[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Proposed Rules]
[Pages 34466-34508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12622]
[[Page 34465]]
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Part III
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; Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities; Proposed Rules
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 /
Proposed Rules
[[Page 34466]]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 105; AG Order No. 2967-2008]
RIN 1190-AA46
Nondiscrimination on the Basis of Disability in State and Local
Government Services
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is issuing this notice
of proposed rulemaking (NPRM) in order to: Adopt enforceable
accessibility standards under the Americans with Disabilities Act of
1990 (ADA) that are ``consistent with the minimum guidelines and
requirements issued by the Architectural and Transportation Barriers
Compliance Board'' (Access Board); and perform periodic reviews of any
rule judged to have a significant economic impact on a substantial
number of small entities, and a regulatory assessment of the costs and
benefits of any significant regulatory action as required by the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA).
In this NPRM, the Department proposes to adopt Parts I and III of
the Americans with Disabilities Act and Architectural Barriers Act
Accessibility Guidelines (2004 ADAAG), which were published by the
Access Board on July 23, 2004. Prior to its adoption by the Department,
the 2004 ADAAG is effective only as guidance to the Department; it has
no legal effect on the public until the Department issues a final rule
adopting the revised ADA Standards (proposed standards).
Concurrently with the publication of this NPRM, the Department is
publishing an NPRM to amend its title III regulation, which covers
public accommodations and commercial facilities, in order to adopt the
2004 ADAAG as its proposed standards for title III entities, to make
amendments to the title III regulation for consistency with title II,
and to make amendments that reflect the collective experience of
sixteen years of enforcement of the ADA.
DATES: All comments must be received by August 18, 2008.
ADDRESSES: Submit electronic comments and other data to http://www.regulations.gov. Address written comments concerning this NPRM to:
ADA NPRM, P.O. Box 2846, Fairfax, VA 22031-0846. Overnight deliveries
should be sent to the Disability Rights Section, Civil Rights Division,
U.S. Department of Justice, located at 1425 New York Avenue, NW., Suite
4039, Washington, DC 20005. All comments will be made available for
public viewing online at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief,
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 at the
number listed above.
SUPPLEMENTARY INFORMATION:
Electronic Submission and Posting of Public Comments
You may submit electronic comments to http://www.regulations.gov.
When submitting comments electronically, you must include CRT Docket
No. 105 in the subject box, and you must include your full name and
address.
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify information
you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it posted online, you must include the
phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of
your comment. You must also prominently identify confidential business
information to be redacted within the comment. If a comment has so much
confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted on http://www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
Overview
Throughout this NPRM, the current, legally enforceable ADA
Standards will be referred to as the ``1991 Standards.'' 28 CFR part
36, App. A, 56 FR 35544 (July 26, 1991), modified in part 59 FR 2674
(Jan. 18, 1994). The Access Board's 2004 revised guidelines will be
referred to as the ``2004 ADAAG.'' 69 FR 44084 (July 23, 2004), as
amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The
revisions now proposed in the NPRM, based on the 2004 ADAAG, are
referred to in the preamble as the ``proposed standards.''
In performing the required periodic review of its existing
regulations, the Department has reviewed its title II regulation
section by section, and, as a result, proposes several clarifications
and amendments in this NPRM. In addition, the Department's initial,
formal benefit-cost analysis dealing with the Department's NPRMs for
both titles II and III is included in this NPRM. See E.O. 12866, 58 FR
51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26,
2002), and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); 5 U.S.C. 601, 603,
610(a); and OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf. The NPRM was submitted to the Office of Management and
Budget (OMB), Office of Information and Regulatory Affairs, for review
and approval prior to publication in the Federal Register.
Purpose
On July 26, 1990, President George H. W. Bush signed into law the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq., a
comprehensive civil rights law prohibiting discrimination on the basis
of disability. At the beginning of his administration, President George
W. Bush underscored the nation's commitment to ensuring the rights of
over 50 million individuals with disabilities nationwide by announcing
the New Freedom Initiative (available at http://www.whitehouse.gov/infocus/newfreedom). The Access Board's
[[Page 34467]]
publication of the 2004 ADAAG is the culmination of a long-term effort
to facilitate ADA compliance and enforcement 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
announcing its intention to adopt standards consistent with Parts I and
III of the 2004 ADAAG as the ADA Standards for Accessible Design. To
facilitate this process, the Department is seeking public comment on
the issues discussed in this notice.
The ADA and Department of Justice Regulations
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 and, in addition, 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. Under the ADA, the Department is responsible for
issuing regulations to implement title II and title III of the Act,
except to the extent that transportation providers subject to title II
or title III are regulated by the Department of Transportation. Id. at
12134.
The Department is also proposing amendments to its title III
regulation, which prohibits discrimination on the basis of disability
in public accommodations and commercial facilities, published
concurrently with the publication of this NPRM, in this issue of the
Federal Register.
Title II 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 of discrimination established by section 504 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section
504), to all activities of state and local governments regardless of
whether these entities receive federal financial assistance. 42 U.S.C.
12131-65.
On July 26, 1991, the Department issued its final 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 title III
regulation, at 28 CFR part 36, contains the current 1991 Standards,
which were based upon the version of ADAAG published by the Access
Board on the same date. Under the current regulation, title II entities
are required to comply either with the 1991 Standards or with the
Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6,
App. A--which many public entities were accustomed to following under
section 504--with respect to newly constructed or altered facilities.
Relationship to Other Laws
The Department of Justice regulation implementing title II, 28 CFR
35.103, provides:
(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 et seq., 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.
Nothing in this proposed rule will alter this relationship. 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,
which prohibits 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, 49
U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq.
Compliance with the Department's regulations under the ADA does not
necessarily ensure compliance with other federal statutes. Public
entities that are subject both to the Department's regulations and to
regulations published by other federal agencies must ensure that they
comply with the requirements of both regulations. If there is a direct
conflict between the regulations, the regulation that provides greater
accessibility will prevail. When different statutes apply to entities
that routinely interact, each entity must follow the regulation that
specifically applies to it. For example, a public airport is a title II
facility that houses air carriers subject to the Air Carrier Access Act
(ACAA). The public airport operator would comply with the title II
requirements, not with the ACAA requirements. Conversely, the air
carrier is required to comply with the ACAA, not with the ADA.
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 that--
(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, they are not subject to the
requirements of this part.
Nothing in this proposed rule alters that provision. 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 regulation of the Department of Transportation (DOT)
at 49 CFR part 37 and are not covered by this proposed rule. Matters
not covered by subtitle B are covered by this rule. In addition,
activities not specifically addressed by DOT's ADA regulation may be
covered by DOT's regulation implementing section 504 for its federally
assisted programs and activities at 49 CFR part 27. Like other programs
of public entities that are also recipients of federal financial
assistance, those programs would be covered by both the section 504
regulation and this part. 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 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
thirteen public members appointed by the President, of whom the
majority must be individuals with disabilities, and the heads of twelve
federal departments and agencies specified by statute, including the
heads of the Department of Justice and the Department of
Transportation. Originally, the Access Board was established to develop
and maintain accessibility guidelines for federally funded facilities
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
[[Page 34468]]
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. Id. at 12134, 12186.
The Department was extensively involved in the development of the
2004 ADAAG. As a federal member of the Access Board, the Attorney
General's representative voted to approve the revised guidelines.
Although the enforceable standards issued by the Department under title
II and title III must be consistent with the minimum guidelines
published by the Access Board, it is the responsibility solely of the
Attorney General to promulgate standards and to interpret and enforce
those standards.
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 readily achievable 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 of Justice.
The Revised Guidelines (2004 ADAAG)
Part I of the 2004 ADAAG provides so-called ``scoping''
requirements for facilities subject to the ADA; ``scoping'' is a term
used in the 2004 ADAAG to describe requirements (set out in Parts I and
II) that prescribe what elements and spaces--and, in some cases, how
many of them--must comply with the technical specifications. Part II
provides scoping requirements for facilities subject to the ABA (i.e.,
facilities designed, built, altered, or leased with federal funds).
Part III provides uniform technical specifications for facilities
subject to either statute. This revised format is designed to eliminate
unintended conflicts between the two 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.
The revised 2004 ADAAG is the culmination of a ten-year effort to
improve ADA compliance and enforcement. In 1994, the Access Board began
the process of updating the original ADAAG by establishing an advisory
committee composed of members of the design and construction industry,
the building code community, state and local government entities, and
individuals with disabilities. In 1999, based largely on the report and
recommendations of the advisory committee,\1\ the Access Board issued a
proposed rule to jointly update and revise its ADA and ABA
accessibility guidelines. 64 FR 62248 (Nov. 16, 1999). In response to
its rule, 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 throughout the nation. The
Access Board worked vigorously from the beginning to harmonize the ADA
and ABA Accessibility Guidelines with industry standards and model
codes that form the basis for many state and local building codes. 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. By the date of its final publication on July 23,
2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary
public participation and review.
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\1\ After a two-year process of collaboration with the Access
Board, the Advisory Committee issued its Recommendations for a New
ADAAG in September 1996, available at http://www.access-board.gov/pubs.htm.
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In addition, the Access Board amended the ADAAG four times since
1998. In 1998, it 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).
Subsequently, the Access Board added specific guidelines on play areas,
65 FR 62498 (Oct. 18, 2000), and on recreation facilities, 67 FR 56352
(Sept. 3, 2002).
These amendments to the ADAAG have not previously been adopted by
the Department as ADA Standards. Through this NPRM, the Department is
announcing its intention to publish a proposed rule that will adopt
revised ADA Standards consistent with the 2004 ADAAG, including all of
the amendments to the ADAAG since 1998.
The Advance Notice of Proposed Rulemaking
The Department published an advance notice of proposed rulemaking
(ANPRM) regarding its ADA regulation on September 30, 2004, 69 FR
58768, for two reasons: (1) To begin the process of adopting the Access
Board's 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 OMB Circular A-4,
http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D
(Analytical Approaches) and E (Identifying and Measuring Benefits and
Costs). While underscoring that the Department, as a member of the
Access Board, had already 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 (like the readily achievable barrier removal requirement applicable
to existing facilities under title III) is solely within the discretion
of the Department. The ANPRM dealt with the Department's
responsibilities under both title II and title III.
Public response to the ANPRM was extraordinary. 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. Most of the comments responded to questions
specifically posed by the Department, including issues involving the
application of the 2004 ADAAG once the Department adopts it, and cost
information to assist the Department in its regulatory assessment. The
public provided information on how to assess the cost of compliance by
small entities, office buildings, hotels and motels, assembly areas,
hospitals and long-term care facilities, residential units,
recreational facilities, and play areas. Comments addressed the
effective date of the proposed standards, the triggering event by which
the effective date is measured in new construction, and variations on a
safe harbor, which would excuse elements in compliance with the 1991
Standards from compliance with the proposed standards. Comments
responded to questions regarding elements scoped for the ``first time''
in the 2004 ADAAG, including detention and correctional facilities,
recreational facilities and play areas, as well as proposed additions
to the Department's regulation for items such as free-standing
equipment.
[[Page 34469]]
Comments also dealt with the specific requirements of the 2004 ADAAG.
Many commenters requested clarification of or changes to the
Department's title II regulation. Commenters observed that now, more
than seventeen years after the enactment of the ADA, as facilities are
becoming physically accessible to individuals with disabilities, the
Department needs to focus on second-generation issues that ensure
individuals with disabilities actually gain access to the accessible
elements. So, for example, commenters asked the Department to focus on
such issues as ticketing in assembly areas and reservations of boat
slips. The public asked about captioning and the division of
responsibility between the Department and the Access Board for fixed
and non-fixed (or free-standing) equipment. Finally, commenters asked
for clarification on some issues in the existing regulations, such as
title III's requirements regarding service animals.
All of the issues raised in the public comments are addressed, in
turn, in this NPRM or in the NPRM for title III. Issues involving title
III of the ADA, such as readily achievable barrier removal, are
addressed in the NPRM for title III, published concurrently with this
NPRM in this issue of the Federal Register.
Background (SBREFA, Regulatory Flexibility Act, and Executive Order)
Reviews
The Department must provide two types of assessments as part of its
NPRM: an analysis of the benefits and costs of adopting the 2004 ADAAG
as its proposed standards, 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. E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by
E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan.
18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4; and E.O. 13272, 67 FR
53461 (Aug. 13, 2002).
The Department leaves open the possibility that, as a result of the
receipt of comments on an issue raised by the 2004 ADAAG, or if the
Department's Regulatory Impact Analysis reveals that the costs of
making a particular feature or facility accessible are disproportionate
to the benefits to persons with disabilities, the Attorney General, as
a member of the Access Board, may return the issue to the Access Board
for further consideration of the particular feature or facility. In
such a case, the Department would delay adoption of the accessibility
requirement for the particular feature or facility in question in its
final rule and await Access Board action before moving to consider any
final action.
Regulatory Impact Analysis. An initial regulatory impact analysis
of the benefits and costs of a proposed rule is required by Executive
Order 12866 (as amended by Executive Order 13258 and Executive Order
13422). A full benefit-cost analysis is required of any regulatory
action that is deemed to be significant--that is, a regulation that
will have an annual effect of $100 million or more on the economy. See
OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601,
603, as amended by the SBREFA, 5 U.S.C. 610(a).
Early in the rulemaking process, the Department concluded that the
economic impact of its adoption of the 2004 ADAAG as proposed standards
for title II and title III was likely to exceed the threshold for
significant regulatory actions of $100 million. The Department has
completed its initial regulatory impact analysis measuring the
incremental benefits and costs of the proposed standards; the initial
regulatory impact analysis is addressed at length with responses to
public comments from the ANPRM in Appendix B.
The public may notice differences between the Department's
regulatory impact analysis and the Access Board's regulatory assessment
of the 2004 ADAAG. The differences in framework and approach result
from the differing postures and responsibilities of the Department and
the Access Board. First, the breadth of the proposed changes assessed
in Appendix A of this NPRM is greater than in the Access Board's
assessments related to the 2004 ADAAG. Unlike the Access Board, the
Department must examine the effect of the proposed standards not only
on newly constructed or altered facilities, but also on existing
facilities. Second, whereas the Access Board issued separate rules for
many of the differences between the 1991 Standards and the 2004 ADAAG
(e.g., play areas and recreation facilities), the Department is
proposing to adopt several years of revisions in a single rulemaking.
According to the Department's initial Regulatory Impact Analysis
(``RIA''), it is estimated that the incremental costs of the proposed
requirements for each of the following eight existing elements will
exceed monetized benefits by more than $100 million when using the 1991
Standards as the comparative baseline: 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.
However, this baseline figure does not take into account the fact that,
since 1991, various model codes and consensus standards--such as the
model International Building Codes (``IBC'') published by the
International Codes Council and the consensus accessibility standards
developed by the American National Standards Institute (``ANSI'')--have
been adopted by a majority of states (in whole or in part) and that
these codes have provisions mirroring the substance of the Department's
proposed regulations. Indeed, such regulatory overlap is intentional
since harmonization among federal accessibility standards, state and
local building codes, and model codes is one of the goals of the
Department's rulemaking efforts.
Even though the 1991 Standards are an appropriate baseline to
compare the new requirements against, since they represent the current
set of uniform federal regulations governing accessibility, in practice
it is likely that many public and private facilities across the country
are already being built or altered in compliance with the Department's
proposed alterations standards with respect to these elements. Because
the model codes are voluntary, public entities often modify or carve
out particular standards when adopting them into their laws, and even
when the standards are the same, local officials often interpret them
differently. The mere fact that a state or local government has adopted
a version of the IBC does not necessarily mean that facilities within
that jurisdiction are legally subject to its accessibility provisions.
Because of these complications, and the inherent difficulty of
determining which baseline is the most appropriate for each provision,
the RIA accompanying this rulemaking compares the costs and benefits of
the proposed requirements to several alternative baselines, which
reflect various versions of existing building codes. In addition, since
the Department is soliciting comment on these eight particular
provisions with high net costs, the Department believes it is useful to
further discuss the potential impact of alternative baselines on these
particular provisions.
[[Page 34470]]
For example, the Department's proposed standards for existing
stairs and elevators have identical counterparts in one or more IBC
versions put in place before the 2004 ADAAG (2000 or 2003). Please
note, however, that the IBC 2006 version bases a number of its
provisions on guidelines in the 2004 ADAAG. These IBC versions, in
turn, have been adopted collectively by forty-six (46) states and the
District of Columbia on a statewide basis. In the four (4) remaining
states (Colorado, Delaware, Illinois, and Mississippi), while IBC
adoption is left to the discretion of local jurisdictions, the vast
majority of these local jurisdictions have elected to adopt IBC as
their local code. Thus, given that nearly all jurisdictions in the
country currently enforce a version of the IBC as their building code,
and to the extent that the IBC building codes may be settled in this
area and would not be further modified to be consistent if they differ
from the final version of these regulations, the incremental costs and
benefits attributable to the Department's proposed regulations
governing alterations to existing stairs and elevators may be less
significant than the RIA suggests over the life of the regulation.
In a similar vein, consideration of an alternate IBC/ANSI baseline
would also likely lower the incremental costs and benefits for five
other proposed standards (side reach; water closet clearances in
single-user toilet rooms with in-swinging doors; location of accessible
routes to stages; accessible attorney areas and witness stands; and
assistive listening systems), albeit to a lesser extent. Each of these
proposed standards has a counterpart in either Chapter 11 of one or
more versions of the IBC, ANSI A117.1, or a functionally equivalent
state accessibility code. While IBC Chapter 11 and ANSI A117.1 have yet
not been as widely adopted as some other IBC chapters, the RIA
nonetheless still estimates that between 15% and 35% of facilities
nationwide are already covered by IBC/A117.1 provisions that mirror
these five proposed standards. It is thus expected that the incremental
costs and benefits for these proposed standards may also be lower than
the costs and benefits relative to the 1991 Standards baseline.
Question 1: The Department believes it would be useful to solicit
input from the public to inform us on the anticipated costs or benefits
for certain requirements. The Department therefore invites comment as
to what actual costs and benefits would be for these eight existing
elements, in particular as applied to alterations, in compliance with
the proposed regulations (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), as well
as additional practical benefits from these requirements, which are
often difficult to adequately monetize.
The Department does not have statutory authority to modify the 2004
ADAAG; instead, the ADA requires the Attorney General to issue
regulations implementing the ADA that are ``consistent with'' the ADA
Accessibility Guidelines issued by the Access Board. See 42 U.S.C.
12134(c), 12186(c). As noted above in other parts of this preamble, the
Department leaves open the possibility of seeking further consideration
by the Access Board of particular issues raised by the 2004 ADAAG based
on disproportionate costs and compared to benefits and public comments.
The Access Board did not have the benefit of our RIA or public comment
on our RIA as it pertains to the 2004 ADAAG.
Question 2: The Department would welcome comment on whether any of
the proposed standards for these eight areas (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)
should be raised with the Access Board for further consideration, in
particular as applied to alterations.
Stages. The proposed requirement to provide direct access to stages
represents an effort to ensure that individuals with disabilities are
able to participate in programs in an integrated setting. Under the
current 1991 Standards, a compliant accessible route connecting seating
locations to performing areas is permitted to go outside the assembly
area and make use of an indirect interior accessible route to access
the stage area. As a result, even when other audience members are able
to access a stage directly via stairs in order to participate in
ceremonies, skits, or other interactive on-stage events, persons with
mobility disabilities may be required to use an inconvenient indirect
entrance to the stage. As graduates or award recipients, they may be
required to part company with their peers, to make their way to the
stage alone, and to make a conspicuous entrance. To address this
situation, the proposed requirement mandates that, when a direct
circulation path (for audience members) connects the seating area to a
stage, the accessible route to the stage must also be direct.
The Department has generally determined that the overall costs for
this requirement are relatively high in the alterations context, due to
the expense of having to provide a lift or ramp to access the stage
area directly, regardless of which baseline is used for the analysis.
The Department, however, has had difficulty in estimating the real
costs of this requirement because of a lack of information about
whether colleges, elementary and secondary schools, and entertainment
venues now routinely provide such access when they are altering
existing auditoriums or how frequently such alterations occur. Also,
the Department currently lacks sufficient data or other sources with
which to quantify the benefits that accrue to students and other
persons with disabilities who, as a result of direct access to stages,
would be able to participate fully and equally in graduation exercises
and other events.
Question 3: The Department would welcome information from operators
of auditoriums on the likelihood that their auditoriums will be altered
in the next fifteen years, and, if so, whether such alterations are
likely to include accessible and direct access to stages. In addition,
the Department would like specific information on whether, because of
local law or policy, auditorium operators are already providing a
direct accessible route to their stages. (The Department is also
interested in whether having to provide a direct access to the stage
would encourage operators of auditoriums to postpone or cancel the
alterations of their facilities.) The Department also seeks information
on possible means of quantifying the benefits that accrue to persons
with disabilities from this proposed requirement or on its importance
to them. To the extent that such information cannot be quantified, the
Department welcomes examples of personal or anecdotal experience that
illustrate the value of this requirement.
The Department's RIA also estimates significant costs, regardless
of the baseline used, for the proposed requirement that court
facilities must provide an accessible route to a witness stand or
attorney area and clear floor space to accommodate a wheelchair. These
costs arise both in the new construction and alteration contexts. If
the witness stand is raised, then either a ramp or lift must be
provided to ensure access to the witness stand. While the RIA
quantifies the benefits for
[[Page 34471]]
this proposed requirement (as it does for all of the proposed
requirements) primarily in terms of time savings, the Department fully
appreciates that such a methodology does not capture the intangible
benefits that accrue when persons with mobility disabilities are able
to participate in the court process as conveniently as any other
witness or party. Without access to the witness stand, for example, a
wheelchair user, or a witness who uses other mobility devices such as a
walker or crutches, may have to sit at floor level. If the witness with
a mobility disability testifies from a floor level position, the
witness could be placed at a disadvantage in communicating with the
judge and jury, who may no longer be able to see the witness as easily,
or, potentially, at all. This may create a reciprocal difficulty for
the judge and jurors who lose the sightline normally provided by the
raised witness stand that enables them to see and hear the witness in
order to evaluate his or her demeanor and credibility--difficulty that
redounds to the detriment of litigants themselves and ultimately our
system of justice.
Question 4: The Department welcomes comment on how to measure or
quantify the intangible benefits that would accrue from accessible
witness stands. We particularly invite anecdotal accounts of the
courtroom experiences of individuals with disabilities who have
encountered inaccessible witness stands, as well as the experiences of
state and local governments in making witness stands accessible, either
in the new construction or alteration context.
Under the 1991 Standards, Assistive Listening Systems (``ALS'') are
required in courtrooms and in other settings where audible
communication is integral to the use of the space and audio
amplification systems are provided for the general audience. However,
these Standards do not set forth technical specifications for such
systems. Since 1991, advancements in ALS and the advent of digital
technologies have made these systems more amenable to uniform technical
specifications. In keeping with these technological advancements, the
revised requirements create a technical standard that, among other
things, ensures that a certain percentage of required ALS have hearing-
aid compatible receivers. Requiring hearing-aid compatible ALS enables
persons who are hard of hearing to hear a speech, a play, a movie, or
to follow the content of a trial. Without an effective ALS, people with
hearing loss are effectively excluded from participation because they
are unable to hear or understand the audible portion of the
presentation.
From an economic perspective, the cost of a single hearing-aid
compliant ALS is not high--about $500 more than a non-compliant
system--and compliant equipment is readily available on the retail
market. As estimated in the RIA, the high overall costs for the revised
technical requirements for ALS are instead driven by the assumption
that entities with large assembly areas (such as universities,
stadiums, and auditoriums) will be required to purchase a relatively
large number of compliant systems. On the other hand, the overall
scoping for ALS has been reduced in the Department's proposed
requirement, thus mitigating the cost to covered entities. The proposed
revision to the technical requirement merely specifies that 25% (or at
least two) of the required ALS receivers must be hearing-aid
compatible. The RIA estimates that a significant part of the cost of
this requirement will come from the replacement of individual ALS
receivers and system maintenance.
Question 5: The Department seeks information from arena and
assembly area administrators on their experiences in managing ALS. In
order to evaluate the accuracy of the assumptions in the RIA relating
to ALS costs, the Department welcomes particular information on the
life expectancy of ALS equipment and the cost of ongoing maintenance.
The Department's proposed requirements mandate an accessible
(pedestrian) route that connects all accessible elements within the
boundary of the golf course and facility, including teeing grounds,
putting greens, and weather shelters. Requiring access to necessary
features of a golf course ensures that persons with mobility
disabilities may fully and equally participate in a recreational
activity.
