scientific, medical, or statistical evidence in making such a comparison where
appropriate.

These rules of construction reflect Congress’s rejection of the demanding
standards of proof imposed upon individuals with disabilities who tried to
assert coverage under the ADA prior to the adoption of the ADA Amendments Act.
In passing the Act, Congress rejected the idea that the disability determination
should be “an onerous burden for those seeking accommodations or modifications.”
See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers).
These rules make clear that in most cases, people with impairments will not need
to present scientific, medical, or statistical evidence to support their
assertion that an impairment is substantially limiting compared to most people
in the general population. Instead, other types of evidence that are less
onerous to collect, such as statements or affidavits of affected individuals,
school records, or determinations of disability status under other statutes,
should, in most cases, be considered adequate to establish that an impairment is
substantially limiting. The Department’s proposed language reflected Congress’s
intent to ensure that individuals with disabilities are not precluded from
seeking protection under the ADA because of an overbroad, burdensome, and
generally unnecessary requirement.

The Department received several comments in support of these provisions and a
number of comments opposing all or part of them. One commenter representing
individuals with disabilities expressed support for the proposed language,
noting that “[m]any people with disabilities have limited resources and
requiring them to hire an expert witness to confirm their disability would pose
an insurmountable barrier that could prevent them from pursuing their ADA
cases.”

Commenters representing testing entities objected to this language arguing that
they needed scientific, medical, or statistical evidence in order to determine
whether an individual has a learning disability or ADHD. These commenters argued
that, unlike other disabilities, assessment of learning disabilities and ADHD
require scientific, medical, or statistical evidence because such disabilities
have no overt symptoms, cannot be readily observed, and lack medical or
scientific verifiability. One commenter stated that the proposed language
“favor[s] expedience over evidence-based guidance.”

In opposing these provisions, these commenters appear to conflate proof of the
existence of an impairment with the analysis of how an impairment substantially
limits a major life activity. These provisions address only how to evaluate
whether an impairment substantially limits a major life activity, and the
Department’s proposed language appropriately reflects Congress’s intent to
ensure that individuals with disabilities are not precluded from seeking
protection under the ADA because of overbroad, burdensome, and generally
unnecessary evidentiary requirements. Moreover, the Department disagrees with
the commenters’ suggestion that an individual with ADHD or a specific learning
disability can never demonstrate how the impairment substantially limits a major
life activity without scientific, medical, or statistical evidence. Scientific,
medical, or statistical evidence usually will not be necessary to determine
whether an individual with a disability is substantially limited in a major life
activity. However, as the rule notes, such evidence may be appropriate in some
circumstances.

One commenter suggested that the words “where appropriate” be deleted from these
provisions in the final rule out of concern that they may be used to preclude
individuals with disabilities from proffering scientific or medical evidence in
support of a claim of coverage under the ADA. The Department disagrees with the
commenter’s reading of these provisions. Congress recognized that some people
may choose to support their claim by presenting scientific or medical evidence
and made clear that “plaintiffs should not be constrained from offering evidence
needed to establish that their impairment is substantially limiting.” See 154
Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). The
language “where appropriate” allows for those circumstances where an individual
chooses to present such evidence, but makes clear that in most cases
presentation of such evidence shall not be necessary.

Finally, although the NPRM did not propose any changes with respect to the title
III regulatory requirements applicable to the provision of testing
accommodations at 28 CFR 36.309, one commenter requested revisions to § 36.309
to acknowledge the changes to regulatory language in the definition of
"disability." Another commenter noted that the proposed changes to the
regulatory definition of "disability" warrant new agency guidance on how the ADA
applies to requests for testing accommodations.

The Department does not consider it appropriate to include provisions related to
testing accommodations in the definitional sections of the ADA regulations. The
determination of disability, and thus coverage under the ADA, is governed by the
statutory and regulatory definitions and the related rules of construction. 
Those provisions do not speak to what testing accommodations an individual with
a disability is entitled to under the ADA nor to the related questions of what a
testing entity may request or require from an individual with a disability who
seeks testing accommodations.  Testing entities’ substantive obligations are
governed by 42 U.S.C. 12189 and the implementing regulation at 28 CFR 36.309.
The implementing regulation clarifies that private entities offering covered
examinations need to make sure that any request for required documentation is
reasonable and limited to the need for the requested modification,
accommodation, or auxiliary aid or service. Furthermore, when considering
requests for modifications, accommodations, or auxiliary aids or services, the
entity should give considerable weight to documentation of past modifications,
accommodations, or auxiliary aids or services received in similar testing
situations or provided in response to an Individualized Education Program (IEP)
provided under the IDEA or a plan describing services provided under section 504
of the Rehabilitation Act of 1973 (often referred as a Section 504 Plan). 

Contrary to the commenters’ suggestions, there is no conflict between the
regulation’s definitional provisions and title III’s testing accommodation
provisions.  The first addresses the core question of who is covered under the
definition of "disability", while the latter sets forth requirements related to
documenting the need for particular testing accommodations. To the extent that
testing entities are urging conflation of the analysis for establishing
disability with that for determining required testing accommodations, such an
approach would contradict the clear delineation in the statute between the
determination of disability and the obligations that ensue.

Accordingly, in the final rule, the text of these provisions is largely
unchanged, except that the provisions are renumbered as §§ 35.108(d)(1)(vii) and
36.108(d)(1)(vii), and the Department added “the presentation of,” in the second
sentence, which was included in the corresponding provision of the EEOC final
rule. See 29 CFR 1630.2(j)(1)(v).

Sections 35.108(d)(1)(viii) and 36.105(d)(1)(viii)—Determination made without
regard to the ameliorative effects of mitigating measures.

The ADA as amended expressly prohibits any consideration of the ameliorative
effects of mitigating measures when determining whether an individual’s
impairment substantially limits a major life activity, except for the
ameliorative effects of ordinary eyeglasses or contact lenses.
42 U.S.C. 12102(4)(E). The statute provides an illustrative, and non-exhaustive
list of different types of mitigating measures. Id.

In the NPRM, the Department proposed §§ 35.108(d)(2)(vi) and 36.105(d)(2)(vi),
which tracked the statutory language regarding consideration of mitigating
measures.  These provisions stated that the ameliorative effects of mitigating
measures should not be considered when determining whether an impairment
substantially limits a major life activity.  However, the beneficial effects of
ordinary eyeglasses or contact lenses should be considered when determining
whether an impairment substantially limits a major life activity.  Ordinary
eyeglasses or contact lenses refer to lenses that are intended to fully correct
visual acuity or to eliminate refractive errors.  Proposed §§ 35.108(d)(4) and
36.105(d)(4), discussed below, set forth examples of mitigating measures.

A number of commenters agreed with the Department’s proposed language and no
commenters objected. Some commenters, however, asked the Department to add
language to these sections stating that, although the ameliorative effects of
mitigating measures may not be considered in determining whether an individual
has a covered disability, they may be considered in determining whether an
individual is entitled to specific testing accommodations or reasonable
modifications. The ADA Amendments Act revised the definition of "disability" and
the Department agrees that the Act’s prohibition on assessing the ameliorative
effects of mitigating measures applies only to the determination of whether an
individual meets the definition of "disability." The Department declines to add
the requested language, however, because it goes beyond the scope of this
rulemaking by addressing ADA requirements that are not related to the definition
of "disability." These rules of construction do not apply to the requirements to
provide reasonable modifications under §§ 35.130(b)(7) and 36.302 or testing
accommodations under § 36.309 in the title III regulations. The Department
disagrees that further clarification is needed at this point and declines to
modify these provisions except that they are now renumbered as
§§ 35.108(d)(1)(viii) and § 36.105(d)(1)(viii).

The Department notes that in applying these rules of construction, evidence
showing that an impairment would be substantially limiting in the absence of the
ameliorative effects of mitigating measures could include evidence of
limitations that a person experienced prior to using a mitigating measure or
evidence concerning the expected course of a particular disorder absent
mitigating measures.

The determination of whether an individual’s impairment substantially limits a
major life activity is unaffected by an individual’s choice to forgo mitigating
measures. For individuals who do not use a mitigating measure (including, for
example, medication or auxiliary aids and services that might alleviate the
effects of an impairment), the availability of such measures has no bearing on
whether the impairment substantially limits a major life activity. The
limitations posed by the impairment on the individual and any negative
(non-ameliorative) effects of mitigating measures will serve as the foundation
for a determination of whether an impairment is substantially limiting. The
origin of the impairment, whether its effects can be mitigated, and any
ameliorative effects of mitigating measures that are employed may not be
considered in determining if the impairment is substantially limiting.

Sections 35.108(d)(1)(ix) and 36.105(d)(1)(ix)—Impairment that lasts less than
six months can still be a disability under first two prongs of the definition.

