Title II Regulations
2010 Guidance and
Section-by-Section Analysis
Appendix A to Part
35—Guidance to Revisions to ADA Regulation on Nondiscrimination on the
Basis of Disability in State and Local Government Services
Note: This Appendix contains guidance providing a section-by-section
analysis of the revisions to 28 CFR part 35 published on September 15,
2010.
Section-By-Section Analysis and Response to Public Comments
This section provides a detailed description of the
Department’s changes to the title II regulation, the reasoning behind
those changes, and responses to public comments received on these
topics. The Section-by-Section Analysis follows the order of the title
II regulation itself, except that, if the Department has not changed a
regulatory section, the unchanged section has not been mentioned.
Subpart A—General
Section 35.104 Definitions.
‘‘1991 Standards’’ and ‘‘2004 ADAAG’’
The Department has included in the final rule new
definitions of both the ‘‘1991 Standards’’ and the ‘‘2004 ADAAG.’’ The
term ‘‘1991 Standards’’ refers to the ADA Standards for Accessible
Design, originally published on July 26, 1991, and republished as
Appendix D to part 36. The term ‘‘2004 ADAAG’’ refers to ADA Chapter 1,
ADA Chapter 2, and Chapters 3 through 10 of the Americans with
Disabilities Act and Architectural Barriers Act Accessibility
Guidelines, which were issued by the Access Board on July 23, 2004, 36
CFR 1191, app. B and D (2009), and which the Department has adopted in
this final rule. These terms are included in the definitions section for
ease of reference.
‘‘2010 Standards’’
The Department has added to the final rule a definition of the
term ‘‘2010 Standards.’’ The term ‘‘2010 Standards’’ refers to the 2010
ADA Standards for Accessible Design, which consist of the 2004 ADAAG and
the requirements contained in § 35.151.
‘‘Auxiliary Aids and Services’’
In the NPRM, the Department proposed revisions to the definition
of auxiliary aids and services under § 35.104 to include several
additional types of auxiliary aids that have become more readily
available since the promulgation of the 1991 title II regulation, and in
recognition of new technology and devices available in some places that
may provide effective communication in some situations.
The NPRM proposed adding an explicit reference to written
notes in the definition of ‘‘auxiliary aids.’’ Although this policy was
already enunciated in the Department’s 1993 Title II Technical
Assistance Manual at II– 7.1000, the Department proposed inclusion in
the regulation itself because some Title II entities do not understand
that exchange of written notes using paper and pencil is an available
option in some circumstances. See Department of Justice, The
Americans with Disabilities Act, Title II Technical Assistance Manual
Covering State and Local Government Programs and Services (1993), available at http://www.ada.gov/ taman2.html.
Comments from several disability advocacy organizations and individuals
discouraged the Department from including the exchange of written notes
in the list of available auxiliary aids in § 35.104. Advocates and
persons with disabilities requested explicit limits on the use of
written notes as a form of auxiliary aid because, they argue, most
exchanges are not simple and are not communicated effectively using
handwritten notes. One major advocacy organization, for example, noted
that the speed at which individuals communicate orally or use sign
language averages about 200 words per minute or more while exchange of
notes often leads to truncated or incomplete communication. For persons
whose primary language is American Sign Language (ASL), some commenters
pointed out, using written English in exchange of notes often is
ineffective because ASL syntax and vocabulary is dissimilar from
English. By contrast, some commenters from professional medical
associations sought more specific guidance on when notes are allowed,
especially in the context of medical offices and health care situations.
Exchange of notes likely will be effective in situations
that do not involve substantial conversation, for example, blood work
for routine lab tests or regular allergy shots. Video Interpreting
Services (hereinafter referred to as ‘‘video remote interpreting
services’’ or VRI) or an interpreter should be used when the matter
involves greater complexity, such as in situations requiring
communication of medical history or diagnoses, in conversations about
medical procedures and treatment decisions, or when giving instructions
for care at home or elsewhere. In the Section-By-Section Analysis of §
35.160 (Communications) below, the Department discusses in greater
detail the kinds of situations in which interpreters or captioning would
be necessary. Additional guidance on this issue can be found in a
number of agreements entered into with health-care providers and
hospitals that are available on the Department’s Web site at http:// www.ada.gov.
In the NPRM, in paragraph (1) of the definition in § 35.104,
the Department proposed replacing the term ‘‘telecommunications devices
for deaf persons (TDD)’’ with the term ‘‘text telephones (TTYs).’’ TTY
has become the commonly accepted term and is consistent with the
terminology used by the Access Board in the 2004 ADAAG. Commenters
representing advocates and persons with disabilities expressed approval
of the substitution of TTY for TDD in the proposed regulation.
Commenters also expressed the view that the Department
should expand paragraph (1) of the definition of auxiliary aids to
include ‘‘TTY’s and other voice, text, and video-based
telecommunications products and systems such as videophones and
captioned telephones.’’ The Department has considered these comments and
has revised the definition of ‘‘auxiliary aids’’ to include references
to voice, text, and video-based telecommunications products and systems,
as well as accessible electronic and information technology.
In the NPRM, the Department also proposed including a
reference in paragraph (1) to a new technology, Video Interpreting
Services (VIS). The reference remains in the final rule. VIS is
discussed in the Section-By- Section Analysis below in reference to §
35.160 (Communications), but is referred to as VRI in both the final
rule and Appendix A to more accurately reflect the terminology used in
other regulations and among users of the technology.
In the NPRM, the Department noted that technological
advances in the 18 years since the ADA’s enactment had increased the
range of auxiliary aids and services for those who are blind or have low
vision. As a result the Department proposed additional examples to
paragraph (2) of the definition, including Brailled materials and
displays, screen reader software, optical readers, secondary auditory
programs (SAP), and accessible electronic and information technology.
Some commenters asked for more detailed requirements for auxiliary aids
for persons with vision disabilities. The Department has decided it will
not make additional changes to that provision at this time.
Several comments suggested expanding the auxiliary aids
provision for persons who are both deaf and blind, and in particular, to
include in the list of auxiliary aids a new category, ‘‘support service
providers (SSP),’’ which was described in comments as a navigator and
communication facilitator. The Department believes that services
provided by communication facilitators are already encompassed in the
requirement to provide qualified interpreters. Moreover, the Department
is concerned that as described by the commenters, the category of
support service providers would include some services that would be
considered personal services and that do not qualify as auxiliary aids.
Accordingly, the Department declines to add this new category to the
list at this time.
Some commenters representing advocacy organizations and
individuals asked the Department to explicitly require title II entities
to make any or all of the devices or technology available in all
situations upon the request of the person with a disability. The
Department recognizes that such devices or technology may provide
effective communication and in some circumstances may be effective for
some persons, but the Department does not intend to require that every
entity covered by title II provide every device or all new technology at
all times as long as the communication that is provided is as effective
as communication with others. The Department recognized in the preamble
to the 1991 title II regulation that the list of auxiliary aids was
‘‘not an all-inclusive or exhaustive catalogue of possible or available
auxiliary aids or services. It is not possible to provide an exhaustive
list, and an attempt to do so would omit the new devices that will
become available with emerging technology.’’ 28 CFR part 35, app. A at
560 (2009). The Department continues to endorse that view; thus, the
inclusion of a list of examples of possible auxiliary aids in the
definition of ‘‘auxiliary aids’’ should not be read as a mandate for a
title II entity to offer every possible auxiliary aid listed in the
definition in every situation.
‘‘Direct Threat’’
In Appendix A of the Department’s 1991 title II regulation,
the Department included a detailed discussion of ‘‘direct threat’’ that,
among other things, explained that principles established in §
36.208 of the Department’s [title III] regulation’’ were ‘‘applicable’’
as well to title II, insofar as ‘‘questions of safety are involved.’’ 28
CFR part 35, app. A at 565 (2009). In the final rule, the Department
has included an explicit definition of ‘‘direct threat’’ that is
parallel to the definition in the title III rule and placed it in the
definitions section at § 35.104.
‘‘Existing Facility’’
The 1991 title II regulation provided definitions for ‘‘new
construction’’ at § 35.151(a) and ‘‘alterations’’ at § 35.151(b). In
contrast, the term ‘‘existing facility’’ was not explicitly defined,
although it is used in the statute and regulations for title II. See
42 U.S.C. 12134(b); 28 CFR 35.150. It has been the Department’s view
that newly constructed or altered facilities are also existing
facilities with continuing program access obligations, and that view is
made explicit in this rule.
The classification of facilities under the ADA is neither
static nor mutually exclusive. Newly constructed or altered facilities
are also existing facilities. A newly constructed facility remains
subject to the accessibility standards in effect at the time of design
and construction, with respect to those elements for which, at that
time, there were applicable ADA Standards. And at some point, the
facility may undergo alterations, which are subject to the alterations
requirements in effect at the time. See § 35.151(b)–(c). The
fact that the facility is also an existing facility does not relieve the
public entity of its obligations under the new construction and
alterations requirements in this part.
For example, a facility constructed or altered after the
effective date of the original title II regulations but prior to the
effective date of the revised title II regulation and Standards, must
have been built or altered in compliance with the Standards (or UFAS) in
effect at that time, in order to be in compliance with the ADA. In
addition, a ‘‘newly constructed’’ facility or ‘‘altered’’ facility is
also an ‘‘existing facility’’ for purposes of application of the title
II program accessibility requirements. Once the 2010 Standards take
effect, they will become the new reference point for determining the
program accessibility obligations of all existing facilities. This is
because the ADA contemplates that as our knowledge and understanding of
accessibility advances and evolves, this knowledge will be incorporated
into and result in increased accessibility in the built environment.
Under title II, this goal is accomplished through the statute’s program
access framework. While newly constructed or altered facilities must
meet the accessibility standards in effect at the time, the fact that
these facilities are also existing facilities ensures that the
determination of whether a program is accessible is not frozen at the
time of construction or alteration. Program access may require
consideration of potential barriers to access that were not recognized
as such at the time of construction or alteration, including, but not
limited to, the elements that are first covered in the 2010 Standards,
as that term is defined in § 35.104. Adoption of the 2010 Standards
establishes a new reference point for title II entities that choose to
make structural changes to existing facilities to meet their program
access requirements.
The NPRM included the following proposed definition of
‘‘existing facility.’’ ‘‘A facility that has been constructed and
remains in existence on any given date.’’ 73 FR 34466, 34504 (June 17,
2008). The Department received a number of comments on this issue. The
commenters urged the Department to clarify that all buildings remain
subject to the standards in effect at the time of their construction,
that is, that a facility designed and constructed for first occupancy
between January 26, 1992, and the effective date of the final rule is
still considered ‘‘new construction’’ and that alterations occurring
between January 26, 1992, and the effective date of the final rule are
still considered ‘‘alterations.’’
The final rule includes clarifying language to ensure that
the Department’s interpretation is accurately reflected. As established
by this rule, existing facility means a facility in existence on any
given date, without regard to whether the facility may also be
considered newly constructed or altered under this part. Thus, this
definition reflects the Department’s interpretation that public entities
have program access requirements that are independent of, but may
coexist with, requirements imposed by new construction or alteration
requirements in those same facilities.
‘‘Housing at a Place of Education’’
The Department has added a new definition to § 35.104, ‘‘housing
at a place of education,’’ to clarify the types of educational housing
programs that are covered by this title. This section defines ‘‘housing
at a place of education’’ as ‘‘housing operated by or on behalf of an
elementary, secondary, undergraduate, or postgraduate school, or other
place of education, including dormitories, suites, apartments, or other
places of residence.’’ This definition does not apply to social service
programs that combine residential housing with social services, such as a
residential job training program.
‘‘Other Power-Driven Mobility Device’’ and ‘‘Wheelchair’’
Because relatively few individuals with disabilities were using
nontraditional mobility devices in 1991, there was no pressing need for
the 1991 title II regulation to define the terms ‘‘wheelchair’’ or
‘‘other power-driven mobility device,’’ to expound on what would
constitute a reasonable modification in policies, practices, or
procedures under § 35.130(b)(7), or to set forth within that section
specific requirements for the accommodation of mobility devices. Since
the issuance of the 1991 title II regulation, however, the choices of
mobility devices available to individuals with disabilities have
increased dramatically. The Department has received complaints about and
has become aware of situations where individuals with mobility
disabilities have utilized devices that are not designed primarily for
use by an individual with a mobility disability, including the Segway® Personal Transporter (Segway® PT), golf cars, all-terrain vehicles (ATVs), and other locomotion devices.
The Department also has received questions from public
entities and individuals with mobility disabilities concerning which
mobility devices must be accommodated and under what circumstances.