From an economic perspective, the Department's RIA assumes that
virtually every tee and putting green on an existing course will need
to be regraded in order to provide compliant accessible (pedestrian)
routes to these features. However, the Department's proposal also
excuses compliance with the requirement for an accessible (pedestrian)
route so long as a ``golf car passage'' (i.e., the path typically used
by golf cars) is otherwise provided to the teeing ground, putting
green, or other accessible element on a course. Because it is likely
that most public and private golf courses in the United States already
provide golf passages to most or all holes, the actual costs of this
requirement for owners and operators of existing golf courses should be
reduced with little or no practical loss in accessibility.
Question 6: The Department seeks 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 to teeing grounds,
putting greens, and weather shelters, and, if so, whether they intend
to avail themselves of the proposed exception.
Analysis of impact on small entities. The second type of analysis
that the Department has undertaken is a review of its existing
regulations for title II and title III in order to consider the impact
of those regulations on small entities. 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. 5 U.S.C. 610(b). Based on these
factors, the agency should 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. Id. at 610(a).
In performing this review, the Department has gone through its
regulation section by section, and, as a result, proposes several
clarifications and amendments in this NPRM. Amendments to its title III
regulation are proposed in the NPRM for title III published jointly
with this rule. The proposals reflect the Department's analysis and
review of complaints or comments from the public as well as changes in
technology. Many of the proposals 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.
[[Page 34472]]
Organization of This NPRM
The subsequent sections of this NPRM deal with the Department's
response to comments and its proposals for changes to its current
regulation that derive from the required, periodic review that it
performed. The proposed standards and the Department's response to
comments regarding the 2004 ADAAG are contained in Appendix A to the
NPRM. Appendix B to the NPRM contains the Department's initial, formal
benefit-cost analysis.
The section of the NPRM entitled, ``General Issues,'' briefly
introduces topics that are noteworthy because they are new to the title
II regulation or have been the subject of attention or comment. The
topics introduced in the general issues section include: Safe harbor,
service animals, wheelchairs and other power-driven mobility devices,
effective communication and auxiliary aids, alterations to prison
cells, and equipment.
Following the general issues section is the ``Section-By-Section
Analysis and Response to Comments.'' This section includes a detailed
discussion of the proposed changes to the text of the title II
regulation. The section-by-section analysis follows the order of the
current regulation, except that regulatory sections that remain
unchanged are not indicated. The discussion within each section
explains the proposals 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 includes specific questions to
which the Department requests public response. These questions are
numbered and italicized so that they are easier for readers to locate
and reference. The Department emphasizes, however, that the public may
comment on any aspect of this NPRM and is not required to respond
solely to questions specifically posed by the Department.
The Department's proposed changes to the actual regulatory text of
title II that follow the section-by-section analysis are entitled,
``Part 35: Nondiscrimination on the Basis of Disability in State and
Local Government Services.''
General Issues
This section briefly introduces topics that are noteworthy because
they are new to the title II regulation or have been the subject of
considerable attention or comment. Each topic is discussed in greater
detail subsequently in the section-by-section analysis.
Safe harbor. One of the most important issues the Department must
address in proposing to adopt the 2004 ADAAG as its new ADA Standards
for Accessible Design is the effect that the proposed standards will
have on existing facilities under title II. This issue was not
addressed in the 2004 ADAAG because it is outside of the scope of the
Access Board's authority under the ADA.
Under title II, program accessibility requires that state and local
government agencies provide individuals with disabilities with access
to their programs when ``viewed in their entirety.'' Title II does not
require structural modifications in all circumstances in order to
provide program access. As a result of this flexibility, the Department
believes that the program accessibility requirement as it is codified
in the current regulation may appropriately mitigate any burdens on
public entities without additional regulatory safeguards. Nevertheless,
in order to provide certainty and clarity, the Department is proposing
a safe harbor for elements in existing facilities that are in
compliance with either the 1991 Standards or the Uniform Federal
Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A. This
proposal is discussed below in Sec. 35.150(b)(2) of the section-by-
section analysis.
The Department invites comment on whether public entities that
operate existing facilities with play or recreation areas should be
exempted from compliance with certain requirements in the 2004 ADAAG.
Existing facilities would continue to be subject to accessibility
requirements in existing law, but not specifically to the requirements
in: (1) The Access Board's supplemental guidelines on play areas, 65 FR
62498 (Oct. 18, 2000); and (2) the Access Board's supplemental
guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002). Under
this scenario, the 2004 ADAAG would apply only to new play areas and
recreation facilities, and would not govern the accessibility of
existing facilities as legal requirements. Public entities that operate
existing facilities with play or recreation areas, pursuant to the
ADA's requirements to provide equal opportunity for individuals with
disabilities, may still have the obligation to provide an accessible
route to the playground, some accessible equipment, and an accessible
surface for the play area or recreation facility.
Question 7: Should the Department exempt public entities from
specific compliance with the supplemental requirements for play areas
and recreation facilities, and instead continue to determine
accessibility in these facilities on a case-by-case basis under
existing law? Please provide information on the effect of such a
proposal on people with disabilities and public entities.
Service animals. The Department wishes to clarify the obligations
of public entities to accommodate individuals with disabilities who use
service animals. The Department continues to receive a large number of
complaints from individuals with service animals. It appears,
therefore, that many covered entities are confused about their
obligations under the ADA in this area. At the same time, some
individuals with impairments--who would not be covered as qualified
individuals with disabilities--are claiming that their animals are
legitimate service animals, whether fraudulently or sincerely (albeit
mistakenly), to gain access to the facilities of public entities.
Another trend is the use of wild or exotic animals, many of which are
untrained, as service animals. In order to clarify its position and
avoid further misapplication of the ADA, the Department is proposing
amendments to its regulation with regard to service animals.
Minimal protection. In the Department's ADA Business Brief on
Service Animals, which was published in 2002, the Department
interpreted the minimal protection language in its definition of
service animals within the context of a seizure (i.e., alerting and
protecting a person who is having a seizure). Although the Department
received comments urging it to eliminate the phrase ``providing minimal
protection'' from its regulation, the Department continues to believe
that the language serves the important function of excluding from
coverage so-called ``attack dogs'' that pose a direct threat to others.
Guidance on permissible service animals. The existing regulation
implementing title III defines a ``service animal'' as ``any guide dog,
signal dog, or other animal.'' At the time the regulation was
promulgated, the Department believed that leaving the species selection
up to the discretion of the individual with a disability was the best
course of action. Due to the proliferation of animal types that have
been used as ``service animals,'' including wild animals, the
Department believes that this area needs established parameters.
Therefore, the Department is proposing to eliminate certain species
from coverage under the ADA even if the other elements of the
definition are satisfied.
[[Page 34473]]
Comfort animals vs. psychiatric service animals. Under the
Department's present regulatory language, some individuals and entities
have assumed that the requirement that service animals must be
individually trained to do work or carry out tasks excluded all persons
with mental disabilities from having service animals. Others have
assumed that any person with a psychiatric condition whose pet provided
comfort to him or her was covered by the ADA. The Department believes
that psychiatric service animals that are trained to do work or perform
a task (e.g., reminding its owner to take medicine) for persons 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, or turning on
lights for persons with Post Traumatic Stress Disorder; interrupting
self-mutilation by persons with dissociative identity disorders; and
keeping disoriented individuals from danger.
The Department is proposing new regulatory text in Sec. 35.104 to
formalize its position on emotional support or comfort animals, which
is that ``[a]nimals whose sole function is to provide emotional
support, comfort, therapy, companionship, therapeutic benefits, or
promote emotional well-being are not service animals.'' The Department
wishes to underscore that the exclusion of emotional support animals
from ADA coverage does not mean that persons with psychiatric,
cognitive, or mental disabilities cannot use service animals. The
Department proposes specific regulatory text in Sec. 35.104 to make
this clear: ``[t]he term service animal includes individually trained
animals that do work or perform tasks for the benefit of individuals
with disabilities, including psychiatric, cognitive, and mental
disabilities.'' This language simply clarifies the Department's
longstanding position.
The Department's rule is based on the assumption that the title II
and title III regulations govern a wider range of public settings than
the settings that allow for emotional support animals. The Department
recognizes, however, that there are situations not governed exclusively
by the title II and title III regulations, particularly in the context
of residential settings and employment where there may be compelling
reasons to permit the use of animals whose presence provides emotional
support to a person with a disability. Accordingly, other federal
agency regulations governing those situations may appropriately provide
for increased access for animals other than service animals.
Proposed training standards. The Department has always required
that service animals be individually trained to do work or perform
tasks for the benefit of an individual with a disability, but has never
imposed any type of formal training requirements or certification
process. While some advocacy groups have urged the Department to modify
its position, the Department does not believe that such a modification
would serve the array of individuals with disabilities who use service
animals.
Detailed regulatory text changes and the Department's response to
public comments on these issues and others are discussed below in the
definitions Sec. 35.104 and in a newly-proposed Sec. 35.136.
Wheelchairs and other power-driven mobility devices. Since the
passage of the ADA, choices of mobility aids available to individuals
with disabilities have vastly increased. In addition to devices such as
wheelchairs and mobility scooters, individuals with disabilities may
use devices that are not designed primarily for use by individuals with
disabilities, such as electronic personal assistive mobility devices
(EPAMDs). (The only available model known to the Department is the
Segway[supreg].) The Department has received complaints and become
aware of situations where individuals with mobility disabilities have
utilized riding lawn mowers, golf cars, large wheelchairs with rubber
tracks, gasoline-powered, two-wheeled scooters, and other devices for
locomotion in pedestrian areas. These new or adapted mobility aids
benefit individuals with disabilities, but also present new challenges
for state and local governments.
EPAMDs illustrate some of the challenges posed by new mobility
devices. The basic Segway[supreg] model is a two-wheeled,
gyroscopically stabilized, battery-powered personal transportation
device. The user stands on a platform suspended three inches off the
ground by wheels on each side, grasps a T-shaped handle, and steers the
device similarly to a bicycle. The EPAMD can travel up to 12\1/2\ miles
per hour, compared to the average pedestrian walking speed of 3 to 4
miles per hour and the approximate maximum speed for power-operated
wheelchairs of 6 miles per hour. In a study of trail and other
nonmotorized transportation users including EPAMDs, the Federal Highway
Administration (FHWA) found that the eye height of people using EPAMDs
ranged from 68\1/4\ inches to 79\1/2\ inches. See Federal Highway
Administration, Characteristics of Emerging Road and Trail Users and
Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than
wheelchairs, and the average user is much taller than most wheelchair
users.
EPAMDs have been the subject of debate among users, pedestrians,
disability advocates, state and local governments, businesses, and
bicyclists. The fact that a device is not designed primarily for use by
or marketed primarily to individuals with disabilities, nor used
primarily by persons with disabilities, complicates the question of
whether individuals with disabilities should be allowed to operate them
in areas and facilities where other powered devices are not allowed.
Those who question the use of EPAMDs 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.
Although the question of EPAMD safety has not been resolved, many
states have passed legislation addressing EPAMD operation on sidewalks,
bicycle paths, and roads. In addition, some states, such as Iowa and
Oregon, have minimum age requirements, or mandatory helmet laws. New
Jersey requires helmets for all EPAMD users, while Hawaii and
Pennsylvania require helmets for users under a certain age.
While there may be legitimate safety issues for EPAMD users and
bystanders, EPAMDs and other nontraditional mobility devices can
deliver real benefits to individuals with disabilities. For example,
individuals with severe respiratory conditions who can walk limited
distances and individuals with multiple sclerosis have reported
benefitting significantly from EPAMDs. Such individuals often find that
EPAMDs are more comfortable and easier to use than wheelchairs, 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.
The Department has received questions and complaints from
individuals with disabilities and covered entities about which mobility
aids must be accommodated and under what circumstances. While some
[[Page 34474]]
individuals with disabilities support the use of unique mobility
devices, other individuals with disabilities are concerned about their
personal safety when others are using such devices. There is also
concern about the impact of such mobility devices on facilities, such
as the weight of the device on fragile floor surfaces.
The Department intends to address these issues and proposes to
adopt a policy that sets the parameters for when these devices must be
accommodated. Toward that end, the Department proposes new definitions
of the terms ``wheelchair''--which includes manually and power-driven
wheelchairs and mobility scooters--and ``other power-driven mobility
device'' and accompanying regulatory text. The proposed definitions are
discussed in the section-by-section analysis of Sec. 35.104, and the
proposed regulatory text is discussed in the section-by-section
analysis of Sec. 35.137.
Much of the debate surrounding mobility aids has centered on
appropriate definitions for the terms ``wheelchair'' and ``other power-
driven mobility devices.'' The Department has not defined the term
``manually powered mobility aids.'' Instead, the proposed rule provides
a list including wheelchairs, walkers, crutches, canes, braces, or
similar devices. The inclusion of the term ``similar devices''
indicates that the list is not intended to be exhaustive. The
Department would like input as to whether addressing ``manually powered
mobility aids'' in this manner (i.e., via examples of such devices) is
appropriate. The Department also would like information as to whether
there are any other non-powered or manually powered mobility aids that
should be added to the list and an explanation of the reasons they
should be included. If an actual definition is preferred, the
Department would welcome input with regard to the language that might
be used to define ``manually powered mobility aids,'' and an
explanation of the reasons this language would better serve the public.
Effective communication and auxiliary aids. Revised Sec. 35.160(a)
of the title II regulation requires a public entity to take appropriate
steps to ensure that communications with individuals with disabilities,
including applicants, participants, members of the public, and their
companions, are as effective as communications with others. The
Department has investigated hundreds of complaints alleging that public
entities have failed to provide effective communication, many of which
resulted in settlement agreements and consent decrees. During the
course of its investigations, the Department has determined that public
entities sometimes misunderstand the scope of their obligations under
the statute and the regulation. Moreover, the number of individuals
with hearing loss continues to grow in this country as a large segment
of the population ages and as individuals live longer.
The Department is proposing several changes and additions to
Sec. Sec. 35.104, 35.160, and 35.161 of the title II regulation to
address these issues. Among other amendments, these changes update the
regulatory language in response to numerous technological advances and
breakthroughs in the area of auxiliary aids and services since the
regulation was promulgated sixteen years ago. The most significant
changes relate to video interpreting services (VIS) and the provision
of effective communication for companions.
A technology that has emerged since promulgation of the original
regulation is video interpreting services (VIS), and the Department
proposes to include it in the regulation. VIS permits an 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. VIS can
provide immediate, effective access to interpreting services seven days
a week, twenty-four hours a day in a variety of situations by allowing
individuals in separate locations to have live, face-to-face
communications.
The specific amendments to the section on auxiliary aids and
services, in addition to the provision of VIS, are described in
Sec. Sec. 35.104, 35.160, and 35.161 of the section-by-section
analysis below.
Alterations to prison cells. The 2004 ADAAG establishes
requirements for the design and construction of cells in correctional
facilities. When the Access Board adopted these new requirements, it
deferred one decision to the Attorney General, specifically:
``Alterations to cells shall not be required to comply except to the
extent determined by the Attorney General.'' The unique environment and
security concerns of a correctional facility present challenges that
are not an issue in other government buildings, so the Department must
strike a balance between the accessibility needs of inmates with
disabilities and the concerns of the prison officials and staff that
run the facilities. Therefore, 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 alterations 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, since alterations
within a prison environment often result in piecemeal accessibility.
Discussion of the proposed options and submitted comments are described
below in the section-by-section analysis of Sec. 35.152, a newly
proposed section on matters related to detention and correctional
facilities.
Equipment and furniture. Question seven of the ANPRM asked for
comment on whether regulatory guidance is needed with respect to the
acquisition and use of mobile, portable, and other free-standing
equipment or furnishings used by covered entities to provide services,
and asked for specific examples of situations that should be addressed.
The ANPRM explained that free-standing equipment was already addressed
in the regulations in several different contexts, but that since
covered entities continue to raise questions about the extent of their
obligation to provide accessible free-standing equipment, the
Department was considering adding specific language on equipment.
The Department received comments both in favor and against this
proposal with a majority of comments in favor of requiring accessible
equipment and furniture. However, the Department has decided to add no
new regulatory text with respect to equipment at this time. A few title
II entities submitted very brief comments, with about half in favor of
specific requirements for free-standing equipment and half opposed.
Most individuals and organizations representing individuals with
disabilities were in favor of adding or clarifying requirements for
accessible equipment. Disability organizations pointed out that from
the user's perspective, it is irrelevant whether the equipment (e.g.,
ATMs or vending machines) is free-standing or fixed, since the
equipment must be accessible in order for them to use it.
[[Page 34475]]
The Department believes that accessible equipment and furnishings
are required when appropriate under the existing regulations governing
modifications of policies, practices, and procedures, and in the
requirement for program accessibility. 28 CFR 35.130(7); 35.150. In
addition, some equipment may also be subject to the effective
communication requirements. 28 CFR 35.160. The existing 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 burden. Section 35.150(b)
specifies that such entities may meet their obligation to make each
program accessible to individuals with disabilities through the
``redesign of equipment.'' Section 35.160(a) requires covered entities
to provide effective communication to program participants.
Consequently, providing accessible equipment is required when
appropriate under the existing regulations. The Department has decided
to continue with this approach and not to add any specific regulatory
guidance addressing equipment at this time.
The 2004 ADAAG includes revised requirements for some types of
fixed equipment that are specifically addressed in the 1991 Standards,
such as ATMs and vending machines, as well as detailed requirements for
fixed equipment that is not addressed by name in the current Standards,
such as depositories, change machines, and fuel dispensers. Because the
2004 ADAAG provides detailed requirements for many types of fixed
equipment, covered entities should consult those requirements in
determining what steps are appropriate for making free-standing
equipment accessible. The Department also agrees that when federal
guidance for accessibility exists for equipment required to be
accessible to individuals who are blind or have low vision, entities
should consult such guidance (e.g., federal standards implementing
section 508 of the Rehabilitation Act, 36 CFR part 1194, or the
guidelines that specify communication accessibility for ATMs and fare
card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). The
Department intends to continue to monitor the use of accessible
equipment by covered entities and to analyze the economic impact of
possibly providing more detailed requirements in future regulations
governing specific types of free-standing equipment.
Accessible golf cars. Question six of the ANPRM asked whether golf
courses should be required to make at least one, and possibly two,
specialized golf cars available for the use of individuals with
disabilities, with no greater advance notice required to obtain them
than for use of other golf cars. The Department also asked about the
golf car's safety and use on golf course greens. Accessible single-user
golf cars are cars for use by individuals with mobility impairments
that are driven with hand controls, and from which a person with a
disability can hit the golf ball while remaining in the seat of the
car. Some golf cars have a swivel, elevated seat that allows the golfer
to play from a semi-standing position. These cars can be used by
individuals without disabilities as well.
The Department received many comments regarding accessible golf
cars, with the majority of commenters in favor of requiring accessible
golf cars. The comments in opposition to requiring accessible golf cars
came from some individuals and from entities covered by title III. The
Department has decided to propose no new regulations specific to
accessible golf cars at this time.
Many commenters in favor of requiring accessible golf cars noted
the social aspect of golf, generally, and its specific--albeit
informal--importance, in many business transactions, thus affecting
both the social lives and the careers of some individuals with
disabilities.
Comments opposed to requiring accessible golf cars generally came
from individuals and golf course owners and associations covered by
title III. Some commenters believed that there is little demand for
accessible golf cars, or that the problem is solved by putting
``medical'' flags on traditional cars to identify individuals with
disabilities who are then permitted to drive onto the greens, which
otherwise would not be permitted. Others stated that accessible golf
cars were too expensive or were specialized equipment that individuals
with disabilities should purchase for themselves. One city
representative commented that courses that do not provide golf cars
should not be required to provide accessible golf cars.
Safety and the impact on golf course grounds were other areas
addressed by the comments. Again, opinions were divided. Some
commenters said that the single-user golf cars are safe, do not damage
the greens, and speed up the pace of play. Others argued that the cars
should pass the American National Standards Institute (ANSI) standards
\2\ for traditional golf cars, and that the single-user cars should not
be required until there are safety standards for these cars.
---------------------------------------------------------------------------
\2\ ANSI Z130.1-1999.
---------------------------------------------------------------------------
Other concerns raised by public comments were the effect of
allowing accessible golf car use on the greens and their impact on
maintenance of the course. Some commenters suggested that the cars
would damage the greens and that the repair costs would be more
significant than for traditional golf cars. In addition, one commenter
suggested that courses exceeding certain slope and degree standards be
exempted from having single-user cars because of safety concerns.
Comments from golf courses that have provided accessible golf cars were
generally positive in terms of safety and maintenance of the course.
Further, courses that provide accessible cars do not report any safety
issues or more than minimal damage to the greens.
With respect to making golf cars available, most supporters of
providing accessible golf cars believe that no advance notice should be
required to reserve the golf cars. One association supported requiring
golf courses to have accessible cars with advance notice, which could
be achieved through pooling arrangements with other courses. Some
commenters explained that at least two cars per course should be
required so that golfers with disabilities can play together.
Commenters also addressed whether courses that provide no cars at
all should provide accessible cars. Some commenters supported requiring
every golf course, whether or not it provides traditional golf cars, to
provide accessible cars because individuals with disabilities will not
be able to play without an accessible car.
The Department has decided not to add a regulation specifically
addressing accessible golf cars at this time. The existing regulation,
which requires that entities operate each service, program, or activity
so that, when viewed in its entirety, the service, program, or activity
is readily accessible to and usable by individuals with disabilities,
subject to a defense of fundamental alteration or undue burden, will
continue to govern this issue. 28 CFR 35.150(a).
The Department is aware that the Department of Defense has recently
undertaken an extensive study of the accessibility of golf courses
operated for military personnel. As a result of its study, the
Department of Defense plans to provide two accessible golf cars at each
of the 174 golf courses that the Department of Defense operates, except
those at which it would be unsafe to operate such golf cars because of
the terrain of the course. See U.S. Department of Defense, Report to
[[Page 34476]]
Congress: Access of Disabled Persons to Morale, Recreation, and Welfare
(MRW) Facilities and Activities (Sept. 25, 2007). The Department of
Justice plans to study the Defense Department's implementation of its
plan to determine if it provides an effective framework for ensuring
golf course accessibility.
Section-by-Section Analysis and Response to Comments
This section provides a detailed description of the Department's
proposed changes to the title II regulation, the reasoning behind the
proposals, and responses to public comments received on the topic. The
section-by-section analysis follows the order of the current title II
regulation, except that if the Department is not proposing a change to
a regulation section, the unchanged section is not discussed. In
addition, this section includes specific questions for which the
Department requests public response. These questions are numbered and
italicized in order to make them easier for readers to locate and
reference.
Subpart A--General
Section 35.104 Definitions
``1991 Standards'' and ``2004 ADAAG''
The Department is proposing to add to the proposed regulation
definitions of both the ``1991 Standards'' and the ``2004 ADAAG.'' The
term ``1991 Standards'' refers to the currently enforceable ADA
Standards for Accessible Design, codified at 28 CFR part 36, App. A.
The term ``2004 ADAAG'' refers to Parts I and III of the Americans with
Disabilities Act and Architectural Barriers Act Accessibility
Guidelines, which were issued by the Architectural and Transportation
Barriers Compliance Board on July 23, 2004, at 69 FR 44084 (to be
codified at 36 CFR 1191), and which the Department is proposing to
adopt in this NPRM. These terms are included in the definitions section
for ease of reference.
``Auxiliary Aids and Services''
Several types of auxiliary aids that have become more readily
available have been added to Sec. 35.104 under the definition of
auxiliary aids and services.
For purposes of clarification, the Department has added the
exchange of written notes as an example of an auxiliary aid or service.
This common-sense example is a codification of the Department's
longstanding policy with regard to title III entities. See The
Americans with Disabilities Act, Title III Technical Assistance Manual,
Covering Public Accommodations and Commercial Facilities (Title III TA
Manual), III-4.300, available at http://www.ada.gov/taman3.html. The
title III definition of auxiliary aids and services provided the
framework for the same definition in title II. See 56 FR 35544, 35565
(July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991). This additional
example of an appropriate auxiliary aid and service was inserted
because many public entities do not realize that this easy and
efficient technique is available to them. While the exchange of written
notes is inappropriate for lengthy or complicated communications, it
can be appropriate for situations such as routine requests for written
information, for a police officer issuing a speeding ticket, or as a
means of communication while awaiting the arrival of an interpreter.
Also in paragraph (1) of the definition, the Department has
replaced the term ``telecommunications devices for deaf persons (TDD)''
with ``text telephones (TTYs).'' Although ``TDD'' is the term used in
the ADA, the use of ``TTY'' has become the commonly accepted term and
is consistent with the terminology used by the Access Board in the 2004
ADAAG. The Department has also included in paragraph (1) ``accessible
electronic and information technology'' as another example of auxiliary
aids and services. Lastly, ``computer-aided'' has been added to
describe ``transcription services'' to make it consistent with title
III.
