[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 56164-56236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21821]
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Part II
Department of Justice
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28 CFR Parts 35 and 36
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Final Rules
Federal Register / Vol. 75 , No. 178 / Wednesday, September 15, 2010
/ Rules and Regulations
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DEPARTMENT OF JUSTICE
28 CFR Parts 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.
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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 (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home
Page at http://www.ada.gov. 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.
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\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.
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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
[[Page 56165]]
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 Sec. 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
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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 34466). 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., Overlook 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.
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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 Sec. 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[supreg], 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 Sec. 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 Sec. 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
[[Page 56168]]
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 ada.gov/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 non-
monetized 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[bond]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).
Expected Impact of the Rules \2\
[In billions]
------------------------------------------------------------------------
Total expected Total expected
Discount rate Expected NPV PV (benefits) PV (costs)
------------------------------------------------------------------------
3% $40.4 $66.2 $25.8
7% 9.3 22.0 12.8
------------------------------------------------------------------------
\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.
[[Page 56169]]
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.
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 requirements 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 (in
[[Page 56170]]
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
[[Page 56171]]
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
[[Page 56172]]
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 non-user 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
[[Page 56173]]
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 Sec. 35.150(b)(2)(ii)(A) through
Sec. 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
[[Page 56174]]
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:[sol][sol]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
record-keeping 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:[sol][sol]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
[[Page 56175]]
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 required for start of play areas. 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, 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 http://www.ada.gov/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 (Sec. 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 (Sec. 35.160), path of
travel safe harbor (Sec. 35.151(b)(4)(ii)(C)), and accessibility
standards compliance dates for new construction and alterations (Sec.
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
[[Page 56176]]
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 (800) 514-0301 (voice); (800) 514-0383 (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
[[Page 56177]]
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.
0
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--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for 28 CFR part 35 is revised to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
Subpart A--General
0
2. Amend Sec. 35.104 by adding the following definitions of 1991
Standards, 2004 ADAAG, 2010 Standards, direct threat, existing
facility, housing at a place of education, other power-driven mobility
device, service animal, qualified reader, video remote interpreting
(VRI) service, and wheelchair in alphabetical order and revising the
definitions of auxiliary aids and services and qualified interpreter to
read as follows:
Sec. 35.104 Definitions.
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 Sec.
35.151.
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.
* * * * *
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 Sec. 35.139.
* * * * *
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.
* * * * *
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.
* * * * *
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[supreg] 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).
* * * * *
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.
* * * * *
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 handler'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.
* * * * *
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 Sec.
35.160(d).
* * * * *
Wheelchair means a manually-operated or power-driven device
[[Page 56178]]
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).
Subpart B--General Requirements
0
3. Amend Sec. 35.130 by adding paragraph (h) to read as follows:
Sec. 35.130 General prohibitions against discrimination.
* * * * *
* * * * *
(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.
0
4. Amend Sec. 35.133 by adding paragraph (c) to read as follows:
Sec. 35.133 Maintenance of accessible features.
* * * * *
(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.
* * * * *
0
5. Add Sec. 35.136 to read as follows:
Sec. 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 Sec. 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.
(C) Other requirements. Paragraphs 35.136(c) through (h) of this
section, which apply to service animals, shall also apply to miniature
horses.
0
6. Add Sec. 35.137 to read as follows:
Sec. 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 Sec. 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
[[Page 56179]]
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.
0
7. Add Sec. 35.138 to read as follows:
Sec. 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.
[[Page 56180]]
(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.
0
8. Add Sec. 35.139 to read as follows:
Sec. 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 D--Program Accessibility
0
9. Amend Sec. 35.150 as follows--
0
a. Redesignate paragraph (b)(2) as paragraph (b)(3),
0
b. Add the words ``or acquisition'' after the word ``redesign'' in the
first sentence of paragraph (b)(1) and add new paragraph (b)(2) to read
as follows:
Sec. 35.150 Existing facilities.
* * * * *
(b) * * *
(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 Sec. 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.
* * * * *
0
10. Amend Sec. 35.151 as follows--
a. Revise paragraphs (a) through (d),
b. Revise the heading of paragraph (c),
c. Redesignate paragraph (e) as paragraph (i), and
d. Add paragraphs (e), (f), (g), (h), (j), and (k), to read as
follows:
Sec. 35.151 New construction and alterations.
(a) Design and construction. (1) Each facility or part of a
facility constructed
[[Page 56181]]
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 Sec. 35.151(b)(4) shall
apply only to alterations undertaken solely for purposes other than to
meet the program accessibility requirements of Sec. 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 Sec. 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 Sec.