Indeed, there has been litigation concerning the legal obligations of
covered entities to accommodate individuals with mobility disabilities
who wish to use an electronic personal assistance mobility device
(EPAMD), such as the Segway® PT, as a mobility device. The Department has participated in such litigation as amicus curiae. See Ault v. Walt Disney World Co.,
No. 6:07–cv–1785–Orl–31KRS, 2009 WL 3242028 (M.D. Fla. Oct. 6, 2009).
Much of the litigation has involved shopping malls where businesses have
refused to allow persons with disabilities to use EPAMDs. See , e.g., McElroy v. Simon Property Group, No. 08– 404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway ®
PT as a mobility device where an individual agrees to all of a mall’s
policies for use of the device, except indemnification); Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/ story.asp?s=3643674 (last visited June 24, 2010).
In response to questions and complaints from individuals
with disabilities and covered entities concerning which mobility devices
must be accommodated and under what circumstances, the Department began
developing a framework to address the use of unique mobility devices,
concerns about their safety, and the parameters for the circumstances
under which these devices must be accommodated. As a result, the
Department’s NPRM proposed two new approaches to mobility devices.
First, the Department proposed a two-tiered mobility device definition
that defined the term ‘‘wheelchair’’ separately from ‘‘other
power-driven mobility device.’’ Second, the Department proposed
requirements to allow the use of devices in each definitional category.
In § 35.137(a), the NPRM proposed that wheelchairs and manually-powered
mobility aids used by individuals with mobility disabilities shall be
permitted in any areas open to pedestrian use. Section 35.137(b) of the
NPRM provided that a public entity ‘‘shall make reasonable modifications
in its policies, practices, and procedures to permit the use of other
power-driven mobility devices by individuals with disabilities, unless
the public entity can demonstrate that the use of the device is not
reasonable or that its use will result in a fundamental alteration of
the public entity’s service, program, or activity.’’ 73 FR 34466, 34504
(June 17, 2008).
The Department sought public comment with regard to whether these
steps would, in fact, achieve clarity on these issues. Toward this end,
the Department’s NPRM asked several questions relating to the
definitions of ‘‘wheelchair,’’ ‘‘other power-driven mobility device,’’
and ‘‘manually-powered mobility aids’’; the best way to categorize
different classes of mobility devices; the types of devices that should
be included in each category; and the circumstances under which certain
mobility devices must be accommodated or may be excluded pursuant to the
policy adopted by the public entity.
Because the questions in the NPRM that concerned mobility
devices and their accommodation were interrelated, many of the
commenters’ responses did not identify the specific question to which
they were responding. Instead, the commenters grouped the questions
together and provided comments accordingly. Most commenters spoke to the
issues addressed in the Department’s questions in broad terms and
general concepts. As a result, the responses to the questions posed are
discussed below in broadly grouped issue categories rather than on a
question-by-question basis.
Two-tiered definitional approach. Commenters
supported the Department’s proposal to use a two-tiered definition of
mobility device. Commenters nearly universally said that wheelchairs
always should be accommodated and that they should never be subject to
an assessment with regard to their admission to a particular public
facility. In contrast, the vast majority of commenters indicated they
were in favor of allowing public entities to conduct an assessment as to
whether, and under which circumstances, other power-driven mobility
devices would be allowed on-site.
Many commenters indicated their support for the two-tiered
approach in responding to questions concerning the definition of
‘‘wheelchair’’ and ‘‘other-powered mobility device.’’ Nearly every
disability advocacy group said that the Department’s two-tiered approach
strikes the proper balance between ensuring access for individuals with
disabilities and addressing fundamental alteration and safety concerns
held by public entities; however, a minority of disability advocacy
groups wanted other power-driven mobility devices to be included in the
definition of ‘‘wheelchair.’’ Most advocacy, nonprofit, and individual
commenters supported the concept of a separate definition for ‘‘other
power-driven mobility device’’ because it maintains existing legal
protections for wheelchairs while recognizing that some devices that are
not designed primarily for individuals with mobility disabilities have
beneficial uses for individuals with mobility disabilities. They also
favored this concept because it recognizes technological developments
and that the innovative uses of varying devices may provide increased
access to individuals with mobility disabilities.
Many environmental, transit system, and government
commenters indicated they opposed in its entirety the concept of ‘‘other
power-driven mobility devices’’ as a separate category. They believe
that the creation of a second category of mobility devices will mean
that other power-driven mobility devices, specifically ATVs and
off-highway vehicles, must be allowed to go anywhere on national park
lands, trails, recreational areas, etc.; will conflict with other
Federal land management laws and regulations; will harm the environment
and natural and cultural resources; will pose safety risks to users of
these devices, as well as to pedestrians not expecting to encounter
motorized devices in these settings; will interfere with the
recreational enjoyment of these areas; and will require too much
administrative work to regulate which devices are allowed and under
which circumstances. These commenters all advocated a single category of
mobility devices that excludes all fuel-powered devices.
Whether or not they were opposed to the two-tier approach in
its entirety, virtually every environmental commenter and most
government commenters associated with providing public transportation
services or protecting land, natural resources, fish and game, etc.,
said that the definition of ‘‘other power-driven mobility device’’ is
too broad. They suggested that they might be able to support the dual
category approach if the definition of ‘‘other power-driven mobility
device’’ were narrowed. They expressed general and program-specific
concerns about permitting the use of other power-driven mobility
devices. They noted the same concerns as those who opposed the
two-tiered concept—that these devices create a host of environmental,
safety, cost, administrative and conflict of law issues. Virtually all
of these commenters indicated that their support for the dual approach
and the concept of other power-driven mobility devices is, in large
measure, due to the other power-driven mobility device assessment
factors in § 35.137(c) of the NPRM.
By maintaining the two-tiered approach to mobility devices
and defining ‘‘wheelchair’’ separately from ‘‘other power-driven
mobility device,’’ the Department is able to preserve the protection
users of traditional wheelchairs and other manually powered mobility
aids have had since the ADA was enacted, while also recognizing that
human ingenuity, personal choice, and new technologies have led to the
use of devices that may be more beneficial for individuals with certain
mobility disabilities.
Moreover, the Department believes the two-tiered approach
gives public entities guidance to follow in assessing whether reasonable
modifications can be made to permit the use of other power-driven
mobility devices on-site and to aid in the development of policies
describing the circumstances under which persons with disabilities may
use such devices. The two-tiered approach neither mandates that all
other power-driven mobility devices be accommodated in every
circumstance, nor excludes these devices. This approach, in conjunction
with the factor assessment provisions in § 35.137(b)(2), will serve as a
mechanism by which public entities can evaluate their ability to
accommodate other power-driven mobility devices. As will be discussed in
more detail below, the assessment factors in § 35.137(b)(2) are
designed to provide guidance to public entities regarding whether it is
appropriate to bar the use of a specific ‘‘other power-driven mobility
device in a specific facility. In making such a determination, a public
entity must consider the device’s type, size, weight, dimensions, and
speed; the facility’s volume of pedestrian traffic; the facility’s
design and operational characteristics; whether the device conflicts
with legitimate safety requirements; and whether the device poses a
substantial risk of serious harm to the immediate environment or natural
or cultural resources, or conflicts with Federal land management laws
or regulations. In addition, if under § 35.130(b)(7), the public entity
claims that it cannot make reasonable modifications to its policies,
practices, or procedures to permit the use of other power-driven
mobility devices by individuals with disabilities, the burden of proof
to demonstrate that such devices cannot be operated in accordance with
legitimate safety requirements rests upon the public entity.
Categorization of wheelchair versus other power-driven mobility devices. Implicit
in the creation of the two-tiered mobility device concept is the
question of how to categorize which devices are wheelchairs and which
are other power-driven mobility devices. Finding weight and size to be
too restrictive, the vast majority of advocacy, nonprofit, and
individual commenters opposed using the Department of Transportation’s
definition of ‘‘common wheelchair’’ to designate the mobility device’s
appropriate category. Commenters who generally supported using weight
and size as the method of categorization did so because of their
concerns about potentially detrimental impacts on the environment and
cultural and natural resources; on the enjoyment of the facility by
other recreational users, as well as their safety; on the administrative
components of government agencies required to assess which devices are
appropriate on narrow, steeply sloped, or foot-and-hoof only trails; and
about the impracticality of accommodating such devices in public
transportation settings.
Many environmental, transit system, and government
commenters also favored using the device’s intended-use to categorize
which devices constitute wheelchairs and which are other power-driven
mobility devices. Furthermore, the intended-use determinant received a
fair amount of support from advocacy, nonprofit, and individual
commenters, either because they sought to preserve the broad
accommodation of wheelchairs or because they sympathized with concerns
about individuals without mobility disabilities fraudulently bringing
other power-driven mobility devices into public facilities.
Commenters seeking to have the Segway® PT
included in the definition of ‘‘wheelchair’’ objected to classifying
mobility devices on the basis of their intended use because they felt
that such a classification would be unfair and prejudicial to Segway®
PT users and would stifle personal choice, creativity, and innovation.
Other advocacy and nonprofit commenters objected to employing an
intended-use approach because of concerns that the focus would shift to
an assessment of the device, rather than the needs or benefits to the
individual with the mobility disability. They were of the view that the
mobility-device classification should be based on its function—whether
it is used for a mobility disability. A few commenters raised the
concern that an intended-use approach might embolden public entities to
assess whether an individual with a mobility disability really needs to
use the other power-driven mobility device at issue or to question why a
wheelchair would not provide sufficient mobility. Those citing
objections to the intended use determinant indicated it would be more
appropriate to make the categorization determination based on whether
the device is being used for a mobility disability in the context of the
impact of its use in a specific environment. Some of these commenters
preferred this approach because it would allow the Segway® PT to be included in the definition of ‘‘wheelchair.’’
Many environmental and government commenters were inclined
to categorize mobility devices by the way in which they are powered,
such as battery-powered engines versus fuel or combustion engines. One
commenter suggested using exhaust level as the determinant. Although
there were only a few commenters who would make the determination based
on indoor or outdoor use, there was nearly universal support for banning
the indoor use of devices that are powered by fuel or combustion
engines.
A few commenters thought it would be appropriate to
categorize the devices based on their maximum speed. Others objected to
this approach, stating that circumstances should dictate the appropriate
speed at which mobility devices should be operated— for example, a
faster speed may be safer when crossing streets than it would be for
sidewalk use—and merely because a device can go a certain speed does not
mean it will be operated at that speed. The Department has decided to
maintain the device’s intended use as the appropriate determinant for
which devices are categorized as ‘‘wheelchairs.’’ However, because
wheelchairs may be intended for use by individuals who have temporary
conditions affecting mobility, the Department has decided that it is
more appropriate to use the phrase ‘‘primarily designed’’ rather than
‘‘solely designed’’ in making such categorizations. The Department will
not foreclose any future technological developments by identifying or
banning specific devices or setting restrictions on size, weight, or
dimensions. Moreover, devices designed primarily for use by individuals
with mobility disabilities often are considered to be medical devices
and are generally eligible for insurance reimbursement on this basis.
Finally, devices designed primarily for use by individuals with mobility
disabilities are less subject to fraud concerns because they were not
designed to have a recreational component. Consequently, rarely, if
ever, is any inquiry or assessment as to their appropriateness for use
in a public entity necessary.
Definition of ‘‘wheelchair.’’ In seeking public
feedback on the NPRM’s definition of ‘‘wheelchair,’’ the Department
explained its concern that the definition of ‘‘wheelchair’’ in section
508(c)(2) of the ADA (formerly section 507(c)(2), July 26, 1990, 104
Stat. 372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law
110–325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains
to Federal wilderness areas, is not specific enough to provide clear
guidance in the array of settings covered by title II and that the
stringent size and weight requirements for the Department of
Transportation’s definition of ‘‘common wheelchair’’ are not a good fit
in the context of most public entities. The Department noted in the NPRM
that it sought a definition of ‘‘wheelchair’’ that would include
manually-operated and power-driven wheelchairs and mobility scooters (i.e.,
those that typically are single-user, have three to four wheels, and
are appropriate for both indoor and outdoor pedestrian areas), as well
as a variety of types of wheelchairs and mobility scooters with
individualized or unique features or models with different numbers of
wheels. The NPRM defined a wheelchair as ‘‘a device designed solely for
use by an individual with a mobility impairment for the primary purpose
of locomotion in typical indoor and outdoor pedestrian areas. A
wheelchair may be manually-operated or power-driven.’’ 73 FR 34466,
34479 (June 17, 2008). Although the NPRM’s definition of ‘‘wheelchair’’
excluded mobility devices that are not designed solely for use by
individuals with mobility disabilities, the Department, noting that the
use of the Segway® PT by individuals with mobility
disabilities is on the upswing, inquired as to whether this device
should be included in the definition of ‘‘wheelchair.’’ Many environment
and Federal government employee commenters objected to the Department’s
proposed definition of ‘‘wheelchair’’ because it differed from the
definition of ‘‘wheelchair’’ found in section 508(c)(2) of the ADA—a
definition used in the statute only in connection with a provision
relating to the use of a wheelchair in a designated wilderness area. See
42 U.S.C. 12207(c)(1). Other government commenters associated with
environmental issues wanted the phrase ‘‘outdoor pedestrian use’’
eliminated from the definition of ‘‘wheelchair.’’ Some transit system
commenters wanted size, weight, and dimensions to be part of the
definition because of concerns about costs associated with having to
accommodate devices that exceed the dimensions of the ‘‘common
wheelchair’’ upon which the 2004 ADAAG was based.