The Department has added to paragraph (1) a new technology, video
interpreting services (VIS), which consists of a video phone, video
monitors, cameras, a high speed Internet connection, and an
interpreter. VIS is specifically discussed below in the proposed
definition of VIS.
In paragraph (2) of the definition, the Department proposes to
insert additional examples of auxiliary aids and services for
individuals who are blind or have low vision. The preamble to the
original regulation makes clear that the original list in the
regulation 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.'' See 56
FR 35694, 35697 (July 26, 1991). Because technological advances in the
seventeen years since the ADA was enacted have increased the range of
auxiliary aids and services for those who are blind or have low vision,
the Department has added additional examples, including brailled
displays, screen reader software, magnification software, optical
readers, secondary auditory programs (SAP), and accessible electronic
and information technology.
``Direct Threat''
In the Department's proposed Sec. 35.136(b)(3), a service animal
may be removed from the premises of a public entity if the animal poses
a direct threat to the health or safety of others that cannot be
eliminated by reasonable modifications. Direct threat is not defined in
title II, but it is defined in Sec. 36.208(b) of the current title III
regulation as ``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.'' The
Department proposes taking the definition from its current location in
title III and placing it in the definitions section in both title II
(Sec. 35.104) and title III (Sec. 36.104).
``Existing Facility''
Under the ADA, a facility may be one or more of three types at
different points in time: (1) An existing facility, (2) an altered
facility, or (3) a newly designed and constructed facility. In the
current regulation, title II defines new construction at Sec.
35.151(a) and alterations at Sec. 35.151(b). In contrast, the term
``existing facility'' is not defined although it is used in the statute
and in the regulations for titles II and III. 42 U.S.C.
12182(b)(2)(A)(iv); 28 CFR 35.150.
The Department's enforcement of the ADA is premised on a broad
understanding of ``existing facilities.'' The classifications of
facilities under the ADA regulation are not static. Rather, a building
that was newly designed and constructed at one time--and, therefore,
subject to the accessibility standards in effect at the time--becomes
an ``existing facility'' after it is completed. At some point in its
life, it may also be considered ``altered'' and then again become
``existing.''
The added definition of ``existing facility'' in the proposed
regulation clarifies that the term means exactly what it says: A
facility in existence on any given date is an existing facility under
the ADA. If a facility exists, it is an existing facility whether it
was built in 1989, 1999, or 2009. Of course, if the construction of a
facility at issue begins after the triggering dates for the new
construction standards, then the facility is subject to the new
construction standards, and if it is altered, it is subject to the
alterations standards.
[[Page 34477]]
``Other Power-Driven Mobility Device''
The proposed regulation defines the term ``other power-driven
mobility device'' 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) (e.g., Segway[supreg]), or any mobility aid designed
to operate in areas without defined pedestrian routes.'' The definition
is designed to be broad and inclusive because the Department recognizes
the diverse needs and preferences of individuals with disabilities and
does not wish to impede individual choice except when necessary. Power-
driven mobility devices are included in this category. Mobility aids
that are designed for areas or conditions without defined pedestrian
areas, such as off-road bike paths, roads (except where allowed by law
or where a sidewalk is not provided), freeways, or natural surfaces
such as beaches where there is not a defined circulation route for
pedestrians, are also included in this category.
Question 8: Please comment on the proposed definition of other
power-driven mobility devices. Is the definition overly inclusive of
power-driven mobility devices that may be used by individuals with
disabilities?
The Department's proposed regulatory text on accommodating
wheelchairs and other power-driven mobility devices is discussed below
in Sec. 35.137 of the section-by-section analysis.
``Proposed Standards''
The Department has added the term ``proposed standards'' to mean
the 2004 ADAAG as revised or amended by the Department in this
rulemaking. The full text of the 2004 ADAAG is available for review at
http://www.access-board.gov along with a detailed comparison of the
1991 Standards and the 2004 ADAAG that identifies the differences
between the two documents.
``Qualified Interpreter''
The Department proposes to add 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.
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. Also, someone with just a
rudimentary familiarity with sign language or finger spelling is not a
qualified sign language interpreter. Likewise, a qualified sign
language interpreter would not include someone who is fluent in sign
language but unable to translate spoken communication into ASL or to
translate signed communication into spoken words.
The revised definition includes examples of different types of
interpreters. An oral interpreter has special skill and training to
mouth a speaker's words silently for individuals who are deaf or hard
of hearing, many of whom were raised orally and were taught to read
lips or were diagnosed with hearing loss later in life and do 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, 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.
``Qualified Reader''
The current regulation identifies a qualified reader as an
auxiliary aid, but it does 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
proposes 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. Failing to provide a qualified reader
to a person with a disability could amount to discrimination based upon
disability.
``Service Animal''
Although there is no specific language in the current 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 to avoid discrimination on the basis of
disability, unless the modifications would fundamentally alter the
nature of the service, program, or activity. 28 CFR 35.130(b)(7). In
order to qualify for coverage under title II, a person must be a
``qualified individual with a disability,'' which is defined as ``an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.''
28 CFR 35.104. The Department is proposing to add to the title II
regulation the same definition of ``service animal'' that it will
propose for the title III regulation. The title III regulation
currently contains a definition of ``service animal'' in Sec. 36.104.
The current definition of ``service animal'' in Sec. 36.104 is,
``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.'' The Department would
modify that current definition, and add the same definition, as
modified, to the title II regulation at Sec. 35.104. The changes that
would be made to the title III definition, and that would be
incorporated in the title II definition are as follows:
1. Remove ``guide'' or ``signal'' as descriptions of types of
service dogs, add ``other common domestic'' animal, and add
``qualified'' to ``individual'' in the Department's current definition;
2. Remove ``individuals with impaired vision'' and replace it with
``individuals who are blind or have low vision;''
3. Change ``individuals with impaired hearing'' to ``individuals
who are deaf or hard of hearing;''
4. Replace the term ``intruders'' with the phrase ``the presence of
people'' in the section on alerting individuals who are deaf or hard of
hearing;
5. Add the following to the list of work and task examples:
Assisting an individual during a seizure, retrieving medicine or the
telephone, providing physical support to assist with balance and
stability to individuals with mobility disabilities, and assisting
individuals, including those with cognitive disabilities, with
navigation;
6. Add that ``service animal'' includes individually trained
animals that do work or perform tasks for the benefit of individuals
with disabilities, including psychiatric, cognitive, or mental
disabilities;
7. Add that ``service animal'' does not include wild animals
(including nonhuman primates born in captivity),
[[Page 34478]]
reptiles, rabbits, farm animals (including any breed of horse, pony,
miniature horse, pig, and goat), ferrets, amphibians, and rodents; and
8. Add that animals whose sole function is to provide emotional
support, comfort, therapy, companionship, therapeutic benefits, or
promote emotional well-being are not service animals.
The Department is proposing these changes in response to concerns
expressed by commenters regarding the Department's ANPRM. Issues raised
by the commenters include:
``Minimal protection.'' There were many comments by service dog
users urging the Department to remove from the definition the phrase
``providing minimal protection.'' The commenters set forth the
following reasons for why the phrase should be deleted: (1) The current
phrase can be interpreted to apply coverage under the ADA to
``protection dogs'' that are trained to be aggressive and protective,
so long as they are paired with a person with a disability; and (2)
since some view the minimal protection language to mean that a dog's
very presence can act as a crime deterrent, the language may be
interpreted to allow any untrained pet dog to provide minimal
protection by its mere presence. These interpretations were not
contemplated by the ADA.
Question 9: Should the Department clarify the phrase ``providing
minimal protection'' in the definition or remove it? Are there any
circumstances where a service animal providing ``minimal protection''
would be appropriate or expected?
``Alerting to intruders.'' Some commenters expressed a similar
concern regarding the phrase ``alerting * * * to intruders'' in the
current text as the concern expressed by commenters regarding the
phrase ``providing minimal protection.'' Commenters indicated that
``alerting to intruders'' has been misinterpreted by some individuals
to apply to a special line of protection dogs that are trained to be
aggressive. People have asserted, incorrectly, that use of such animals
is protected under the ADA. The Department reiterates that public
entities are not required to admit any animal that poses a direct
threat to the health or safety of others. The Department has proposed
removing ``intruders'' and replacing it with ``the presence of
people.''
``Task'' emphasis. Many commenters followed the lead of an umbrella
service dog organization and suggested that the phrase ``performing
tasks'' should form the basis of the service animal definition, that
``do work'' should be eliminated from the definition, and that
``physical'' should be added to describe tasks. Tasks by their nature
are physical, so the Department does not believe that such a change is
warranted. In contrast, the existing phrase ``do work'' is slightly
broader than ``perform tasks,'' and adds meaning to the definition. For
example, a psychiatric service dog can help some individuals with
dissociative identity disorder to remain grounded in time or place. As
one service dog user stated, 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. One
commenter stated that the current definition works for everyone (i.e.,
those with physical and mental disabilities) and urged the Department
to keep it. The Department has evaluated this issue and believes that
the crux of the current definition (individual training to do work or
perform tasks) is inclusive of the varied services provided by working
animals on behalf of individuals with all types of disabilities and
proposes that this portion of the definition remain the same.
Define ``task.'' One commenter suggested defining the term
``task,'' presumably so that there would be a better understanding of
what type of service performed by an animal would qualify for coverage.
The Department feels that the common definition of task is sufficiently
clear and that it is not necessary to add the term to the definitions
section; however, the Department has proposed additional examples of
work or tasks to help illustrate this requirement in the definition of
service animal.
Define ``animal'' or what qualifies certain species as ``service
animals.'' When the regulation was promulgated in 1991, the Department
did not define the parameters of acceptable animal species, and few
anticipated the variety of animals that would be used in the future,
ranging from pigs and miniature horses to snakes and iguanas. One
commenter suggested defining ``animal'' (in the context of service
animals) or the parameters of acceptable species to reduce the
confusion over whether a particular service animal is covered. One
service dog organization commented that other species would be
acceptable if those animals could meet the behavioral standards of
trained service dogs. Other commenters asserted that there are certain
animals (e.g., reptiles) that cannot be trained to do work or perform
tasks, so these animals would not be covered. The Department has
followed closely this particular issue (i.e., how many unusual animals
are now claimed as service animals) and believes that this aspect of
the regulation needs clarification.
To establish a practical and reasonable species parameter, the
Department proposes to narrow the definition of acceptable animal
species to ``dog or other common domestic animal'' by excluding the
following animals: Wild animals (including nonhuman primates born in
captivity), reptiles, rabbits, farm animals (including any breed of
horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and
rodents. Many commenters asserted that limiting the number of allowable
species would help stop erosion of the public's trust, which results in
reduced access for many individuals with disabilities, despite the fact
that they use trained service animals that adhere to high behavioral
standards. The Department is compelled to take into account practical
considerations of certain animals and contemplate their suitability in
a variety of public contexts, such as libraries or courtrooms.
In addition, the Department believes that it is necessary to
eliminate from coverage all wild animals, whether born or bred in
captivity or the wild. Some animals, such as nonhuman primates, pose a
direct threat to safety based on behavior that can be aggressive and
violent without notice or provocation. The American Veterinary Medical
Association (AVMA) issued a position statement against the use of
monkeys as service animals, stating, ``[t]he AVMA does not support the
use of nonhuman primates as assistance animals because of animal
welfare concerns, the potential for serious injury, and zoonotic
[animal-to-human disease transmission] risks.'' See the AVMA 2005
position statement, Nonhuman Primates as Assistance Animals, available
at http://www.avma.org/issues/policy/nonhuman_primates.asp. The
potential for nonhuman primates to transmit dangerous diseases to
humans has been documented in scientific journals.
Although unusual species make up a very small percentage of service
animals as a collective group, their use has engendered broad public
debate and, therefore, the Department seeks comment on this issue.
Question 10: Should the Department eliminate certain species from
the definition of ``service animal''? If so, please provide comment on
the Department's use of the phrase ``common domestic animal'' and on
its choice of which types of animals to exclude.
[[Page 34479]]
Question 11: Should the Department impose a size or weight
limitation for common domestic animals, even if the animal satisfies
the ``common domestic animal'' prong of the proposed definition?
Comfort animals. It is important to address the concept of comfort
animals or emotional support animals, which have become increasingly
popular. The increased use of comfort animals is primarily by
individuals with mental or psychiatric impairments, many of which do
not rise to the level of disability. Comfort animals are also used by
individuals without any type of impairment who claim the need for such
an animal in order to bring their pets into facilities of public
entities.
The difference between an emotional support animal and a
psychiatric service animal is the service that is provided, i.e., the
actual work or task performed by the service animal. Another critical
factor rests on the severity of the individual's impairment. For
example, only individuals with conditions that substantially limit them
in a major life activity qualify for coverage under the ADA, and only
those individuals' use of a service animal will be covered under the
ADA. See definition of disability, 42 U.S.C. 12102(2) and 28 CFR
35.104. Major life activities include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. Many Americans have some
type of physical or mental impairment (e.g., arthritis, anxiety, back
pain, imperfect vision, etc.), but establishing a physical or mental
disability also requires a substantial limitation of a major life
activity. Traditionally, service dogs worked as guides for individuals
who were blind or had low vision. Since the original regulations were
promulgated, service animals have been trained to assist individuals
with different types of disabilities. As a result, individuals with
minor impairments may mistakenly conclude that any type of impairment
qualifies them for ADA coverage.
Change ``service animal'' to ``assistance animal.'' Some commenters
asserted that ``assistance animal'' is a term of art and should replace
``service animal.'' While some agencies, like the Department of Housing
and Urban Development (HUD), use the term ``assistance animal,'' that
term is used to denote a broader category of animals than is covered by
the ADA. The Department believes that changing the term used under the
ADA would create confusion, particularly in view of the broader
parameters for coverage under the Fair Housing Act (FHA) (cf., HUD
Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized
Multifamily Housing Programs (June 2007), available at http://www.hudclips.org.) Moreover, the Department's proposal to change the
definition of ``service animal'' under the ADA is not intended to
affect the rights of people with disabilities who use assistance
animals in their homes under the FHA.
In addition, the term ``psychiatric service animal'' describes a
service animal that does work or performs a task for the benefit of an
individual with a psychiatric disability. This contrasts with
``emotional support'' animals that are covered under the Air Carrier
Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations,
14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on
accommodation of service animals and emotional support animals on air
transportation) and qualify as ``assistance animals'' under the FHA,
but do not qualify as ``service animals'' under the ADA.
``Video Interpreting Services (VIS)''
The Department has added a definition of video interpreting
services (VIS), 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.
VIS can provide immediate, effective access to interpreting
services seven days a week, twenty-four hours a day by allowing people
in different locations to engage in live, virtual face-to-face
communications. Moreover, VIS is particularly helpful where qualified
interpreters are not readily available (e.g., for quick response during
emergency hospital visits, in areas with an insufficient number of
qualified interpreters to meet demand, and in rural areas where
distances and an interpreter's travel time present obstacles).
In addition to adding the specific definition of VIS, the
Department proposes to add VIS to the definition of ``auxiliary aids
and services'' (discussed above in Sec. 35.104) and to set out
performance standards for VIS at Sec. 35.160.
``Wheelchair''
The Department proposes the following definition of ``wheelchair''
in Sec. 35.104: ``Wheelchair means 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.''
The proposed definition of ``wheelchair'' is informed by several
existing definitions of ``wheelchair.'' Section 507 of the ADA defines
wheelchair in the context of whether to allow wheelchairs in federal
wilderness areas: ``The term `wheelchair' means a device designed
solely for use by a mobility-impaired person for locomotion, that is
suitable for use in an indoor pedestrian area.'' 42 U.S.C. 12207(c)(2).
The Department believes that while this definition is appropriate in
the limited context of federal wilderness areas, it is not specific
enough to provide clear guidance in the array of settings covered by
title II.
The other existing federal definition of ``wheelchair'' that the
Department reviewed is in the Department of Transportation regulation
implementing the transportation provisions under title II and title III
of the ADA. The Department of Transportation's definition of
``wheelchair'' is ``a mobility aid belonging to any class of three or
four-wheeled devices, usable indoors, designed for and used by
individuals with mobility impairments, whether operated manually or
powered.'' 49 CFR 37.3. The Department has adopted much of the language
from this definition. Under the proposed definition, wheelchairs
include manually operated and power-driven wheelchairs and mobility
scooters. Mobility devices such as golf cars, bicycles, and electronic
personal assistance mobility devices (EPAMDs) are inherently excluded
from the proposed definition. Typically, the devices covered under the
proposed definition are single-user, have three to four wheels, and are
appropriate for both indoor and outdoor pedestrian areas. However, it
could include a variety of types of wheelchairs and mobility scooters
with individualized or unique features or models with different numbers
of wheels. ``Typical indoor and outdoor pedestrian areas'' refer to
locations and surfaces used by and intended for pedestrians, including
sidewalks, paved paths, floors of buildings, elevators, and other
circulation routes, but would not
[[Page 34480]]
include such areas as off-road bike paths, roads (except where allowed
by law or where a sidewalk is not provided), freeways, or natural
surfaces such as beaches where there is not a defined circulation route
for pedestrians.
The Department does not propose to define specific dimensions that
qualify a device as a wheelchair. The Department of Transportation's
definition includes a subpart defining ``common wheelchair'' to provide
guidance for public transit authorities on which devices must be
transported. A ``common wheelchair'' is a wheelchair that ``does not
exceed 30 inches in width and 48 inches in length measured two inches
above the ground, and does not weigh more than 600 pounds when
occupied.'' 49 CFR 37.3. The narrower definition of ``common
wheelchair'' was developed with reference to the requirements for lifts
to establish parameters for the size and weight a lift can safely
accommodate. See 49 CFR part 37, App. D (2002). The Department does not
believe it is necessary to adopt stringent size and weight requirements
for wheelchairs.
The Department requests public input on the proposed definition for
``wheelchair.''
Question 12: As explained above, the definition of ``wheelchair''
is intended to be tailored so that it includes many styles of
traditional wheeled mobility devices (e.g., wheelchairs and mobility
scooters). Does the definition appear to exclude some types of
wheelchairs, mobility scooters, or other traditional wheeled mobility
devices? Please cite specific examples if possible.
Question 13: Should the Department expand its definition of
``wheelchair'' to include Segways[supreg]?
Question 14: Are there better ways to define different classes of
mobility devices, such as the weight and size of the device that is
used by the Department of Transportation in the definition of ``common
wheelchair''?
Question 15: Should the Department maintain the non-exhaustive list
of examples as the definitional approach to the term ``manually powered
mobility aids''? If so, please indicate whether there are any other
non-powered or manually powered mobility devices that should be
considered for specific inclusion in the definition, a description of
those devices, and an explanation of the reasons they should be
included.
Question 16: Should the Department adopt a definition of the term
``manually powered mobility aids''? If so, please provide suggested
language and an explanation of the reasons such a definition would
better serve the public.
The proposed regulation regarding mobility devices, including
wheelchairs, is discussed below in the section-by-section analysis for
Sec. 35.137.
Subpart B--General Requirements
Section 35.130 General Prohibitions Against Discrimination
Section 35.133 Maintenance of Accessible Features
The general rule regarding the maintenance of accessible features,
which 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, is unchanged. However, the Department wishes to clarify
its application and proposes one change to the section.
The Department has noticed that some covered entities do not
understand what is required by Sec. 35.133, and it would like to take
the opportunity presented by this NPRM to clarify the requirement.
Section 35.133(a) broadly covers all features that are required to be
accessible under the ADA, from accessible routes and elevators to roll-
in showers and signage. It is not sufficient for a building or other
feature to be built in compliance with the ADA, only to be changed or
blocked later so that it becomes inaccessible. A common problem
observed by the Department is that covered facilities do not maintain
accessible routes. For example, the accessible routes in offices or
hallways are commonly obstructed by boxes, furniture, or other items so
that the routes are inaccessible to individuals who use wheelchairs.
Under the ADA, the accessible route must be maintained and therefore
these items are required to be removed. If the items are placed there
temporarily--for example, if an office receives multiple boxes of
supplies and is moving them from the hall to the storage room--then
Sec. 35.133(b) excuses such ``isolated or temporary interruptions.''
Other common examples of features that must be maintained, and often
are not, are platform lifts and elevators. Public entities must ensure
that these features are operable, and to meet this requirement, regular
servicing and making repairs quickly will be necessary.
The Department proposes to amend the rule by adding Sec. 35.133(c)
to address the discrete situation in which the scoping requirements
provided in the proposed standards may reduce the number of required
elements below that are required by the 1991 Standards. In that
discrete event, a public entity may reduce such accessible features in
accordance with the requirements in the proposed standards.
Section 35.136 Service Animals
The Department's title II regulation now 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 35.130(b)(7). In the
proposed title II language, the Department intends to provide the
broadest feasible access to individuals with disabilities who use
service animals, unless a public entity can demonstrate that making the
modifications would fundamentally alter the nature of the public
entity's service, program, or activity.
The proposed section regarding service animals would incorporate
the Department's policy interpretations as outlined in its published
technical assistance Commonly Asked Questions about Service Animals
(1996) (available at http://www.ada.gov/qasrvc.htm), and ADA Business
Brief: Service Animals (2002) (available at http://www.ada.gov/svcanimb.htm), as well as make changes based on public comment.
Proposed Sec. 35.136 would:
1. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance and add that a public
entity may ask an individual with a disability to remove a service
animal from the premises if: (i) The animal is out of control and the
animal's handler does not take effective action to control it; (ii) the
animal is not housebroken; (iii) the animal's presence or behavior
fundamentally alters the nature of the service the public entity
provides (e.g., repeated barking); or (iv) the animal poses a direct
threat to the health or safety of others that cannot be eliminated by
reasonable modifications in Sec. 35.136(b);
2. Add in Sec. 35.136(c) that if a public entity properly excludes
a service animal, the public entity must give the individual with a
disability the opportunity to participate in or benefit from the
services, programs, or activities without having the service animal on
the premises;
3. Add in Sec. 35.136(d) requirements that the work or tasks
performed by a service animal must be directly related to the handler's
disability; that a service animal that accompanies an individual with a
disability into a public entity's
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facility must be individually trained to do work or perform a task, be
housebroken, and be under the control of its owner; and that a service
animal must have a harness, leash, or other tether;
4. Add in Sec. 35.136(e) specific language clarifying that ``[a]
public entity is not responsible for caring for or supervising a
service animal.'' This proposed language does not require that the
person with a disability care for his or her service animal if care can
be provided by a family member, friend, attendant, volunteer, or anyone
acting on behalf of the person with a disability. This provision is a
variation on the existing title III language in Sec. 36.302(c)(2),
which states, ``[n]othing in this part requires a public accommodation
to supervise or care for a service animal.'' The Department is
proposing similar modifications to the title III requirements on
service animals in the NPRM for title III, published concurrently with
this NPRM.
5. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance that a public entity
must not ask what the person's disability is or about the nature of the
person's disability, nor require proof of service animal certification
or licensing, but that a public entity may ask (i) if the animal is
required because of a disability; and (ii) what work or tasks the
animal has been trained to perform in Sec. 35.136(f);
6. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance and add that a public
entity must not require an individual with a disability to pay a fee or
surcharge or post a deposit as a condition of permitting a service
animal to accompany its handler in a public entity's facility, even if
such deposits are required for pets, and that if a public entity
normally charges its citizens for damage that they cause, a citizen
with a disability may be charged for damage caused by his or her
service animal in Sec. 35.136(h).
These changes will respond to the following concerns raised by
individuals and organizations that commented in response to the ANPRM.
Proposed behavior or training standards. Some commenters proposed
behavior or training standards for the Department to adopt in its
revised regulation, not only to remain in keeping with the requirement
for individual training, but also on the basis that without training
standards the public has no way to differentiate between untrained pets
and service animals. Because of the variety of individual training that
a service animal can receive--from formal licensing at an academy to
individual training on how to respond to the onset of medical
conditions, such as seizures--the Department is not inclined to
establish a standard that all service animals must meet. Some of the
behavioral standards that the Department is proposing actually relate
to suitability for public access, such as being housebroken and under
the control of its handler.
Hospital and healthcare settings. Public entities, including public
hospitals, must modify policies, practices, or procedures to permit the
use of a service animal by an individual with a disability. 28 CFR
35.130(b)(7). The exception to this requirement is if making the
modification would fundamentally alter the nature of the service,
program, or activity. The Department generally follows the guidance of
the Centers for Disease Control and Prevention (CDC) on the use of
service animals in a hospital setting.