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
[[Page 56182]]
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
the September 15, 2010, then new construction and alterations subject
to this section must comply with either 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 Sec. Sec.
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
Sec. Sec. 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 Sec. 35.151(c)
------------------------------------------------------------------------
Compliance dates for new construction and
alterations Applicable standards
------------------------------------------------------------------------
Before September 15, 2010................. 1991 Standards or UFAS.
On or after September 15, 2010 and before 1991 Standards, UFAS, or
March 15, 2012. 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
[[Page 56183]]
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.
* * * * *
(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.
0
11. Add Sec. 35.152 to read as follows:
Sec. 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.
Subpart E--Communications
0
12. Amend Sec. 35.160 by revising paragraphs (a) and (b), and adding
paragraphs (c) and (d) to read as follows:
Sec. 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.
[[Page 56184]]
(b)(1) 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.
(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.
0
13. Revise Sec. 35.161 to read as follows:
Sec. 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, voicemail and messaging, or an
interactive voice response system, for receiving and directing incoming
telephone calls, that system must provide effective real-time
communication with individuals using auxiliary aids and services,
including TTYs and all forms of FCC-approved telecommunications relay
systems, including Internet-based relay systems.
(c) A public entity shall respond to telephone calls from a
telecommunications relay service established under title IV of the ADA
in the same manner that it responds to other telephone calls.
Subpart F--Compliance Procedures
0
14. Amend Sec. 35.171 by revising paragraph (a)(2) to read as follows:
Sec. 35.171 Acceptance of complaints.
(a) * * *
(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 Sec.
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.
* * * * *
0
15. Revise Sec. 35.172 to read as follows:
Sec. 35.172 Investigations and compliance reviews.
(a) The designated agency shall investigate complaints for which it
is responsible under Sec. 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 Sec. Sec. 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.
Subpart G--Designated Agencies
0
16. Amend Sec. 35.190 by adding paragraph (e) to read as follows:
Sec. 35.190 Designated Agencies.
* * * * *
(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.
0
17. Redesignate Appendix A to part 35 as Appendix B to part 35 and add
Appendix A to read as follows:
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.
[[Page 56185]]
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
Section 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 Sec. 35.151.
``Auxiliary Aids and Services''
In the NPRM, the Department proposed revisions to the definition
of auxiliary aids and services under Sec. 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://www.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 Sec.
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 Sec. 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 Sec. 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 Sec. 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 ``the
[[Page 56186]]
principles established in Sec. 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 Sec. 35.104.
``Existing Facility''
The 1991 title II regulation provided definitions for ``new
construction'' at Sec. 35.151(a) and ``alterations'' at Sec.
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 Sec.
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 Sec. 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 Sec. 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 Sec. 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 [supreg] Personal Transporter
(Segway [supreg] 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 [supreg] 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 [supreg] 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 Sec. 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
[[Page 56187]]
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 Sec. 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 Sec.
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 Sec. 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 Sec.
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[supreg] 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[supreg] 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
[[Page 56188]]
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[supreg] 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[supreg] 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[supreg] PT. As discussed above, because individuals with
mobility disabilities are using the Segway[supreg] PT as a mobility
device, the Department asked whether it should be included in the
definition of ``wheelchair.'' The basic Segway[supreg] PT model is a
two-wheeled, gyroscopically-stabilized, battery-powered personal
transportation device. The user stands on a platform suspended three
inches
[[Page 56189]]
off the ground by wheels on each side, grasps a T-shaped handle, and
steers the device similarly to a bicycle. Most Segway[supreg] PTs
can travel up to 12\1/2\ 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[supreg] PT can operate at much greater speeds than
wheelchairs, and the average user stands much taller than most
wheelchair users.
The Segway[supreg] PT has been the subject of debate among
users, pedestrians, disability advocates, State and local
governments, businesses, and bicyclists. The fact that the
Segway[supreg] 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[supreg] 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[supreg] 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[supreg] 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 non-traditional
mobility devices can deliver real benefits to individuals with
disabilities. Among the reasons given by commenters to include the
Segway[supreg] PT in the definition of ``wheelchair'' were that the
Segway[supreg] 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[supreg] PT in the
definition of ``wheelchair'' were based on commenters' views that
the Segway[supreg] 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[supreg] 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[supreg] 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[supreg] PT in the definition of ``wheelchair,''
noted that the Segway[supreg] 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[supreg] 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[supreg] 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[supreg] 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[supreg] 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[supreg] 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[supreg] 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[supreg] PT as an ``other power-driven
mobility device,'' they universally noted that in their view,
because the Segway[supreg] 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[supreg] 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[supreg] 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[supreg] 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[supreg] 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 Sec. 35.137 for
providing access to other-powered mobility devices will result in
the admission of the Segway[supreg] 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-
[[Page 56190]]
exhaustive list of examples in Sec. 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 Sec.