Many advocacy, nonprofit, and individual commenters
indicated that as long as the Department intends the scope of the term
‘‘mobility impairments’’ to include other disabilities that cause
mobility impairments (e.g., respiratory, circulatory, stamina,
etc.), they were in support of the language. Several commenters
indicated a preference for the definition of ‘‘wheelchair’’ in section
508(c)(2) of the ADA. One commenter indicated a preference for the term
‘‘assistive device,’’ as it is defined in the Rehabilitation Act of
1973, over the term ‘‘wheelchair.’’ A few commenters indicated that
strollers should be added to the preamble’s list of examples of
wheelchairs because parents of children with disabilities frequently use
strollers as mobility devices until their children get older.
In the final rule, the Department has rearranged some
wording and has made some changes in the terminology used in the
definition of ‘‘wheelchair,’’ but essentially has retained the
definition, and therefore the rationale, that was set forth in the NPRM.
Again, the text of the ADA makes the definition of ‘‘wheelchair’’
contained in section 508(c)(2) applicable only to the specific context
of uses in designated wilderness areas, and therefore does not compel
the use of that definition for any other purpose. Moreover, the
Department maintains that limiting the definition to devices suitable
for use in an ‘‘indoor pedestrian area’’ as provided for in section
508(c)(2) of the ADA, would ignore the technological advances in
wheelchair design that have occurred since the ADA went into effect and
that the inclusion of the phrase ‘‘indoor pedestrian area’’ in the
definition of ‘‘wheelchair’’ would set back progress made by individuals
with mobility disabilities who, for many years now, have been using
devices designed for locomotion in indoor and outdoor settings. The
Department has concluded that same rationale applies to placing limits
on the size, weight, and dimensions of wheelchairs.
With regard to the term ‘‘mobility impairments,’’ the
Department intended a broad reading so that a wide range of
disabilities, including circulatory and respiratory disabilities, that
make walking difficult or impossible, would be included. In response to
comments on this issue, the Department has revisited the issue and has
concluded that the most apt term to achieve this intent is ‘‘mobility
disability.’’ In addition, the Department has decided that it is more
appropriate to use the phrase ‘‘primarily’’ designed for use by
individuals with disabilities in the final rule, rather than ‘‘solely’’
designed for use by individuals with disabilities—the phrase proposed in
the NPRM. The Department believes that this phrase more accurately
covers the range of devices the Department intends to fall within the
definition of ‘‘wheelchair.’’
After receiving comments that the word ‘‘typical’’ is vague
and the phrase ‘‘pedestrian areas’’ is confusing to apply, particularly
in the context of similar, but not identical, terms used in the proposed
Standards, the Department decided to delete the term ‘‘typical indoor
and outdoor pedestrian areas’’ from the final rule. Instead, the final
rule references ‘‘indoor or of both indoor and outdoor locomotion,’’ to
make clear that the devices that fall within the definition of
‘‘wheelchair’’ are those that are used for locomotion on indoor and
outdoor pedestrian paths or routes and not those that are intended
exclusively for traversing undefined, unprepared, or unimproved paths or
routes. Thus, the final rule defines the term ‘‘wheelchair’’ to mean
‘‘a manually operated or power-driven device designed primarily for use
by an individual with a mobility disability for the main purpose of
indoor or of both indoor and outdoor locomotion.’’
Whether the definition of ‘‘wheelchair’’ includes the Segway® PT. As discussed above, because individuals with mobility disabilities are using the Segway®
PT as a mobility device, the Department asked whether it should be
included in the definition of ‘‘wheelchair.’’ The basic Segway® PT
model is a two-wheeled, gyroscopically-stabilized, battery-powered
personal transportation device. The user stands on a platform suspended
three inches off the ground by wheels on each side, grasps a T-shaped
handle, and steers the device similarly to a bicycle. Most Segway®
PTs can travel up to 121⁄2 miles per hour, compared to the average
pedestrian walking speed of three to four miles per hour and the
approximate maximum speed for power-operated wheelchairs of six miles
per hour. In a study of trail and other non-motorized transportation
users including EPAMDs, the Federal Highway Administration (FHWA) found
that the eye height of individuals using EPAMDs ranged from
approximately 69 to 80 inches. See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 14, 2004), available at http://www.tfhrc.gov/safety/ pubs/04103 (last visited June 24, 2010). Thus, the Segway® PT can operate at much greater speeds than wheelchairs, and the average user stands much taller than most wheelchair users.
The Segway® PT has been the subject of debate
among users, pedestrians, disability advocates, State and local
governments, businesses, and bicyclists. The fact that the Segway®
PT is not designed primarily for use by individuals with disabilities,
nor used primarily by persons with disabilities, complicates the
question of to what extent individuals with disabilities should be
allowed to operate them in areas and facilities where other power-driven
mobility devices are not allowed. Those who question the use of the
Segway® PT in pedestrian areas argue that the speed, size,
and operating features of the devices make them too dangerous to operate
alongside pedestrians and wheelchair users.
Comments regarding whether to include the Segway®
PT in the definition of ‘‘wheelchair’’ were, by far, the most numerous
received in the category of comments regarding wheelchairs and other
power-driven mobility devices. Significant numbers of veterans with
disabilities, individuals with multiple sclerosis, and those advocating
on their behalf made concise statements of general support for the
inclusion of the Segway® PT in the definition of
‘‘wheelchair.’’ Two veterans offered extensive comments on the topic,
along with a few advocacy and nonprofit groups and individuals with
disabilities for whom sitting is uncomfortable or impossible.
While there may be legitimate safety issues for EPAMD users
and bystanders in some circumstances, EPAMDs and other nontraditional
mobility devices can deliver real benefits to individuals with
disabilities. Among the reasons given by commenters to include the
Segway® PT in the definition of ‘‘wheelchair’’ were that the Segway®
PT is well-suited for individuals with particular conditions that
affect mobility including multiple sclerosis, Parkinson’s disease,
chronic obstructive pulmonary disease, amputations, spinal cord
injuries, and other neurological disabilities, as well as functional
limitations, such as gait limitation, inability to sit or discomfort in
sitting, and diminished stamina issues. Such individuals often find that
EPAMDs are more comfortable and easier to use than more traditional
mobility devices and assist with balance, circulation, and digestion in
ways that wheelchairs do not. See Rachel Metz, Disabled Embrace Segway,
New York Times, Oct. 14, 2004. Commenters specifically cited pressure
relief, reduced spasticity, increased stamina, and improved respiratory,
neurologic, and muscular health as secondary medical benefits from
being able to stand.
Other arguments for including the Segway® PT in the definition of ‘‘wheelchair’’ were based on commenters’ views that the Segway®
PT offers benefits not provided by wheelchairs and mobility scooters,
including its intuitive response to body movement, ability to operate
with less coordination and dexterity than is required for many
wheelchairs and mobility scooters, and smaller footprint and turning
radius as compared to most wheelchairs and mobility scooters. Several
commenters mentioned improved visibility, either due to the Segway®
PT’s raised platform or simply by virtue of being in a standing
position. And finally, some commenters advocated for the inclusion of
the Segway® PT simply based on civil rights arguments and the
empowerment and self-esteem obtained from having the power to select
the mobility device of choice. Many commenters, regardless of their
position on whether to include the Segway® PT in the definition of ‘‘wheelchair,’’ noted that the Segway® PT’s safety record is as good as, if not better, than the record for wheelchairs and mobility scooters.
Most environmental, transit system, and government commenters were opposed to including the Segway®
PT in the definition of ‘‘wheelchair’’ but were supportive of its
inclusion as an ‘‘other power-driven mobility device.’’ Their concerns
about including the Segway® PT in the definition of ‘‘wheelchair’’ had to do with the safety of the operators of these devices (e.g.,
height clearances on trains and sloping trails in parks) and of
pedestrians, particularly in confined and crowded facilities or in
settings where motorized devices might be unexpected; the potential harm
to the environment; the additional administrative, insurance,
liability, and defensive litigation costs; potentially detrimental
impacts on the environment and cultural and natural resources; and the
impracticality of accommodating such devices in public transportation
settings. Other environmental, transit system, and government commenters
would have banned all fuel-powered devices as mobility devices. In
addition, these commenters would have classified non-motorized devices
as ‘‘wheelchairs’’ and would have categorized motorized devices, such as
the Segway® PT, battery-operated wheelchairs, and mobility
scooters as ‘‘other power-driven mobility devices.’’ In support of this
position, some of these commenters argued that because their equipment
and facilities have been designed to comply with the dimensions of the
‘‘common wheelchair’’ upon which the ADAAG is based, any device that is
larger than the prototype wheelchair would be misplaced in the
definition of ‘‘wheelchair.’’ Still others in this group of commenters
wished for only a single category of mobility devices and would have
included wheelchairs, mobility scooters, and the Segway® PT as ‘‘mobility devices’’ and excluded fuel-powered devices from that definition.
Many disability advocacy and nonprofit commenters did not support the inclusion of the Segway®
PT in the definition of ‘‘wheelchair.’’ Paramount to these commenters
was the maintenance of existing protections for wheelchair users.
Because there was unanimous agreement that wheelchair use rarely, if
ever, may be restricted, these commenters strongly favored categorizing
wheelchairs separately from the Segway® PT and other
power-driven mobility devices and applying the intended-use determinant
to assign the devices to either category. They indicated that while they
support the greatest degree of access in public entities for all
persons with disabilities who require the use of mobility devices, they
recognize that under certain circumstances, allowing the use of other
power-driven mobility devices would result in a fundamental alteration
of programs, services, or activities, or run counter to legitimate
safety requirements necessary for the safe operation of a public entity.
While these groups supported categorizing the Segway® PT as an ‘‘other power-driven mobility device,’’ they universally noted that in their view, because the Segway®
PT does not present environmental concerns and is as safe to use as, if
not safer than, a wheelchair, it should be accommodated in most
circumstances.
The Department has considered all the comments and has concluded that it should not include the Segway®
PT in the definition of ‘‘wheelchair.’’ The final rule provides that
the test for categorizing a device as a wheelchair or an other
power-driven mobility device is whether the device is designed primarily
for use by individuals with mobility disabilities. Mobility scooters
are included in the definition of ‘‘wheelchair’’ because they are
designed primarily for users with mobility disabilities. However,
because the current generation of EPAMDs, including the Segway®
PT, was designed for recreational users and not primarily for use by
individuals with mobility disabilities, the Department has decided to
continue its approach of excluding EPAMDs from the definition of
‘‘wheelchair’’ and including them in the definition of ‘‘other
power-driven mobility device.’’ Although EPAMDs, such as the Segway®
PT, are not included in the definition of a ‘‘wheelchair,’’ public
entities must assess whether they can make reasonable modifications to
permit individuals with mobility disabilities to use such devices on
their premises. The Department recognizes that the Segway® PT
provides many benefits to those who use them as mobility devices,
including a measure of privacy with regard to the nature of one’s
particular disability, and believes that in the vast majority of
circumstances, the application of the factors described in § 35.137 for
providing access to other-powered mobility devices will result in the
admission of the Segway® PT.
Treatment of ‘‘manually-powered mobility aids.’’
The Department’s NPRM did not define the term ‘‘manually-powered
mobility aids.’’ Instead, the NPRM included a non- exhaustive list of
examples in § 35.137(a). The NPRM queried whether the Department should
maintain this approach to manually powered mobility aids or whether it
should adopt a more formal definition.