As required by the ADA, a healthcare facility must permit a person
with a disability to be accompanied by his or her service animal in all
areas of the facility in which that person would otherwise be allowed,
with some exceptions. Zoonotic diseases can be transmitted to humans
through trauma (e.g., bites or scratches). Although there is no
evidence that most service animals pose a significant risk of
transmitting infectious agents to humans, animals can serve as a
reservoir for a significant number of diseases that could potentially
be transmitted to humans in the healthcare setting. A service animal
may accompany its owner 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, rest rooms, and all other
areas of the facility where visitors are permitted, except those listed
below.
Under the ADA, the only circumstances under which a person with a
disability may not be entitled to be accompanied by his or her service
animal are those rare circumstances in which it has been determined
that the animal poses a direct threat to the health or safety of
others. A direct threat is defined as a significant risk to the health
or safety of others that cannot be eliminated or mitigated by a
modification of polices, practices, or procedures. Based on CDC
guidance, it is generally appropriate to exclude a service animal from
areas that require a protected environment, including operating rooms,
holding and recovery areas, labor and delivery suites, newborn
intensive care nurseries, and sterile processing departments. See
Centers for Disease Control, Guidelines for Environmental Infection
Control in Health Care Facilities (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.
Section 35.137 Mobility Devices
Proposed Sec. 35.137 has been added to provide additional guidance
to public entities about the circumstances in which power-driven
mobility devices must be accommodated.
As discussed earlier in this NPRM, this proposal is in response to
growing confusion about what types of mobility devices must be
accommodated. The Department has received complaints and become aware
of situations where individuals with mobility disabilities have
utilized for locomotion purposes riding lawn mowers, golf cars, large
wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters,
and other devices that are not designed for use or exclusively used by
people with disabilities. Indeed, there has been litigation about
whether the ADA requires covered entities to allow people with
disabilities to use their EPAMDs like users of traditional wheelchairs.
Individuals with disabilities have sued several shopping malls in which
businesses refused to allow a person with a disability to use an EPAMD.
See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State
Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/stories/17784.asp; 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. The Department believes
clarification on what the ADA requires is necessary at this juncture.
Section 35.137(a) reiterates the general rule that public entities
shall permit individuals using wheelchairs, scooters, and manually
powered mobility aids, including walkers, crutches, canes, braces, and
similar devices, in any areas open to pedestrians. The regulation
underscores this general proposition because the great majority of
mobility scooters and wheelchairs must be accommodated under nearly all
circumstances in which title II applies.
Section 35.137(b) adopts the general requirement in the ADA that
public entities must make reasonable modifications to their policies,
practices, and procedures when necessary to enable an individual with
[[Page 34482]]
a disability to use a power-driven mobility device to participate in
its services, programs, or activities unless doing so would result in a
fundamental alteration of their services, programs, or activities.
If a public entity restricts the use of power-driven mobility
devices by people without disabilities, then it must develop policies
addressing which devices and under what circumstances individuals with
disabilities may use power-driven mobility devices for the purpose of
mobility. Under the Department's proposed regulation in Sec.
35.137(c), public entities must adopt policies and procedures regarding
the accommodation of power-driven mobility devices other than
wheelchairs and scooters that are designed to assess whether allowing
an individual with a disability to use a power-driven mobility device
is reasonable and does not result in a fundamental alteration to its
programs, services, or activities. Public entities may establish
policies and procedures that address and distinguish among types of
mobility devices.
For example, a city 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 city may address its concerns about factors such as
space limitations by disallowing EPAMDs by members of the general
public.
Section 35.137(c) lists permissible factors that a public entity
may consider in determining whether the use of different types of
power-driven mobility devices by individuals with disabilities may be
permitted. In developing policies, public entities should group power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, wheelchairs designed for outdoor use, and other
devices). A blanket exclusion of all devices that fall under the
definition of other power-driven mobility devices in all locations
would likely violate the proposed regulation.
The factors listed in Sec. 35.137(c)(1)-(3) may be used in order
to develop policies regarding the use of other power-driven mobility
devices by people with disabilities. The dimensions, weight, and other
characteristics of the mobility device in relation to a wheelchair or
scooter, as well as the device's maneuverability and speed, may be
considered. Another permissible factor is the risk of potential harm to
others. The use of gas-powered golf cars by people with disabilities
inside a building may be prohibited, for example, because the exhaust
may be harmful to others. A mobility device that is unsafe to others
would not be reasonable under the proposed regulation. Additionally,
the risk of harm to the environment or natural or cultural resources or
conflicts with federal land management laws and regulations are also to
be considered. The final consideration is the ability of the public
entity to stow the mobility device when not in use, if requested by the
user.
While a public entity may inquire into whether the individual is
using the device due to a disability, the entity may not inquire about
the nature and extent of the disability, as provided in Sec.
35.137(d).
The Department anticipates that, in many circumstances, allowing
the use of unique mobility devices by individuals with disabilities
will be reasonable to provide access to a public entity's services,
programs, and activities, and that in many cases it will not
fundamentally alter the public entity's operations and services. On the
other hand, the use of mobility devices that are unsafe to others, or
unusually unwieldy or disruptive, is unlikely to be reasonable and may
constitute a fundamental alteration.
Consider the following examples:
Example 1: Although people who do not have mobility impairments
are prohibited from operating EPAMDs at the fairgrounds, the county
has developed a policy allowing people with disabilities to use
EPAMDs as their mobility device on the fairgrounds. The county's
policy states that EPAMDs are allowed in all areas of the
fairgrounds that are open to pedestrians as a reasonable
modification to its general policy on EPAMDs. The county determined
that the venue provides adequate space for a larger device such as
an EPAMD and that it does not fundamentally alter the nature of the
fair's activities and services. The county's policies do, however,
require that EPAMDs be operated at a safe speed limit. A county
employee may inquire at the ticket gate whether the device is needed
due to the user's disability and also inform an individual with a
disability using an EPAMD that the county policy requires that it be
operated at or below the designated speed limit.
Example 2: The city has developed a policy specific to city hall
regarding the use of EPAMDs (i.e., users who do not need the devices
due to disability are required to leave the devices outside the
building). While most of city hall is spacious, the city has
determined that it is not reasonable to allow people with
disabilities to bring their EPAMDs into the recorder of deeds
office, which is quite small, and the device's dimensions make it
unsafe and unwieldy in this situation. If it is not possible for the
individual with a disability to park the mobility device and walk
into the recorder of deeds office, the city government would still
be required to provide services to the person through program access
by meeting the individual in an adjacent, more spacious office,
allowing him or her to obtain services over the phone, sending an
employee to the individual's home, or through other means.
The Department is seeking public comment on the proposed
definitions and policy concerning wheelchairs and other mobility
devices.
Question 17: Are there types of personal mobility devices that must
be accommodated under nearly all circumstances? Conversely, are there
types of mobility devices that almost always will require an assessment
to determine whether they should be accommodated? Please provide
examples of devices and circumstances in your responses.
Question 18: Should motorized devices that use fuel or internal-
combustion engines (e.g., all-terrain vehicles) be considered personal
mobility devices that are covered by the ADA? Are there specific
circumstances in which accommodating these devices would result in a
fundamental alteration?
Question 19: Should personal mobility devices used by individuals
with disabilities be categorized by intended purpose or function, by
indoor or outdoor use, or by some other factor? Why or why not?
Section 35.138 Ticketing
The ticketing policies and practices of public entities are subject
to title II's nondiscrimination provisions. See 42 U.S.C. 12132.
Through the investigation of complaints, its enforcement actions, and
public comments related to ticketing, the Department is aware of the
need to provide regulatory guidance to entities involved in the sale or
distribution of tickets. With this NPRM, the Department proposes to
include a section on ticketing within the general requirements of
subpart B.
In response to the ANPRM, individuals with disabilities and related
advocacy groups commented that the reduced requirements for accessible
seating in assembly areas underscored the need for clarification from
the Department on ticketing related issues. One disability advocacy
group asserted that in order to guarantee equal access to assembly
areas for people with disabilities, it is necessary to provide
complementary design standards, sales policies, and operational
procedures.
The Department agrees that more explicit regulation is needed to
ensure that individuals with disabilities are not
[[Page 34483]]
improperly denied access to events because of discriminatory procedures
for the sale of wheelchair spaces. The Department's enforcement actions
have demonstrated that some venue operators, ticket sellers, and
distributors are not properly implementing title II's general
nondiscrimination provisions.
The Department has entered into agreements addressing problems with
ticketing sales and distribution by requiring specific modifications to
ticketing policies. While these negotiated settlement agreements and
consent decrees rest on fundamental nondiscrimination principles, they
represent solutions tailored to specific facilities. The Department
believes that guidance in this area is needed, but also recognizes that
ticketing practices and policies vary with venue size and event type,
and that a ``one-size-fits-all'' approach may be unrealistic.
The proposed rule clarifies the application of title II with
respect to ticketing issues in certain contexts, and is intended to
strike a balance between a covered entity's desire to maximize ticket
sales and the rights of individuals with disabilities to attend events
in assembly areas in a manner that is equal to that afforded to
individuals without disabilities. The proposed rule does not, however,
purport to cover or clarify all aspects or applications of title II to
ticketing issues. Moreover, the rule applies only to the sale or
distribution of tickets that are sold or distributed on a preassigned
basis.
Because this rule addresses ticketing policies and practices for
stadiums, arenas, theaters, and other facilities in which entertainment
and sporting events are held, its provisions are related to and
informed by those in proposed Sec. 35.151(g), which establishes design
requirements for seating in assembly areas. (Section 35.151(g) is
discussed below in the section-by-section analysis.) After the proposed
standards are finalized, the scoping reduction will apply to all public
entities. See proposed 28 CFR 35.133(c) (discussed earlier in the
section-by-section analysis).
Ticket distribution methods. Section 35.138(a) states the general
rule that a public entity shall modify its policies, practices, and
procedures to ensure that individuals with disabilities can purchase
single or multi-event tickets for accessible seating in the same way as
others (i.e., during the same hours and through the same distribution
methods as other seating is sold) unless doing so would fundamentally
alter the nature of its ticketing service, program, or activity. The
proposed rule makes clear that it is meant to reach all public entities
that provide a service or system by which individuals can purchase
event tickets, and is not limited to a venue's operation of its own
ticketing systems.
The Department has received numerous complaints from individuals
who were denied the opportunity to acquire tickets for accessible seats
through avenues such as ticketing pre-sales, promotions, lotteries, or
wait lists. The proposed rule, at Sec. 35.138(b), makes clear that
public entities must include accessible seating in all stages of the
ticketing process, including pre-sales, promotions, lotteries, or wait
lists.
Identification of available accessible seating. Section 35.138(c)
of the proposed rule requires a facility to identify available
accessible seating if seating maps, brochures, or other information is
provided to the general public. In the Department's investigations of
theaters and stadiums, it has discovered that many facilities lack an
accurate inventory of the accessible seating in their venues, and that
this information gap results in lost opportunities for patrons who need
accessible seating. For some public entities, multiple inventories may
be required to account for different uses of the facilities because the
locations of accessible seating may change in an arena depending on
whether it is used for a hockey game, a basketball game, or a concert.
The proposed rule further provides that the facility identify the
accessible seating on publicly available seating charts. This
transparency will facilitate the accurate sale of accessible seating.
Section 35.138(d) requires public entities to provide individuals
with disabilities with accurate information about the location of
accessible seating. The proposed rule specifically prohibits the
practice of ``steering'' individuals with disabilities to certain
wheelchair spaces so that the facility can maximize potential ticket
sales for other unsold wheelchair spaces.
Season tickets and multiple event tickets. Section 35.138(e)
addresses the sale of season tickets and other tickets for multiple
events. The proposed rule provides that public entities must sell
season tickets or tickets for multiple events for accessible seating in
the same manner that such tickets are sold to those purchasing general
seating. The rule also states that spectators purchasing tickets for
accessible seating on a multi-event basis shall be permitted to
transfer tickets for single-event use by friends or associates in the
same fashion and to the same extent other spectators holding tickets
for the same type of ticketing plan are permitted to do. A facility
must provide a portable seat for the transferee to use if necessary.
Secondary market ticket sales. The Department is aware that the
proposed rule may represent a significant change in practice for many
public entities with respect to ``secondary market'' ticket sales.
Because the secondary market is a recognized--and often integral--part
of the ticketing distribution system for many venues and activities,
individuals with disabilities will be denied an equal opportunity to
benefit from the goods offered--attendance at an event--if public
entities have no obligations with respect to accessible seating bought
or sold in this way. In conjunction with the proposed rule, the
Department seeks comment about public entities' current practices with
respect to the secondary market for tickets, and the anticipated impact
of the proposed rule on different types of facilities or events.
Specifically, the Department would like to know:
Question 20: If an individual resells a ticket for accessible
seating to someone who does not need accessible seating, should the
secondary purchaser be required to move if the space is needed for
someone with a disability?
Question 21: Are there particular concerns about the obligation
imposed by the proposed rule in which a public entity must provide
accessible seating, including a wheelchair space where needed, to an
individual with a disability who purchases an ``inaccessible'' seat
through the secondary market?
Release of unsold accessible seats. Section 35.138(f) provides
regulatory guidance regarding the release of unsold accessible seats.
Through its investigations, the Department has become familiar with the
problem of designated accessible seating being sold to the general
public before people who need accessible seating can buy tickets. As a
result, individuals who need to use the accessible seating cannot
attend an event.
The Department has entered into agreements addressing this problem
by requiring specific modifications to ticketing policies. While these
negotiated settlement agreements and consent decrees rest on
fundamental nondiscrimination principles, they represent solutions
tailored to specific facilities. The Department believes that guidance
in this area is needed, but also recognizes that ticketing practices
and policies vary with venue size and event type, and that a ``one-
size-fits-all'' approach may be unrealistic. These options provide
flexibility so that ticketing policies can be adjusted
[[Page 34484]]
according to the venue size and event type.
Facility sell-out. The approach in Sec. 35.138(f)(1) allows for
the release of unsold accessible seating once standard seats in the
facility have been sold. (Luxury boxes, club boxes, or suites are not
required to be sold out before the remaining accessible seats are
released.) To implement this option, the release of unsold accessible
seating should be done according to an established, written schedule.
Blocks of seats should be released in stages, and should include
tickets in a range of price categories and locations that is
representative of the range of seating that remains available to other
patrons.
Sell-outs in specific seating areas. Under the second option, Sec.
35.138(f)(2), a facility could release unsold accessible seating in a
specific seating area once all of the standard seats in that location
were sold out. For example, if all standard seats in the orchestra
level are sold, the unsold accessible seats in the orchestra level
could be released for sale to the general public.
Sell-outs of specific price ranges. The third approach described at
Sec. 35.138(f)(3) would permit a public entity to release unsold
accessible seats in a specific price range if all other standard seats
in that price range were sold out. For example, if all $50 seats were
sold, regardless of their location, the unsold $50 accessible seats
would be released for sale to the general public.
Question 22: Although not included in the proposed regulation as
currently drafted, the Department is soliciting comment on 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 discussed 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, holding, and release of accessible seating? What
considerations should appropriately inform the determination of when
unsold accessible seating can be released to the general public?
Ticket pricing. Section 35.138(g) of the proposed rule addresses
ticket pricing. The proposed rule codifies the Department's
longstanding policy that public entities cannot impose a surcharge for
wheelchair spaces. Accessible seating must be made available at all
price levels for an event. If an existing facility has barriers to
accessible seating at a particular price level for an event, then a
percentage (determined by the ratio of the total number of seats at
that price level to the total number of seats in the assembly area) of
the number of accessible seats must be provided at that price level in
an accessible location. For example, many theaters built prior to the
passage of the ADA have balconies that are inaccessible to individuals
who use wheelchairs, and the only wheelchair spaces are located in the
orchestra level where tickets are more expensive. If a comparably sized
balcony in a theater built under the ADA's new construction standards
would have two wheelchair spaces, the older theater must sell two
orchestra wheelchair spaces at the balcony price on a first come, first
served basis.
Fraudulent purchase of designated accessible seating. The
Department has received numerous comments regarding fraudulent attempts
to purchase wheelchair spaces for patrons other than those who use
wheelchairs. Moreover, the Department recognizes that implementation of
some of its proposals, such as public identification of accessible
seating, increases the potential for the fraudulent purchase of
accessible seats by those who do not need them. The Department
continues to believe that requiring an individual to provide proof that
he or she is a person with a disability is an unnecessary and
burdensome invasion of privacy and may unfairly deter individuals with
disabilities from purchasing tickets to an event.
Notwithstanding this position, the proposed rule at Sec. 35.138(h)
would permit public entities to take certain steps to address potential
ticket fraud. Under proposed Sec. 35.138(h)(1), a covered entity may
inquire at the time of the ticket purchase for single-event tickets
whether the wheelchair space is for someone who uses a wheelchair.
Section 35.138(h)(2) addresses potential ticket fraud for season or
subscription tickets. Under this provision, a facility may require the
purchaser to attest in writing that a wheelchair space is for someone
who uses a wheelchair. However, the regulation preserves the right of
an individual with a disability to transfer his or her ticket for
individual events and clarifies that the intermittent use of the
wheelchair space by a person who does not use a wheelchair does not
constitute fraud.
Purchase of multiple tickets. The Department has received numerous
complaints stating that assembly operators are unfairly restricting the
number of tickets that can be purchased by individuals with
disabilities. Many venues limit an individual requiring wheelchair
seating to purchase no more than two tickets (for him or herself and a
companion), while other patrons have significantly higher purchase
limits (if any). This is particularly difficult for families, friends,
or other groups larger than two that include a person who requires
accessible seating. If the ticket number is limited, the result for
wheelchair users is that parents and children, friends, classmates, and
others are separated. Section 35.138(i) clarifies application of title
II to ameliorate such a situation.
There are various ways that covered entities can accommodate groups
that require at least one wheelchair space. The proposed regulation at
Sec. 35.138(i)(1) would require a public entity to permit up to three
companions to sit in a designated wheelchair area, platform, or cross-
over aisle that is designated as a wheelchair area, even if the number
of companions outnumber the individuals requiring a wheelchair space.
For example, a parent who uses a wheelchair could attend a concert with
his or her spouse and their two children, and all four could sit
together in the wheelchair area. The Department recognizes that some
advocates may object to this use of designated wheelchair areas because
it will reduce the amount of accessible seating available for those who
need it. On balance, however, the Department believes that the
opportunity to sit with family and friends, as other patrons do, is an
integral element of the experience of attending a ticketed event, and
it is an element that is often denied to individuals with disabilities.
By limiting the number of tickets that can be purchased under this
provision to four, the Department seeks a balance by which groups and
families can be accommodated while still leaving ample space for other
individuals who use wheelchairs. The Department seeks comments from
individuals, business entities, and advocacy organizations on whether
the proposed rule will appropriately effectuate the integration and
nondiscrimination principles underlying the rule.
Question 23: Is the proposed rule regarding the number of tickets
that a public entity must permit individuals who use wheelchairs to
purchase sufficient to effectuate the integration of wheelchair users
with others? If not, please provide suggestions for achieving the same
result with regard to individual and group ticket sales.
Group ticket sales. Group ticket sales present another area in
which the Department believes additional regulatory guidance is
appropriate. The purpose of the proposed rule at
[[Page 34485]]
Sec. 35.138(i)(2) is to prevent the current practice of separating
groups in a way that isolates or segregates those in the group who
require wheelchair seating. If a group includes one or more individuals
who use a wheelchair, the proposed rule requires the facility to place
that group in a seating area that includes wheelchair spaces 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 a wheelchair are not isolated from the group. In existing
facilities that lack accessible seating in certain areas, e.g., a
theater with an inaccessible balcony, the proposed regulation would
require covered entities to seat at least three companions with the
individuals using a wheelchair in the accessible seating area of the
orchestra.
Subpart D--Program Accessibility
Section 35.150(b)(2) Safe Harbor
Under the ``program accessibility'' requirement in title II, each
service, program, or activity, when viewed in its entirety, must be
readily accessible to and usable by individuals with disabilities. 28
CFR 35.150 (emphasis added). The title II regulation makes clear that,
unlike public accommodations under title III, a public entity is not
required to make each of its existing facilities accessible to and
usable by individuals with disabilities. 28 CFR 35.150(a)(1). Moreover,
public entities are not required to make structural changes to existing
facilities where other methods are effective in ensuring program
accessibility. 28 CFR 35.150(b)(1).
Given that program accessibility is not an element-by-element
inquiry, but rather looks to the program when ``viewed in its
entirety,'' and that structural changes are not always required in
order to provide access to the programs, services, or activities of a
public entity, the Department believes that the program accessibility
requirement, itself, may appropriately mitigate any burdens on public
entities with respect to their existing facilities.
Nevertheless, in order to provide certainty to public entities and
individuals with disabilities alike, the Department proposes to add a
provision to the program accessibility requirement in Sec. 35.150 that
would clarify that public entities that have brought elements into
compliance in existing facilities are not, simply because of the
Department's adoption of the 2004 ADAAG as its new standards, required
to modify those elements in order to reflect incremental changes in the
proposed standards. In these circumstances, the public entity is
entitled to a safe harbor, and is only required to modify elements to
comply with the proposed standards if the public entity is,
independently, planning an alteration that is not undertaken in
fulfillment of its program accessibility obligations. See 28 CFR
35.151(b). The proposed safe harbor for title II operates only with
respect to elements that are in compliance with the scoping and
technical specifications in either the 1991 Standards or the UFAS; it
does not apply to elements that are addressed by supplemental
requirements in the 2004 ADAAG. The Department proposes a new Sec.
35.150(b)(2), denominated Safe Harbor, to Sec. 35.150 (Program
Accessibility). Section 35.150(a) includes general provisions, and
paragraph (b) of that section describes the methods by which a public
entity complies with the program accessibility requirements. Historic
preservation programs, which are addressed in Sec. 35.150(b)(2) in the
current regulation, have been moved to Sec. 35.150(b)(3) in the
proposed rule.
The Department proposes in Sec. 35.150(b)(2) that if elements in
an existing facility are in compliance with either the 1991 Standards
or UFAS, the public entity is not required to alter--or retrofit
again--such elements to reflect incremental changes in the 2004 ADAAG
simply because the Department is adopting new ADA Standards. As
explained above, this safe harbor operates on an element-by-element
basis, and does not apply to elements subject to requirements that are
not included in the current ADA Standards for Accessible Design, but
rather are supplemental requirements in the 2004 ADAAG.
Section 35.150(b)(4) and (5) Existing Play Areas and Recreation
Facilities
Play areas. Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG
provide a detailed set of requirements for newly constructed and
altered play areas. Section 240.2.1.1 of the 2004 ADAAG requires that
at least one ground level play component of each type provided (e.g.,
for different experiences such as rocking, swinging, climbing,
spinning, and sliding) must be accessible and connected to an
accessible route. In addition, if elevated play components are
provided, entities must make at least fifty percent (50%) of the
elevated play components accessible and connect them to an accessible
route, and may have to make an additional number of ground level play
components (representing different types) accessible as well. There are
a number of exceptions to the technical specifications for accessible
routes, and there are special rules (incorporated by reference from
nationally recognized standards for accessibility and safety in play
areas) for accessible ground surfaces. Accessible ground surfaces must
be inspected and maintained regularly and frequently to ensure
continued compliance.
The Department is concerned about the potential impact of these
supplemental requirements on existing play areas that are not otherwise
being altered. The program accessibility requirement does not require
public entities to make structural modifications to existing facilities
except where such modifications may be necessary to make the program or
service, when considered as a whole, accessible to individuals with
disabilities. Although play areas may be more likely than other types
of facilities to require structural modifications, this does not mean
that every existing playground operated by a city or county must be
made accessible. Compliance with the program accessibility requirement
turns on the accessibility of the program--i.e., the program of
providing and maintaining public playgrounds--rather than the
accessibility of each particular facility used to provide that program.
Where a public entity provides and maintains multiple play areas as
part of its program of providing public playgrounds, for purposes of
the program accessibility requirement, only a reasonable number but at
least one of such play areas would be required to undertake structural
modifications to provide access for individuals with disabilities. The
same reasoning would apply where an existing site (e.g., a state park)
provides multiple play areas designed for the same age group.