In §§ 35.108(d)(1)(ix) and 36.105(d)(1)(ix), the NPRM proposed rules of
construction noting that the six-month “transitory” part of the “transitory and
minor” exception does not apply to the “actual disability” or “record of” prongs
of the definition of “disability.” Even if an impairment may last or is expected
to last six months or less, it can be substantially limiting.

The ADA as amended provides that the “regarded as” prong of the definition of
“disability” does “not apply to impairments that are [both] transitory and
minor.”  42 U.S.C. 12102(3)(B). “Transitory impairment” is defined as “an
impairment with an actual or expected duration of six months or less.” Id. The
statute does not define the term “minor.” Whether an impairment is both
“transitory and minor” is a question of fact that is dependent upon individual
circumstances. The ADA as amended contains no such provision with respect to the
first two prongs of the definition of "disability"—“actual disability,” and
“record of” disability. The application of the “transitory and minor” exception
to the “regarded as” prong is addressed in §§ 35.108(f) and 36.105(f).

The Department received two comments on this proposed language. One commenter
recommended that the Department delete this language and “replace it with
language clarifying that if a condition cannot meet the lower threshold of
impairment under the third prong, it cannot meet the higher threshold of a
disability under the first and second prongs.” The Department declines to modify
these provisions because the determination of whether an individual satisfies
the requirements of a particular prong is not a comparative determination
between the three means of demonstrating disability under the ADA. The
Department believes that the suggested language would create confusion because
there are significant differences between the first two prongs and the third
prong. In addition, the Department believes its proposed language is in keeping
with the ADA Amendments Act and the supporting legislative history.

The other commenter suggested that the Department add language to provide
greater clarity with respect to the application of the transitory and minor
exception to the “regarded as prong.” The Department does not believe that
additional language should be added to these rules of construction, which relate
only to whether there is a six-month test for the first two prongs of the
definition. As discussed below, the Department has revised both the regulatory
text at §§ 35.108(f) and 36.105(f) and its guidance on the application of the
“transitory and minor” exception to the “regarded as” prong. See discussion
below.

Sections 35.108(d)(2) and 36.105(d)(2)—Predictable assessments.

In the NPRM, proposed §§ 35.108(d)(2) and 36.105(d)(2) set forth examples of
impairments that should easily be found to substantially limit one or more major
life activities. These provisions recognized that while there are no “per se”
disabilities, for certain types of impairments the application of the various
principles and rules of construction concerning the definition of “disability”
to the individualized assessment would, in virtually all cases, result in the
conclusion that the impairment substantially limits a major life activity. Thus,
the necessary individualized assessment of coverage premised on these types of
impairments should be particularly simple and straightforward. The purpose of
the “predictable assessments” provisions is to simplify consideration of those
disabilities that virtually always create substantial limitations to major life
activities, thus satisfying the statute’s directive to create clear, consistent,
and enforceable standards and ensuring that the inquiry of “whether an
individual’s impairment is a disability under the ADA should not demand
extensive analysis.” See Public Law 110–325, sec. 2(b)(1), (5)The impairments
identified in the predictable assessments provision are a non-exhaustive list of
examples of the kinds of disabilities that meet these criteria and, with one
exception, are consistent with the corresponding provision in the EEOC ADA
Amendments Act rule. See 29 CFR 1630.2(j)(3)(iii).26

The Department believes that the predictable assessments provisions comport with
the ADA Amendments Act’s emphasis on adopting a less burdensome and more
expansive definition of "disability." The provisions are rooted in the
application of the statutory changes to the meaning and interpretation of the
definition of "disability" contained in the ADA Amendments Act and flow from the
rules of construction set forth in §§ 35.108(a)(2)(i), 36.105(a)(2)(i),
35.108(c)(2)(i) and (ii), 36.105(c)(2)(i) and (ii). These rules of construction
and other specific provisions require the broad construction of the definition
of "disability" in favor of expansive coverage to the maximum extent permitted
by the terms of the ADA. In addition, they lower the standard to be applied to
“substantially limits,” making clear that an impairment need not prevent or
significantly restrict an individual from performing a major life activity;
clarify that major life activities include major bodily functions; elucidate
that impairments that are episodic or in remission are disabilities if they
would be substantially limiting when active; and incorporate the requirement
that the ameliorative effects of mitigating measures (other than ordinary
eyeglasses or contact lenses) must be disregarded in assessing whether an
individual has a disability.

Several organizations representing persons with disabilities and the elderly,
constituting the majority of commenters on these provisions, supported the
inclusion of the predictable assessments provisions. One commenter expressed
strong support for the provision and recommended that it closely track the
corresponding provision in the EEOC title I rule, while another noted its value
in streamlining individual assessments. In contrast, some commenters from
educational institutions and testing entities recommended the deletion of these
provisions, expressing concern that it implies the existence of “per se”
disabilities, contrary to congressional intent that each assertion of disability
should be considered on a case-by-case basis. The Department does not believe
that the predictable assessment provisions constitutes a “per se” list of
disabilities and will retain it. These provisions highlight, through a
non-exhaustive list, impairments that virtually always will be found to
substantially limit one or more major life activities. Such impairments still
warrant individualized assessments, but any such assessments should be
especially simple and straightforward.

The legislative history of the ADA Amendments Act supports the Department’s
approach in this area. In crafting the Act, Congress hewed to the ADA definition
of "disability", which was modeled on the definition of "disability" in the
Rehabilitation Act, and indicated that it wanted courts to interpret the
definition as it had originally been construed. See H.R. Rep. No. 110–730, pt.
2, at 6 (2008). Describing this goal, the legislative history states that courts
had interpreted the Rehabilitation Act definition “broadly to include persons
with a wide range of physical and mental impairments such as epilepsy, diabetes,
multiple sclerosis, and intellectual and developmental disabilities  … even
where a mitigating measure—like medication or a hearing aid—might lessen their
impact on the individual.”  Id.; see also id. at 9 (referring to individuals
with disabilities that had been covered under section 504 of the Rehabilitation
Act and that Congress intended to include under the ADA—“people with serious
health conditions like epilepsy, diabetes, cancer, cerebral palsy, multiple
sclerosis, intellectual and developmental disabilities”); id. at 6, n.6 (citing
cases also finding that cerebral palsy, hearing impairments, intellectual
disabilities, heart disease, and vision in only one eye were disabilities under
the Rehabilitation Act); id. at 10 (citing testimony from Rep. Steny H. Hoyer,
one of the original lead sponsors of the ADA in 1990, stating that “[w]e could
not have fathomed that people with diabetes, epilepsy, heart conditions, cancer,
mental illnesses and other disabilities would have their ADA claims denied
because they would be considered too functional to meet the definition of
"disability"”); 2008 Senate Statement of Managers at 3 (explaining that “we
[we]re faced with a situation in which physical or mental impairments that would
previously have been found to constitute disabilities [under the Rehabilitation
Act] [we]re not considered disabilities” and citing individuals with impairments
such as amputation, intellectual disabilities, epilepsy, multiple sclerosis,
diabetes, muscular dystrophy, and cancer as examples).

Some commenters asked the Department to add certain impairments to the
predictable assessments list, while others asked the Department to remove
certain impairments. Commenters representing educational and testing
institutions urged that, if the Department did not delete the predictable
assessment provisions, then the list should be modified to remove any
impairments that are not obvious or visible to third parties and those for which
functional limitations can change over time. One commenter cited to a pre-ADA
Amendments Act reasonable accommodations case, which included language regarding
the uncertainty facing employers in determining appropriate reasonable
accommodations when mental impairments often are not obvious and apparent to
employers. See Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 689 (8th
Cir. 1998). This commenter suggested that certain impairments, including autism,
depression, post-traumatic stress disorder, and obsessive-compulsive disorder,
should not be deemed predictable assessments because they are not immediately
apparent to third parties. The Department disagrees with this commenter, and
believes that it is appropriate to include these disabilities on the list of
predictable assessments. Many disabilities are less obvious or may be invisible,
such as cancer, diabetes, HIV infection, schizophrenia, intellectual
disabilities, and traumatic brain injury, as well as those identified by the
commenter. The likelihood that an impairment will substantially limit one or
more major life activities is unrelated to whether or not the disability is
immediately apparent to an outside observer. Therefore, the Department will
retain the examples that involve less apparent disabilities on the list of
predictable assessments.