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 Sec. 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[supreg] 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[supreg] PT and other power-driven mobility
devices, noting that the Segway[supreg] 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.
[[Page 56191]]
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
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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 handler'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 non-violent behavioral tasks
that could be construed as minimally protective, such as
interrupting self-mutilation, providing safety checks and room
searches, reminding the handler to take medications, and protecting
the handler 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 handler by nudging or pawing the handler 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 ``non-violent
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 Sec. 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
[[Page 56193]]
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 Sec. 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 handler 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,
[[Page 56194]]
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 Sec. 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
[[Page 56195]]
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 handler 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 Sec. 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,
[[Page 56196]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
35.136 addressing service animals that was intended to retain the
scope of the 1991 title III regulation at Sec. 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://www.ada.gov/qasrvc.ftm and ADA Guide for
Small Businesses (1999), available at http://www.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 Sec. 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 Sec.
36.302(c) into new Sec. 35.136(a), which states that ``[g]enerally,
a public entity shall modify its policies, practices, or procedures
to permit
[[Page 56197]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 35.130(b)(7).
The NPRM also proposed at Sec. 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 Sec. 35.139, which incorporates the language of the title III
provisions at Sec. 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 Sec. 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
handler's disability to the definition of ``service animal'' in
Sec. 35.104. In addition, the Department has modified the proposed
language in Sec. 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 Sec. 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 Sec. 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 Sec. 35.136(e) of the final rule.
Inquiries about service animals. The NPRM proposed language at
Sec. 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://www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, (1999), available at
http://www.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
[[Page 56198]]
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
Sec. 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 Sec. 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 Sec.
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 Sec. 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
[[Page 56199]]
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 Sec. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 35.137(c) to new paragraph Sec. 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[supreg] 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 Sec. 35.137(b)(2)(i) to clarify that if a
facility that is in compliance
[[Page 56200]]
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 Sec. 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 Sec.
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 Sec. 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 Sec. 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[supreg] PT and
other EPAMDs in all Federal buildings under GSA's jurisdiction. See
General Services Administration, Interim Segway[supreg] 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 Sec. 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
[[Page 56201]]
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[supreg] 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[supreg] 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 Sec. 35.137(d) of the NPRM nor Sec. 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[supreg] 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[supreg] 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 Sec.
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 Sec. 35.137(b)(1) or with one
or more of the Sec. 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 Sec.
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.
[[Page 56202]]
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 Sec.
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 Sec. 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 Sec. 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 Sec. 35.138(e) of the final rule authorizes venues to
release accessible seating in case of a sell-out, 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 Sec. 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 Sec. 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,
presales, 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
Sec. 35.138(a) and (b) but has combined them in a single paragraph
at Sec. 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 Sec. 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 Sec. 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
[[Page 56203]]
has added it, with minor modifications, to Sec. 35.138(b) as
paragraph (1).
Ticket prices. In the NPRM, the Department proposed Sec.
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
Sec. 35.138(c).
Purchase of multiple tickets. In the NPRM, the Department
proposed Sec. 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 Sec. 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 Sec. 35.138(d)(1) do
not have to be contiguous with the wheelchair space.
The NPRM proposed at Sec. 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 Sec. 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 Sec. 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.''
[[Page 56204]]
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 Sec. 35.138(f) (renumbered as Sec.
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 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.'' 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 Sec. 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 Sec. 35.138(g) of the final rule,
public entities must leave flexibility for game-day change-outs 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
season-ticket 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 Sec. 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 Sec. 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 Sec. 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 Sec.
35.138(f) that requires that individuals with disabilities holding
accessible seating for any event have the
[[Page 56205]]
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 Sec. 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 Sec. 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 Sec. 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
[[Page 56206]]
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 Sec. 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.
Sec. 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
Sec. 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 Sec. 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.
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\3\ The term ``existing facility'' is defined in Sec. 35.104 as
amended by this rule.
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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 Sec.
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 Sec.
35.150 at Sec. 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 Sec. 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
[[Page 56207]]
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 Sec. 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
Sec. 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 Sec. 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
[[Page 56208]]
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
multi-year 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 Sec. 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
[[Page 56209]]
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 Sec. 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 Sec.
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 Sec. Sec. 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
[[Page 56210]]
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 pre-
fabricated 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 Sec.