The Department notes that the requirement to provide a reasonable
number of accessible play areas is consistent with the longstanding
program accessibility rules, which provide that it is not necessary for
every facility to be accessible, provided that the program, when viewed
in its entirety, is readily accessible to individuals with
disabilities. In situations where a public entity provides the services
of one program at multiple sites (e.g., a town with ten parks), the
public entity would focus on whether the number and location of the
accessible parks offer comparable convenience to persons with
disabilities and whether the range of programs and services offered at
the accessible parks are equivalent to the range offered at the
inaccessible parks. At a minimum, a
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public entity must provide at least one accessible facility unless the
public entity can demonstrate that providing the accessible facility
would result in a fundamental alteration in the nature of its program
or activity or in undue financial and administrative burdens. However,
determining how many more than one would be ``reasonable'' requires a
careful analysis of factors in order to determine how many accessible
facilities are necessary to ensure that the covered program is
accessible. Factors to be considered include, but are not limited to,
the size of the public entity, geographical distance between sites,
travel times to the sites, the number of sites, and availability of
public transportation to the sites.
The Department is proposing several specific provisions and posing
additional questions in an effort to both mitigate and gather
information about the potential burden of the supplemental requirements
on existing public facilities.
Question 24: Is a ``reasonable number, but at least one'' a
workable standard for determining the appropriate number of existing
play areas that a public entity must make accessible for its program to
be accessible? Should the Department provide a more specific scoping
standard? Please suggest a more specific standard if appropriate. In
the alternative, should the Department provide a list of factors that a
public entity could use to determine how many of its existing play
areas to make accessible, e.g., number of play areas, travel times, or
geographic distances between play areas, and the size of the public
entity?
State and local governments may have already adopted accessibility
standards or codes similar to the 2004 ADAAG requirements for play and
recreation areas, but which might have some differences from the Access
Board's guidelines.
Question 25: The Department would welcome comment on whether there
are state and local standards specifically regarding play and
recreation area accessibility. To the extent that there are such
standards, we would welcome comment on 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. We would also welcome
comment on whether it would be appropriate for the Access Board to
consider implementation of guidelines that would permit such a safe
harbor with respect to play and recreation areas undertaking
alterations.
Question 26: The Department requests public comment with respect to
the application of these requirements to existing play areas. What is
the ``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?
The Department is proposing two specific provisions to reduce the
impact on existing facilities that undertake structural modifications
pursuant to the program accessibility requirement. First, the
Department proposes to add Sec. 35.150(b)(5)(i) to provide 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 selected this size based on the provision in section
1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting 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 twenty
percent (20%) 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). If these assumptions are
correct, the proposed exemption would have relatively little impact on
most existing play areas operated by public entities, while still
mitigating the burden on those smaller public entities to which it did
apply.
Question 27: The Department would like to hear from public entities
and individuals with disabilities about the potential effect of this
approach. Should existing play areas less than 1,000 square feet be
exempt from the requirements applicable to play areas?
Secondly, the Department proposes to add Sec. 35.150(b)(4)(i) to
provide that existing play areas that are not being altered will 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 proposed 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 fifty percent (50%) of the elevated play components are
accessible.
Many commenters advised the Department that making elevated play
components accessible in existing play areas that are not otherwise
being altered would impose an undue burden on most facilities. Given
the nature of the element at issue, retrofitting existing elevated play
components in play areas to meet the scoping and technical
specifications in the alteration standard would be difficult and
costly, and in some instances, infeasible. In response to expressed
concerns, the Department proposes to reduce the scoping for existing
play areas that are not being altered by permitting entities to
substitute ground level play components for elevated play components.
Entities that provide elevated play components that do not comply with
section 240.2.2 of the 2004 ADAAG would be deemed in compliance for
purposes of the program accessibility requirement as long as the number
of accessible ground level play components is equal to the sum of (a)
the number of ground level play components required to comply with
section 240.2.1 of the 2004 ADAAG (as provided by Table 240.2.1.2, but
at least one of each type) and (b) the number of elevated play
components required to comply with 2004 ADAAG section 240.2.2 (namely,
fifty percent (50%) of all elevated play components). In existing play
areas that provide a limited number of ground level play components,
qualifying for this exception may require providing additional ground
level play components.
While this provision may result in less accessibility than the
application of the alteration standard, public entities will likely be
more willing to voluntarily undertake structural modifications in play
areas if they anticipate that compliance will be straightforward and
relatively inexpensive. In addition, for existing play areas with
limited resources, it will often be more efficient to devote resources
to making the ground surface of the play area accessible, which is
necessary to provide an accessible route to any play components.
Reduced scoping for elevated play components could also minimize the
risk that covered entities will delay compliance, remove elevated play
components, or simply close the play area. It also provides a bright-
line rule for which compliance can be easily evaluated.
Question 28: The Department would like to hear from public entities
and individuals with disabilities about the potential effect of this
approach. Should
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existing play areas be permitted to substitute additional ground level
play components for the elevated play components it would otherwise
have been required to make accessible? Are there other select
requirements applicable to play areas in the 2004 ADAAG for which the
Department should consider exemptions or reduced scoping?
Question 29: The Department would welcome comment on whether it
would be appropriate for the Access Board to consider implementation of
guidelines for play and recreational facilities undertaking alterations
that would permit reduced scoping of requirements or substitution of
ground level play components in lieu of elevated play components, as
the Department is proposing with respect to barrier removal obligations
for certain play or recreational facilities.
Swimming pools. As noted earlier, the program accessibility
requirement does not require public entities to make structural
modifications to existing facilities except where such modifications
may be necessary to make the program or service, when considered as a
whole, accessible to individuals with disabilities. Although swimming
pools, like play areas, may be more likely than other types of
facilities to require structural modifications, this does not mean that
every existing swimming pool operated by a city or county must be made
accessible. Compliance with the program accessibility requirement turns
on the accessibility of the program--i.e., the program of providing and
maintaining public swimming pools--rather than the accessibility of
each particular facility used to provide that program. Where a public
entity provides and maintains multiple swimming pools as part of its
program of providing public swimming pools, for purposes of the program
accessibility requirement, only a reasonable number but at least one of
such swimming pools would be required to undertake structural
modifications to provide access for individuals with disabilities. The
same reasoning would apply where an existing site (e.g., a city
recreation center) provides multiple swimming pools serving the same
purpose.
Question 30: Is a ``reasonable number, but at least one'' 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? Should the Department provide a more specific
scoping standard? Please suggest a more specific standard if
appropriate. In the alternative, should the Department 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?
The Department is proposing two specific provisions to minimize the
potential impact of the new requirements on existing swimming pools
that undertake structural modifications pursuant to the program
accessibility requirement. First, the Department is proposing to add
Sec. 35.150(b)(5)(ii) to provide that swimming pools that have over
300 linear feet of swimming pool wall and are not being altered will be
required to provide only one (rather than two) accessible means of
entry, at least one of which must be a sloped entry or a pool lift.
This provision represents a less stringent requirement than the
requirement in 2004 ADAAG section 242.2, which requires such pools,
when newly constructed or altered, to provide two accessible means of
entry. Under this proposal, for purposes of the program accessibility
requirement, swimming pools operated by public entities would be
required to have at least one accessible entry.
Commenters responding to the ANPRM noted that the two-means-of-
entry-standard, if applied to existing swimming pools, will
disproportionately affect small public entities, both in terms of the
cost of implementing the standard and anticipated litigation costs.
Larger public entities benefit from economies of scale, which are not
available to small entities. Although complying with the alteration
standard would impose an undue burden on many small public entities,
the litigation-related costs of proving that such compliance is not
necessary to provide program access may be significant. Moreover, these
commenters argue, the immediacy of perceived noncompliance with the
standard--it will usually be readily apparent whether a public entity
has the required accessible entry or entries--makes this element
particularly vulnerable to serial ADA litigation. The reduced scoping
would apply to all public entities, regardless of size.
The Department recognizes that this approach could reduce the
accessibility of larger swimming pools compared to the requirements in
the 2004 ADAAG. Individuals with disabilities and advocates were
particularly concerned about the accessibility of pools, and noted that
for many people with disabilities, swimming is one of the few types of
exercise that is generally accessible and, for some people, can be an
important part of maintaining health. Other commenters noted that
having two accessible means of egress from a pool can be a significant
safety feature in the event of an emergency. It may be, however, that
as a practical matter the reduction in scoping may not be significant,
as the measures required to meet the alteration standards for
accessible entries would often impose an undue burden even if
considered on a case-by-case basis.
Question 31: The Department would like to hear from public entities
and individuals with disabilities about this exemption. Should the
Department allow existing public entities to provide only one
accessible means of access to swimming pools more than 300 linear feet
long?
Secondly, the Department proposes to add Sec. 35.150(b)(5)(ii) to
provide that existing swimming pools that have less than 300 linear
feet of swimming pool wall and are not being altered need not undertake
structural modifications to comply with the scoping and technical
requirements for swimming pools in section 242.2 of the 2004 ADAAG. In
its 2002 regulatory assessment for the recreation guidelines, the
Access Board assumed that pools with less than 300 feet of linear pool
wall would represent ninety percent (90%) of the pools in public high
schools; forty percent (40%) of the pools in public parks and community
centers; and thirty percent (30%) of the pools in public colleges and
universities. If these assumptions are correct, the proposed exemption
would have the greatest impact on the accessibility of swimming pools
in public high schools.
Question 32: The Department would like to hear from public entities
and individuals with disabilities about the potential effect of this
approach. Should existing swimming pools with less than 300 linear feet
of pool wall be exempt from the requirements applicable to swimming
pools?
Wading pools. Section 242.3 of the 2004 ADAAG provides that newly
constructed or altered wading pools must provide at least one sloped
means of entry to the deepest part of the pool. The Department is
concerned that installing a sloped entry in existing wading pools may
not be feasible for a significant proportion of public entities and is
considering creating an exemption for existing wading pools that are
not being altered.
Question 33: What 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
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are not being altered be exempt from the requirement to provide a
sloped entry?
Saunas and steam rooms. The Department is proposing one specific
provision to minimize the potential impact of the new requirements on
existing saunas and steam rooms. Section 241 of the 2004 ADAAG requires
newly constructed or altered saunas and steam rooms to meet
accessibility requirements, including accessible turning space and an
accessible bench. Where saunas or steam rooms are provided in clusters,
five percent (5%), but at least one sauna or steam room in each
cluster, will have to be accessible. The Department understands that
many saunas are manufactured (pre-fabricated) and come in standard
sizes (e.g., two-person or four-person), and that the two-person size
may not be large enough to meet the turning space requirement.
Therefore, the Department proposes in Sec. 35.150(b)(5)(iii) to
specify that existing saunas or steam rooms that have a capacity of
only two persons and are not being altered need not undertake
structural modifications to comply with the scoping and technical
requirements for saunas and steam rooms in section 241 of the 2004
ADAAG. While this exception may limit the accessibility of small
existing saunas or steam rooms in public facilities, such facilities
would remain subject to the ADA's general requirement to ensure that
individuals with disabilities have an equal opportunity to enjoy the
services and amenities of their facilities.
Exercise machines. Sections 236 and 206.2.13 of the 2004 ADAAG
require one of each type of fixed exercise machine to meet clear floor
space specifications and to be on an accessible route. Types of
machines are generally defined according to the muscular groups
exercised or the kind of cardiovascular exercise provided.
Question 34: Will existing facilities have to reduce the number of
available exercise equipment and machines in order to comply? What
types of space limitations would affect compliance?
Team or player seating areas. Section 221.2.1.4 of the 2004 ADAAG
requires one or more wheelchair spaces to be provided in each team or
player seating area with fixed seats, depending upon the number of
seats provided for spectators. For bowling lanes, the requirement would
be limited to lanes required to be accessible.
Question 35: Are team or player seating areas in certain types of
existing facilities (e.g., ice hockey rinks) more difficult to make
accessible due to existing designs? What types of existing facilities
typically have design constraints that would make compliance with this
requirement infeasible?
Areas of sport activity. Sections 206.2.2 and 206.2.12 of the 2004
ADAAG require each area of sport activity (e.g., courts and playing
fields, whether indoor or outdoor) to be served by an accessible route.
In court sports, the accessible route would also have to directly
connect both sides of the court. For purposes of the program
accessibility requirement, as with play areas and swimming pools, where
an existing facility provides multiple areas of sport activity that
serve the same purpose (e.g., multiple soccer fields), only a
reasonable number but at least one (rather than all) would need to meet
accessibility requirements.
Question 36: Should the Department create an exception to this
requirement for existing courts (e.g., tennis courts) that have been
constructed back-to-back without any space in between them?
Boating facilities. Sections 206.2.10, 235.2 and 235.3 of the 2004
ADAAG require a specified number of boat slips and boarding piers at
boat launch ramps to be accessible and connected to an accessible
route. In existing boarding piers, the required clear pier space may be
perpendicular to and extend the width of the boat slip if the facility
has at least one accessible boat slip, providing that more accessible
slips would reduce the total number (or widths) of existing boat slips.
Accessible boarding piers at boat launch ramps must comply with the
requirements for accessible boat slips for the entire length of the
pier. If gangways (only one end of route is attached to land) and
floating piers (neither end is attached to land) are involved, a number
of exceptions are provided from the general standards for accessible
routes in order to take into account the difficulty of meeting
accessibility slope requirements due to fluctuations in water level. In
existing facilities, moreover, gangways need not be lengthened to meet
the requirement (except in an alteration, as may be required by the
path of travel requirement).
Question 37: The Department is interested in collecting data
regarding the impact of these requirements in existing boating
facilities. Are there issues (e.g, space limitations) that would make
it difficult to provide an accessible route to existing boat slips and
boarding piers at boat launch ramps? To what extent do the exceptions
for existing facilities (i.e., with respect to boat slips and gangways)
mitigate the burden on existing facilities?
Fishing piers and platforms. Sections 206.2.14 and 237 of the 2004
ADAAG require at least twenty-five percent (25%) of railings at fishing
piers and platforms to be no higher than 34 inches high, so that a
person seated in a wheelchair can fish over the railing, to be
dispersed along the pier or platform, and to be on an accessible route.
(An exception permits railings to comply, instead, with the model
codes, which permit railings to be 42 inches high.) If gangways (where
only one end of route is attached to land) and floating piers (where
neither end is attached to land) are involved, a number of exceptions
are provided from the general standards for accessible routes in order
to take into account the difficulty of meeting accessibility slope
requirements due to fluctuations in water level. In existing
facilities, moreover, gangways need not be lengthened to meet the
requirement (except, in an alteration, as may be required by the path
of travel requirement).
Question 38: The Department is interested in collecting data
regarding the impact of this requirement on existing facilities. Are
there issues (e.g., space limitations) that would make it difficult to
provide an accessible route to existing fishing piers and platforms?
Miniature golf courses. Sections 206.2.16, 239.2, and 239.3 of the
2004 ADAAG require at least fifty percent (50%) of the holes on
miniature golf courses to be accessible and connected to an accessible
route (which must connect the last accessible hole directly to the
course entrance or exit); generally, the accessible holes would have to
be consecutive ones. Specified exceptions apply to accessible routes
located on the playing surfaces of holes.
Question 39: The Department is considering creating an exception
for existing miniature golf facilities that are of a limited total
square footage, have a limited amount of available space within the
course, or were designed with extreme elevation changes. If the
Department were to create such an exception, what parameters should the
Department use to determine whether a miniature golf course should be
exempt?
Section 35.151 New Construction and Alterations
Section 35.151, which provides that those buildings that are
constructed or altered by, on behalf of, or for the use of a public
entity shall be designed, constructed, or altered to be readily
accessible to and usable by individuals with disabilities, is unchanged
in the proposed rule, but current Sec. 35.151(a) will be redesignated
as Sec. 35.151(a)(1). The Department will add a new section,
designated as Sec. 35.151(a)(2), to provide that full compliance with
the
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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 is now 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 is adding 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.
Section 35.151(b) Alterations
The Department's proposed rule would amend Sec. 35.151(b)(2) to
make clear that the path of travel requirements of Sec. 35.151(b)(4)
do not apply to measures taken solely to comply with program
accessibility requirements. This amendment is consistent with Sec.
36.304(d)(1) of the title III regulation, which states that ``[t]he
path of travel requirements of Sec. 36.403 shall not apply to measures
taken solely to comply with the barrier removal requirements of this
section.''
The two requirements for alterations to historic facilities
enumerated in current Sec. 35.151(d)(1) and (2) have been combined
under proposed Sec. 35.151(b)(3), and one substantive change is
proposed. Proposed Sec. 35.151(b)(3) provides that 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). Currently, the regulation
provides that alterations to historic facilities shall comply with
section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards. See 28
CFR 35.151(d)(1). However, the proposed regulation requires that
alterations to historic properties on or after six months after the
effective date of the proposed regulation comply with the proposed
standards, not UFAS or the 1991 Standards. See Sec. 35.151(c). 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 unchanged.
The Department proposes to add Sec. 35.151(b)(4) in order to make
the path of travel requirement in title II consistent with that in
title III. Both the Uniform Federal Accessibility Standards (UFAS) and
the title III regulation contain requirements for provision of an
accessible ``path of travel'' to the altered area when an existing
facility is altered, although the circumstances that trigger the
requirements are somewhat different under each statute. Under section
4.1.6(3) of UFAS, an accessible route to the altered area, an
accessible entrance, and (where applicable) accessible toilet
facilities must be provided when a substantial alteration is made to an
existing building. An alteration is considered ``substantial'' if the
total cost of all alterations within any twelve month period amounts to
fifty percent (50%) or more of the full and fair cash value of the
building. The proposed rule eliminates the UFAS ``substantial
alteration'' basis for path of travel requirements because it
eliminates UFAS as an option.
The path of travel requirements of the Department's proposed title
II rule are based on section 303(a)(2) of the ADA, 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 Department proposes to add a provision to the path of travel
requirement in Sec. 35.151(b)(4)(ii)(C) that would clarify that public
entities that have brought required elements of the path of travel into
compliance are not required to modify those elements in order to
reflect incremental changes in the proposed standards when the public
entity alters a primary function area that is served by the element. In
these circumstances, the public entity is entitled to a safe harbor,
and is only required to modify elements to comply with the proposed
standards if the public entity is planning an alteration to the
element.
The proposed rule provides that areas such as mechanical rooms,
boiler rooms, supply storage rooms, employee lounges and locker rooms,
janitorial closets, entrances, and corridors are not areas containing a
primary function. Nor are restroom areas containing a primary function
unless the provision of restrooms is the major reason that the facility
is maintained by a public entity, 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 requirement for an accessible path of travel does not apply,
however, to the extent that the cost and scope of alterations to the
path of travel is disproportionate to the cost of the overall
alteration, as determined under criteria established by the Attorney
General. Sections 227, 42 U.S.C. 12147, and 242, 42 U.S.C. 12162, of
the ADA adopt the same requirement for public transportation facilities
under title II.
Section 202.4 of the proposed standards adopts the statutory path
of travel requirement, and Sec. 36.403 of the Department's title III
regulation establishes the criteria for determining when the cost of
alterations to the path of travel is ``disproportionate'' to the cost
of the overall alteration. The Department's proposed Sec. 35.151(b)(4)
will adopt the language now contained in the title III regulation in
its entirety, 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 twenty percent (20%) of the cost of the alteration to
the primary function area).
Section 35.151(c) Accessibility Standards for New Construction and
Alterations
Section 35.151(c) proposes to adopt Parts I and III of the
Americans with Disabilities Act and Architectural Barriers Act
Guidelines, 69 FR 44084 (July 23, 2004) (2004 ADAAG) as the ADA
Standards for Accessible Design (proposed standards). As the Department
noted above, the development of these proposed 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 2004 ADAAG 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). The
Access Board site also includes an extensive discussion of the
development of the 2004 ADAAG, and a detailed comparison of the 1991
Standards, the 2004 ADAAG, and the 2003 International Building Code.
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Appendix A to this proposed rule is an analysis of the major
changes in the proposed standards and a discussion of the public
comments that the Department received on specific sections of the 2004
ADAAG. Comments discussing the costs and benefits of the proposed
standards have been considered and taken into account by the
Department's regulatory impact analysis. Comments on the effect of the
proposed standards on existing facilities are discussed in conjunction
with the analysis of Sec. 35.150 of this proposed rule.
The remaining comments addressed global issues, such as the
Department's proposal to adopt the 2004 ADAAG as the ADA Standards for
Accessible Design without significant changes.
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 guidelines published by the Access Board. Commenters suggested
that the Department should not adopt the 2004 ADAAG, but should develop
an independent regulation. The Department is a statutory member of the
Access Board and was actively involved in the development of the 2004
ADAAG. Because of its long involvement with the process, the Department
does not believe that it is necessary or appropriate to begin that
lengthy development process again. Nevertheless, during the process of
drafting this NPRM, the Department has reviewed the 2004 ADAAG to
determine if additional regulatory provisions are necessary. As a
result of this review, the Department decided to propose new sections,
which are contained in Sec. 35.151(d)-(h), to clarify how the
Department will apply the proposed standards to social service
establishments, housing at places of education, assembly areas, and
medical care facilities. Each of these provisions is discussed below.
Another general comment suggested that the Department should adopt
a system for providing formal interpretations of the standards,
analogous to the code interpretation systems used by states and the
major model codes. Because the ADA is a civil rights statute, not a
building code, the statute does not contemplate or authorize a formal
code interpretation system. The ADA anticipated that there would be a
need for close coordination of the ADA building requirements with the
state and local requirements. Therefore, the statute 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 being proposed in an NPRM to
amend the title III regulation that is being 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, it will issue revised technical assistance
material to provide guidance about the implementation of this rule.
Current Sec. 35.151(c) establishes two standards for accessible
new construction and alteration. Under paragraph (c), design,
construction, or alteration of facilities in conformance with the
Uniform Federal Accessibility Standards (UFAS) or with the 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 (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 ADAAG that were
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 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, 28 CFR part 36, and amended on Jan. 18, 1994,
59 FR 2674.
The Department's proposed rule would revise the existing Sec.
35.151(c) to adopt the 2004 ADAAG as the ADA Standards for Accessible
Design. The proposed rule amends current Sec. 35.151(c)(1) by revising
the current language to limit its application to facilities on which
construction commences within six months of the publication of the
final rule adopting revised standards. The proposed rule adds paragraph
(c)(2) to Sec. 35.151, which states that facilities on which
construction commences on or after the date six months following the
publication of the final rule shall comply with the proposed standards
adopted by that rule.
As a result, for the first six months after the effective date of
the proposed regulation, public entity recipients can continue to use
either UFAS or the 1991 Standards and be in compliance with title II.
Six months after the effective date of the rule, the new standards will
take effect. Construction in accordance with UFAS will no longer
satisfy ADA requirements. To avoid placing the burden of complying with
both standards on public entities, the Department will 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 six-month delay in requiring compliance with the
2004 Standards is 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 prefers to use the 2004 ADAAG as the
standard for new construction or alterations commenced within the six-
month period after the effective date of the proposed regulation, such
entity will be considered in compliance with title II of the ADA.
Section 35.151(d) Scope of Coverage
The Department is proposing Sec. 35.151(d) to clarify that the
requirements established by this section, including those contained in
the proposed standards, prescribe what is necessary to ensure that
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 regulation. Although the
Department often chooses to use the requirements of the 1991 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 and do not flow automatically
from the Standards.
The Department is also clarifying that the advisory notes, appendix
notes, and figures that accompany the 1991 Standards do not establish
separately enforceable requirements. This clarification has been made
to address concerns expressed by 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).
Section 35.151(e) Social Service Establishments
The Department is proposing a new Sec. 35.151(e) that provides
that group homes, halfway houses, shelters, or similar social service
establishments
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that provide temporary sleeping accommodations or residential dwelling
units shall comply with the provisions of the proposed standards that
apply to residential facilities, including, but not limited to, the
provisions in Sec. Sec. 233 and 809 of the 2004 ADAAG.
The reasons for this proposal are based on two important changes in
the 2004 ADAAG. For the first time, residential dwelling units are
explicitly covered in the 2004 ADAAG in section 233. Second, the
language addressing scoping and technical requirements for homeless
shelters, group homes, and similar social service establishments is
eliminated. 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 Department proposed in the ANPRM that the establishments
currently covered by section 9.5 be covered as residential dwelling
units in the 2004 ADAAG (section 233), rather than as transient lodging
guest rooms in section 224. The Department believes this is a prudent
action based on its effect on social service providers. Transferring
coverage of social service establishments from transient lodging to
residential dwelling units will alleviate conflicting requirements for
social service providers. The Department believes that a substantial
percentage of social service providers are recipients of federal
financial assistance from the 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, they are covered both by the ADA and section 504. The two
design standards for accessibility--i.e., 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 dwelling unit
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 dwelling
unit section, which harmonizes the regulatory requirements under the
ADA and section 504. The Department chose the option that harmonizes
the regulatory requirements: Coverage under the residential dwelling
units requirements.