The Department believes that the list accurately illustrates impairments that
virtually always will result in a substantial limitation of one or more major
life activities. The Department recognizes that impairments are not always
static and can result in different degrees of functional limitation at different
times, particularly when mitigating measures are used. However, the ADA as
amended anticipates variation in the extent to which impairments affect major
life activities, clarifying that impairments that are episodic or in remission
nonetheless are disabilities if they would be substantially limiting when active
and requiring the consideration of disabilities without regard to ameliorative
mitigating measures. The Department does not believe that limiting the scope of
its provisions addressing predictable assessments only to those disabilities
that would never vary in functional limitation would be appropriate.

Other commenters speaking as individuals or representing persons with
disabilities endorsed the inclusion of some impairments already on the list,
including traumatic brain injury, sought the inclusion of additional
impairments, requested revisions to some descriptions of impairments, or asked
for changes to the examples of major life activities linked to specific
impairments.

Several commenters requested the expansion of the predictable assessments list,
in particular to add specific learning disabilities. Some commenters pointed to
the ADA Amendments Act’s legislative history, which included Representative
Stark’s remarks that specific learning disabilities are “neurologically based
impairments that substantially limit the way these individuals perform major
life activities, like reading or learning, or the time it takes to perform such
activities.” 154 Cong. Rec. H8291 (daily ed. Sept. 17, 2008). Others recommended
that some specific types of specific learning disabilities, including dyslexia,
dyscalculia, dysgraphia, dyspraxia, and slowed processing speed should be
referenced as predictable assessments. With respect to the major life activities
affected by specific learning disabilities, commenters noted that specific
learning disabilities are neurologically based and substantially limit learning,
thinking, reading, communicating, and processing speed.  

Similarly, commenters recommended the inclusion of ADHD, urging that it
originates in the brain and affects executive function skills including
organizing, planning, paying attention, regulating emotions, and
self-monitoring. One commenter noted that if ADHD meets the criteria established
in the DSM-5, then it would consistently meet the criteria to establish
disability under the ADA. The same commenter noted that ADHD is brain based and
affects the major life activity of executive function. Another commenter
suggested that ADHD should be included and should be identified as limiting
brain function, learning, reading, concentrating, thinking, communicating,
interacting with others, and working. Other commenters urged the inclusion of
panic disorders, anxiety disorder, cognitive disorder, and post-concussive
disorder. A number of commenters noted that the exclusion of impairments from
the predictable assessments list could be seen as supporting an inference that
the impairments that are not mentioned should not easily be found to be
disabilities.

The Department determined that it will retain the language it proposed in the
NPRM and will not add or remove any impairments from this list. As discussed
above, the list is identical to the EEOC’s predictable assessments list, at
29 CFR 1630.2(g)(3)(iii), except that the Department’s NPRM added traumatic
brain injury. The Department received support for including traumatic brain
injury and did not receive any comments recommending the removal of traumatic
brain injury from the list; thus, we are retaining it in this final rule.

The Department’s decision to track the EEOC’s list, with one minor exception,
stems in part from our intent to satisfy the congressional mandate for “clear,
strong, consistent, enforceable standards.” A number of courts already have
productively applied the EEOC’s predictable assessments provision, and the
Department believes that it will continue to serve as a useful, common-sense
tool in promoting judicial efficiency. It is important to note, however, that
the failure to include any impairment in the list of examples of predictable
assessments does not indicate that that impairment should be subject to undue
scrutiny.

Some commenters expressed concern about the major life activities that the
Department attributed to particular impairments. Two commenters sought revision
of the major life activities attributed to intellectual disabilities, suggesting
that it would be more accurate to reference cognitive function and learning,
instead of reading, learning, and problem solving. One commenter recommended
attributing the major life activity of brain function to autism rather than
learning, social interaction, and communicating. The Department determined that
it will follow the EEOC’s model and, with respect to both intellectual
disabilities and autism, it will reference the major bodily function of brain
function. By using the term “brain function” to describe the system affected by
various mental impairments, the Department intends to capture functions such as
the brain’s ability to regulate thought processes and emotions.

The Department considers it important to reiterate that, just as the list of
impairments in these sections is not comprehensive, the list of major bodily
functions or other major life activities linked to those impairments are not
exhaustive. The impairments identified in these sections, may affect a wide
range of major bodily functions and other major life activities. The
Department’s specification of certain major life activities with respect to
particular impairments simply provides one avenue by which a person might elect
to demonstrate that he or she has a disability.

The Department recognizes that impairments listed in §§ 35.108(d)(2) and
36.105(d)(2) may substantially limit other major life activities in addition to
those listed in the regulation. For example, diabetes may substantially limit
major life activities including eating, sleeping, and thinking. Major depressive
disorder may substantially limit major life activities such as thinking,
concentrating, sleeping, and interacting with others. Multiple sclerosis may
substantially limit major life activities such as walking, bending, and lifting.

One commenter noted that the NPRM did not track the EEOC’s language with respect
to the manner in which it identified a major bodily function that is
substantially limited by epilepsy, muscular dystrophy, or multiple sclerosis in
29 CFR 1630.2(j)(3)(iii). While the EEOC listed each of these three impairments
individually, noting in each case that the major bodily function affected is
neurological function, at 29 CFR 1630.2(j)(3)(iii), the NPRM grouped the three
impairments and noted that they affect neurological function. In order to
clarify that each of the three impairments may manifest a substantial limitation
of neurological function, the final rule incorporates “each” immediately
following the list of the three impairments. Similarly, the Department added an
“each” to §§ 35.108(d)(2)(iii)(K) and 36.105(d)(2)(iii)(K) to make clear that
each of the listed impairments substantially limits brain function.

Some commenters representing testing entities and educational institutions
sought the insertion of language in the predictable assessment provisions that
would indicate that individuals found to have disabilities are not, by virtue of
a determination that they have a covered disability, eligible for a testing
accommodation or a reasonable modification. The Department agrees with these
commenters that the determination of disability is a distinct determination
separate from the determination of the need for a requested modification or a
testing accommodation. The Department declines to add the language suggested by
the commenters to §§ 35.108(d)(2) and 36.105(d)(2), however, because the
requirements for reasonable modifications are addressed separately in
§§ 35.130(b)(7) and 36.302 of the title II and III regulations and the
requirements related to providing appropriate accommodations in testing and
licensing are found at § 36.309.

Sections 35.108(d)(3) and 36.105(d)(3)—Condition, manner, or duration.

Overview. Proposed §§ 35.108(d)(3) and 36.105(d)(3), both titled “Condition,
manner[,] and duration,” addressed how evidence related to condition, manner, or
duration may be used to show how impairments substantially limit major life
activities. These principles were first addressed in the preamble to the 1991
rule. At that time, the Department noted that “[a] person is considered an
individual with a disability. . . when the individual’s important life
activities are restricted as to the conditions, manner, or duration under which
they can be performed in comparison to most people.” 56 FR 35544, 35549 (July
26, 1991); see also S. Rep. No. 101–116, at 23 (1989).

These concepts were affirmed by Congress  in the legislative history to the ADA
Amendments Act: “We particularly believe that this test, which articulated an
analysis that considered whether a person’s activities are limited in condition,
duration and manner, is a useful one. We reiterate that using the correct
standard—one that is lower than the strict or demanding standard created by the
Supreme Court in Toyota—will make the disability determination an appropriate
threshold issue but not an onerous burden for those seeking accommodations or
modifications. At the same time, plaintiffs should not be constrained from
offering evidence needed to establish that their impairment is substantially
limiting.”  154 Cong. Rec. S8346 (Sept. 11, 2008). Noting its continued reliance
on the functional approach to defining disability, Congress expressed its belief
that requiring consistency with the findings and purposes of the ADA Amendments
Act would “establish[] an appropriate functionality test for determining whether
an individual has a disability.” Id. While condition, manner, and duration are
not required factors that must be considered, the regulations clarify that these
are the types of factors that may be considered in appropriate cases. To the
extent that such factors may be useful or relevant to show a substantial
limitation in a particular fact pattern, some or all of them (and related facts)
may be considered, but evidence relating to each of these factors often will not
be necessary to establish coverage.

In the NPRM, proposed §§ 35.108(d)(3)(i) and 35.105(d)(3)(i) noted that the
rules of construction at §§ 35.108(d)(1) and 35.105(d)(1) should inform
consideration of how individuals are substantially limited in major life
activities. Sections 35.108(d)(3)(ii) and 36.105(d)(3)(ii) provided examples of
how restrictions on condition, manner, or duration might be interpreted and also
clarified that the negative or burdensome side effects of medication or other
mitigating measures may be considered when determining whether an individual has
a disability. In §§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii), the proposed
language set forth a requirement to focus on how a major life activity is
substantially limited, rather than on the ultimate outcome a person with an
impairment can achieve.