35.151(a)(1). The Department has added a new section, designated as
Sec. 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 Sec. 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 Sec. 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 Sec. 35.151(b)(4) contained the requirements
for path of travel. Proposed Sec. 35.151(b)(2) stated that the path
of travel requirements of Sec. 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
[[Page 56211]]
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 Sec. 35.151(b)(2) of the regulation,
the path of travel requirements of Sec. 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 Sec. 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 Sec. 35.150 unless doing so is an undue financial
and administrative burden in accordance with Sec. 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 Sec. 35.151(b)(4) adopted the
language now contained in Sec. 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 Sec. 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 Sec. 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 Sec. 35.149 and Sec. 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 Sec. 35.150(a)(3). The
exemption was also provided to maintain consistency with the title
III path of travel exemption for barrier removal, see Sec.
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 Sec. 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
Sec. 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 Sec. 35.151(b)(4).
The Department has slightly revised proposed Sec. 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 Sec. 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
[[Page 56212]]
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 Sec. 35.151(d)(1) and (2)
as Sec. 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 Sec. 35.151(d)(2)--that
alternative methods of access shall be provided pursuant to the
requirements of Sec. 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 Sec. 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 (http://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 Sec. 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 Sec. 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
Sec. 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
[[Page 56213]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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, Sec.
35.151(d), to clarify that the requirements established by Sec.
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
[[Page 56214]]
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 Sec. 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 or 3004 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
[[Page 56215]]
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 Sec. 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
[[Page 56216]]
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 Sec. 35.104,
``Housing at a Place of Education,'' and has revised Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 56217]]
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 Sec. 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
Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 56218]]
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
[[Page 56219]]
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, Sec.
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 Sec. 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
Sec. 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 Sec. 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, Sec.
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 Sec. 35.152(c) that ``[a]lterations to jails,
prisons, and other detention and correctional facilities will comply
with the requirements of Sec. 35.151(b).'' 73 FR 34466, 34507 (June
17, 2008). The final rule retains that requirement at Sec.
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 Sec. 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 Sec. 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.
[[Page 56220]]
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 Sec. 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, Sec. 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
Sec. 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 Sec. 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, Sec.
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 Sec. 35.151 dealing with new
construction and alterations for covered entities. Those portions of
the final rule that address other program requirements remain in
Sec. 35.152.
The Department received many comments in response to the program
accessibility requirements in proposed Sec. 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
[[Page 56221]]
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 Sec. 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, Sec. 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 Sec. 35.152(b)(1)
accordingly.
Integration of inmates and detainees with disabilities. In the
NPRM, the Department proposed language in Sec. 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 Sec.
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
Sec. 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
[[Page 56222]]
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 Sec. 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 Sec. 35.152(b)(2).
The Department notes that Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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,
Sec. 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
[[Page 56223]]
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 Sec. 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, Sec. 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
[[Page 56224]]
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, Sec. 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 Sec. 35.160(b)(2) of the final rule
restores the ``primary consideration'' obligation set out at Sec.
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 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.'' 28 CFR part 35, app. A at 580 (2009).
The first sentence in Sec. 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 www.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 Sec.
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, Sec. 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 Sec. 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
[[Page 56225]]
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.'' Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 re-assess 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 Sec. 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)
[[Page 56226]]
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.pdf
(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 Sec. 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 Sec. 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 Sec. 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
[[Page 56227]]
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 real-time 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 Sec. 35.161 as Sec. 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 Sec. 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 Sec. 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
[[Page 56228]]
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 Sec. 35.104 and before ``communication'' in
Sec. 35.161(b).
Subpart F--Compliance Procedures
Section 35.171 Acceptance of complaints.
In the NPRM, the Department proposed changing the current
language in Sec. 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 Sec. 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 Sec. 35.171(a)(2)(i). The Department has also
amended Sec. 35.171(a)(2)(ii) to be consistent with the changes in
the rule at Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
[[Page 56229]]
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 Sec. 35.190(e) further
refining procedures for complaints filed with the Department of
Justice. Proposed Sec. 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 Sec. 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
ada.gov/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
Sec. 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,
[[Page 56230]]
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 Sec. 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 Sec. 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 Sec. 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
[[Page 56231]]
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
[[Page 56232]]
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.
---------------------------------------------------------------------------
\4\ The Supreme Court in Tennessee v. Lane, 541 U.S. 509, 533-
534 (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 right of access to
the courts.
---------------------------------------------------------------------------
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
[[Page 56233]]
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
[[Page 56234]]
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 Sec.
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 Sec. 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 Sec. 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.
[[Page 56235]]
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://www.ada.gov/taman3.
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 Sec. 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
[[Page 56236]]
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://www.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[supreg]).
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 Sec. 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).
0
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.
[FR Doc. 2010-21821 Filed 9-14-10; 8:45 am]
BILLING CODE 4410-14-P