In response to its request for public comments on this issue, the
Department received a total of eleven responses from industry and
disability rights groups and advocates. Some commenters representing
disability rights groups expressed concern that the residential
dwelling unit requirements in the 2004 ADAAG are less stringent than
the revised transient lodging requirements, and would result in
diminished access for individuals with disabilities.
The commenters are correct that in some circumstances, the
residential requirements are less stringent, particularly with respect
to accessibility for individuals with communication-related
disabilities. Other differences between the residential standards and
the transient lodging standards include: The residential guidelines do
not require elevator access to upper floors if the required accessible
features can be provided on a single, accessible level; and the
residential guidelines do not expressly require roll-in showers.
Despite this, the Department still believes that applying the
residential dwelling unit requirements to homeless shelters and similar
social service establishments is appropriate to the nature of the
services being offered at those facilities, and that it will harmonize
the ADA and section 504 requirements applicable to those facilities. In
addition, the Department believes that the proposal is consistent with
its obligations under the Regulatory Flexibility Act to provide some
regulatory relief to small entities that operate on limited budgets.
Nevertheless, the Department is requesting information from
providers who operate homeless shelters, transient group homes, halfway
houses, and other social service establishments, and from the clients
of these facilities who would be affected by this proposed change.
Question 40: To 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?
Another commenter expressed concern about how the Department would
address dormitory-style settings in homeless shelters, transient group
homes, halfway houses, and other social service establishments if they
are scoped as residential dwelling units. The commenter noted that the
transient lodging requirements include a specific provision that in
guest rooms with more than twenty-five beds, at least five percent (5%)
of the beds must have parallel clear floor space enabling a person
using a wheelchair to access and transfer to the bed. See sections
224.3, 806.2.3, 305 of the 2004 ADAAG. The residential dwelling unit
section does not explicitly include a similar provision.
In response to this concern, the Department has added Sec.
35.151(e)(1), which states that in settings where the sleeping areas
include more than twenty-five beds, and in which the residential
dwelling unit requirements apply, five percent (5%) of the beds must
comply with section 806.2.3 of the 2004 ADAAG (i.e., at least five
percent (5%) must have parallel clear floor space on both sides of the
bed enabling a person using a wheelchair to access and transfer to the
bed).
Definitions of residential facilities and transient lodging. The
2004 ADAAG adds a definition of ``residential dwelling unit'' and
modifies the current definition of ``transient lodging.''
Under section 106.5 of the 2004 ADAAG, a ``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 2004
ADAAG 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'' and
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
2004 ADAAG definition of transient lodging.
The Department said in the ANPRM that by applying the 2004 ADAAG
residential facility standards to transient group homes, homeless
shelters, halfway houses, and other social service establishments,
these facilities would be more appropriately classified according to
the nature of the services they provide, rather than the duration of
those services. Participants in these programs may be housed on either
a short-term or long-term basis in such facilities, and variations
occur even within the same programs and the same facility. Therefore,
duration is an inconsistent way of classifying these facilities.
Several commenters stated that the definitions of residential
dwellings and
[[Page 34492]]
transient lodging in the 2004 ADAAG are not clear and will confuse
social service providers. They noted that including ``primarily long-
term'' and ``primarily short-term'' in the respective definitions
creates confusion when applied to the listed facilities because they
serve individuals for widely varying lengths of time.
The Department is aware of the wide range and duration of services
provided by social service establishments. Therefore, rather than focus
on the length of a person's stay at a facility, the Department believes
that it makes more sense to look at a facility according to the type of
services provided. For that reason, rather than saying that social
service establishments ``are'' residential facilities, the Department
has drafted the proposed Sec. 35.151(e) to provide that group homes,
and other listed facilities, shall comply with the provisions in the
2004 ADAAG that would apply to residential facilities.
Finally, the Department received comments from code developers and
architects commending the decision to coordinate the 2004 ADAAG with
the requirements of section 504, and asking the Department to
coordinate the 2004 ADAAG with the Fair Housing Act's accessibility
requirements. The Department believes that the coordination of the Fair
Housing Act with the other applicable disability rights statutes is
within the jurisdiction of HUD. HUD is the agency charged with the
responsibility to develop regulations to implement the Fair Housing
Act, the Architectural Barriers Act, and the provisions of section 504
applicable to federally funded housing programs.
Scoping of residential dwelling units for sale to individual
owners. In the 2004 ADAAG, the Access Board deferred to the Department
and to HUD, the standard-setting agency under the ABA, to decide 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. These programs include, for example,
HUD's HOME program. In addition, some states have their own state-
funded programs to construct units for sale to individuals. The
Department expects that, after consultation and coordination with HUD,
the Department will make a determination in the final rule.
Question 41: The 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.
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 architectural features.
Housing types in educational settings range from traditional residence
halls and dormitories to apartment or townhouse-style residences. In
addition to the ADA and section 504, other federal laws, including the
Fair Housing Act of 1968, may apply. 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.
Since the enactment of the ADA, the Department has received many
questions about how the ADA applies to educational settings, including
school dormitories. Neither the 1991 Standards nor the 2004 ADAAG
specifically addresses how it applies to housing in educational
settings. Therefore, the Department is proposing a new Sec. 35.151(f)
that provides 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. Housing
provided via individual apartments or townhouses will be subject to the
requirements for residential dwelling units.
Public and private school dormitories have varied characteristics.
Like social service establishments, schools are generally recipients of
federal financial assistance and are subject to both the ADA and
section 504. College and university dormitories 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. They are also
diverse in their layout. Some have double-occupancy rooms and a toilet
and bathing room shared with a hallway of others, while some may have
cluster, suite, or group arrangements where several rooms are located
inside a secure area with bathing, kitchen, and common facilities.
Public schools are subject to title II and program access
requirements. Throughout the school year and the summer, school
dormitories become program areas where 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 and
common use areas is an essential part of having access to these
educational programs and activities.
If the requirements for residential facilities were applied to
dormitories operated by schools, this could hinder access to
educational programs for students with disabilities. The prior
discussion about social service establishments with sleeping
accommodations explained that the requirements for dispersing
accessible units would not necessarily require an elevator or access to
different levels of a facility. Conversely, applying the transient
lodging requirements to school dormitories would necessitate greater
access throughout the facility to students with disabilities.
Therefore, the Department requests public comment on how to scope
school dormitories.
Question 42: Would 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? Please provide examples, if possible.
Section 35.151(g) Assembly Areas
The Department is proposing a new Sec. 35.151(g) to supplement the
assembly area requirements in the proposed standards. This provision
would add five additional requirements.
Section 35.151(g)(1) would require wheelchair and companion seating
locations to be dispersed so that some seating is available on each
level served by an accessible route. This requirement should have the
effect of ensuring the full range of ticket prices, services, and
amenities offered in the facility. Factors distinguishing specialty
seating areas are generally dictated by the type of facility or event,
but may include, for example, such distinct services and amenities as
reserved seating (when other seats are sold on a first-come-first-
served basis only); reserved seating in sections or rows located in
premium locations (e.g., behind home plate or near the home team's end
zone) that are not otherwise available for purchase by other
spectators; access to wait staff for in-seat food or beverage service;
availability of catered food or beverages for pre-game, intermission,
or post-game meals; restricted access to lounges with special
amenities, such as couches or
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flat screen televisions; or access to team personnel or facilities for
team-sponsored events (e.g., autograph sessions, sideline passes, or
facility tours) not otherwise available to other spectators.
Section 35.151(g)(2) adds the prohibition that the seating may not
be placed on temporary platforms or other movable structures. The
Department has become aware that a growing trend in the design of large
sports facilities is to provide wheelchair seating on removable
platforms that seat four or more wheelchair users and their companions.
These platforms cover one or more rows of non-wheelchair seating. The
platforms are designed to be removed so that the part of the seating
bowl that they cover can be used to seat additional ambulatory
spectators. The sale of any seats in the covered area requires removal
of the platform, thereby eliminating some of the required wheelchair
seating locations. In another design that produces a similar result,
removable platforms configured to provide multiple, non-wheelchair
seats, are installed over some or all of the required wheelchair
seating locations. In this configuration, selling a ticket for one
wheelchair location requires the removal of multiple non-wheelchair
seats.
The Department believes that both of these designs violate both the
letter and the intent of this regulation. Both designs have the
potential to reduce the number of available wheelchair seating spaces
below the level required. Reducing the number of available spaces is
likely to result in reducing the opportunity for people who use
wheelchairs to have the same choice of ticket prices and access to
amenities that are available to other patrons in the facility. In
addition, placing wheelchair seating on removable platforms may have a
disproportionate effect on the availability of seating for individuals
who use wheelchairs and their companions attempting to buy tickets on
the day of the event. Use of removable platforms may result in
instances where last minute requests for wheelchair and companion
seating cannot be met because entire sections of wheelchair seating
will be lost when a platform is removed. The use of movable seats, on
the other hand, could meet such a demand without eliminating blocks of
wheelchair seating at a time, converting only those seats that are
needed for ambulatory spectators and are not wanted by individuals who
use wheelchairs and their companions.
For these reasons, the Department believes that it is necessary and
appropriate to prohibit the use of temporary platforms in fixed seating
areas. Nothing in Sec. 35.151(g) is intended to prohibit the use of
temporary platforms to increase the available seating, e.g., platforms
that cover a basketball court or hockey rink when the arena is being
used for a concert. These areas of temporary seating do not remove
required wheelchair locations and, therefore, would not violate the
requirements of this regulation. In addition, covered entities would
still be permitted to use individual movable seats to infill any
wheelchair locations that are not sold to wheelchair users.
Section 35.151(g)(3) would require facilities that have more than
5,000 seats to provide at least five wheelchair locations with at least
three companion seats for each wheelchair space. The Department is
proposing this requirement to address complaints from many wheelchair
users that the practice of providing a strict one-to-one relationship
between wheelchair locations and companion seating often prevents
family members from attending events together.
Section 35.151(g)(4) would provide more precise guidance for
designers of stadium-style movie theaters by requiring such facilities
to locate wheelchair seating spaces and companion seating 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 sixty percent (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).
Section 35.151(h) Medical Care Facilities
The Department is proposing a new Sec. 35.151(h) on medical care
facilities, which now must comply with the applicable sections of the
proposed standards. The Department also proposes that 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 proposed standards in a manner that enables
patients with disabilities to have access to appropriate specialty
services.
The Department is aware that the Access Board sought comment on how
dispersion of accessible sleeping rooms can effectively be achieved and
maintained in medical care facilities such as hospitals. In response,
commenters representing individuals with disabilities supported a
requirement for dispersion of accessible sleeping rooms among all types
of medical specialty areas, such as obstetrics, orthopedics,
pediatrics, and cardiac care. Conversely, commenters representing the
health care industry pointed out that treatment areas in health care
facilities can be very fluid due to fluctuation in the population and
other demographic and medical funding trends. The Access Board decided
not to add a dispersion requirement because compliance over the
lifetime of the facility could prove difficult given the need for
flexibility of spaces within such facilities. The Department recognizes
that it may be difficult to ensure a perfect distribution of rooms
throughout all specialty areas in a hospital, but the Department is
concerned that the absence of any dispersion requirement may result in
inappropriate concentrations of accessible rooms.
Question 43: The Department is seeking information from hospital
designers and hospital administrators that will help it determine how
to ensure that accessible hospital rooms are dispersed throughout the
facility in a way that will not unduly restrain the ability of hospital
administrators to allocate space as needed. The proposed standards
require that ten percent (10%) of the patient bedrooms in hospitals
that do not specialize in treating conditions that affect mobility be
accessible. If it is not feasible to distribute these rooms among each
of the specialty areas, would it be appropriate to require the
accessible rooms to be dispersed so that there are accessible patient
rooms on each floor? Are there other methods of dispersal that would be
more effective?
Section 35.151(i) Curb Ramps
The current Sec. 35.151(e) on curb ramps has been redesignated as
Sec. 35.151(i). The Department has made a minor editorial change,
deleting the phrase ``other sloped areas'' from the two places in which
it appears in the current rule. The phrase ``other sloped areas'' lacks
technical precision. Both the 1991 Standards and the proposed standards
provide technical guidance for the installation of curb ramps.
Miniature Golf Courses
The Department proposes to adopt the requirements for miniature
golf courses in the 2004 ADAAG. However, it requests public comment on
a suggested change to the requirement for holes to
[[Page 34494]]
be consecutive. A commenter association argued that the ``miniature
golf experience'' includes not only putting but also enjoyment of
``beautiful landscaping, water elements that include ponds, fountain
displays, and lazy rivers that matriculate throughout the course and
themed structures that allow players to be taken into a `fantasy-like'
area.'' Thus, requiring a series of consecutive accessible holes would
limit the experience of guests with disabilities to one area of the
course. To remedy this situation, the association suggests allowing
multiple breaks in the sequence of accessible holes while maintaining
the requirement that the accessible holes are connected by an
accessible route.
The suggested change would need to be made by the Access Board and
then adopted by the Department, and if adopted, it would apply to all
miniature golf courses, not only existing miniature golf facilities.
Question 44: The Department would like to hear from the public
about the suggestion of allowing multiple breaks in the sequence of
accessible holes, provided that the accessible holes are connected by
an accessible route. Should the Department ask the Access Board to
change the current requirement in the 2004 ADAAG?
Accessible Cells in Detention and Correctional Facilities
Through complaints received, investigations, and compliance reviews
of jails, prisons, and other detention and correctional facilities, the
Department has found that many detention and correctional facilities
have too few or no accessible cells and shower facilities to meet the
needs of their inmates with mobility disabilities. The insufficient
numbers of accessible cells are, 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. However, 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 recent article illustrates this
change. Since 1990, the number of Oklahoma inmates age 45 or older has
quadrupled, and, in 2006, ten percent (10%) of the Oklahoma state
prison population was elderly. Angel Riggs, Now in Business:
Handicapped Accessible Prison: State Opens First Prison for Disabled,
in Tulsa World (Feb. 20, 2007). Reflecting this trend of aging inmate
populations, corrections conferences now routinely include workshops on
strategies to address the needs of elderly prisoners, including the
increased health care needs. In addition, the Federal Bureau of Prisons
requires that three percent (3%) of inmate housing at BOP facilities is
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 lack of sufficient accessible cells is further demonstrated by
complaints received by the Department. The Department receives dozens
of complaints per year alleging that detention and correctional
facilities have too few accessible cells, toilets, and showers for
inmates with mobility disabilities. Other complaints allege that
inmates with mobility disabilities are housed in medical units or
infirmaries separate from the general population simply because there
are no accessible cells. Another common complaint to the Department is
from inmates alleging that they are housed at a more restrictive
classification level simply because no accessible housing exists at the
appropriate classification level.
Further, the Department's onsite reviews and investigations of
detention and correctional facilities confirm the complaints that there
are too few accessible cells. The need for accessible cells can vary
widely from facility to facility, depending on the population housed.
While the requirement that two percent (2%) of the cells have mobility
features would be adequate to meet current needs in some facilities the
Department has reviewed, it would not begin to meet current needs at
other facilities. For example, at one facility with a population of
almost 300 inmates, ten percent (10%) of the inmates use wheelchairs.
The requirement that two percent (2%) of cells at this facility must be
accessible would not meet the needs of inmates with mobility
disabilities, since it would not be adequate to meet the needs of
wheelchair users alone. Another facility has a geriatric unit for 60
inmates. A two percent (2%) standard would fall far short of meeting
the needs of this largely bedridden population. Another building at
this same facility has 600 cells and houses more than 18 inmates who
need accessible cells. Under the two percent (2%) standard, only twelve
accessible cells would be required.
According to the Bureau of Justice Statistics (BJS) 2002 survey of
jail inmates, ``two percent of jail inmates said they had a mobility
impairment, requiring the use of a cane, walker, wheelchair, or other
aids to do daily activities.'' Laura M. Maruschak, Bureau of Justice
Statistics (BJS), Medical Problems of Jail Inmates (2006), available at
http://www.ojp.usdoj.gov/bjs/abstract/mpji.htm. In a 1997 survey, BJS
reported that among state prison inmates age 45 or older, twenty-five
percent (25%) said they had a ``physical condition.'' Laura M.
Maruschak and Allen J. Beck, Ph.D., Bureau of Justice Statistics,
Medical Problems of Inmates, 1997 (2001), available at http://www.ojp.usdoj.gov/bjs/abstract/mpi97.htm.
Number of accessible cells. Section 232.2.1 of the 2004 ADAAG
requires at least two percent (2%), 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. While the 2004 ADAAG establishes these
requirements for cells in newly constructed detention and correctional
facilities, it does not establish requirements for accessible cells in
alterations to existing facilities, deferring that decision to the
Attorney General.
The Department seeks 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 seeks comments
on the following issues:
Question 45: Are the requirements for accessible cells in sections
232.2 and 232.3 of the 2004 ADAAG adequate to meet the needs of the
aging inmate population in prisons? If not, should the percentage of
cells required to have accessible features for individuals with
mobility disabilities be greater and, if so, what is the appropriate
percentage? Should the requirement be different for prisons than for
other detention and correctional facilities?
Question 46: Should the Department 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? Under this option, additional cells provided for
inmates with mobility disabilities would not necessarily be required to
comply with all requirements of section 807.2 of the
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2004 ADAAG, so long as a cell had the mobility features needed by the
inmate it housed.
Dispersion of cells. In the 2004 ADAAG, Advisory 232.2 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.'' During its onsite
reviews of detention and correctional facilities, the Department has
observed that male and female inmates, adult and juvenile inmates, and
inmates at different security classifications are typically housed in
separate areas of detention and correctional facilities. 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 the women's section of the
facility, the juvenile section of the facility, or in a particular
security classification area.
Question 47: Please comment on whether the dispersal of accessible
cells recommended in Advisory 232.2 of the 2004 ADAAG should be
required.
Alterations to cells. In section 232.2 of the 2004 ADAAG, the
Access Board deferred one decision to the Attorney General,
specifically: ``Alterations to cells shall not be required to comply
except to the extent determined by the Attorney General.'' The security
concerns of detention and correctional facilities present challenges
that do not exist in other government buildings, so the Department must
strike a balance that accommodates the accessibility needs of inmates
with disabilities while addressing security concerns. Therefore, in the
ANPRM, the Department sought public comment on three options for the
most effective means of ensuring that existing detention and
correctional facilities are made accessible to inmates with
disabilities. The proposed options and submitted comments are discussed
below in the section-by-section analysis for a new proposed section on
detention and correctional facilities.
Introduction of new Sec. 35.152 for detention and correctional
facilities. In view of the statistics regarding the current percentage
of inmates with mobility disabilities, the fact that prison populations
include large numbers of aging inmates who are not eligible for parole,
the allegations in complaints received by the Department from inmates,
and the Department's own experience with detention and correctional
facilities, the Department is proposing regulatory language in a new
section (Sec. 35.152) on correctional facilities, and seeking public
comment on these issues.
The proposed rule at Sec. 35.152 is intended to address these
frequent problems for inmates with disabilities by: (1) Proposing
specific requirements to ensure accessibility when a correctional or
detention facility alters cells; (2) specifying that public entities
shall not place inmates or detainees with disabilities in locations
that exceed their security classification in order to provide
accessible cells; (3) requiring that public entities shall not place
inmates in designated medical units and infirmaries solely due to
disability; (4) specifying that public entities shall not relocate
inmates and detainees solely based on disability to different,
accessible facilities without equivalent programs than where they would
ordinarily be housed; and (5) requiring that public entities shall not
deprive inmates or detainees from visitation with family members by
placing them in distant facilities based on their disabilities. The
additions to the existing title II regulation, including each of these
proposals and any public comments received on this topic, are discussed
in turn below.
Contractual arrangements with private entities. Prisons that are
built or run by private entities have caused some confusion with regard
to requirements under the ADA. The Department believes that title II
obligations extend to the public entity as soon as the building is used
by or on behalf of a state or local government entity, irrespective of
whether the public entity contracts with a private entity to run the
correctional facility. The power to incarcerate citizens rests with the
state, not a private entity. As the Department stated in the preamble
to the current title II regulation, ``[a]ll governmental activities of
public entities are covered, even if they are carried out by
contractors.'' 56 FR 35694, 35696 (July 26, 1991). If a prison is
occupied by state prisoners and is inaccessible, the state is
responsible under title II of the ADA. In essence, the private builder
or contractor that operates the correctional facility does so at the
direction of the state government, unless the private entity elects to
use the facility for something other than incarceration, in which case
title III may apply. For that reason, the proposed Sec. 35.152(a)
makes it clear that this section's requirements will apply to prisons
operated by public entities directly or through contractual or other
relationships.
Alterations to cells and program access. When addressing the issue
of alterations of prison cells, the Department must consider the
realities of many inaccessible state prisons and strained budgets
against the title II program access requirement for existing facilities
under Sec. 35.150(a), which states: ``A public entity shall operate
each service, program, or activity, so that the service, program, or
activity, when viewed in its entirety, is readily accessible to and
usable by individuals with disabilities.'' The Supreme Court, in
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998),
unanimously held that the ADA unmistakably covers state prisons and
prisoners, so program access does apply to state correctional
facilities; the question remains how best to achieve that within the
unique confines of a prison system.
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 G.E.Ds; English as a
second language; computer training; job skill training and on-the-job
training; religious instruction and guidance; alcohol and substance
abuse groups; anger management; 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 to 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. The Department's proposed rule aims to specifically
require equivalent opportunities to such programs.
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--including those relating
to a disability--by the state corrections system. If the state fails to
accommodate prisoners with disabilities, these individuals have little
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recourse, particularly when the need is urgent (e.g., an accessible
toilet or clean needles for insulin injections for prisoners with
diabetes).
In light of a public entity's obligation to provide program access
to prisoners with disabilities, coupled with the Department's proposal
for a more flexible alterations standard, the Department believes that
the state has a higher responsibility to provide accommodations based
on disability. Therefore, it is essential that state corrections
systems fulfill their program access requirements 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. Therefore, the Department is proposing a new
Sec. 35.152 that will require public entities to ensure that inmates
with disabilities do not experience discrimination because the prison
facilities or programs are not accessible to them.
Integration of inmates and detainees with disabilities. The
Department is also proposing a specific application of the ADA's
general integration mandate. Section 35.152(b)(2) would require public
entities to ensure that inmates or detainees with disabilities are
housed in the most integrated setting appropriate to the needs of the
individual. Unless the public entity can demonstrate that it is
appropriate 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;
(4) Should not place inmates or detainees with disabilities in
facilities further away from their families in order to provide
accessible cells or beds, thus diminishing their opportunity for
visitation based on their disability.
The Department recognizes 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 follow the provisions of Sec. 35.152(b) may,
nevertheless, comply with the ADA. However, the Department believes
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 other sign language users with whom he can
communicate.
Question 48: The Department is particularly interested in hearing
from prison administrators and from the public about the potential
effect of the assignment scheme proposed here on inmates and detainees
who are deaf or who have other disabilities. Are there other, more
appropriate tests to apply?
Alterations to cells. In the ANPRM, the Department proposed three
options for altering cells. The vast majority of commenters (numbering
three to one) supported Option II, which would allow substitute cells
to be made accessible within the same facility, over Option III. Only
one commenter expressed support for Option I, and a handful of
commenters supported Option III. The comments on each option are
discussed below.
Option I: Require all altered elements to be accessible. Only one
commenter supported this option, stating that providing alternative
approaches could allow those running the prison to provide a lower
level of accessibility, and that any deviation from the 1991 Standards
on alterations should be addressed through a barrier removal plan,
transition plan, or a claim of technical infeasibility. A few
commenters argued that this option would result in piecemeal
accessibility, which would be inadequate. As one commenter stated,
``providing an accessible lavatory or water closet (often a single
unit) in an inaccessible cell makes no sense.''
Option II: Permit substitute cells to be made accessible within the
same facility. Commenters supporting Option II favored the more
flexible plan to achieve accessibility within a prison context. Many
expressed support for this option because it would allow individuals
with disabilities to remain close to their families. One commenter
requested accessible cells by type (e.g., women's, men's, juvenile,
different security levels, etc.). Another commenter offered that the
unique safety concerns of a correctional facility require a balance
between staff and inmate safety and accessibility. One advocacy group
reasoned that Option II was best because it would allow prison
operators to determine the most appropriate location for the accessible
cells. One group commented that this option would allow the prison
officials more flexibility, which is necessary in a correctional
environment. Equally important, keeping inmates in the same facility
may allow them to remain closer to their homes; the third option could
create segregated facilities. In the end, this group asserted that each
facility--rather than each system--should be looked at ``in its
entirety.''