The Department received comments on the condition, manner, or duration provision
from advocacy groups for individuals with disabilities, from academia, from
education and testing entities, and from interested individuals. Several
advocacy organizations for individuals with disabilities and private individuals
noted that the section title’s heading was inconsistent with the regulatory text
and sought the replacement of the “and” in the section’s title, “Condition,
manner, and duration,” with an “or.” Commenters expressed concern that retaining
the “and” in the heading title would be inconsistent with congressional intent
and would incorrectly suggest that individuals are subject to a three-part test
and must demonstrate that an impairment substantially limits a major life
activity with respect to condition, manner, and duration. The Department agrees
that the “and” used in the title of the proposed regulatory provision could lead
to confusion and a misapplication of the law and has revised the title so it now
reads “Condition, manner, or duration.” Consistent with the regulatory text, the
revised heading makes clear that any one of the three descriptors—“condition,”
“manner,” or “duration”—may aid in demonstrating that an impairment
substantially limits a major life activity or a major bodily function.

Condition, manner, or duration.

In the NPRM, proposed §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) noted that the
application of the terms “condition” “manner,” or “duration” should at all times
take into account the principles in § 35.108(d)(1) and § 36.105(d)(1),
respectively, which referred to the rules of construction for “substantially
limited.”  The proposed regulatory text also included brief explanations of the
meaning of the core terms, clarifying that in appropriate cases, it could be
useful to consider, in comparison to most people in the general population, the
conditions under which an individual performs a major life activity; the manner
in which an individual performs a major life activity; or the time it takes an
individual to perform a major life activity, or for which the individual can
perform a major life activity.

Several disability rights advocacy groups and individuals supported the NPRM
approach, with some referencing the value of pointing to the rules of
construction and their relevance to condition, manner, or duration
considerations. Some commenters noted that it was helpful to highlight
congressional intent that the definition of "disability" should be broadly
construed and not subject to extensive analysis. Another commenter recommended
introducing a clarification that, while the limitation imposed by an impairment
must be important, it does not need to rise to the level of severely or
significantly restricting the ability to perform a major life activity. Some
commenters sought additional guidance regarding the meaning of the terms
“condition,” “manner,” and “duration” and recommended the addition of more
illustrative examples.

In response to commenters’ concerns, the Department has modified the regulatory
text in §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) to reference all of the rules of
construction rather than only those pertaining to “substantially limited.” The
Department also added §§ 35.108(d)(3)(iv) and 36.105(d)(3)(iv), further
discussed below, to clarify that the rules of construction will not always
require analysis of condition, manner, or duration, particularly with respect to
certain impairments, such as those referenced in paragraph (d)(2)(iii)
(predictable assessments). With these changes, the Department believes that the
final rule more accurately reflects congressional intent. The Department also
believes that clarifying the application of the rules of construction to
condition, manner, or duration will contribute to consistent interpretation of
the definition of "disability" and reduce inadvertent reliance on older cases
that incorporate demanding standards rejected by Congress in the ADA Amendments
Act.

It is the Department’s view that the rules of construction offer substantial
guidance about how condition, manner, or duration must be interpreted so as to
ensure the expansive coverage intended by Congress. Except for this
clarification, the Department did not receive comments opposing the proposed
regulatory text on condition, manner, or duration in §§ 35.108(d)(3)(i) and
36.105(d)(3)(i) and did not make any other changes to these provisions.

Some commenters objected to language in the preamble to the NPRM which suggested
that there might be circumstances in which the consideration of condition,
manner, or duration might not include comparisons to most people in the general
population. On reconsideration, the Department recognizes that this discussion
could create confusion about the requirements. The Department believes that
condition, manner, or duration determinations should be drawn in contrast to
most people in the general population, as is indicated in the related rules of
construction, at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v).

Condition, manner, or duration examples, including negative effects of
mitigating measures.

Proposed §§ 35.108(d)(3)(ii) and 36.105(d)(3)(ii) set forth examples of the
types of evidence that might demonstrate condition, manner, or duration
limitations, including the way an impairment affects the operation of a major
bodily function, the difficulty or effort required to perform a major life
activity, the pain experienced when performing a major life activity, and the
length of time it takes to perform a major life activity. These provisions also
clarified that the non-ameliorative effects of mitigating measures may be taken
into account to demonstrate the impact of an impairment on a major life
activity. The Department’s discussion in the NPRM preamble noted that such
non-ameliorative effects could include negative side effects of medicine,
burdens associated with following a particular treatment regimen, and
complications that arise from surgery, among others. The preamble also provided
further clarification of the possible applications of condition, manner, or
duration analyses, along with several examples.

Several commenters supported the proposed rule’s incorporation of language and
examples offering insight into the varied ways that limitations on condition,
manner, or duration could demonstrate substantial limitation. One commenter
positively noted that the language regarding the “difficulty, effort, or time
required to perform a major life activity” could prove extremely helpful to
individuals asserting a need for testing accommodations, as evidence previously
presented regarding these factors was deemed insufficient to demonstrate the
existence of a disability. Some commenters requested the insertion of additional
examples and explanation in the preamble about how condition, manner or duration
principles could be applied under the new rules of construction. Another
commenter sought guidance on the specific reference points that should be used
when drawing comparisons with most people in the general population. The
commenter offered the example of delays in developmental milestones as a
possible referent in evaluating children with speech-language disorders, but
noted a lack of guidance regarding comparable referents for adults. The
commenter also noted that guidance is needed regarding what average or
acceptable duration might be with respect to certain activities. An academic
commenter expressed support for the Department’s reference to individuals with
learning impairments using certain self-mitigating measures, such as extra time
to study or taking an examination in a different format, and the relevance of
these measures to condition, manner, and duration.

The Department did not receive comments opposing the NPRM language on condition,
manner, or duration in §§ 35.108(d)(3)(ii) and 36.105(d)(3)(ii) and is not
making any changes to this language. The Department agrees that further
explanation and examples as provided below regarding the concepts of condition,
manner, or duration will help clarify how the ADA Amendments Act has expanded
the definition of “disability.”

An impairment may substantially limit the “condition” or “manner” in which a
major life activity can be performed in a number of different ways. For example,
the condition or manner in which a major life activity can be performed may
refer to how an individual performs a major life activity; e.g., the condition
or manner under which a person with an amputated hand performs manual tasks will
likely be more cumbersome than the way that most people in the general
population would perform the same tasks. Condition or manner also may describe
how performance of a major life activity affects an individual with an
impairment. For example, an individual whose impairment causes pain or fatigue
that most people would not experience when performing that major life activity
may be substantially limited. Thus, the condition or manner under which someone
with coronary artery disease performs the major life activity of walking would
be substantially limited if the individual experiences shortness of breath and
fatigue when walking distances that most people could walk without experiencing
such effects. An individual with specific learning disabilities may need to
approach reading or writing in a distinct manner or under different conditions
than most people in the general population, possibly employing aids including
verbalizing, visualizing, decoding or phonology, such that the effort required
could support a determination that the individual is substantially limited in
the major life activity of reading or writing.

Condition or manner may refer to the extent to which a major life activity,
including a major bodily function, can be performed. In some cases, the
condition or manner under which a major bodily function can be performed may be
substantially limited when the impairment “causes the operation [of the bodily
function] to over-produce or under-produce in some harmful fashion.” See H.R.
Rep. No. 110–730, pt. 2, at 17 (2008). For example, the endocrine system of a
person with type I diabetes does not produce sufficient insulin. For that
reason, compared to most people in the general population, the impairment of
diabetes substantially limits the major bodily functions of endocrine function
and digestion. Traumatic brain injury substantially limits the condition or
manner in which an individual’s brain functions by impeding memory and causing
headaches, confusion, or fatigue—each of which could constitute a substantial
limitation on the major bodily function of brain function.

“Duration” refers to the length of time an individual can perform a major life
activity or the length of time it takes an individual to perform a major life
activity, as compared to most people in the general population. For example, a
person whose back or leg impairment precludes him or her from standing for more
than two hours without significant pain would be substantially limited in
standing, because most people can stand for more than two hours without
significant pain. However, “[a] person who can walk for 10 miles continuously is
not substantially limited in walking merely because on the eleventh mile, he or
she begins to experience pain because most people would not be able to walk
eleven miles without experiencing some discomfort.” See 154 Cong. Rec. S8842
(daily ed. Sept. 16, 2008) (Statement of the Managers) (quoting S. Rep. No.
101–116, at 23 (1989)). Some impairments, such as ADHD, may have two different
types of impact on duration considerations. ADHD frequently affects both an
ability to sustain focus for an extended period of time and the speed with which
someone can process information. Each of these duration-related concerns could
demonstrate that someone with ADHD, as compared to most people in the general
population, takes longer to complete major life activities such as reading,
writing, concentrating, or learning.