Only a few commenters addressed ‘‘manually-powered mobility
aids.’’ Virtually all commenters were in favor of maintaining a
non-exhaustive list of examples of ‘‘manually-powered mobility aids’’
rather than adopting a definition of the term. Of those who commented, a
few sought clarification of the term ‘‘manually-powered.’’ One
commenter suggested that the term be changed to ‘‘human-powered.’’ Other
commenters requested that the Department include ordinary strollers in
the non-exhaustive list of ‘‘manually-powered mobility aids.’’ Since
strollers are not devices designed primarily for individuals with
mobility disabilities, the Department does not consider them to be
manually-powered mobility aids; however, strollers used in the context
of transporting individuals with disabilities are subject to the same
assessment required by the ADA’s title II reasonable modification
standards at § 35.130(b)(7). The Department believes that because the
existing approach is clear and understood easily by the public, no
formal definition of the term ‘‘manually-powered mobility aids’’ is
required.
Definition of ‘‘other power-driven mobility device.’’ The
Department’s NPRM defined the term ‘‘other power-driven mobility
device’’ in § 35.104 as ‘‘any of a large range of devices powered by
batteries, fuel, or other engines— whether or not designed solely for
use by individuals with mobility impairments—that are used by
individuals with mobility impairments for the purpose of locomotion,
including golf cars, bicycles, electronic personal assistance mobility
devices (EPAMDs), or any mobility aid designed to operate in areas
without defined pedestrian routes.’’ 73 FR 34466, 34504 (June 17, 2008).
Nearly all environmental, transit systems, and government
commenters who supported the two-tiered concept of mobility devices said
that the Department’s definition of ‘‘other power-driven mobility
device’’ is overbroad because it includes fuel-powered devices. These
commenters sought a ban on fuel-powered devices in their entirety
because they believe they are inherently dangerous and pose
environmental and safety concerns. They also argued that permitting the
use of many of the contemplated other power-driven mobility devices,
fuel-powered ones especially, would fundamentally alter the programs,
services, or activities of public entities.
Advocacy, nonprofit, and several individual commenters
supported the definition of ‘‘other power-driven mobility device’’
because it allows new technologies to be added in the future, maintains
the existing legal protections for wheelchairs, and recognizes that some
devices, particularly the Segway® PT, which are not designed
primarily for individuals with mobility disabilities, have beneficial
uses for individuals with mobility disabilities. Despite support for the
definition of ‘‘other power-driven mobility device,’’ however, most
advocacy and nonprofit commenters expressed at least some hesitation
about the inclusion of fuel-powered mobility devices in the definition.
While virtually all of these commenters noted that a blanket exclusion
of any device that falls under the definition of ‘‘other power-driven
mobility device’’ would violate basic civil rights concepts, they also
specifically stated that certain devices, particularly, off-highway
vehicles, cannot be permitted in certain circumstances. They also made a
distinction between the Segway® PT and other power-driven mobility devices, noting that the Segway®
PT should be accommodated in most circumstances because it satisfies
the safety and environmental elements of the policy analysis. These
commenters indicated that they agree that other power-driven mobility
devices must be assessed, particularly as to their environmental impact,
before they are accommodated.
Although many commenters had reservations about the
inclusion of fuel-powered devices in the definition of other
power-driven mobility devices, the Department does not want the
definition to be so narrow that it would foreclose the inclusion of new
technological developments (whether powered by fuel or by some other
means). It is for this reason that the Department has maintained the
phrase ‘‘any mobility device designed to operate in areas without
defined pedestrian routes’’ in the final rule’s definition of other
power-driven mobility devices. The Department believes that the
limitations provided by ‘‘fundamental alteration’’ and the ability to
impose legitimate safety requirements will likely prevent the use of
fuel and combustion engine-driven devices indoors, as well as in outdoor
areas with heavy pedestrian traffic. The Department notes, however,
that in the future, technological developments may result in the
production of safe fuel-powered mobility devices that do not pose
environmental and safety concerns. The final rule allows consideration
to be given as to whether the use of a fuel-powered device would create a
substantial risk of serious harm to the environment or natural or
cultural resources, and to whether the use of such a device conflicts
with Federal land management laws or regulations; this aspect of the
final rule will further limit the inclusion of fuel-powered devices
where they are not appropriate. Consequently, the Department has
maintained fuel-powered devices in the definition of ‘‘other
power-driven mobility device.’’ The Department has also added language
to the definition of ‘‘other power-driven mobility device’’ to reiterate
that the definition does not apply to Federal wilderness areas, which
are not covered by title II of the ADA; the use of wheelchairs in such
areas is governed by section 508(c)(2) of the ADA, 42 U.S.C.
12207(c)(2). ‘
“Qualified Interpreter’’
In the NPRM, the Department proposed adding language to the
definition of ‘‘qualified interpreter’’ to clarify that the term
includes, but is not limited to, sign language interpreters, oral
interpreters, and cued-speech interpreters. As the Department explained,
not all interpreters are qualified for all situations. For example, a
qualified interpreter who uses American Sign Language (ASL) is not
necessarily qualified to interpret orally. In addition, someone with
only a rudimentary familiarity with sign language or finger spelling is
not qualified, nor is someone who is fluent in sign language but unable
to translate spoken communication into ASL or to translate signed
communication into spoken words.
As further explained, different situations will require
different types of interpreters. For example, an oral interpreter who
has special skill and training to mouth a speaker’s words silently for
individuals who are deaf or hard of hearing may be necessary for an
individual who was raised orally and taught to read lips or was
diagnosed with hearing loss later in life and does not know sign
language. An individual who is deaf or hard of hearing may need an oral
interpreter if the speaker’s voice is unclear, if there is a quick-paced
exchange of communication (e.g., in a meeting), or when the
speaker does not directly face the individual who is deaf or hard of
hearing. A cued-speech interpreter functions in the same manner as an
oral interpreter except that he or she also uses a hand code or cue to
represent each speech sound.
The Department received many comments regarding the proposed
modifications to the definition of ‘‘interpreter.’’ Many commenters
requested that the Department include within the definition a
requirement that interpreters be certified, particularly if they reside
in a State that licenses or certifies interpreters. Other commenters
opposed a certification requirement as unduly limiting, noting that an
interpreter may well be qualified even if that same interpreter is not
certified. These commenters noted the absence of nationwide standards or
universally accepted criteria for certification.
On review of this issue, the Department has decided against
imposing a certification requirement under the ADA. It is sufficient
under the ADA that the interpreter be qualified. However, as the
Department stated in the original preamble, this rule does not
invalidate or limit State or local laws that impose standards for
interpreters that are equal to or more stringent than those imposed by
this definition. See 28 CFR part 35, app. A at 566 (2009). For
instance, the definition would not supersede any requirement of State
law for use of a certified interpreter in court proceedings.
With respect to the proposed additions to the rule, most
commenters supported the expansion of the list of qualified
interpreters, and some advocated for the inclusion of other types of
interpreters on the list as well, such as deaf-blind interpreters,
certified deaf interpreters, and speech-to-speech interpreters. As these
commenters explained, deaf-blind interpreters are interpreters who have
specialized skills and training to interpret for individuals who are
deaf and blind; certified deaf interpreters are deaf or hard of hearing
interpreters who work with hearing sign language interpreters to meet
the specific communication needs of deaf individuals; and
speech-to-speech interpreters have special skill and training to
interpret for individuals who have speech disabilities.
The list of interpreters in the definition of qualified
interpreter is illustrative, and the Department does not believe it
necessary or appropriate to attempt to provide an exhaustive list of
qualified interpreters. Accordingly, the Department has decided not to
expand the proposed list. However, if a deaf and blind individual needs
interpreter services, an interpreter who is qualified to handle the
needs of that individual may be required. The guiding criterion is that
the public entity must provide appropriate auxiliary aids and services
to ensure effective communication with the individual. Commenters also
suggested various definitions for the term ‘‘cued-speech interpreters,’’
and different descriptions of the tasks they performed. After reviewing
the various comments, the Department has determined that it is more
accurate and appropriate to refer to such individuals as ‘‘cued-language
transliterators.’’ Likewise, the Department has changed the term ‘‘oral
interpreters’’ to ‘‘oral transliterators.’’ These two changes have been
made to distinguish between sign language interpreters, who translate
one language into another language (e.g., ASL to English and
English to ASL), from transliterators who interpret within the same
language between deaf and hearing individuals. A cued-language
transliterator is an interpreter who has special skill and training in
the use of the Cued Speech system of handshapes and placements, along
with non-manual information, such as facial expression and body
language, to show auditory information visually, including speech and
environmental sounds. An oral transliterator is an interpreter who has
special skill and training to mouth a speaker’s words silently for
individuals who are deaf or hard of hearing. While the Department
included definitions for ‘‘cued speech interpreter’’ and ‘‘oral
interpreter’’ in the regulatory text proposed in the NPRM, the
Department has decided that it is unnecessary to include such
definitions in the text of the final rule.
Many commenters questioned the proposed deletion of the
requirement that a qualified interpreter be able to interpret both
receptively and expressively, noting the importance of both these
skills. Commenters stated that this phrase was carefully crafted in the
original regulation to make certain that interpreters both (1) are
capable of understanding what a person with a disability is saying and
(2) have the skills needed to convey information back to that
individual. These are two very different skill sets and both are equally
important to achieve effective communication. For example, in a medical
setting, a sign language interpreter must have the necessary skills to
understand the grammar and syntax used by an ASL user (receptive skills)
and the ability to interpret complicated medical information—presented
by medical staff in English—back to that individual in ASL (expressive
skills). The Department agrees and has put the phrase ‘‘both receptively
and expressively’’ back in the definition.
Several advocacy groups suggested that the Department make
clear in the definition of qualified interpreter that the interpreter
may appear either on-site or remotely using a video remote interpreting
(VRI) service. Given that the Department has included in this rule both a
definition of VRI services and standards that such services must
satisfy, such an addition to the definition of qualified interpreter is
appropriate.
After consideration of all relevant information submitted
during the public comment period, the Department has modified the
definition from that initially proposed in the NPRM. The final
definition now states that ‘‘[q]ualified interpreter means an
interpreter who, via a video remote interpreting (VRI) service or an
on-site appearance, is able to interpret effectively, accurately, and
impartially, both receptively and expressively, using any necessary
specialized vocabulary. Qualified interpreters include, for example,
sign language interpreters, oral transliterators, and cued-language
transliterators.’’
‘‘Qualified Reader’’
The 1991 title II regulation identifies a qualified reader as an auxiliary aid, but did not define the term. See
28 CFR 35.104(2). Based upon the Department’s investigation of
complaints alleging that some entities have provided ineffective
readers, the Department proposed in the NPRM to define ‘‘qualified
reader’’ similarly to ‘‘qualified interpreter’’ to ensure that entities
select qualified individuals to read an examination or other written
information in an effective, accurate, and impartial manner. This
proposal was suggested in order to make clear to public entities that a
failure to provide a qualified reader to a person with a disability may
constitute a violation of the requirement to provide appropriate
auxiliary aids and services.
The Department received comments supporting inclusion in the
regulation of a definition of a ‘‘qualified reader.’’ Some commenters
suggested the Department add to the definition a requirement prohibiting
the use of a reader whose accent, diction, or pronunciation makes full
comprehension of material being read difficult. Another commenter
requested that the Department include a requirement that the reader
‘‘will follow the directions of the person for whom he or she is
reading.’’ Commenters also requested that the Department define
‘‘accurately’’ and ‘‘effectively’’ as used in this definition.
While the Department believes that its proposed regulatory
definition adequately addresses these concerns, the Department
emphasizes that a reader, in order to be ‘‘qualified,’’ must be skilled
in reading the language and subject matter and must be able to be easily
understood by the individual with the disability. For example, if a
reader is reading aloud the questions for a college microbiology
examination, that reader, in order to be qualified, must know the proper
pronunciation of scientific terminology used in the text, and must be
sufficiently articulate to be easily understood by the individual with a
disability for whom he or she is reading. In addition, the terms
‘‘effectively’’ and ‘‘accurately’’ have been successfully used and
understood in the Department’s existing definition of ‘‘qualified
interpreter’’ since 1991 without specific regulatory definitions.
Instead, the Department has relied upon the common use and understanding
of those terms from standard English dictionaries. Thus, the definition
of ‘‘qualified reader’’ has not been changed from that contained in the
NPRM. The final rule defines ‘‘qualified reader’’ to mean ‘‘a person
who is able to read effectively, accurately, and impartially using any
necessary specialized vocabulary.’’