One large advocacy group stated that Option II was acceptable,
stressing that program access requires the same training and work
opportunities that other prisoners have. An architectural association
asserted that this option should only apply to existing correctional
cells, but that any other part of a correctional facility should be
made accessible when it is altered. The Department, however, is only
addressing the alterations of prison cells in this rulemaking. While
expressing support for Option II, a few commenters stressed that cells
made accessible in a different location in the facility must provide
equal access to dining, recreational, educational, medical, and visitor
areas as the former location. Another commenter stated that the
alternate cell location should not require longer travel distances.
The Department has evaluated all of the comments and proposes
regulatory language reflecting Option II, which provides an appropriate
balance between the needs of prisoners with disabilities and the unique
requirements of detention and correctional facilities.
Option III: Permit substitute cells to be made accessible within a
prison system. The biggest problem that commenters had with Option III
was that it would be more likely to separate prisoners from their
families and communities. One advocacy group asserted that this option
could lead to the illegal segregation of inmates with disabilities;
moreover, some of the accessible facilities may not have the same
programs or services (e.g., Alcoholics Anonymous, etc.). One group
argued that this option would give preference to the needs of the
prison system over the needs of individuals with disabilities, while
another group found this option unacceptable because it had seen its
own state correctional system ``funneling'' its wheelchair-using
inmates into a few facilities, which
[[Page 34497]]
sometimes exceeded the prisoners' security level requirements.
Moreover, some prisoners with disabilities are sent to ``special
housing'' units in a facility because they are the only areas with
accessible cells.
In support of Option III, one state building code commissioner
stressed that this plan would maximize the flexibility of corrections
officials to place individuals with disabilities in facilities best
suited to their needs; prison accessibility extends far beyond cells;
and barrier removal in a very old prison could be cost prohibitive.
Another commenter, a state department of labor representative, argued
that Option III is the most reasonable for state-run facilities (but
that Option I should extend to private correctional facilities) due to
tremendous budget constraints. As the Department expressed initially,
the same title II accessibility requirements apply to a facility,
irrespective of whether it is run directly by the state or a private
entity with which the state contracts.
While expressing some support for Option II, one public interest
law firm representing individuals with disabilities stated that Option
III is the best, because many older prisons are inaccessible. ``Simply
having one accessible cell in an otherwise inaccessible facility does
little good.'' Therefore, requiring an entire prison system to have at
least one fully accessible facility is the better approach.
The Department appreciates that Option III affords state
corrections systems the maximum amount of flexibility with regard to
placement of individuals with disabilities. Unfortunately, many
commenters expressed legitimate concerns, most significantly that
prisoners will, more likely, be separated from family, friends, and
community, which is critical to their rehabilitation and successful
release, and many programs at the new facility will not be the same.
Lastly, the fact that certain facilities could become exclusively, or
largely, designated for prisoners with disabilities would result in
segregation, even if it is not intended.
Proposed requirement for cell alterations. The Department has
concluded that Option II provides the best balance. Therefore, the
Department is proposing Sec. 35.152(c) that would provide that when
cells are being 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, equal physical access as 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.
Subpart E--Communications
Section 35.160 Communications
The Department proposes to expand Sec. 35.160(a) to clarify 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 their companions as well.
The Department also proposes to add a new Sec. 35.160(a)(2) that
will define ``companion'' for the purposes of this section as a person
who is a family member, friend, or associate of a program participant
who, along with the participant, is an appropriate person with whom the
public entity should communicate.
The Department is proposing to add companions to the scope of
coverage of Sec. 35.160 to emphasize that the ADA applies in some
instances in which a public entity needs to communicate with a family
member, friend, or associate of the program participant in order to
provide its services. Examples of such situations include when a school
communicates with the parent of a child during a parent-teacher
meeting; in a life-threatening situation, when a hospital needs to
communicate with an injured person's companion to obtain necessary
information; or when a person may need to communicate with a parole
officer about a relative's release conditions. In such situations, if
the companion is deaf or hard of hearing, blind, has low vision, or has
a disability that affects his or her speech, it is the public entity's
responsibility to provide an appropriate auxiliary aid or service to
communicate effectively with the companion. Where communication with a
companion is necessary to serve the interests of a person who is
participating in a public entity's services, programs, or activities,
effective communication must be assured.
This issue is particularly important in health care settings. The
Department has encountered confusion and reluctance by medical care
providers regarding the scope of their obligations with respect to such
companions. Effective communication with a companion with a disability
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. In addition, a companion may
be the patient's next of kin or health care surrogate with whom
hospital personnel communicate concerning the patient's medical
condition. Moreover, a companion could be designated by the patient to
communicate with hospital personnel about the patient's symptoms,
needs, condition, or medical history. It has been the Department's
longstanding position that public entities are required to provide
effective communication to companions who are themselves deaf, hard of
hearing, or who have other communication-related disabilities when they
accompany patients to medical care providers for treatment.
Public entities must be aware, however, that considerations of
privacy, confidentiality, emotional involvement, and other factors may
adversely affect the ability of family members or friends to facilitate
communication. In addition, the Department stresses that privacy and
confidentiality must be maintained. We note that covered entities, such
as hospitals, that are subject to the Privacy Rule, 45 CFR parts 160,
162, and 164, of the Health Insurance Portability and Accountability
Act of 1996 (HIPPA), Public Law 104-191, 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. The agreement need not be in
writing. Covered entities should consult the Privacy Rule regarding
other ways disclosures might be able to be made to such persons.
The Department is proposing to amend Sec. 35.160(b)(2) to
recognize that 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. This addition is a codification of the
Department's longstanding position, which is included in the Department
of Justice's The Americans with Disabilities Act, Title II Technical
Assistance Manual, Covering State and Local Government Programs and
Services (Title II TA Manual), II-7.1000, available at http://www.ada.gov/taman2.html. For example, an individual who is deaf or hard
of hearing may need a qualified
[[Page 34498]]
interpreter to discuss with municipal hospital personnel a diagnosis,
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. For example, an individual
who is seeking local tax forms may only need an exchange of written
notes to achieve effective communication.
The Department proposes adding Sec. 35.160(c) to codify its
longstanding policy that it is the obligation of the public entity, not
the individual with a disability, to provide auxiliary aids and
services when needed for effective communication. In particular, 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. This burden is misplaced. As
such, Sec. 35.160(c)(1) makes clear that a public entity may not
require an individual with a disability to bring another individual to
interpret for him or her.
Section 35.160(c)(2) codifies the Department's policy that there
are very 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 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. In such instances, the public entity is still required
to offer to provide an interpreter free of charge. In no circumstances
should a child be used to facilitate communication with a parent about
a sensitive matter. The Department has produced a video and several
publications that explain this and other ADA obligations in law
enforcement settings. They may be viewed at http://www.ada.gov or
ordered from the ADA Information Line (800-514-0301 (voice) or 800-514-
0383 (TTY)).
Video interpreting services. Section 35.160(d) has been added to
establish performance standards for video interpreting services (VIS),
a system the Department recognizes as a means to provide qualified
interpreters quickly and easily. (The mechanics of VIS are discussed
above in the definition of VIS in the section-by-section analysis of
Sec. 35.104.) VIS also has economic advantages, is readily available,
and because of advances in video technology, can provide a high quality
interpreting experience. VIS can circumvent the difficulty of providing
live interpreters quickly, which is why more public entities are
providing qualified interpreters via VIS.
There are downsides to VIS, such as frozen images on the screen, or
when an individual is in a medical care facility and is limited in
moving his or her head, hands, or arms. Another downside is that the
camera may mistakenly focus on an individual's head, which makes
communication difficult or impossible. Also, the accompanying audio
transmission might be choppy or garbled, making spoken communication
unintelligible. The Department is aware of complaints that some public
entities have difficulty setting up and operating VIS because staff
have not been appropriately trained to do so.
To address the potential problems associated with the use of VIS,
the Department is proposing the inclusion of four performance standards
for VIS to ensure 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 participants' heads, arms, hands, and
fingers, regardless of the body position of the person who is deaf; (3)
clear transmission of voices; and (4) nontechnicians who are trained to
set up and operate the VIS quickly.
Captioning at sporting venues. The Department is aware that
individuals who are deaf or hard of hearing have expressed concerns
that they are unaware of information that is provided over the public
address systems. Therefore, the Department is proposing requiring that
sports stadiums with a capacity of 25,000 or more provide captioning
for patrons who are deaf or hard of hearing for safety and emergency
information announcements made over the public address system. There
are various options that could be used for providing captioning, such
as on a scoreboard, on a line board, on a handheld device, or other
methods.
Question 49: The Department believes that requiring captioning of
safety and emergency information made over the public address system in
stadiums seating fewer than 25,000 has the potential of creating an
undue burden for smaller entities. However, the Department requests
public comment about the effect of requiring captioning of emergency
announcements in all stadiums, regardless of size. Would such a request
be feasible for small stadiums?
Question 50: The Department is considering requiring captioning of
safety and emergency information in sports stadiums with a capacity of
25,000 or more within a year of the effective date of the regulation.
Would a larger threshold, such as sports stadiums with a capacity of
50,000 or more, be more appropriate or would a lower threshold, such as
stadiums with a capacity of 15,000 or more, be more appropriate?
Question 51: If the Department adopted a requirement for captioning
at sports stadiums, should there be a specific means required? That is,
should it be provided through any effective means (scoreboards, line
boards, handheld devices, or other means), or are there problems with
some means, such as handheld devices, that should eliminate them as
options?
Question 52: The Department is aware that several major stadiums
that host sporting events, including National Football League football
games at Fed Ex Field in Prince Georges County, Maryland, currently
provide open captioning of all public address announcements, and do not
limit captioning to safety and emergency information. What would be the
effect of a requirement to provide captioning for patrons who are deaf
or hard of hearing for game-related information (e.g., penalties),
safety and emergency information, and any other relevant announcements?
Section 35.161 Telecommunications
The Department proposes to retitle this section
``Telecommunications'' to reflect situations in which a public entity
must provide an effective means to communicate by telephone for
individuals with disabilities, and proposes several other changes.
The Department proposes to redesignate current Sec. 35.161 as
Sec. 35.161(a), and to replace the term ``Telecommunication devices
for the deaf (TDD's)'' with ``text telephones (TTYs).'' Although
``TDD'' is the term used in the ADA, ``TTY'' has become the commonly
accepted term and is consistent with the terminology used by the Access
Board in the 2004 ADAAG. In addition, the proposed regulation updates
the terminology in light of modern usage from ``individuals with
impaired hearing or speech'' to ``individuals with hearing or speech
disabilities.''
In Sec. 35.161(b), the Department addresses automated attendant
systems that handle telephone calls electronically. These automated
systems are a common method for answering and directing incoming calls
to public
[[Page 34499]]
entities. The Department has become aware that individuals with
disabilities who use TTYs or the telecommunications relay services--
primarily those who are deaf or hard of hearing or who have speech-
related disabilities--have been unable to use automated telephone trees
systems, because they are not compatible with TTYs or a
telecommunications relay service. Automated attendant systems often
disconnect before the individual using one of these calling methods can
complete the communication.
In addition, the Department proposes a new Sec. 35.161(c) that
would require that individuals using telecommunications relay services
or TTYs be able to connect to and use effectively any automated
attendant system used by a public entity. The Department declined to
address this issue in the 1991 regulation because it believed that it
was more appropriate for the Federal Communications Commission (FCC) to
address this in its rulemaking under title IV, 56 FR 35694, 35712 (July
26, 1991). Because the FCC has since raised this concern with the
Department and requested that the Department address it, it is now
appropriate to raise this issue in the title III regulation.
The Department has proposed Sec. 35.161(c), which requires that a
public entity must respond to telephone calls from a telecommunications
relay service established under title IV of the Americans with
Disabilities Act in the same manner that it responds to other telephone
calls. The Department proposes adding this provision to address a
series of complaints from those who use TTYs or the telecommunications
relay systems that many public entities refuse to accept those calls.
Section 35.170 Complaints--Prison Litigation Reform Act
In the ANPRM, the Department proposed addressing the effect of the
Prison Litigation Reform Act (PLRA) on complaints by prisoners alleging
unlawful discrimination on the basis of disability under title II of
the ADA. The PLRA provides, in relevant part, that ``[n]o action shall
be brought with respect to prison conditions under section 1983 of this
title, or any other federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.'' 42 U.S.C. 1997e(a). As a
result of this language, the Department proposed requiring those
prisoners alleging title II violations to file an administrative
complaint with the Department prior to filing a lawsuit, and that a
complainant would satisfy this requirement if no action was taken by
the Department within sixty days. The Department has considered the
comments that it received by a variety of groups and has decided not to
propose an exhaustion requirement exclusively for prisoners in the
regulation.
Sections 35.171, 35.172, and 35.190 Streamlining Complaint
Investigations and Designated Agency Authority
The Department is proposing modifications to its current procedures
with respect to the investigation of complaints alleging discrimination
on the basis of disability by public entities under title II of the
ADA. Specifically, the Department is proposing several amendments to
its enforcement procedures in order to streamline both its internal
procedures for investigating complaints and its procedures with regard
to the other designated agencies with enforcement responsibilities
under title II. These proposals will reduce the administrative burdens
associated with implementing the statute and ensure that the Department
retains the flexibility to allocate its limited enforcement resources
effectively and productively.
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.
Subpart G identifies eight ``designated agencies,'' including the
Department, that have responsibility for investigating complaints under
title II.
The Department's current title II regulation is based on the
enforcement procedures established in regulations implementing section
504. Thus, the Department's current 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).
In the years since the current 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 it has received and directed its resources
to resolving the most critical matters. The Department proposes to
clarify in its revised regulation that designated agencies may exercise
discretion in selecting title II complaints for resolution by deleting
the term ``each'' as it appears before ``complaint'' in Sec.
35.172(a). The proposed rule at Sec. 35.172(a) would read that,
``[t]he designated agency shall investigate complaints'' rather than
``investigate each complaint.''
The Department also proposes to change the 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. The current
language requires the agency to refer the complaint to the Department,
which, in turn, refers the complaint. The proposed revisions to Sec.
35.171 make it clear that an agency can refer a misdirected complaint
either directly to the appropriate agency or to the Department. This
amendment is intended to protect against the unnecessary backlogging of
complaints and to prevent undue delay in an agency taking action on a
complaint.
The Department is also proposing to make clear that the same
procedures that apply to complaint investigations also apply to
compliance reviews that are not initiated by receipt of a complaint,
but rather are based on other information indicating that
discrimination exists in a service, program, or activity covered by
this part. This provision is consistent with the Department's
procedures for enforcing title III of the ADA as well as title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and
section 504. Section 203 of the ADA provides that those same rights,
remedies, and procedures shall apply to title II of the ADA, 42 U.S.C.
12133. The Department's proposed rule renames Sec. 35.172(a),
``Investigations and Compliance Reviews,'' and provides in new
paragraph (b) that ``[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.''
Finally, the Department is proposing to streamline the requirements
for letters of findings. Section 35.172 of the Department's current
regulation requires designated agencies to investigate all complete
complaints for which they are responsible as determined under Sec.
35.171. Specifically, a designated agency must issue a letter of
findings at the conclusion of the investigation if the complaint was
not resolved informally and attempt to negotiate a voluntary compliance
agreement if a violation was
[[Page 34500]]
found. The Department's proposal will clarify that letters of finding
are only required when a violation is found. The discussion of letters
of finding is moved to a new paragraph (c) in the proposed rule, and
provides the same language as in the current regulation with the
exception that the phrase ``and a violation is found'' is added
following the phrase ``if resolution is not achieved.''
Subpart G of the existing regulation deals with the various agency
designations that the Department proposed in promulgating the
regulation for title II of the ADA. Current Sec. 35.190 lays out all
of the agency designations. Paragraphs 35.190(c) and (d), respectively,
leave to the discretion of the Attorney General decisions where
delegations are not specifically assigned or where there are apparent
conflicts of jurisdiction. The Department's proposed rule would add a
new Sec. 35.190(e) in order to deal with the situation in which a
complainant has sought the assistance of the Department of Justice. The
proposed rule at 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 that may fall within the jurisdiction of a
designated agency or another federal agency that has 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 regarding its intention to
review when it plans to retain the complaint. In appropriate
circumstances, the Department and the designated agency may conduct a
joint investigation. Finally, the Department also proposes to amend
Sec. 35.171(a)(2)(ii) to be consistent with the changes in the
proposed rule at Sec. 35.190(e).
Additional Information
Withdrawal of Outstanding NPRMs
With the publication of this NPRM, the Department is withdrawing
three outstanding NPRMs: The joint NPRM of the Department and the
Access Board dealing with children's facilities, published on July 22,
1996, at 61 FR 37964; the Department's proposal to extend the time
period for providing curb ramps at existing pedestrian walkways,
published on November 27, 1995, at 60 FR 58462; and the Department's
proposal to adopt the Access Board's accessibility guidelines and
specifications for state and local government facilities, published as
an interim final rule by the Access Board on June 20, 1994, at 59 FR
31676, and by the Department as a proposed rule on June 20, 1994, at 59
FR 31808. To the extent that those proposals were incorporated in the
2004 ADAAG, they will all be included in the Department's proposed
standards.
Regulatory Process Matters
This NPRM has been reviewed by the Office of Management and Budget
(OMB) under Executive Order 12866, 58 FR 51735 (Sept. 30, 1993). The
Department has evaluated its existing regulations for title II and
title III section by section, and many of the proposals in its NPRMs
for both titles reflect its efforts to mitigate any negative effects on
small entities. The Department has also prepared its initial regulatory
impact analysis (RIA), as directed by Executive Order 12866 (amended
without substantial change by E.O. 13258, 67 FR 9385 (Feb. 26, 2002),
and E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), and OMB Circular A-4.
The Department's initial regulatory impact analysis measures the
incremental benefits and costs of the proposed standards relative to
the benefits and costs of the 1991 Standards. The assessment has
estimated the benefits and costs of all new and revised requirements as
they would apply to newly constructed facilities, altered facilities,
and facilities that are removing barriers to access.
A summary of the regulatory assessment, including the Department's
responses to public comments addressing its proposed methodology and
approach, is attached as Appendix B to this NPRM. The complete, formal
report of the initial regulatory impact analysis is available online
for public review on the Department's ADA Home Page (http://www.ada.gov) and at http://www.regulations.gov. The report is the work
product of the Department's contractor, HDR/HLB Decision Economics,
Inc. The Department has adopted the results of this analysis as its
assessment of the benefits and costs that the proposed standards will
confer on society. The Department invites the public to read the full
report and to submit electronic comments at http://www.regulations.gov.
Regulatory Flexibility Act
This NPRM has also been reviewed by the Small Business
Administration's Office of Advocacy pursuant to Executive Order 13272,
67 FR 53461 (Aug. 13, 2002). Because the proposed rule, if adopted, may
have a significant economic impact on a substantial number of small
entities, the Department has conducted an Initial Regulatory
Flexibility Analysis (IRFA) as a component of this rulemaking. The
Department's ANPRM, NPRM, and the RIA include all of the elements of
the IRFA required by the Regulatory Flexibility Act (RFA). See 5 U.S.C.
601 et seq., as amended by SBREFA, 5 U.S.C. 603(b)(1)-(5), 603(c).
Section 603(b) lists specific requirements for an IRFA regulatory
analysis. The Department has addressed these IRFA issues throughout the
ANPRM, NPRM, and the RIA. In summary, the Department has satisfied its
IRFA obligations under section 603(b) by providing the following:
1. Description of the reasons that action by the agency is being
considered. See, e.g., ``The Roles of the Access Board and the
Department of Justice,'' ``The Revised Guidelines,'' and ``The Advance
Notice of Proposed Rulemaking'' sections of the titles II and III
NPRMs; Section 2.1, ``Access Board Regulatory Assessment'' of the
Initial Regulatory Impact Analysis; see also Department of Justice ADA
Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768-70 (Sept.
30, 2004) (outlining the regulatory history and rationale underlying
DOJ's proposal to revise its regulations implementing titles II and III
of the ADA);
2. Succinct statement of the objectives of, and legal basis for,
the proposed rule. See, e.g., titles II and III NPRM sections entitled,
``Summary,'' ``Overview,'' ``Purpose,'' ``The ADA and Department of
Justice Regulations,'' ``The Roles of the Access Board and the
Department of Justice,'' ``Background (SBREFA, Regulatory Flexibility
Act, and Executive Order) Reviews,'' and ``Regulatory Impact
Analysis''; App. B: Regulatory Assessment sections entitled,
``Background,'' ``Regulatory Alternatives,'' ``Regulatory Proposals
with Cost Implications,'' and ``Measurement of Incremental Benefits'';
see also 69 FR at 58768-70, 58778-79 (outlining the goals and statutory
directives for the regulations implementing titles II and III of the
ADA);
3. Description of, and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply. See Section 6,
``Small Business Impact Analysis'' and App. 5, ``Small Business Data of
the RIA'' (available for review at http://www.ada.gov); see also App.
B: 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 proposed rules
and calculating the likely incremental economic impact of
[[Page 34501]]
these rules on small facilities/entities versus ``typical'' (i.e.,
average-sized) facilities/entities);
4. Description of the projected reporting, record-keeping, and
other compliance requirements of the proposed rule, 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. See titles II and III NPRM
sections entitled, ``Paperwork Reduction Act'' (providing that no new
record-keeping or reporting requirements will be imposed by the NPRMs).
The Department acknowledges that there are other compliance
requirements in the NPRMs that may impose costs on small entities.
These costs are presented in the Department's Initial Regulatory Impact
Analysis, Chapter 6, ``Small Business Impact Analysis'' and
accompanying App. 5, ``Small Business Data'' (available for review at
http://www.ada.gov);
5. Identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap, or conflict with the
proposed rule. See, e.g., title II NPRM sections entitled, ``Analysis
of Impact on Small Entities'' (generally describing DOJ efforts to
eliminate duplication or overlap in federal accessibility guidelines),
``The ADA and Department of Justice Regulations,'' ``Social Service
Establishments'' (Sec. 35.151(e)), ``Streamlining Complaint
Investigations and Designated Agency Authority'' (Sec. Sec. 35.171,
35.172, and 35.190), ``Executive Order 13132: Federalism'' (discussing
interplay of section 504 and ADA Standards), ``Alterations'' (Sec.
35.151(b)) (discussing interplay of UFAS and ADA Standards); title III
NPRM sections entitled, ``Analysis of Impact on Small Entities''
(generally describing DOJ's harmonization efforts with other federal
accessibility guidelines), ``Social Service Establishments'' (Sec.
36.406(d)), ``Definitions of Residential Facilities and Transient
Lodging,'' ``Housing at a Place of Education'' (Sec. 36.406(e))
(discussing section 504), ``Change `Service Animal' to `Assistance
Animal,' '' ``Scope of Coverage'' (discussing Fair Housing Act),
``Effective Date: Time Period,'' and ``Social Service Establishments''
(discussing UFAS); and
6. Description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and
minimize any significant impact of the proposed rule on small entities,
including alternatives considered, such as: (1) Establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) use of
performance rather than design standards; and (3) any exemption from
coverage of the rule, or any part thereof, for such small entities.
The Department's rulemaking efforts satisfy the IRFA requirement
for consideration of significant regulatory alternatives. In September
2004, the Department issued an ANPRM to commence the process of
revising its regulations implementing titles II and III of the ADA. See
69 FR 58768 (Sept. 30, 2004). Among other things, the ANPRM sought
public comment on 54 specific questions. Prominent among these
questions was the issue of whether (and how) to craft a ``safe harbor''
provision for existing title III-covered facilities/entities that would
reduce the financial burden of complying with the 2004 ADAAG. See id.
at 58771-72. The ANPRM also specifically invited comment from small
entities concerning the proposed rules' potential economic impact and
suggested regulatory alternatives to ameliorate such impact. Id. at
58779 (Question 10). By the end of the comment period, the Department
had received over 900 comments, including comments from SBA's Office of
Advocacy and small entities. See, e.g., title II NPRM Preamble and
title III NPRM Preamble sections entitled, ``The Advance Notice of
Proposed Rulemaking'' (summarizing public response to the ANPRM). Many
small business advocates expressed concern regarding the cost of making
older existing title III-covered buildings compliant with new
regulations (since many small businesses operate in such facilities)
and urged DOJ to issue clearer guidance on barrier removal. See title
III NPRM Preamble discussion of ``Safe harbor and other proposed
limitations on barrier removal.''
In drafting the NPRMs for titles II and III, the Department
expressly addressed small businesses' collective ANPRM comments and
proposed regulatory alternatives to help mitigate the economic impact
of the proposed regulations on small entities. For example, the
Department's regulatory proposals:
Provide a ``safe harbor'' provision whereby elements in
existing title II- or title III-covered buildings or facilities that
are compliant with the current 1991 Standards or UFAS need not be
modified to comply with the standards in the proposed regulations (see
``Safe Harbor'' and Sec. 35.150(b)(2) of the title II NPRM; ``Safe
Harbor and Other Proposed Limitations on Barrier Removal'' and Sec.