The Department reiterates that, because the limitations created by certain
impairments are readily apparent, it would not be necessary in such cases to
assess the negative side effects of a mitigating measure in determining that a
particular impairment substantially limits a major life activity. For example,
there likely would be no need to consider the burden that dialysis treatment
imposes for someone with end-stage renal disease because the impairment would
allow a simple and straightforward determination that the individual is
substantially limited in kidney function.

One commenter representing people with disabilities asked the Department to
recognize that, particularly with respect to learning disabilities, on some
occasions the facts related to condition, manner, or duration necessary to reach
a diagnosis of a learning disability also are sufficient to establish that the
affected individual has a disability under the ADA. The Department agrees that
the facts gathered to establish a diagnosis of an impairment may simultaneously
satisfy the requirements for demonstrating limitations on condition, manner, or
duration sufficient to show that the impairment constitutes a disability.

Emphasis on Limitations Instead of Outcomes.

In passing the ADA Amendments Act, Congress clarified that courts had
misinterpreted the ADA definition of "disability" by, among other things,
inappropriately emphasizing the capabilities of people with disabilities to
achieve certain outcomes. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008)
(Statement of the Managers). For example, someone with a learning disability may
achieve a high level of academic success, but may nevertheless be substantially
limited in one or more of the major life activities of reading, writing,
speaking, or learning because of the additional time or effort he or she must
spend to read, speak, write, or learn compared to most people in the general
population. As the House Education and Labor Committee Report emphasized:

[S]ome courts have found that students who have reached a high level of academic
achievement are not to be considered individuals with disabilities under the
ADA, as such individuals may have difficulty demonstrating substantial
limitation in the major life activities of learning or reading relative to “most
people.” When considering the condition, manner or duration in which an
individual with a specific learning disability performs a major life activity,
it is critical to reject the assumption that an individual who performs well
academically or otherwise cannot be substantially limited in activities such as
learning, reading, writing, thinking, or speaking. As such, the Committee
rejects the findings in Price v. National Board of Medical Examiners, Gonzales
v. National Board of Medical Examiners, and Wong v. Regents of University of
California.

The Committee believes that the comparison of individuals with specific learning
disabilities to “most people” is not problematic unto itself, but requires a
careful analysis of the method and manner in which an individual’s impairment
limits a major life activity. For the majority of the population, the basic
mechanics of reading and writing do not pose extraordinary lifelong challenges;
rather, recognizing and forming letters and words are effortless, unconscious,
automatic processes. Because specific learning disabilities are
neurologically-based impairments, the process of reading for an individual with
a reading disability (e.g. dyslexia) is word-by-word, and otherwise cumbersome,
painful, deliberate and slow—throughout life. The Committee expects that
individuals with specific learning disabilities that substantially limit a major
life activity will be better protected under the amended Act.

H.R. Rep. No. 110–730 pt. 1, at 10–11 (2008).

Sections 35.108(d)(3)(iii) and 36.105(d)(3)(iii) of the proposed rule reflected
congressional intent and made clear that the outcome an individual with a
disability is able to achieve is not determinative of whether an individual is
substantially limited in a major life activity. Instead, an individual can
demonstrate the extent to which an impairment affects the condition, manner, or
duration in which the individual performs a major life activity, such that it
constitutes a substantial limitation. The ultimate outcome of an individual’s
efforts should not undermine a claim of disability, even if the individual
ultimately is able to achieve the same or similar result as someone without the
impairment.

The Department received several comments on these provisions, with disability
organizations and individuals supporting the inclusion of these provisions and
some testing entities and an organization representing educational institutions
opposing them. The opponents argued that academic performance and testing
outcomes are objective evidence that contradict findings of disability and that
covered entities must be able to focus on those outcomes in order to demonstrate
whether an impairment has contributed to a substantial limitation. These
commenters argued that the evidence frequently offered by those making claims of
disability that demonstrate the time or effort required to achieve a result,
such as evidence of self-mitigating measures, informal accommodations, or
recently provided reasonable modifications, is inherently subjective and
unreliable. The testing entities suggested that the Department had indicated
support for their interest in focusing on outcomes over process-related
obstacles in the NPRM preamble language where the Department had noted that
covered entities “may defeat a showing of substantial limitation by refuting
whatever evidence the individual seeking coverage has offered, or by offering
evidence that shows that an impairment does not impose a substantial limitation
on a major life activity.” NPRM, 79 FR 4839, 4847–48 (Jan. 30, 2014). The
commenters representing educational institutions and testing entities urged the
removal of §§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii) or, in the alternative,
the insertion of language indicating that outcomes, such as grades and test
scores indicating academic success, are relevant evidence that should be
considered when making disability determinations.

In contrast, commenters representing persons with disabilities and individual
commenters expressed strong support for these provisions, noting that what an
individual can accomplish despite an impairment does not accurately reflect the
obstacles an individual had to overcome because of the impairment. One
organization representing persons with disabilities noted that while individuals
with disabilities have achieved successes at work, in academia, and in other
settings, their successes should not create obstacles to addressing what they
can do “in spite of an impairment.” Commenters also expressed concerns that
testing entities and educational institutions had failed to comply with the
rules of construction or to revise prior policies and practices to comport with
the new standards under the ADA as amended. Some commenters asserted that
testing entities improperly rejected accommodation requests because the testing
entities focused on test scores and outcomes rather than on how individuals
learn; required severe levels of impairment; failed to disregard the helpful
effect of self-mitigating measures; referenced participation in extracurricular
activities as evidence that individuals did not have disabilities; and argued
that individuals diagnosed with specific learning disabilities or ADHD in
adulthood cannot demonstrate that they have a disability because their diagnosis
occurred too late.

Commenters representing persons with disabilities pointed to the discussion in
the legislative history about restoring a focus on process rather than outcomes
with respect to learning disabilities. They suggested that such a shift in focus
also would be helpful in evaluating ADHD. One commenter asked the Department to
include a reference to ADHD and to explain that persons with ADHD may achieve a
high level of academic success but may nevertheless be substantially limited in
one or more major life activities, such as reading, writing, speaking,
concentrating, or learning. A private citizen requested the addition of examples
demonstrating the application of these provisions because, in the commenter’s
view, there have been many problems with decisions regarding individuals with
learning disabilities and an inappropriate focus on outcomes and test scores.

The Department declines the request to add a specific reference to ADHD in these
provisions. The Department believes that the principles discussed above apply
equally to persons with ADHD as well as individuals with other impairments. The
provision already references an illustrative, but not exclusive, example of an
individual with a learning disability. The Department believes that this example
effectively illustrates the concern that has affected individuals with other
impairments due to an inappropriate emphasis on outcomes rather than how a major
life activity is limited.

Organizations representing testing and educational entities asked the Department
to add regulatory language indicating that testing-related outcomes, such as
grades and test scores, are relevant to disability determinations under the ADA.
The Department has considered this proposal and declines to adopt it because it
is inconsistent with congressional intent. As discussed earlier in this section,
Congress specifically stated that the outcome an individual with a disability is
able to achieve is not determinative of whether that individual has a physical
or mental impairment that substantially limits a major life activity. The
analysis of whether an individual with an impairment has a disability is a
fact-driven analysis shaped by how an impairment has substantially limited one
or more major life activities or major bodily functions, considering those
specifically asserted by the individual as well as any others that may apply.
For example, if an individual with ADHD seeking a reasonable modification or a
testing accommodation asserts substantial limitations in the major life
activities of concentrating and reading, then the analysis of whether or not
that individual has a covered disability will necessarily focus on concentrating
and reading. Relevant considerations could include restrictions on the
conditions, manner, or duration in which the individual concentrates or reads,
such as a need for a non-stimulating environment or extensive time required to
read. Even if an individual has asserted that an impairment creates substantial
limitations on activities such as reading, writing, or concentrating, the
individual’s academic record or prior standardized testing results might not be
relevant to the inquiry. Instead, the individual could show substantial
limitations by providing evidence of condition, manner, or duration limitations,
such as the need for a reader or additional time. The Department does not
believe that the testing results or grades of an individual seeking reasonable
modifications or testing accommodations always would be relevant to
determinations of disability. While testing and educational entities may, of
course, put forward any evidence that they deem pertinent to their response to
an assertion of substantial limitation, testing results and grades may be of
only limited relevance.