‘‘Service Animal’’
Although there is no specific language in the 1991 title II
regulation concerning service animals, title II entities have the same
legal obligations as title III entities to make reasonable modifications
in policies, practices, or procedures to allow service animals when
necessary in order to avoid discrimination on the basis of disability,
unless the entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity. See
28 CFR 35.130(b)(7). The 1991 title III regulation, 28 CFR 36.104,
defines a ‘‘service animal’’ as ‘‘any guide dog, signal dog, or other
animal individually trained to do work or perform tasks for the benefit
of an individual with a disability, including, but not limited to,
guiding individuals with impaired vision, alerting individuals with
impaired hearing to intruders or sounds, providing minimal protection or
rescue work, pulling a wheelchair, or fetching dropped items.’’ Section
36.302(c)(1) of the 1991 title III regulation requires that
‘‘[g]enerally, a public accommodation shall modify policies, practices,
or procedures to permit the use of a service animal by an individual
with a disability.’’ Section 36.302(c)(2) of the 1991 title III
regulation states that ‘‘a public accommodation [is not required] to
supervise or care for a service animal.’’
The Department has issued guidance and provided technical
assistance and publications concerning service animals since the 1991
regulations became effective. In the NPRM, the Department proposed to
modify the definition of service animal, added the definition to title
II, and asked for public input on several issues related to the service
animal provisions of the title II regulation: whether the Department
should clarify the phrase ‘‘providing minimal protection’’ in the
definition or remove it; whether there are any circumstances where a
service animal ‘‘providing minimal protection’’ would be appropriate or
expected; whether certain species should be eliminated from the
definition of ‘‘service animal,’’ and, if so, which types of animals
should be excluded; whether ‘‘common domestic animal’’ should be part of
the definition; and whether a size or weight limitation should be
imposed for common domestic animals even if the animal satisfies the
‘‘common domestic animal’’ part of the NPRM definition.
The Department received extensive comments on these issues,
as well as requests to clarify the obligations of State and local
government entities to accommodate individuals with disabilities who use
service animals, and has modified the final rule in response. In the
interests of avoiding unnecessary repetition, the Department has elected
to discuss the issues raised in the NPRM questions about service
animals and the corresponding public comments in the following
discussion of the definition of ‘‘service animal.’’
The Department’s final rule defines ‘‘service animal’’ as
‘‘any dog that is individually trained to do work or perform tasks for
the benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. Other
species of animals, whether wild or domestic, trained or untrained, are
not service animals for the purposes of this definition. The work or
tasks performed by a service animal must be directly related to the
individual’s disability. Examples of work or tasks include, but are not
limited to, assisting individuals who are blind or have low vision with
navigation and other tasks, alerting individuals who are deaf or hard of
hearing to the presence of people or sounds, providing non-violent
protection or rescue work, pulling a wheelchair, assisting an individual
during a seizure, alerting individuals to the presence of allergens,
retrieving items such as medicine or the telephone, providing physical
support and assistance with balance and stability to individuals with
mobility disabilities, and helping persons with psychiatric and
neurological disabilities by preventing or interrupting impulsive or
destructive behaviors. The crime deterrent effects of an animal’s
presence and the provision of emotional support, well-being, comfort, or
companionship do not constitute work or tasks for the purposes of this
definition.’’
This definition has been designed to clarify a key provision
of the ADA. Many covered entities indicated that they are confused
regarding their obligations under the ADA with regard to individuals
with disabilities who use service animals. Individuals with disabilities
who use trained guide or service dogs are concerned that if untrained
or unusual animals are termed ‘‘service animals,’’ their own right to
use guide or service dogs may become unnecessarily restricted or
questioned. Some individuals who are not individuals with disabilities
have claimed, whether fraudulently or sincerely (albeit mistakenly),
that their animals are service animals covered by the ADA, in order to
gain access to courthouses, city or county administrative offices, and
other title II facilities. The increasing use of wild, exotic, or
unusual species, many of which are untrained, as service animals has
also added to the confusion.
Finally, individuals with disabilities who have the legal
right under the Fair Housing Act (FHAct) to use certain animals in their
homes as a reasonable accommodation to their disabilities have assumed
that their animals also qualify under the ADA. This is not necessarily
the case, as discussed below.
The Department recognizes the diverse needs and preferences
of individuals with disabilities protected under the ADA, and does not
wish to unnecessarily impede individual choice. Service animals play an
integral role in the lives of many individuals with disabilities and,
with the clarification provided by the final rule, individuals with
disabilities will continue to be able to use their service animals as
they go about their daily activities and civic interactions. The
clarification will also help to ensure that the fraudulent or mistaken
use of other animals not qualified as service animals under the ADA will
be deterred. A more detailed analysis of the elements of the definition
and the comments responsive to the service animal provisions of the
NPRM follows.
Providing minimal protection. As previously noted,
the 1991 title II regulation does not contain specific language
concerning service animals. The 1991 title III regulation included
language stating that ‘‘minimal protection’’ was a task that could be
performed by an individually trained service animal for the benefit of
an individual with a disability. In the Department’s ‘‘ADA Business
Brief on Service Animals’’ (2002), the Department interpreted the
‘‘minimal protection’’ language within the context of a seizure (i.e.,
alerting and protecting a person who is having a seizure). The
Department received many comments in response to the question of whether
the ‘‘minimal protection’’ language should be clarified. Many
commenters urged the removal of the ‘‘minimal protection’’ language from
the service animal definition for two reasons: (1) The phrase can be
interpreted to allow any dog that is trained to be aggressive to qualify
as a service animal simply by pairing the animal with a person with a
disability; and (2) the phrase can be interpreted to allow any untrained
pet dog to qualify as a service animal, since many consider the mere
presence of a dog to be a crime deterrent, and thus sufficient to meet
the minimal protection standard. These commenters argued, and the
Department agrees, that these interpretations were not contemplated
under the original title III regulation, and, for the purposes of the
final title II regulations, the meaning of ‘‘minimal protection’’ must
be made clear.
While many commenters stated that they believe that the
‘‘minimal protection’’ language should be eliminated, other commenters
recommended that the language be clarified, but retained. Commenters
favoring clarification of the term suggested that the Department
explicitly exclude the function of attack or exclude those animals that
are trained solely to be aggressive or protective. Other commenters
identified nonviolent behavioral tasks that could be construed as
minimally protective, such as interrupting self-mutilation, providing
safety checks and room searches, reminding the individual to take
medications, and protecting the individual from injury resulting from
seizures or unconsciousness.
Several commenters noted that the existing direct threat
defense, which allows the exclusion of a service animal if the animal
exhibits unwarranted or unprovoked violent behavior or poses a direct
threat, prevents the use of ‘‘attack dogs’’ as service animals. One
commenter noted that the use of a service animal trained to provide
‘‘minimal protection’’ may impede access to care in an emergency, for
example, where the first responder, usually a title II entity, is unable
or reluctant to approach a person with a disability because the
individual’s service animal is in a protective posture suggestive of
aggression.
Many organizations and individuals stated that in the
general dog training community, ‘‘protection’’ is code for attack or
aggression training and should be removed from the definition.
Commenters stated that there appears to be a broadly held misconception
that aggression-trained animals are appropriate service animals for
persons with post traumatic stress disorder (PTSD). While many
individuals with PTSD may benefit by using a service animal, the work or
tasks performed appropriately by such an animal would not involve
unprovoked aggression but could include actively cuing the individual by
nudging or pawing the individual to alert to the onset of an episode
and removing the individual from the anxiety-provoking environment.
The Department recognizes that despite its best efforts to
provide clarification, the ‘‘minimal protection’’ language appears to
have been misinterpreted. While the Department maintains that protection
from danger is one of the key functions that service animals perform
for the benefit of persons with disabilities, the Department recognizes
that an animal individually trained to provide aggressive protection,
such as an attack dog, is not appropriately considered a service animal.
Therefore, the Department has decided to modify the ‘‘minimal
protection’’ language to read ‘‘nonviolent protection,’’ thereby
excluding so-called ‘‘attack dogs’’ or dogs with traditional
‘‘protection training’’ as service animals. The Department believes that
this modification to the service animal definition will eliminate
confusion, without restricting unnecessarily the type of work or tasks
that service animals may perform. The Department’s modification also
clarifies that the crime-deterrent effect of a dog’s presence, by
itself, does not qualify as work or tasks for purposes of the service
animal definition.
Alerting to intruders. The phrase ‘‘alerting to
intruders’’ is related to the issues of minimal protection and the work
or tasks an animal may perform to meet the definition of a service
animal. In the original 1991 regulatory text, this phrase was intended
to identify service animals that alert individuals who are deaf or hard
of hearing to the presence of others. This language has been
misinterpreted by some to apply to dogs that are trained specifically to
provide aggressive protection, resulting in the assertion that such
training qualifies a dog as a service animal under the ADA. The
Department reiterates that title II entities are not required to admit
any animal whose use poses a direct threat under § 35.139. In addition,
the Department has decided to remove the word ‘‘intruders’’ from the
service animal definition and replace it with the phrase ‘‘the presence
of people or sounds.’’ The Department believes this clarifies that
so-called ‘‘attack training’’ or other aggressive response types of
training that cause a dog to provide an aggressive response do not
qualify a dog as a service animal under the ADA.
Conversely, if an individual uses a breed of dog that is
perceived to be aggressive because of breed reputation, stereotype, or
the history or experience the observer may have with other dogs, but the
dog is under the control of the individual with a disability and does
not exhibit aggressive behavior, the title II entity cannot exclude the
individual or the animal from a State or local government program,
service, or facility. The animal can only be removed if it engages in
the behaviors mentioned in § 35.136(b) (as revised in the final rule) or
if the presence of the animal constitutes a fundamental alteration to
the nature of the service, program, or activity of the title II entity.
Doing ‘‘work’’ or ‘‘performing tasks.’’ The NPRM
proposed that the Department maintain the requirement, first articulated
in the 1991 title III regulation, that in order to qualify as a service
animal, the animal must ‘‘perform tasks’’ or ‘‘do work’’ for the
individual with a disability. The phrases ‘‘perform tasks’’ and ‘‘do
work’’ describe what an animal must do for the benefit of an individual
with a disability in order to qualify as a service animal.
The Department received a number of comments in response to
the NPRM proposal urging the removal of the term ‘‘do work’’ from the
definition of a service animal. These commenters argued that the
Department should emphasize the performance of tasks instead. The
Department disagrees. Although the common definition of work includes
the performance of tasks, the definition of work is somewhat broader,
encompassing activities that do not appear to involve physical action.
One service dog user stated that in some cases, ‘‘critical
forms of assistance can’t be construed as physical tasks,’’ noting that
the manifestations of ‘‘brain-based disabilities,’’ such as psychiatric
disorders and autism, are as varied as their physical counterparts. The
Department agrees with this statement but cautions that unless the
animal is individually trained to do something that qualifies as work or
a task, the animal is a pet or support animal and does not qualify for
coverage as a service animal. A pet or support animal may be able to
discern that the individual is in distress, but it is what the animal is
trained to do in response to this awareness that distinguishes a
service animal from an observant pet or support animal.
The NPRM contained an example of ‘‘doing work’’ that stated
‘‘a psychiatric service dog can help some individuals with dissociative
identity disorder to remain grounded in time or place.’’ 73 FR 34466,
34504 (June 17, 2008). Several commenters objected to the use of this
example, arguing that grounding was not a ‘‘task’’ and therefore, the
example inherently contradicted the basic premise that a service animal
must perform a task in order to mitigate a disability. Other commenters
stated that ‘‘grounding’’ should not be included as an example of
‘‘work’’ because it could lead to some individuals claiming that they
should be able to use emotional support animals in public because the
dog makes them feel calm or safe. By contrast, one commenter with
experience in training service animals explained that grounding is a
trained task based upon very specific behavioral indicators that can be
observed and measured. These tasks are based upon input from mental
health practitioners, dog trainers, and individuals with a history of
working with psychiatric service dogs.
It is the Department’s view that an animal that is trained
to ‘‘ground’’ a person with a psychiatric disorder does work or performs
a task that would qualify it as a service animal as compared to an
untrained emotional support animal whose presence affects a person’s
disability. It is the fact that the animal is trained to respond to the
individual’s needs that distinguishes an animal as a service animal. The
process must have two steps: Recognition and response. For example, if a
service animal senses that a person is about to have a psychiatric
episode and it is trained to respond for example, by nudging, barking,
or removing the individual to a safe location until the episode
subsides, then the animal has indeed performed a task or done work on
behalf of the individual with the disability, as opposed to merely
sensing an event.
One commenter suggested defining the term ‘‘task,’’
presumably to improve the understanding of the types of services
performed by an animal that would be sufficient to qualify the animal
for coverage. The Department believes that the common definition of the
word ‘‘task’’ is sufficiently clear and that it is not necessary to add
to the definitions section. However, the Department has added examples
of other kinds of work or tasks to help illustrate and provide clarity
to the definition. After careful evaluation of this issue, the
Department has concluded that the phrases ‘‘do work’’ and ‘‘perform
tasks’’ have been effective during the past two decades to illustrate
the varied services provided by service animals for the benefit of
individuals with all types of disabilities. Thus, the Department
declines to depart from its longstanding approach at this time.