36.304 of the title III NPRM);
Adopt a regulatory alternative for barrier removal that,
for the first time, provides a specific annual monetary ``cost cap''
for barrier removal obligations for qualified small businesses (see
title III NPRM sections entitled, ``Safe Harbor and Other Proposed
Limitations on Barrier Removal'' and ``Safe Harbor for Qualified Small
Businesses Regarding What Is Readily Achievable'');
Exempt certain existing small recreational facilities
(i.e., play areas, swimming pools, saunas, and steam rooms) which, in
turn, are often owned or operated by small entities, from barrier
removal obligations in order to comply with the standards in the
proposed regulations (see title II NPRM at Sec. 35.150(b)(4) and (5);
title III NPRM section entitled, ``Reduced Scoping for Public
Accommodations, Small Facilities, and Qualified Small Businesses'');
and
Reduce scoping for certain other existing recreational
facilities (i.e., play areas over 1,000 square feet and swimming pools
with over 300 linear feet of pool wall) operated by either title II or
title III entities (see title II NPRM at Sec. 35.150(b)(4) and (5);
title III NPRM section entitled, ``Reduced Scoping for Public
Accommodations, Small Facilities, and Qualified Small Businesses'').
Taken together, the foregoing regulatory proposals amply
demonstrate that the Department was sensitive to the potential economic
impact of the revised regulations on small businesses and attempted to
mitigate this impact with a variety of provisions that, to the extent
consistent with the ADA, impose reduced compliance standards on small
entities.
Section 610 Review. The Department is also required to conduct a
periodic regulatory review pursuant to section 610 of the RFA, 5 U.S.C.
601 et seq., as amended by the SBREFA, 5 U.S.C. 610 et seq.
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
[[Page 34502]]
amend or rescind the rule, to minimize any significant economic impact
of the rule on a substantial number of small entities. See id. at 610
(a).
In developing these proposed rules, the Department has gone through
its regulations section by section, and, as a result, proposes several
clarifications and amendments in both the title II and title III
implementing regulations. The proposals reflect the Department's
analysis and review of complaints or comments from the public as well
as changes in technology. Many of the proposals 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 is functionally equivalent to the process required to
complete a section 610 review. Therefore, this rulemaking fulfills the
Department's obligations under the RFA.
Executive Order 13132: Federalism
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999),
requires executive branch agencies to consider whether a proposed 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 proposed 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
regulations are not novel for state and local governments. This
proposed rule will preempt state laws affecting entities subject to the
ADA only to the extent that those laws directly conflict with the
statutory requirements of the ADA. But the Department believes it is
prudent to consult with public entities about the potential federalism
implications of the proposed title II regulations.
In addition, the interaction of title II and title III has
potentially significant federalism implications. 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 regulation set minimum civil rights
protections for individuals with disabilities that in turn may affect
the implementation of state and local laws, particularly building
codes. For these reasons, the Department has determined that this NPRM
may have federalism implications and requires intergovernmental
consultation in compliance with Executive Order 13132.
The Department intends to amend the regulation in a manner that
meets the objectives of the ADA while also minimizing conflicts between
state law and federal interests. To that end, as a member of the Access
Board, the Department has been privy to substantial feedback from state
and local governments through the development of the 2004 ADAAG. In
addition, the Department solicited and received input from public
entities in the September 2004 ANPRM. Some elements of the proposed
rule reflect the Department's work to mitigate federalism implications,
particularly the provisions that streamline the administrative process
for state and local governments seeking ADA code certification under
title III.
The Department is now soliciting comments from elected state and
local officials and their representative national organizations through
this NPRM. The Department seeks comment from all interested parties,
but especially state and local elected officials, about the potential
federalism implications of the proposed rule. The Department will
welcome comments on whether the proposed rule may have direct effects
on state and local governments, the relationship between the Federal
Government and the States, or the distribution of power and
responsibilities among the various levels of government.
National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(NTTAA) directs that all federal agencies and departments 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 (15 U.S.C. 272(b)). In addition, the statute 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.
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 proposed standards are based. As part of this update, the
Board has made its guidelines more consistent with model building
codes, such as the International Building Code (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, an historic level of harmonization
has been achieved, which 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 that also
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 during normal
business hours to obtain
[[Page 34503]]
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, 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), 44 U.S.C. 3501 et seq.,
requires agencies to clear forms and record keeping requirements with
OMB before they can be introduced. This rule does not contain any
paperwork or record keeping requirements, and does not require
clearance under the PRA.
Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
List of Subjects in 28 CFR Part 35
Administrative practice and procedure, Buildings and facilities,
Civil rights, Communications, Individuals with disabilities, Reporting
and recordkeeping requirements, State and local governments.
By the authority vested in me as Attorney General by law, including
28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 204 of the Americans
with Disabilities Act, Public Law 101-336, 42 U.S.C. 12134, and for the
reasons set forth in the preamble, chapter I of Title 28 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
1. The authority citation for 28 CFR part 35 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
Subpart A--General
2-3. Amend Sec. 35.104 by adding the following definitions of 1991
Standards, 2004 ADAAG, direct threat, existing facility, other power-
driven mobility device, proposed standards, service animal, qualified
reader, video interpreting services (VIS), 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 ADA Standards for Accessible Design,
codified at 28 CFR part 36, Appendix A.
2004 ADAAG means the requirements set forth in appendices B and D
to 36 CFR part 1191.
* * * * *
Auxiliary aids and services includes--
(1) Qualified interpreters, notetakers, 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, text telephones (TTYs),
videotext displays, video interpreting services (VIS), accessible
electronic and information technology, or other effective methods of
making orally 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;
* * * * *
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.
* * * * *
Existing facility means a facility that has been constructed and
remains in existence on any given date.
* * * * *
Other power-driven mobility device means 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.
Proposed standards means the requirements set forth in appendices B
and D to 36 CFR part 1191 as adopted by the Department of Justice.
* * * * *
Qualified interpreter means an interpreter who is able to interpret
effectively, accurately, and impartially using any necessary
specialized vocabulary. Qualified interpreters include, for example,
sign language interpreters, oral interpreters, and cued speech
interpreters. Oral interpreter means an interpreter who has special
skill and training to mouth a speaker's words silently for individuals
who are deaf or hard of hearing. Cued speech interpreter means an
interpreter who 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.
* * * * *
Qualified reader means a person who is able to read effectively,
accurately, and impartially using any necessary vocabulary.
* * * * *
Service animal means any dog or other common domestic animal
individually trained to do work or perform tasks for the benefit of a
qualified individual with a disability, including, but not limited to,
guiding individuals who are blind or have low vision, alerting
individuals who are deaf or hard of hearing to the presence of people
or sounds, providing minimal protection or rescue work, pulling a
wheelchair, fetching items, assisting an individual during a seizure,
retrieving medicine or the telephone, providing physical support and
assistance with balance and stability to individuals with mobility
disabilities, and assisting individuals, including those with cognitive
disabilities, with navigation. The term service animal includes
individually trained animals that do work or perform tasks for the
benefit of individuals with disabilities, including psychiatric,
cognitive, and mental disabilities. The term service animal does not
include wild animals (including nonhuman primates born in captivity),
reptiles, rabbits, farm animals (including any breed of horse,
miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.
Animals whose sole function is to provide emotional support, comfort,
therapy, companionship, therapeutic benefits, or to promote emotional
well-being are not service animals.
* * * * *
Video interpreting services (VIS) means an interpreting service
that uses video conference technology over high
[[Page 34504]]
speed Internet lines. VIS generally consists of a videophone, monitors,
cameras, a high speed Internet connection, and an interpreter.
Wheelchair means 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.
Subpart B--General Requirements
4. Amend Sec. 35.133 by adding paragraph (c) to read as follows:
Sec. 35.133 Maintenance of accessible features.
* * * * *
(c) If the proposed standards reduce the number of required
accessible elements below the number required by the 1991 Standards,
the number of accessible elements in a facility subject to this part
may be reduced in accordance with the requirements of the proposed
standards.
5. Amend 28 CFR part 35 by adding 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, unless the public entity can demonstrate
that the use of a service animal would fundamentally alter the public
entity's service, program, or activity.
(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;
(2) The animal is not housebroken or the animal's presence or
behavior fundamentally alters the nature of the service the public
entity provides; or
(3) The animal poses a direct threat to the health or safety of
others that cannot be eliminated by reasonable modifications.
(c) If an animal is properly excluded. If a public entity properly
excludes a service animal, 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) General requirements. The work or tasks performed by a service
animal shall be directly related to the handler's disability. A service
animal that accompanies an individual with a disability into a facility
of a public entity shall be individually trained to do work or perform
a task, housebroken, and under the control of its handler. A service
animal shall have a harness, leash, or other tether.
(e) Care or supervision of service animals. A public entity is not
responsible for caring for or supervising a service animal.
(f) Inquiries. A public entity shall not ask about the nature or
extent of a person's disability, but can determine whether an animal
qualifies as a service animal. For example, 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
or licensed as a service animal.
(g) Access to areas open to the public, program participants, and
invitees. Individuals with disabilities who are accompanied by service
animals may access all areas of a public entity's facility where
members of the public, program participants and invitees are allowed to
go, unless the public entity can demonstrate that individuals
accompanied by service animals would fundamentally alter the public
entity's service, program, or activity.
(h) Fees or surcharges. A public entity shall not ask or require an
individual with a disability to post a deposit, pay a fee or surcharge,
or comply with other requirements not generally applicable to other
citizens as a condition of permitting a service animal to accompany its
handler in a public entity's facility, even if people accompanied by
pets are required to do so. If a public entity normally charges its
citizens for damage that they cause, a citizen with a disability may be
charged for damage caused by his or her service animal.
6. Amend 28 CFR part 35 by adding Sec. 35.137 to read as follows:
Sec. 35.137 Mobility devices.
(a) Use of wheelchairs, scooters, and manually powered mobility
aids. A public entity shall permit individuals with mobility
impairments to use wheelchairs, scooters, walkers, crutches, canes,
braces, or other similar devices designed for use by individuals with
mobility impairments in any areas open to pedestrian use.
(b) Other power-driven mobility devices. 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.
(c) Development of policies permitting the use of other power-
driven mobility devices. A public entity shall establish policies to
permit the use of other power-driven mobility devices by individuals
with disabilities when it is reasonable to allow an individual with a
disability to participate in a service, program, or activity. Whether a
modification is reasonable to allow the use of a class of power-driven
mobility device by an individual with a disability in specific venues
(e.g., parks, courthouses, office buildings, etc.) shall be determined
based on:
(1) The dimensions, weight, and operating speed of the mobility
device in relation to a wheelchair;
(2) The risk of potential 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.
(d) Inquiry into use of power-driven mobility device. 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.
7. Amend 28 CFR part 35 by adding Sec. 35.138 to read as follows:
Sec. 35.138 Ticketing.
(a) General. A public entity that sells tickets on a preassigned
basis shall modify its policies, practices, or procedures to ensure
that individuals with disabilities can purchase tickets for accessible
seating during the same hours, through the same methods of
distribution, and in the same types and numbers of ticketing sales
outlets as other patrons, unless the modification would fundamentally
alter the nature of the ticketing service, program, or activity.
(b) Availability. Tickets for accessible seating shall be made
available during all stages of ticket sales, including, but not limited
to, presales, promotions, lotteries, wait-lists, and general sales.
(c) Identification of accessible seating. If seating maps, plans,
brochures, or other information is provided to the general public,
wheelchair seating and companion seats shall be identified.
(d) Notification of accessible seating locations. A public entity
that sells or distributes tickets for seating at
[[Page 34505]]
assembly areas shall, upon inquiry, inform spectators with disabilities
and their companions of the locations of all unsold or otherwise
available accessible seating for any ticketed event at the facility.
(e) Sale of season tickets or other tickets for multiple events.
Season tickets or other tickets sold on a multi-event basis to
individuals with disabilities and their companions shall be sold under
the same terms and conditions as other tickets sold for the same series
of events. Spectators purchasing tickets for accessible seating on a
multi-event basis shall also be permitted to transfer tickets for
single-event use by friends or associates in the same fashion and to
the same extent as permitted other spectators holding tickets for the
same type of ticketing plan.
(f) Hold and release of accessible seating. A public entity may
release unsold accessible seating to any person with or without a
disability following any of the circumstances described below:
(1) When all seating (excluding luxury boxes, club boxes, or
suites) for an event has been sold;
(2) When all seating in a designated area in the facility has been
sold and the accessible seating being released is in the same
designated area; or
(3) When all seating in a designated price range has been sold and
the accessible seating being sold is within the same designated price
range. Nothing in this provision requires a facility to release
wheelchair seats for general sale.
(g) Ticket prices. The price of tickets for accessible seating
shall not be set higher than for tickets to seating located in the same
seating section for the same event. Accessible seating must be made
available at all price levels for an event. If an existing facility has
barriers to accessible seating at a particular price level for an
event, then a percentage (determined by the ratio of the total number
of seats at that price level to the total number of seats in the
assembly area) of the number of accessible seats must be provided at
that price level in an accessible location.
(h) Prevention of fraudulent purchase of accessible seating. A
public entity may not require proof of disability before selling a
wheelchair space.
(1) For the sale of single-event tickets, it is permissible to
inquire whether the individual purchasing the wheelchair space uses a
wheelchair.
(2) For season tickets, subscriptions, or other multi-events, it is
permissible to ask the individual to attest in writing that the
wheelchair space is for an individual who utilizes a wheelchair. 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.
(i) Purchasing multiple tickets. (1) Individuals with disabilities
and their companions shall be permitted to purchase the same maximum
number of tickets for an event per sales transaction as other
spectators seeking to purchase seats for the same event. If there is an
insufficient number of seats for all members of a party to sit
together, seats shall be provided that are as close as possible to the
wheelchair spaces. For accessible seating in a designated wheelchair
area, a public entity shall provide up to three companion seats for
each person with a disability who requires a wheelchair space, provided
that at the time of purchase there are sufficient available wheelchair
spaces.
(2) For group sales, if a group includes one or more individuals
who use a wheelchair, the group shall be placed in a seating area that
includes wheelchair spaces 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.
Subpart D--Program Accessibility
8. Amend Sec. 35.150 as follows:
a. Redesignate paragraph (b)(2) as paragraph (b)(3);
b. Add the words ``or acquisition'' after the word ``redesign'' in
the first sentence of paragraph (b)(1) and add paragraphs (b)(2),
(b)(4), and (b)(5) to read as follows:
Sec. 35.150 Existing facilities.
* * * * *
(b) * * *
(2) Safe harbor. If a public entity has constructed or altered
elements in an existing facility 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 proposed standards, required to retrofit such elements
to reflect incremental changes in the proposed standards.
* * * * *
(4) Reduced scoping for existing facilities. For measures taken to
comply with the program accessibility requirements of this section,
existing facilities shall comply with the applicable requirements for
alterations in Sec. 35.151 of this part, except as follows:
(i) In addition to the provisions of section 240.2.1 of the
proposed standards, where an existing play area provides elevated play
components, an additional number of ground level play components may be
substituted for the number of elevated play components that would have
been required to comply with the provisions of section 240.2.2 of the
proposed standards; and
(ii) Where an existing swimming pool has at least 300 linear feet
of swimming pool wall, it shall comply with the applicable requirements
for swimming pools, except that it shall provide at least one
accessible means of entry that complies with section 1009.2 or section
1009.3 of the proposed standards.
(5) Exemption for small facilities. For measures taken to comply
with the program accessibility requirements of this section, existing
facilities shall comply with the applicable requirements for
alterations in Sec. 35.151 of this part, except as follows:
(i) Where an existing play area has less than 1000 square feet, it
shall be exempt from the provisions of section 240 of the proposed
standards;
(ii) Where an existing swimming pool has less than 300 linear feet
of swimming pool wall, it shall be exempt from the provisions of
section 242.2 of the proposed standards; and
(iii) Where an existing sauna or steam room was designed and
constructed to seat only two people, it shall be exempt from the
provisions of Sec. 241 of the proposed standards.
* * * * *
9. Revise Sec. 35.151 to read as follows:
Sec. 35.151 New construction and alterations.
(a) Design and construction. (1) Each facility or part of a
facility constructed by, on behalf of, or for the use of a public
entity shall be designed and constructed in such manner that the
facility or part of the facility is readily accessible to and usable by
individuals with disabilities, if the construction was commenced after
January 26, 1992.
(2) Exception for structural impracticability. (i) Full compliance
with the requirements of this section is not required where a public
entity can demonstrate that it is structurally impracticable to meet
the requirements. Full compliance will be considered structurally
impracticable only in those rare circumstances when the unique
characteristics of terrain prevent the incorporation of accessibility
features.
(ii) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the extent
that it is not structurally impracticable. In that case, any portion of
the facility that can
[[Page 34506]]
be made accessible shall be made accessible to the extent that it is
not structurally impracticable.
(b) Alteration. (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 not
apply to measures taken solely to comply with the program accessibility
requirements of this section.
(3) 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). 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 and scope of the
overall alterations.
(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 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 the
principal 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, the public entity is not required to retrofit
such elements to reflect incremental changes in the proposed 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 twenty
percent (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, e.g., 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 a telephone to an accessible height, installing
amplification devices, or installing a text telephone (TTY); and
(4) Costs associated with relocating an inaccessible drinking
fountain.
(iv) Duty to provide accessible features in the event of
disproportionality. (A) When the cost of alterations necessary to make
the path of travel to the altered area fully accessible is
disproportionate to the cost of the overall alteration, the path of
travel shall be made accessible to the extent that it can be made
accessible without incurring disproportionate costs.
(B) In choosing which accessible elements to provide, priority
should be given to those elements that will provide the greatest
access, in the following order:
(1) An accessible entrance;
(2) An accessible route to the altered area;
(3) At least one accessible restroom for each sex or a single
unisex restroom;
(4) Accessible telephones;
(5) Accessible drinking fountains; and
(6) When possible, additional accessible elements such as parking,
storage, and alarms.
(v) Series of smaller alterations. (A) The obligation to provide an
accessible path of travel may not be evaded by performing a series of
small alterations to the area served by a single path of travel if
those alterations could have been performed as a single undertaking.
(B)(1) If an area containing a primary function has been altered
without providing an accessible path of travel to that area, and
subsequent alterations of that area, or a different area on the same
path of travel, are undertaken within three years of the original
alteration, the total cost of alterations to the primary function areas
on that path of travel during the preceding three-year period shall be
considered in determining whether the cost of making that path of
travel accessible is disproportionate.
(2) Only alterations undertaken after the effective date of this
part 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. (1) For facilities on which
construction commences before [date six months after the effective date
of the final rule], design, construction, or alteration of facilities
in conformance with the Uniform Federal Accessibility Standards (UFAS)
(Appendix A to 41 CFR part 101-19.6) or with the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities
(Appendix A to the Department of Justice's final rule implementing
title III of the ADA, 56 FR 35544) shall be deemed to comply with the
requirements of this section with respect to those facilities, except
that the elevator exemption contained at section 4.1.3(5) and section
4.1.6(1)(j) 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
[[Page 34507]]
the facility or part of the facility is thereby provided.
(2) Facilities on which construction commences on or after [date
six months after the effective date of the final rule] shall comply
with the proposed standards.
(d) Scope of coverage. The proposed 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 in the text, advisory notes, appendix
notes, and figures contained in the ADA Standards explain or illustrate
the requirements of the rule, they do not establish enforceable
requirements.
(e) Social service establishments. Group homes, halfway houses,
shelters, or similar social service establishments that provide
temporary sleeping accommodations or residential dwelling units subject
to the proposed standards shall comply with the provisions of the
proposed standards that apply to residential facilities, including, but
not limited to, the provisions in sections 233 and 809.
(1) In sleeping rooms covered by this section with more than
twenty-five beds, five percent (5%) minimum of the beds shall have
clear floor space complying with section 806.2.3.
(f) Housing at a place of education. Dormitories or residence halls
operated by or on behalf of places of education that are subject to the
proposed standards shall comply with the provisions applicable to
transient lodging, including, but not limited to, the requirements for
transient lodging guest rooms in sections 224 and 806.
(g) Assembly areas. Assembly areas subject to the proposed
standards shall comply with the provisions applicable to assembly
areas, including, but not limited to, sections 221 and 804. In
addition, assembly areas shall ensure that--
(1) Wheelchair and companion seating locations are dispersed among
all levels of the facility that are served by an accessible route;
(2) Wheelchair and companion seating locations are not located on
(or obstructed by) temporary platforms or other movable structures.
When wheelchair seating locations are not required to accommodate
people who use wheelchairs, individual, readily removable seats may be
placed in those spaces;
(3) Facilities that have more than 5,000 seats shall provide at
least five wheelchair locations that are configured to provide at least
three companion seats for each wheelchair space; and
(4) Stadium-style movie theaters locate wheelchair seating spaces
and companion seating 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 sixty percent (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 subject to the
proposed standards shall comply with the provisions 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 rooms required by section 223.2.1 in a manner that
enables patients with disabilities to have access to appropriate
specialty services.
(i) Curb ramps. (1) Newly constructed or altered streets, roads,
and highways must contain curb ramps at any intersection having curbs
or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways
must contain curb ramps at intersections to streets, roads, or
highways.
10. Amend 28 CFR part 35 by adding Sec. 35.152 to read as follows:
Sec. 35.152 Detention and correctional facilities.
(a) General. Public entities that are responsible for the operation
or management of detention and correctional facilities, either directly
or through contracts or other arrangements, shall comply with this
section.
(b) Discrimination prohibited. (1) Public entities shall ensure
that qualified inmates or detainees with disabilities shall not,
because that 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 unless the
public entity can demonstrate that the required actions would result in
a fundamental alteration or undue burden.
(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 the public entity can demonstrate
that it is appropriate to make an exception for a specific individual,
a public entity--
(i) Should not place inmates or detainees with disabilities in
inappropriate security classifications because no accessible cells or
beds are available;
(ii) Should not place inmates or detainees with disabilities in
designated medical areas unless they are actually receiving medical
care or treatment;
(iii) 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
(iv) Should 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.
(c) Alterations to detention and correctional facilities.
Alterations to jails, prisons, and other detention and correctional
facilities will comply with the requirements of Sec. 35.151(b).
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 (i.e., cells other than
those where alterations are originally planned), provided that each
substitute cell--
(1) Is located within the same facility;
(2) Is integrated with other cells to the maximum extent feasible;
and
(3) 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.
Subpart E--Communications
11. Revise Sec. 35.160 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
with disabilities, and companions thereof are as effective as
communications with others.
(2) For purposes of this section, companion means a family member,
friend, or associate of a program participant who, along with the
participant, is an appropriate person with whom the public entity
should communicate.
(b) A public entity shall furnish appropriate auxiliary aids and
services
[[Page 34508]]
where necessary to afford individuals with disabilities and their
companions who are individuals with disabilities, an equal opportunity
to participate in, and enjoy the benefits of, a service, program, or
activity conducted by a public entity.
(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 individual accompanying an
individual with a disability to interpret or facilitate communication,
except in an emergency involving a threat to public safety or welfare,
or unless 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.
(d) Video interpreting services (VIS). A public entity that chooses
to provide qualified interpreters via VIS shall ensure that it
provides--
(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 interpreter's head and the participating individual's head, arms,
hands, and fingers, regardless of his body position;
(3) Clear transmission of voices; and
(4) Training to nontechnicians so that they may quickly and
efficiently set up and operate the VIS.
(e) Sports stadiums. One year after the effective date of this
regulation, sports stadiums that have a seating capacity of 25,000 or
more shall provide captioning on the scoreboards and video monitors for
safety and emergency information.
12. 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 for
receiving and directing incoming telephone calls, that automated
attendant system must provide effective communication with individuals
using auxiliary aids and services, including TTYs or a
telecommunications relay system.
(c) A public entity shall respond to telephone calls from a
telecommunications relay service established under title IV of the
Americans with Disabilities Act in the same manner that it responds to
other telephone calls.
Subpart F--Compliance Procedures
13. 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 either the
appropriate designated agency or agency that has section 504
jurisdiction or to 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.
* * * * *
14. 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 based on information indicating a possible 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; 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 Sec. 203 of the Act, whether or not the designated agency finds a
violation.
Subpart G--Designated Agencies
15. 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.
Dated: May 30, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-12622 Filed 6-16-08; 8:45 am]
BILLING CODE 4410-13-P