In addition, the Department does not agree with the assertions made by testing
and educational entities that evidence of testing and grades is objective and,
therefore, should be weighted more heavily, while evidence of self-mitigating
measures, informal accommodations, or recently provided accommodations or
modifications is inherently subjective and should be afforded less
consideration. Congress’s discussion of the relevance of testing outcomes and
grades clearly indicates that it did not consider them definitive evidence of
the existence or non-existence of a disability. While tests and grades typically
are numerical measures of performance, the capacity to quantify them does not
make them inherently more valuable with respect to proving or disproving
disability. To the contrary, Congress’s incorporation of rules of construction
emphasizing broad coverage of disabilities to the maximum extent permitted, its
direction that such determinations should neither contemplate ameliorative
mitigating measures nor demand extensive analysis, and its recognition of
learned and adaptive modifications all support its openness for individuals with
impairments to put forward a wide range of evidence to demonstrate their
disabilities.

The Department believes that Congress made its intention clear that the ADA’s
protections should encompass people for whom the nature of their impairment
requires an assessment that focuses on how they engage in major life activities,
rather than the ultimate outcome of those activities. Beyond directly addressing
this concern in the debate over the ADA Amendments Act, Congress’s incorporation
of the far-reaching rules of construction, its explicit rejection of the
consideration of ameliorative mitigating measures—including “learned behavioral
or adaptive neurological modifications,” 42 U.S.C. 12102(4)(E)(i)(IV), such as
those often employed by individuals with learning disabilities or ADHD—and its
stated intention to “reinstat[e] a broad scope of protection to be available
under the ADA,” Public Law 110–325, sec. 2(b)(1), all support the language
initially proposed in these provisions. For these reasons, the Department
determined that it will retain the language of these provisions as they were
originally drafted.

Analysis of condition, manner, or duration not always required.

As noted in the discussion above, the Department has added §§ 35.108(d)(3)(iv)
and 36.105(d)(3)(iv) in the final rule to clarify that analysis of condition,
manner, or duration will not always be necessary, particularly with respect to
certain impairments that can easily be found to substantially limit a major life
activity. This language is also found in the EEOC ADA title I regulation. See
29 CFR 1630(j)(4)(iv). As noted earlier, the inclusion of these provisions
addresses several comments from organizations representing persons with
disabilities. This language also responds to several commenters’ concerns that
the Department should clarify that, in some cases and particularly with respect
to predictable assessments, no or only a very limited analysis of condition,
manner, or duration is necessary.

At the same time, individuals seeking coverage under the first or second prong
of the definition of “disability” should not be constrained from offering
evidence needed to establish that their impairment is substantially limiting.
See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers).
Such evidence may comprise facts related to condition, manner, or duration. And,
covered entities may defeat a showing of substantial limitation by refuting
whatever evidence the individual seeking coverage has offered, or by offering
evidence that shows that an impairment does not impose a substantial limitation
on a major life activity. However, a showing of substantial limitation is not
defeated by facts unrelated to condition, manner, or duration that are not
pertinent to the substantial limitation of a major life activity that the
individual has proffered.

Sections 35.108(d)(4) and 36.105(d)(4)—Examples of mitigating measures.

The rules of construction set forth at §§ 35.108(d)(1)(viii) and
36.105(d)(1)(viii) of the final rule make clear that  the ameliorative effects
of mitigating measures shall not be considered when determining whether an
impairment substantially limits a major life activity.  In the NPRM, proposed
§§ 35.108(d)(4) and 36.105(d)(4) provided a non-inclusive list of mitigating
measures, which includes medication, medical supplies, equipment, appliances,
low-vision devices, prosthetics, hearing aids, cochlear implants and implantable
hearing devices, mobility devices, oxygen therapy equipment, and assistive
technology.  In addition, the proposed regulation clarified that mitigating
measures can include “learned behavioral or adaptive neurological
modifications,” psychotherapy, behavioral therapy, or physical therapy, and
“reasonable modifications” or auxiliary aids and services.

The phrase “learned behavioral or adaptive neurological modifications,” is
intended to include strategies developed by an individual to lessen the impact
of an impairment. The phrase “reasonable modifications” is intended to include
informal or undocumented accommodations and modifications as well as those
provided through a formal process.

The ADA as amended specifies one exception to the rule on mitigating measures,
stating that the ameliorative effects of ordinary eyeglasses and contact lenses
shall be considered in determining whether a person has an impairment that
substantially limits a major life activity and thereby is a person with a
disability. 42 U.S.C. 12102(4)(E)(ii). As discussed above, §§ 35.108(d)(4)(i)
and 36.105(d)(4)(i) incorporate this exception by excluding ordinary eyeglasses
and contact lenses from the definition of “low-vision devices,” which are
mitigating measures that may not be considered in determining whether an
impairment is a substantial limitation.

The Department received a number of comments supporting the Department’s
language in these sections and its broad range of examples of what constitutes a
mitigating measure. Commenters representing students with disabilities
specifically supported the inclusion of “learned behavioral or adaptive
neurological modifications,” noting that the section “appropriately supports and
highlights that students [and individuals in other settings] may have developed
self-imposed ways to support their disability in order to perform major life
activities required of daily life and that such measures cannot be used to find
that the person is not substantially limited.”

The Department notes that self-mitigating measures or undocumented modifications
or accommodations for students who have impairments that substantially limit
learning, reading, writing, speaking, or concentrating may include such measures
as arranging to have multiple reminders for task completion; seeking help from
others to provide reminders or to assist with the organization of tasks;
selecting courses strategically (such as selecting courses that require papers
instead of exams); devoting a far larger portion of the day, weekends, and
holidays to study than students without disabilities; teaching oneself
strategies to facilitate reading connected text or mnemonics to remember facts
(including strategies such as highlighting and margin noting); being permitted
extra time to complete tests; receiving modified homework assignments; or taking
exams in a different format or in a less stressful or anxiety-provoking setting.
Each of these mitigating measures, whether formal or informal, documented or
undocumented, can improve the academic function of a student having to deal with
a substantial limitation in a major life activity such as concentrating,
reading, speaking, learning, or writing. However, when the determination of
disability is made without considering the ameliorative effects of these
measures, as required under the ADA as amended, these individuals still have a
substantial limitation in major life activities and are covered by the ADA. See
also discussion of §§ 35.108(d)(1) and 36.105(d)(1), above.

Some commenters argued that the Department’s examples of mitigating measures
inappropriately include normal learning strategies and asked that the Department
withdraw or narrow its discussion of self-mitigating measures. The Department
disagrees. Narrowing the discussion of self-mitigating measures to exclude
normal or common strategies would not be consistent with the ADA Amendments Act.
The Department construes learned behavioral or adaptive neurological
modifications broadly to include strategies applied or utilized by an individual
with a disability to lessen the effect of an impairment; whether the strategy
applied is normal or common to students without disabilities is not relevant to
whether an individual with a disability’s application of the strategy lessens
the effect of an impairment.

An additional commenter asked the Department to add language to the regulation
and preamble addressing mitigating measures an individual with ADHD may employ.
This commenter noted that “[a]n individual with ADHD may employ a wide variety
of self-mitigating measures, such as exertion of extensive extra effort, use of
multiple reminders, whether low tech or high tech, seeking a quiet or
distraction free place or environment to do required activities.” The Department
agrees with this commenter that these are examples of the type of
self-mitigating measures used by individuals with ADHD, but believes that they
fall within the range of mitigating measures already addressed by the regulatory
language.

Another commenter asked the Department to add language to the regulation or
preamble addressing surgical interventions in a similar fashion to the approach
taken in the EEOC’s title I preamble, 76 FR 16978, 16983 (Mar. 25, 2011). There,
the EEOC noted that a surgical intervention may be an ameliorative mitigating
measure that could result in the permanent elimination of an impairment, but it
also indicated that confusion about how this example might apply recommended
against its inclusion in the regulatory text. Therefore, the EEOC eliminated
that example from the draft regulatory text and recommended that,
“[d]eterminations about whether surgical interventions should be taken into
consideration when assessing whether an individual has a disability are better
assessed on a case-by-case basis.” The Department agrees with the EEOC and
underscores that surgical interventions may constitute mitigating measures that
should not be considered in determining whether an individual meets the
definition of "disability." The Department declines to make any changes to its
proposed regulatory text for these sections of the final rule.

The ADA Amendments Act provides an “illustrative but non-comprehensive list of
the types of mitigating measures that are not to be considered.” 154 Cong. Rec.
S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers) at 9; see also H.R.
Rep. No. 110–730, pt. 2, at 20 (2008). The absence of any particular mitigating
measure should not convey a negative implication as to whether the measure is a
mitigating measure under the ADA. Id. This principle applies equally to the
non-exhaustive list in §§ 35.108(d)(4) and 36.105(d)(4).

Sections 35.108(e) and 36.105(e)—Has a record of such an impairment.

The second prong of the definition of "disability" under the ADA provides that
an individual with a record of an impairment that substantially limits or
limited a major life activity is an individual with a disability.
42 U.S.C. 12102(1)(B).