Species limitations. When the Department originally
issued its title III regulation in the early 1990s, the Department did
not define the parameters of acceptable animal species. At that time,
few anticipated the variety of animals that would be promoted as service
animals in the years to come, which ranged from pigs and miniature
horses to snakes, iguanas, and parrots. The Department has followed this
particular issue closely, keeping current with the many unusual species
of animals represented to be service animals. Thus, the Department has
decided to refine further this aspect of the service animal definition
in the final rule.
The Department received many comments from individuals and
organizations recommending species limitations. Several of these
commenters asserted that limiting the number of allowable species would
help stop erosion of the public’s trust, which has resulted in reduced
access for many individuals with disabilities who use trained service
animals that adhere to high behavioral standards. Several commenters
suggested that other species would be acceptable if those animals could
meet nationally recognized behavioral standards for trained service
dogs. Other commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered.
In the NPRM, the Department used the term ‘‘common domestic
animal’’ in the service animal definition and excluded reptiles,
rabbits, farm animals (including horses, miniature horses, ponies, pigs,
and goats), ferrets, amphibians, and rodents from the service animal
definition. 73 FR 34466, 34478 (June 17, 2008). However, the term
‘‘common domestic animal’’ is difficult to define with precision due to
the increase in the number of domesticated species. Also, several State
and local laws define a ‘‘domestic’’ animal as an animal that is not
wild. The Department agrees with commenters’ views that limiting the
number and types of species recognized as service animals will provide
greater predictability for State and local government entities as well
as added assurance of access for individuals with disabilities who use
dogs as service animals. As a consequence, the Department has decided to
limit this rule’s coverage of service animals to dogs, which are the
most common service animals used by individuals with disabilities.
Wild animals, monkeys, and other nonhuman primates.
Numerous business entities endorsed a narrow definition of acceptable
service animal species, and asserted that there are certain animals (e.g.,
reptiles) that cannot be trained to do work or perform tasks. Other
commenters suggested that the Department should identify excluded
animals, such as birds and llamas, in the final rule. Although one
commenter noted that wild animals bred in captivity should be permitted
to be service animals, the Department has decided to make clear that all
wild animals, whether born or bred in captivity or in the wild, are
eliminated from coverage as service animals. The Department believes
that this approach reduces risks to health or safety attendant with wild
animals. Some animals, such as certain nonhuman primates including
certain monkeys, pose a direct threat; their behavior can be
unpredictably aggressive and violent without notice or provocation. The
American Veterinary Medical Association (AVMA) issued a position
statement advising against the use of monkeys as service animals,
stating that ‘‘[t]he AVMA does not support the use of nonhuman primates
as assistance animals because of animal welfare concerns, and the
potential for serious injury and zoonotic [animal to human disease
transmission] risks.’’ AVMA Position Statement, Nonhuman Primates as Assistance Animals, (2005) available at http://www.avma.org/issues/policy/ nonhuman_primates.asp (last visited June 24, 2010).
An organization that trains capuchin monkeys to provide
in-home services to individuals with paraplegia and quadriplegia was in
substantial agreement with the AVMA’s views but requested a limited
recognition in the service animal definition for the capuchin monkeys it
trains to provide assistance for persons with disabilities. The
organization commented that its trained capuchin monkeys undergo
scrupulous veterinary examinations to ensure that the animals pose no
health risks, and are used by individuals with disabilities exclusively
in their homes. The organization acknowledged that the capuchin monkeys
it trains are not necessarily suitable for use in State or local
government facilities. The organization noted that several State and
local government entities have local zoning, licensing, health, and
safety laws that prohibit nonhuman primates, and that these prohibitions
would prevent individuals with disabilities from using these animals
even in their homes.
The organization argued that including capuchin monkeys
under the service animal umbrella would make it easier for individuals
with disabilities to obtain reasonable modifications of State and local
licensing, health, and safety laws that would permit the use of these
monkeys. The organization argued that this limited modification to the
service animal definition was warranted in view of the services these
monkeys perform, which enable many individuals with paraplegia and
quadriplegia to live and function with increased independence.
The Department has carefully considered the potential risks
associated with the use of nonhuman primates as service animals in State
and local government facilities, as well as the information provided to
the Department about the significant benefits that trained capuchin
monkeys provide to certain individuals with disabilities in residential
settings. The Department has determined, however, that nonhuman
primates, including capuchin monkeys, will not be recognized as service
animals for purposes of this rule because of their potential for disease
transmission and unpredictable aggressive behavior. The Department
believes that these characteristics make nonhuman primates unsuitable
for use as service animals in the context of the wide variety of public
settings subject to this rule. As the organization advocating the
inclusion of capuchin monkeys acknowledges, capuchin monkeys are not
suitable for use in public facilities.
The Department emphasizes that it has decided only that
capuchin monkeys will not be included in the definition of service
animals for purposes of its regulation implementing the ADA. This
decision does not have any effect on the extent to which public entities
are required to allow the use of such monkeys under other Federal
statutes. For example, under the FHAct, an individual with a disability
may have the right to have an animal other than a dog in his or her home
if the animal qualifies as a ‘‘reasonable accommodation’’ that is
necessary to afford the individual equal opportunity to use and enjoy a
dwelling, assuming that the use of the animal does not pose a direct
threat. In some cases, the right of an individual to have an animal
under the FHAct may conflict with State or local laws that prohibit all
individuals, with or without disabilities, from owning a particular
species. However, in this circumstance, an individual who wishes to
request a reasonable modification of the State or local law must do so
under the FHAct, not the ADA.
Having considered all of the comments about which species
should qualify as service animals under the ADA, the Department has
determined the most reasonable approach is to limit acceptable species
to dogs.
Size or weight limitations. The vast majority of
commenters did not support a size or weight limitation. Commenters were
typically opposed to a size or weight limit because many tasks performed
by service animals require large, strong dogs. For instance, service
animals may perform tasks such as providing balance and support or
pulling a wheelchair. Small animals may not be suitable for large
adults. The weight of the service animal user is often correlated with
the size and weight of the service animal. Others were concerned that
adding a size and weight limit would further complicate the difficult
process of finding an appropriate service animal. One commenter noted
that there is no need for a limit because ‘‘if, as a practical matter,
the size or weight of an individual’s service animal creates a direct
threat or fundamental alteration to a particular public entity or
accommodation, there are provisions that allow for the animal’s
exclusion or removal.’’ Some common concerns among commenters in support
of a size and weight limit were that a larger animal may be less able
to fit in various areas with its handler, such as toilet rooms and
public seating areas, and that larger animals are more difficult to
control.
Balancing concerns expressed in favor of and against size
and weight limitations, the Department has determined that such
limitations would not be appropriate. Many individuals of larger stature
require larger dogs. The Department believes it would be inappropriate
to deprive these individuals of the option of using a service dog of the
size required to provide the physical support and stability these
individuals may need to function independently. Since large dogs have
always served as service animals, continuing their use should not
constitute fundamental alterations or impose undue burdens on title II
entities.
Breed limitations. A few commenters suggested that
certain breeds of dogs should not be allowed to be used as service
animals. Some suggested that the Department should defer to local laws
restricting the breeds of dogs that individuals who reside in a
community may own. Other commenters opposed breed restrictions, stating
that the breed of a dog does not determine its propensity for aggression
and that aggressive and non-aggressive dogs exist in all breeds.
The Department does not believe that it is either
appropriate or consistent with the ADA to defer to local laws that
prohibit certain breeds of dogs based on local concerns that these
breeds may have a history of unprovoked aggression or attacks. Such
deference would have the effect of limiting the rights of persons with
disabilities under the ADA who use certain service animals based on
where they live rather than on whether the use of a particular animal
poses a direct threat to the health and safety of others. Breed
restrictions differ significantly from jurisdiction to jurisdiction.
Some jurisdictions have no breed restrictions. Others have restrictions
that, while well-meaning, have the unintended effect of screening out
the very breeds of dogs that have successfully served as service animals
for decades without a history of the type of unprovoked aggression or
attacks that would pose a direct threat, e.g., German Shepherds.
Other jurisdictions prohibit animals over a certain weight, thereby
restricting breeds without invoking an express breed ban. In addition,
deference to breed restrictions contained in local laws would have the
unacceptable consequence of restricting travel by an individual with a
disability who uses a breed that is acceptable and poses no safety
hazards in the individual’s home jurisdiction but is nonetheless banned
by other jurisdictions. State and local government entities have the
ability to determine, on a case-by-case basis, whether a particular
service animal can be excluded based on that particular animal’s actual
behavior or history—not based on fears or generalizations about how an
animal or breed might behave. This ability to exclude an animal whose
behavior or history evidences a direct threat is sufficient to protect
health and safety.
Recognition of psychiatric service animals but not ‘‘emotional support animals.’’
The definition of ‘‘service animal’’ in the NPRM stated the
Department’s longstanding position that emotional support animals are
not included in the definition of ‘‘service animal.’’ The proposed text
in § 35.104 provided that ‘‘[a]nimals whose sole function is to provide
emotional support, comfort, therapy, companionship, therapeutic benefits
or to promote emotional well-being are not service animals.’’ 73 FR
34466, 34504 (June 17, 2008).
Many advocacy organizations expressed concern and disagreed
with the exclusion of comfort and emotional support animals. Others have
been more specific, stating that individuals with disabilities may need
their emotional support animals in order to have equal access. Some
commenters noted that individuals with disabilities use animals that
have not been trained to perform tasks directly related to their
disability. These animals do not qualify as service animals under the
ADA. These are emotional support or comfort animals.
Commenters asserted that excluding categories such as
‘‘comfort’’ and ‘‘emotional support’’ animals recognized by laws such as
the FHAct or the Air Carrier Access Act (ACAA) is confusing and
burdensome. Other commenters noted that emotional support and comfort
animals perform an important function, asserting that animal
companionship helps individuals who experience depression resulting from
multiple sclerosis.
Some commenters explained the benefits emotional support
animals provide, including emotional support, comfort, therapy,
companionship, therapeutic benefits, and the promotion of emotional
well-being. They contended that without the presence of an emotional
support animal in their lives they would be disadvantaged and unable to
participate in society. These commenters were concerned that excluding
this category of animals will lead to discrimination against, and the
excessive questioning of, individuals with non-visible or non-apparent
disabilities. Other commenters expressing opposition to the exclusion of
individually trained ‘‘comfort’’ or ‘‘emotional support’’ animals
asserted that the ability to soothe or de-escalate and control emotion
is ‘‘work’’ that benefits the individual with the disability.
Many commenters requested that the Department carve out an
exception that permits current or former members of the military to use
emotional support animals. They asserted that a significant number of
service members returning from active combat duty have adjustment
difficulties due to combat, sexual assault, or other traumatic
experiences while on active duty. Commenters noted that some current or
former members of the military service have been prescribed animals for
conditions such as PTSD. One commenter stated that service women who
were sexually assaulted while in the military use emotional support
animals to help them feel safe enough to step outside their homes. The
Department recognizes that many current and former members of the
military have disabilities as a result of service-related injuries that
may require emotional support and that such individuals can benefit from
the use of an emotional support animal and could use such animal in
their home under the FHAct. However, having carefully weighed the
issues, the Department believes that its final rule appropriately
addresses the balance of issues and concerns of both the individual with
a disability and the public entity. The Department also notes that
nothing in this part prohibits a public entity from allowing current or
former military members or anyone else with disabilities to utilize
emotional support animals if it wants to do so.
Commenters asserted the view that if an animal’s ‘‘mere
presence’’ legitimately provides such benefits to an individual with a
disability and if those benefits are necessary to provide equal
opportunity given the facts of the particular disability, then such an
animal should qualify as a ‘‘service animal.’’ Commenters noted that the
focus should be on the nature of a person’s disability, the
difficulties the disability may impose and whether the requested
accommodation would legitimately address those difficulties, not on
evaluating the animal involved. The Department understands this approach
has benefitted many individuals under the FHAct and analogous State law
provisions, where the presence of animals poses fewer health and safety
issues, and where emotional support animals provide assistance that is
unique to residential settings. The Department believes, however, that
the presence of such animals is not required in the context of title II
entities such as courthouses, State and local government administrative
buildings, and similar title II facilities.