Paragraph (3) of the definition of “disability” in the existing title II and
title III regulations states that the phrase “has a record of such an
impairment” means has a history of, or has been misclassified as having, a
mental or physical impairment that substantially limits one or more major life
activities.  28 CFR 35.104, 36.104. The NPRM proposed keeping the language in
the title II and title III regulations (with minor editorial changes) but to
renumber it as §§ 35.108(e)(1) and 36.105(e)(1).  In addition, the NPRM proposed
adding a new second paragraph stating that any individual’s assertion of a
record of impairment that substantially limits a major life activity should be
broadly construed to the maximum extent permitted by the ADA and should not
require extensive analysis. If an individual has a history of an impairment that
substantially limited one or more major life activities when compared to most
people in the general population or was misclassified as having had such an
impairment, then that individual will satisfy the third prong of the definition
of “disability.”  The NPRM also proposed adding paragraph (3), which provides
that “[a]n individual with a record of a substantially limiting impairment may
be entitled to a reasonable modification if needed and related to the past
disability.”

The Department received no comments objecting to its proposed language for these
provisions and has retained it in the final rule. The Department received one
comment requesting additional guidance on the meaning of these provisions. The
Department notes that Congress intended this prong of the definition of
"disability" to ensure that people are not discriminated against based on prior
medical history. This prong is also intended to ensure that individuals are not
discriminated against because they have been misclassified as an individual with
a disability. For example, individuals misclassified as having learning
disabilities or intellectual disabilities are protected from discrimination on
the basis of that erroneous classification. See H.R. Rep. No. 110–730, pt. 2, at
7–8 & n.14 (2008).

This prong of the definition is satisfied where evidence establishes that an
individual has had a substantially limiting impairment. The impairment indicated
in the record must be an impairment that would substantially limit one or more
of the individual’s major life activities. The terms “substantially limits” and
“major life activity” under the second prong of the definition of “disability”
are to be construed in accordance with the same principles applicable under the
“actual disability” prong, as set forth in §§ 35.108(b) and 36.105(b).

There are many types of records that could potentially contain this information,
including but not limited to, education, medical, or employment records. The
Department notes that past history of an impairment need not be reflected in a
specific document. Any evidence that an individual has a past history of an
impairment that substantially limited a major life activity is all that is
necessary to establish coverage under the second prong. An individual may have a
“record of” a substantially limiting impairment—and thus establish coverage
under the “record of” prong of the statute—even if a covered entity does not
specifically know about the relevant record. For the covered entity to be liable
for discrimination under the ADA, however, the individual with a “record of” a
substantially limiting impairment must prove that the covered entity
discriminated on the basis of the record of the disability.

Individuals who are covered under the “record of” prong may be covered under the
first prong of the definition of "disability" as well. This is because the rules
of construction in the ADA Amendments Act and the Department’s regulations
provide that an individual with an impairment that is episodic or in remission
can be protected under the first prong if the impairment would be substantially
limiting when active.  See §§ 35.108(d)(1)(iv); 36.105(d)(1)(iv). Thus, an
individual who has cancer that is currently in remission is an individual with a
disability under the “actual disability” prong because he has an impairment that
would substantially limit normal cell growth when active. He is also covered by
the “record of” prong based on his history of having had an impairment that
substantially limited normal cell growth.

Finally, these provisions of the regulations clarify that an individual with a
record of a disability is entitled to a reasonable modification currently needed
relating to the past substantially limiting impairment. In the legislative
history, Congress stated that reasonable modifications were available to persons
covered under the second prong of the definition. See H.R. Rep. No. 110–730, pt.
2, at 22 (2008) (“This makes clear that the duty to accommodate … arises only
when an individual establishes coverage under the first or second prong of the
definition.”). For example, a high school student with an impairment that
previously substantially limited, but no longer substantially limits, a major
life activity may need permission to miss a class or have a schedule change as a
reasonable modification that would permit him or her to attend follow-up or
monitoring appointments from a health care provider.

Sections 35.108(f) and 36.105(f)—Is regarded as having such an impairment.

The “regarded as having such an impairment” prong of the definition of
“disability” was included in the ADA specifically to protect individuals who
might not meet the first two prongs of the definition, but who were subject to
adverse decisions by covered entities based upon unfounded concerns, mistaken
beliefs, fears, myths, or prejudices about persons with disabilities. See 154
Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). The
rationale for the “regarded as” part of the definition of “disability” was
articulated by the Supreme Court in the context of section 504 of the
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 480 U.S.
273 (1987). In Arline, the Court noted that, although an individual may have an
impairment that does not diminish his or her physical or mental capabilities, it
could “nevertheless substantially limit that person’s ability to work as a
result of the negative reactions of others to the impairment.” Id. at 283. Thus,
individuals seeking the protection of the ADA under the “regarded as” prong only
had to show that a covered entity took some action prohibited by the statute
because of an actual or perceived impairment. At the time of the Arline
decision, there was no requirement that the individual demonstrate that he or
she, in fact, had or was perceived to have an impairment that substantially
limited a major life activity. See 154 Cong. Rec. S8842 (daily ed. Sept. 16,
2008) (Statement of the Managers). For example, if a daycare center refused to
admit a child with burn scars because of the presence of the scars, then the
daycare center regarded the child as an individual with a disability, regardless
of whether the child’s scars substantially limited a major life activity.

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court
significantly narrowed the application of this prong, holding that individuals
who asserted coverage under the “regarded as having such an impairment” prong
had to establish either that the covered entity mistakenly believed that the
individual had a physical or mental impairment that substantially limited a
major life activity, or that the covered entity mistakenly believed that “an
actual, nonlimiting impairment substantially limit[ed]” a major life activity,
when in fact the impairment was not so limiting. Id. at 489. Congress expressly
rejected this standard in the ADA Amendments Act by amending the ADA to clarify
that it is sufficient for an individual to establish that the covered entity
regarded him or her as having an impairment, regardless of whether the
individual actually has the impairment or whether the impairment constitutes a
disability under the Act. 42 U.S.C. 12102(3)(A). This amendment restores
Congress’s intent to allow individuals to establish coverage under the “regarded
as” prong by showing that they were treated adversely because of an actual or
perceived impairment without having to establish the covered entity’s beliefs
concerning the severity of the impairment. See H.R. Rep. No. 110–730, pt. 2, at
18 (2008).

Thus, under the ADA as amended, it is not necessary, as it was prior to the ADA
Amendments Act and following the Supreme Court’s decision in Sutton, for an
individual to demonstrate that a covered entity perceived him as substantially
limited in the ability to perform a major life activity in order for the
individual to establish that he or she is covered under the “regarded as” prong.
Nor is it necessary to demonstrate that the impairment relied on by a covered
entity is (in the case of an actual impairment) or would be (in the case of a
perceived impairment) substantially limiting for an individual to be “regarded
as having such an impairment.” In short, to be covered under the “regarded as”
prong, an individual is not subject to any functional test. See 154 Cong. Rec.
S8843 (daily ed. Sept. 16, 2008) (Statement of the Managers) (“The functional
limitation imposed by an impairment is irrelevant to the third ‘regarded as’
prong.”); H.R. Rep. No. 110–730, pt. 2, at 17 (2008) (“[T]he individual is not
required to show that the perceived impairment limits performance of a major
life activity.”) The concepts of “major life activities” and “substantial
limitation” simply are not relevant in evaluating whether an individual is
“regarded as having such an impairment.”

In the NPRM, the Department proposed §§ 35.108(f)(1) and 36.105(f)(1), which are
intended to restore the meaning of the “regarded as” prong of the definition of
“disability” by adding language that incorporates the amended statutory
provision: “An individual is ‘regarded as having such an impairment’ if the
individual is subjected to an action prohibited by the ADA because of an actual
or perceived physical or mental impairment, whether or not that impairment
substantially limits, or is perceived to substantially limit, a major life
activity, except for an impairment that is both transitory and minor.”

The proposed provisions also incorporate the statutory definition of transitory
impairment, stating that a “transitory impairment is an impairment with an
actual or expected duration of six months or less.” The “transitory and minor”
exception was not in the third prong in the original statutory definition of
"disability." Congress added this exception to address concerns raised by the
business community that “absent this exception, the third prong of the
definition would have covered individuals who are regarded as having common
ailments like the cold or flu.” See H.R. Rep. No. 110–730, pt. 2, at 18 (2008).
However, as an exception to the general rule for broad coverage under the
“regarded as” prong, this limitation on coverage should be construed narrowly.
Id. The ADA Amendments Act did not define “minor.”

In addition, proposed §§ 35.108(f)(2) and 36.105(f)(2) stated that any time a
public entity or covered entity takes a prohibited action because of an
individual’s actual or perceived impairment, even if the entity asserts, or may
or does ultimately establish, a defense to such action, that individual is
“regarded as” having such an impairment.  Commenters on these provisions
recommended that the Department revise its language to clarify that the
determination of whether an impairment is in fact “transitory and minor” is an
objective determination and that a covered entity may not defeat “regarded as”
coverage of an individual simply by demonstrating that it subjectively believed
that the impairment is transitory and minor. In addition, a number of commenters
cited the EEOC title I rule at 29 CFR 1630.15(f) and asked the Department to
clarify that “the issue of whether an actual or perceived impairment is
‘transitory and minor’ is an affirmative defense and not part of the plaintiff’s
burden of proof.” The Department agrees with these commenters and has revised
paragraphs (1) and (2) of these sections for clarity, as shown in
§§ 35.108(f)(2) and 36.105(f)(2) of the final rule.

The revised language makes clear that the relevant inquiry under these sections
is whether the actual or perceived impairment that is the basis of the covered
entity’s action is objectively “transitory and minor,” not whether the covered
entity claims it subjectively believed the impairment was transitory and minor.
For example, a private school that expelled a student whom it believes has
bipolar disorder cannot take advantage of this exception by asserting that it
believed the student’s impairment was transitory and minor, because bipolar
disorder is not objectively transitory and minor. Similarly, a public swimming
pool that refused to admit an individual with a skin rash, mistakenly believing
the rash to be symptomatic of HIV, will have “regarded” the individual as having
a disability. It is not a defense to coverage that the skin rash was objectively
transitory and minor because the covered entity took the prohibited action based
on a perceived impairment, HIV, that is not transitory and minor.

The revised regulatory text also makes clear that the “transitory and minor”
exception to a “regarded as” claim is a defense to a claim of discrimination and
not part of an individual’s prima facie case. The Department reiterates that to
fall within this exception, the actual or perceived impairment must be both
transitory (less than six months in duration) and minor. For example, an
individual with a minor back injury could be “regarded as” an individual with a
disability if the back impairment lasted or was anticipated to last more than
six months.  The Department notes that the revised regulatory text is consistent
with the EEOC rule which added the transitory and minor exception to its general
affirmative defense provision in its title I ADA regulation at
29 CFR 1630.15(f). Finally, in the NPRM, the Department proposed §§ 35.108(f)(3)
and 36.105(f)(3) which provided that an individual who is “regarded as having
such an impairment” does not establish liability based on that alone. Instead,
an individual can establish liability only when an individual proves that a
private entity or covered entity discriminated on the basis of disability within
the meaning of the ADA. This provision was intended to make it clear that in
order to establish liability, an individual must establish coverage as a person
with a disability, as well as establish that he or she had been subjected to an
action prohibited by the ADA.

The Department received no comments on the language in these paragraphs. Upon
consideration, in the final rule, the Department has decided to retain the
regulatory text for §§ 35.108(f)(3) and 36.105(f)(3) except that the reference
to “covered entity” in the title III regulatory text is changed to “public
accommodation.”

Sections 35.108(g) and 36.105(g)—Exclusions.

The NPRM did not propose changes to the text of the existing exclusions
contained in paragraph (5) of the definition of “disability” in the title II and
title III regulations, see 28 CFR 35.104, 36.104, which are based on
42 U.S.C. 12211(b), a statutory provision that was not modified by the ADA
Amendments Act. The NPRM did propose to renumber these provisions, relocating
them at §§ 35.108(g) and 36.105(g) of the Department’s revised definition of
“disability.” The Department received no comments on the proposed renumbering,
which is retained in the final rule.

Sections 35.130(b)(7)(i)—General Prohibitions against Discrimination and
36.302(g)—Modifications in policies, practices, or procedures.

The ADA Amendments Act revised the ADA to specify that a public entity under
title II, and any person who owns, leases (or leases to), or operates a place of
public accommodation under title III, “need not provide a reasonable
accommodation or a reasonable modification to policies, practices, or procedures
to an individual who meets the definition of disability” solely on the basis of
being regarded as having an impairment. 42 U.S.C. 12201(h). In the NPRM, the
Department proposed §§ 35.130(b)(7)(i) and 36.302(g) to reflect this concept,
explaining that a public entity or covered entity “is not required to provide a
reasonable modification to an individual who meets the definition of disability
solely under the ‘regarded as’ prong of the definition of disability.” These
provisions clarify that the duty to provide reasonable modifications arises only
when the individual establishes coverage under the first or second prong of the
definition of “disability.” These provisions are not intended to diminish the
existing obligations to provide reasonable modifications under title II and
title III of the ADA.

The Department received no comments associated with these provisions and retains
the NPRM language in the final rule except for replacing the words “covered
entity” with “public accommodation” in § 36.302(g).

Sections 35.130(i) and 36.201(c)—Claims of no disability.

The ADA as amended provides that “[n]othing in this [Act] shall provide the
basis for a claim by an individual without a disability that the individual was
subject to discrimination because of the individual’s lack of disability.”
42 U.S.C. 12201(g). In the NPRM the Department proposed adding §§ 35.130(i) and
36.201(c) to the title II and title III regulations, respectively, which
incorporate similar language. These provisions clarify that persons without
disabilities do not have an actionable claim under the ADA on the basis of not
having a disability.

The Department received no comments associated with this issue and has retained
these provisions in the final rule.

Effect of ADA Amendments Act on academic requirements in postsecondary
education.

The Department notes that the ADA Amendments Act revised the rules of
construction in title V of the ADA by including a provision affirming that
nothing in the Act changed the existing ADA requirement that covered entities
provide reasonable modifications in policies, practices, or procedures unless
the entity can demonstrate that making such modifications, including academic
requirements in postsecondary education, would fundamentally alter the nature of
goods, services, facilities, privileges, advantages, or accommodations involved.
See 42 U.S.C. 12201(f). Congress noted that the reference to academic
requirements in postsecondary education was included “solely to provide
assurances that the bill does not alter current law with regard to the
obligations of academic institutions under the ADA, which we believe is already
demonstrated in case law on this topic. Specifically, the reference to academic
standards in post-secondary education is unrelated to the purpose of this
legislation and should be given no meaning in interpreting the definition of
"disability.” 154 Cong. Rec. S8843 (daily ed. Sept. 16, 2008) (Statement of the
Managers). Given that Congress did not intend there to be any change to the law
in this area, the Department did not propose to make any changes to its
regulatory requirements in response to this provision of the ADA Amendments Act.

 1. On September 25, 2008, President George W. Bush signed into law the
    Americans with Disabilities Amendments Act of 2008 (ADA Amendments Act),
    Public Law 110-325. The ADA Amendments Act amended the ADA definition of
    disability to clarify its coverage of persons with disabilities and to
    provide guidance on the application of the definition. This final rule does
    not contain regulatory language implementing the ADA Amendments Act. The
    Department intends to publish a supplemental rule to amend the regulatory
    definition of “disability” to implement the changes mandated by that law.
    Back to text

 2. The analysis assumes these regulations will be in force for 15 years.
    Incremental costs and benefits are calculated for all construction,
    alterations, and barrier removal that is expected to occur during these 15
    years. The analysis also assumes that any new or revised ADA rules enacted
    15 years from now will include a safe harbor provision. Thus, any facilities
    constructed in year 14 of the final rules are assumed to continue to
    generate benefits to users, and to incur any operating or replacement costs
    for the life of these buildings, which is assumed to be 40 years.regularly
    taught in rehabilitation and occupational therapy. Currently, persons who
    use side or parallel transfer methods from their wheelchairs are faced with
    a stark choice at establishments with single-user toilet rooms—i.e.,
    patronize the establishment but run the risk of needing assistance when
    using the restroom, travel with someone who would be able to provide
    assistance in toileting, or forgo the visit entirely. The revised water
    closet clearance regulations would make single-user toilet rooms accessible
    to all persons who use wheelchairs, not just those with the physical
    strength, balance, and dexterity and the training to use a front-transfer
    method. Single-user toilet rooms are located in a wide variety of public and
    private facilities, including restaurants, fast-food establishments,
    schools, retail stores, parks, sports stadiums, and hospitals. Final
    promulgation of these requirements might thus, for example, enable a person
    who uses a side or parallel transfer method to use the restroom (or use the
    restroom independently) at his or her local coffee shop for the first time.
    Back to text

 3. The term "existing facility" is defined in § 35.104 as amended by this rule.
    Back to text

 4. The Supreme Court in Tennessee v. Lane, 541 U.S. 509, 5330534 (2004), held
    that title II of the ADA constitutes a valid exercise of Congress’
    enforcement power under the Fourteenth Amendment in cases implicating the
    fundamental access to the courts. Back to text

October 11, 2016

ADA.gov

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