Under the Department’s previous regulatory framework, some
individuals and entities assumed that the requirement that service
animals must be individually trained to do work or perform tasks
excluded all individuals with mental disabilities from having service
animals. Others assumed that any person with a psychiatric condition
whose pet provided comfort to them was covered by the 1991 title II
regulation. The Department reiterates that psychiatric service animals
that are trained to do work or perform a task for individuals whose
disability is covered by the ADA are protected by the Department’s
present regulatory approach. Psychiatric service animals can be trained
to perform a variety of tasks that assist individuals with disabilities
to detect the onset of psychiatric episodes and ameliorate their
effects. Tasks performed by psychiatric service animals may include
reminding the individual to take medicine, providing safety checks or
room searches for persons with PTSD, interrupting self-mutilation, and
removing disoriented individuals from dangerous situations.
The difference between an emotional support animal and a
psychiatric service animal is the work or tasks that the animal
performs. Traditionally, service dogs worked as guides for individuals
who were blind or had low vision. Since the original regulation was
promulgated, service animals have been trained to assist individuals
with many different types of disabilities.
In the final rule, the Department has retained its position
on the exclusion of emotional support animals from the definition of
‘‘service animal.’’ The definition states that ‘‘[t]he provision of
emotional support, well-being, comfort, or companionship, * * * do[es]
not constitute work or tasks for the purposes of this definition.’’ The
Department notes, however, that the exclusion of emotional support
animals from coverage in the final rule does not mean that individuals
with psychiatric or mental disabilities cannot use service animals that
meet the regulatory definition. The final rule defines service animal as
follows: ‘‘[s]ervice animal means any dog that is individually trained
to do work or perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric, intellectual, or
other mental disability.’’ This language simply clarifies the
Department’s longstanding position.
The Department’s position is based on the fact that the
title II and title III regulations govern a wider range of public
settings than the housing and transportation settings for which the
Department of Housing and Urban Development (HUD) and DOT regulations
allow emotional support animals or comfort animals. The Department
recognizes that there are situations not governed by the title II and
title III regulations, particularly in the context of residential
settings and transportation, where there may be a legal obligation to
permit the use of animals that do not qualify as service animals under
the ADA, but whose presence nonetheless provides necessary emotional
support to persons with disabilities. Accordingly, other Federal agency
regulations, case law, and possibly State or local laws governing those
situations may provide appropriately for increased access for animals
other than service animals as defined under the ADA. Public officials,
housing providers, and others who make decisions relating to animals in
residential and transportation settings should consult the Federal,
State, and local laws that apply in those areas (e.g., the FHAct regulations of HUD and the ACAA) and not rely on the ADA as a basis for reducing those obligations.
Retain term ‘‘service animal.’’ Some commenters
asserted that the term ‘‘assistance animal’’ is a term of art and should
replace the term ‘‘service animal.’’ However, the majority of
commenters preferred the term ‘‘service animal’’ because it is more
specific. The Department has decided to retain the term ‘‘service
animal’’ in the final rule. While some agencies, like HUD, use the term
‘‘assistance animal,’’ ‘‘assistive animal,’’ or ‘‘support animal,’’
these terms are used to denote a broader category of animals than is
covered by the ADA. The Department has decided that changing the term
used in the final rule would create confusion, particularly in view of
the broader parameters for coverage under the FHAct, cf.,
preamble to HUD’s Final Rule for Pet Ownership for the Elderly and
Persons with Disabilities, 73 FR 63834–38 (Oct. 27, 2008); HUD Handbook
No. 4350.3 Rev–1, Chapter 2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hud.gov/offices/adm/ hudclips/handbooks/hsgh/4350.3 (last
visited June 24, 2010). Moreover, as discussed above, the Department’s
definition of ‘‘service animal’’ in the title II final rule does not
affect the rights of individuals with disabilities who use assistance
animals in their homes under the FHAct or who use ‘‘emotional support
animals’’ that are covered under the ACAA and its implementing
regulations. See 14 CFR 382.7 et seq.; see also Department of Transportation, Guidance Concerning Service Animals in Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing accommodation of service animals and emotional support animals on aircraft).
‘‘Video Remote Interpreting’’ (VRI) Services
In the NPRM, the Department proposed adding Video Interpreting
Services (VIS) to the list of auxiliary aids available to provide
effective communication described in § 35.104. In the preamble to the
NPRM, VIS was defined as ‘‘a technology composed of a video phone, video
monitors, cameras, a high-speed Internet connection, and an
interpreter. The video phone provides video transmission to a video
monitor that permits the individual who is deaf or hard of hearing to
view and sign to a video interpreter (i.e., a live interpreter
in another location), who can See and sign to the individual through a
camera located on or near the monitor, while others can communicate by
speaking. The video monitor can display a split screen of two live
images, with the interpreter in one image and the individual who is deaf
or hard of hearing in the other image.’’ 73 FR 34446, 34479 (June 17,
2008). Comments from advocacy organizations and individuals unanimously
requested that the Department use the term ‘‘video remote interpreting
(VRI),’’ instead of VIS, for consistency with Federal Communications
Commission (FCC) regulations. See FCC Public Notice, DA– 0502417 (Sept.
7, 2005), and with common usage by consumers. The Department has made
that change throughout the regulation to avoid confusion and to make the
regulation more consistent with existing regulations.
Many commenters also requested that the Department
distinguish between VRI and ‘‘video relay service (VRS).’’ Both VRI and
VRS use a remote interpreter who is able to See and communicate with a
deaf person and a hearing person, and all three individuals may be
connected by a video link. VRI is a fee-based interpreting service
conveyed via videoconferencing where at least one person, typically the
interpreter, is at a separate location. VRI can be provided as an
on-demand service or by appointment. VRI normally involves a contract in
advance for the interpreter who is usually paid by the covered entity.
VRS is a telephone service that enables persons with
disabilities to use the telephone to communicate using video connections
and is a more advanced form of relay service than the traditional voice
to text telephones (TTY) relay systems that were recognized in the 1991
title II regulation. More specifically, VRS is a video relay service
using interpreters connected to callers by video hook-up and is designed
to provide telephone services to persons who are deaf and use American
Sign Language that are functionally equivalent to those provided to
users who are hearing. VRS is funded through the Interstate
Telecommunications Relay Services Fund and overseen by the FCC. See
47 CFR 64.601(a)(26). There are no fees for callers to use the VRS
interpreters and the video connection, although there may be relatively
inexpensive initial costs to the title II entities to purchase the
videophone or camera for on-line video connection, or other equipment to
connect to the VRS service. The FCC has made clear that VRS functions
as a telephone service and is not intended to be used for interpreting
services where both parties are in the same room; the latter is reserved
for VRI. The Department agrees that VRS cannot be used as a substitute
for in-person interpreters or for VRI in situations that would not,
absent one party’s disability, entail use of the telephone.
Many commenters strongly recommended limiting the use of VRI
to circumstances where it will provide effective communication.
Commenters from advocacy groups and persons with disabilities expressed
concern that VRI may not always be appropriate to provide effective
communication, especially in hospitals and emergency rooms. Examples
were provided of patients who are unable to See the video monitor
because they are semi-conscious or unable to focus on the video screen;
other examples were given of cases where the video monitor is out of the
sightline of the patient or the image is out of focus; still other
examples were given of patients who could not See the image
because the signal was interrupted, causing unnatural pauses in the
communication, or the image was grainy or otherwise unclear. Many
commenters requested more explicit guidelines on the use of VRI, and
some recommended requirements for equipment maintenance, high-speed,
wide-bandwidth video links using dedicated lines or wireless systems,
and training of staff using VRI, especially in hospital and health care
situations. Several major organizations requested a requirement to
include the interpreter’s face, head, arms, hands, and eyes in all
transmissions. Finally, one State agency asked for additional guidance,
outreach, and mandated advertising about the availability of VRI in
title II situations so that local government entities would budget for
and facilitate the use of VRI in libraries, schools, and other places.
After consideration of the comments and the Department’s own
research and experience, the Department has determined that VRI can be
an effective method of providing interpreting services in certain
circumstances, but not in others. For example, VRI should be effective
in many situations involving routine medical care, as well as in the
emergency room where urgent care is important, but no in-person
interpreter is available; however, VRI may not be effective in
situations involving surgery or other medical procedures where the
patient is limited in his or her ability to see the video screen.
Similarly, VRI may not be effective in situations where there are
multiple people in a room and the information exchanged is highly
complex and fast-paced. The Department recognizes that in these and
other situations, such as where communication is needed for persons who
are deaf-blind, it may be necessary to summon an in-person interpreter
to assist certain individuals. To ensure that VRI is effective in
situations where it is appropriate, the Department has established
performance standards in § 35.160(d).
Subpart B—General Requirements
Section 35.130(h) Safety.
Section 36.301(b) of the 1991 title III regulation provides
that a public accommodation ‘‘may impose legitimate safety requirements
that are necessary for safe operation. Safety requirements must be based
on actual risks, and not on mere speculation, stereotypes, or
generalizations about individuals with disabilities.’’ 28 CFR 36.301(b).
Although the 1991 title II regulation did not include similar language,
the Department’s 1993 ADA Title II Technical Assistance Manual at
II–3.5200 makes clear the Department’s view that public entities also
have the right to impose legitimate safety requirements necessary for
the safe operation of services, programs, or activities. To ensure
consistency between the title II and title III regulations, the
Department has added a new § 35.130(h) in the final rule incorporating
this longstanding position relating to imposition of legitimate safety
requirements.
Section 35.133 Maintenance of accessible features.
Section 35.133 in the 1991 title II regulation provides that
a public entity must maintain in operable working condition those
features of facilities and equipment that are required to be readily
accessible to and usable by qualified individuals with disabilities. See
28 CFR 35.133(a). In the NPRM, the Department clarified the application
of this provision and proposed one change to the section to address the
discrete situation in which the scoping requirements provided in the
2010 Standards reduce the number of required elements below the
requirements of the 1991 Standards. In that discrete event, a public
entity may reduce such accessible features in accordance with the
requirements in the 2010 Standards.
The Department received only four comments on this proposed
amendment. None of the commenters opposed the change. In the final rule,
the Department has revised the section to make it clear that if the
2010 Standards reduce either the technical requirements or the number of
required accessible elements below that required by the 1991 Standards,
then the public entity may reduce the technical requirements or the
number of accessible elements in a covered facility in accordance with
the requirements of the 2010 Standards.
One commenter urged the Department to amend § 35.133(b) to
expand the language of the section to restocking of shelves as a
permissible activity for isolated or temporary interruptions in service
or access. It is the Department’s position that a temporary interruption
that blocks an accessible route, such as restocking of shelves, is
already permitted by § 35.133(b), which clarifies that ‘‘isolated or
temporary interruptions in service or access due to maintenance or
repairs’’ are permitted. Therefore, the Department will not make any
additional changes in the final rule to the language of § 35.133(b)
other than those discussed in the preceding paragraph.
Section 35.136 Service animals.
The 1991 title II regulation states that ‘‘[a] public entity
shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the nature of
the service, program or activity.’’ 28 CFR 130(b)(7). Unlike the title
III regulation, the 1991 title II regulation did not contain a specific
provision addressing service animals.
In the NPRM, the Department stated the intention of
providing the broadest feasible access to individuals with disabilities
and their service animals, unless a public entity can demonstrate that
making the modifications to policies excluding animals would
fundamentally alter the nature of the public entity’s service, program,
or activity. The Department proposed creating a new § 35.136 addressing
service animals that was intended to retain the scope of the 1991 title
III regulation at § 36.302(c), while clarifying the Department’s
longstanding policies and interpretations, as outlined in published
technical assistance, Commonly Asked Questions About Service Animals in Places of Business (1996), available at http:// www.ada.gov/qasrvc.ftm and ADA Guide for Small Businesses (1999), available at http:// www.ada.gov/smbustxt.htm,
and to add that a public entity may exclude a service animal in certain
circumstances where the service animal fails to meet certain behavioral
standards. The Department received extensive comments in response to
proposed § 35.136 from individuals, disability advocacy groups,
organizations involved in training service animals, and public entities.
Those comments and the Department’s response are discussed below.
Exclusion of service animals. In the NPRM, the
Department proposed incorporating the title III regulatory language of §
36.302(c) into new § 35.136(a), which states that ‘‘[g]enerally, a
public entity shall modify its policies, practices, or procedures to
permit the use of a service animal by an individual with a disability,
unless the public entity can demonstrate that the use of a service
animal would fundamentally alter the public entity’s service, program,
or activity.’’ The final rule retains this language with some
modifications.
In addition, in the NPRM, the Department proposed clarifying
those circumstances where otherwise eligible service animals may be
excluded by public entities from their programs or facilities. The
Department proposed in § 35.136(b)(1) of the NPRM that a public entity
may ask an individual with a disability to remove a service animal from a
title II service, program, or activity if: ‘‘[t]he animal is out of
control and the animal’s handler does not take effective action to
control it.’’ 73 FR 34466, 34504 (June 17, 2008).
The Department has long held that a service animal must be
under the control of the handler at all times. Commenters overwhelmingly
were in favor of this language, but noted that there are occasions when
service animals are provoked to disruptive or aggressive behavior by
agitators or troublemakers, as in the case of a blind individual whose
service dog is taunted or pinched. While all service animals are trained
to ignore and overcome these types of incidents, misbehavior in
response to provocation is not always unreasonable. In circumstances
where a service animal misbehaves or responds reasonably to a
provocation or injury, the public entity must give the handler a
reasonable opportunity to gain control of the animal. Further, if the
individual with a disability asserts that the animal was provoked or
injured, or if the public entity otherwise has reason to suspect that
provocation or injury has occurred, the public entity should seek to
determine the facts and, if provocation or injury occurred, the public
entity should take effective steps to prevent further provocation or
injury, which may include asking the provocateur to leave the public
entity. This language is unchanged in the final rule.
The NPRM also proposed language at §
35.136(b)(2) to permit a public entity to exclude a service animal if
the animal is not housebroken (i.e., trained so that,
absent illness or accident, the animal controls its waste elimination)
or the animal’s presence or behavior fundamentally alters the nature of
the service the public entity provides (e.g., repeated barking
during a live performance). Several commenters were supportive of this
NPRM language, but cautioned against overreaction by the public entity
in these instances. One commenter noted that animals get sick, too, and
that accidents occasionally happen. In these circumstances, simple clean
up typically addresses the incident. Commenters noted that the public
entity must be careful when it excludes a service animal on the basis of
‘‘fundamental alteration,’’ asserting for example that a public entity
should not exclude a service animal for barking in an environment where
other types of noise, such as loud cheering or a child crying, is
tolerated. The Department maintains that the appropriateness of an
exclusion can be assessed by reviewing how a public entity addresses
comparable situations that do not involve a service animal. The
Department has retained in § 35.136(b) of the final rule
the exception requiring animals to be housebroken. The Department has
not retained the specific NPRM language stating that animals can be
excluded if their presence or behavior fundamentally alters the nature
of the service provided by the public entity, because the Department
believes that this exception is covered by the general reasonable
modification requirement contained in § 35.130(b)(7).
The NPRM also proposed at § 35.136(b)(3) that a service
animal can be excluded where ‘‘[t]he animal poses a direct
threat to the health or safety of others that cannot be eliminated by
reasonable modifications.’’ 73 FR 34466, 34504 (June 17, 2008).
Commenters were universally supportive of this provision as it makes
express the discretion of a public entity to exclude a service animal
that poses a direct threat. Several commenters cautioned against the
overuse of this provision and suggested that the Department provide an
example of the rule’s application. The Department has decided not to
include regulatory language specifically stating that a service animal
can be excluded if it poses a direct threat. The Department believes
that the addition of new § 35.139, which incorporates the
language of the title III provisions at § 36.302 relating to the general
defense of direct threat, is sufficient to establish the availability
of this defense to public entities.
Access to a public entity following the proper exclusion of a service animal.
The NPRM proposed that in the event a public entity properly excludes a
service animal, the public entity must give the individual with a
disability the opportunity to access the programs, services, and
facilities of the public entity without the service animal. Most
commenters welcomed this provision as a common sense approach. These
commenters noted that they do not wish to preclude individuals with
disabilities from the full and equal enjoyment of the State or local
government’s programs, services, or facilities, simply because of an
isolated problem with a service animal. The Department has elected to
retain this provision in § 35.136(a).
Other requirements. The NPRM also proposed that the
regulation include the following requirements: that the work or tasks
performed by the service animal must be directly related to the
handler’s disability; that a service animal must be individually trained
to do work or perform a task, be housebroken, and be under the control
of the handler; and that a service animal must have a harness, leash, or
other tether. Most commenters addressed at least one of these issues in
their responses. Most agreed that these provisions are important to
clarify further the 1991 service animal regulation. The Department has
moved the requirement that the work or tasks performed by the service
animal must be related directly to the individual’s disability to the
definition of ‘‘service animal’’ in § 35.104. In addition, the
Department has modified the proposed language in § 35.136(d) relating to
the handler’s control of the animal with a harness, leash, or other
tether to state that ‘‘[a] service animal shall have a harness, leash,
or other tether, unless either the handler is unable because of a
disability to use a harness, leash, or other tether, or the use of a
harness, leash, or other tether would interfere with the service
animal’s safe, effective performance of work or tasks, in which case the
service animal must be otherwise under the handler’s control (e.g.,
voice control, signals, or other effective means).’’ The Department has
retained the requirement that the service animal must be individually
trained (see Appendix A discussion of § 35.104, definition of
‘‘service animal’’), as well as the requirement that the service animal
be housebroken.
Responsibility for supervision and care of a service animal.
The NPRM proposed language at § 35.136(e) stating that ‘‘[a] public
entity is not responsible for caring for or supervising a service
animal.’’ 73 FR 34466, 34504 (June 17, 2008). Most commenters did not
address this particular provision. The Department recognizes that there
are occasions when a person with a disability is confined to bed in a
hospital for a period of time. In such an instance, the individual may
not be able to walk or feed the service animal. In such cases, if the
individual has a family member, friend, or other person willing to take
on these responsibilities in the place of the individual with
disabilities, the individual’s obligation to be responsible for the care
and supervision of the service animal would be satisfied. The language
of this section is retained, with minor modifications, in § 35.136(e) of
the final rule.
Inquiries about service animals. The NPRM proposed
language at § 35.136(f) setting forth parameters about how a public
entity may determine whether an animal qualifies as a service animal.
The proposed section stated that a public entity may ask if the animal
is required because of a disability and what task or work the animal has
been trained to do but may not require proof of service animal
certification or licensing. Such inquiries are limited to eliciting the
information necessary to make a decision without requiring disclosure of
confidential disability-related information that a State or local
government entity does not need. This language is consistent with the
policy guidance outlined in two Department publications, Commonly Asked Questions about Service Animals in Places of Business (1996), available at http:// www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, (1999), available at http:// www.ada.gov/smbustxt.htm.
Although some commenters contended that the NPRM service
animal provisions leave unaddressed the issue of how a public entity can
distinguish between a psychiatric service animal, which is covered
under the final rule, and a comfort animal, which is not, other
commenters noted that the Department’s published guidance has helped
public entities to distinguish between service animals and pets on the
basis of an individual’s response to these questions. Accordingly, the
Department has retained the NPRM language incorporating its guidance
concerning the permissible questions into the final rule.
Some commenters suggested that a title II entity be allowed
to require current documentation, no more than one year old, on
letterhead from a mental health professional stating the following: (1)
That the individual seeking to use the animal has a mental
health-related disability; (2) that having the animal accompany the
individual is necessary to the individual’s mental health or treatment
or to assist the person otherwise; and (3) that the person providing the
assessment of the individual is a licensed mental health professional
and the individual seeking to use the animal is under that individual’s
professional care. These commenters asserted that this will prevent
abuse and ensure that individuals with legitimate needs for psychiatric
service animals may use them. The Department believes that this proposal
would treat persons with psychiatric, intellectual, and other mental
disabilities less favorably than persons with physical or sensory
disabilities. The proposal would also require persons with disabilities
to obtain medical documentation and carry it with them any time they
seek to engage in ordinary activities of daily life in their
communities— something individuals without disabilities have not been
required to do. Accordingly, the Department has concluded that a
documentation requirement of this kind would be unnecessary, burdensome,
and contrary to the spirit, intent, and mandates of the ADA.
Areas of a public entity open to the public, participants in services, programs, or activities, or invitees. The
NPRM proposed at § 35.136(g) that an individual with a disability who
uses a service animal has the same right of access to areas of a title
II entity as members of the public, participants in services, programs,
or activities, or invitees. Commenters indicated that allowing
individuals with disabilities to go with their service animals into the
same areas as members of the public, participants in programs, services,
or activities, or invitees is accepted practice by most State and local
government entities. The Department has included a slightly modified
version of this provision in § 35.136(g) of the final rule.
The Department notes that under the final rule, a healthcare
facility must also permit a person with a disability to be accompanied
by a service animal in all areas of the facility in which that person
would otherwise be allowed. There are some exceptions, however. The
Department follows the guidance of the Centers for Disease Control and
Prevention (CDC) on the use of service animals in a hospital setting.
Zoonotic diseases can be transmitted to humans through bites, scratches,
direct contact, arthropod vectors, or aerosols.
Consistent with CDC guidance, it is generally appropriate to
exclude a service animal from limited-access areas that employ general
infection-control measures, such as operating rooms and burn units. See Centers for Disease Control and Prevention,
Guidelines for Environmental Infection Control in Health-Care
Facilities: Recommendations of CDC and the Healthcare Infection Control
Practices Advisory Committee (June 2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/ eic_in_HCF_03.pdf (last
visited June 24, 2010). A service animal may accompany its handler to
such areas as admissions and discharge offices, the emergency room,
inpatient and outpatient rooms, examining and diagnostic rooms, clinics,
rehabilitation therapy areas, the cafeteria and vending areas, the
pharmacy, restrooms, and all other areas of the facility where
healthcare personnel, patients, and visitors are permitted without added
precaution.
Prohibition against surcharges for use of a service animal.
In the NPRM, the Department proposed to incorporate the previously
mentioned policy guidance, which prohibits the assessment of a surcharge
for the use of a service animal, into proposed § 35.136(h). Several
commenters agreed that this provision makes clear the obligation of a
public entity to admit an individual with a service animal without
surcharges, and that any additional costs imposed should be factored
into the overall cost of administering a program, service, or activity,
and passed on as a charge to all participants, rather than an
individualized surcharge to the service animal user. Commenters also
noted that service animal users cannot be required to comply with other
requirements that are not generally applicable to other persons. If a
public entity normally charges individuals for the damage they cause, an
individual with a disability may be charged for damage caused by his or
her service animal. The Department has retained this language, with
minor modifications, in the final rule at § 35.136(h).
Training requirement. Certain commenters
recommended the adoption of formal training requirements for service
animals. The Department has rejected this approach and will not impose
any type of formal training requirements or certification process, but
will continue to require that service animals be individually trained to
do work or perform tasks for the benefit of an individual with a
disability. While some groups have urged the Department to modify this
position, the Department has determined that such a modification would
not serve the full array of individuals with disabilities who use
service animals, since individuals with disabilities may be capable of
training, and some have trained, their service animal to perform tasks
or do work to accommodate their disability. A training and certification
requirement would increase the expense of acquiring a service animal
and might limit access to service animals for individuals with limited
financial resources.
Some commenters proposed specific behavior or training
standards for service animals, arguing that without such standards, the
public has no way to differentiate between untrained pets and service
animals. Many of the suggested behavior or training standards were
lengthy and detailed. The Department believes that this rule addresses
service animal behavior sufficiently by including provisions that
address the obligations of the service animal user and the circumstances
under which a service animal may be excluded, such as the requirements
that an animal be housebroken and under the control of its handler.
Miniature horses. The Department has been persuaded
by commenters and the available research to include a provision that
would require public entities to make reasonable modifications to
policies, practices, or procedures to permit the use of a miniature
horse by a person with a disability if the miniature horse has been
individually trained to do work or perform tasks for the benefit of the
individual with a disability. The traditional service animal is a dog,
which has a long history of guiding individuals who are blind or have
low vision, and over time dogs have been trained to perform an even
wider variety of services for individuals with all types of
disabilities. However, an organization that developed a program to train
miniature horses, modeled on the program used for guide dogs, began
training miniature horses in 1991.
Although commenters generally supported the species
limitations proposed in the NPRM, some were opposed to the exclusion of
miniature horses from the definition of a service animal. These
commenters noted that these animals have been providing assistance to
persons with disabilities for many years. Miniature horses were
suggested by some commenters as viable alternatives to dogs for
individuals with allergies, or for those whose religious beliefs
preclude the use of dogs. Another consideration mentioned in favor of
the use of miniature horses is the longer life span and strength of
miniature horses in comparison to dogs. Specifically, miniature horses
can provide service for more than 25 years while dogs can provide
service for approximately 7 years, and, because of their strength,
miniature horses can provide services that dogs cannot provide.
Accordingly, use of miniature horses reduces the cost involved to
retire, replace, and train replacement service animals.
The miniature horse is not one specific breed, but may be
one of several breeds, with distinct characteristics that produce
animals suited to service animal work. The animals generally range in
height from 24 inches to 34 inches measured to the withers, or
shoulders, and generally weigh between 70 and 100 pounds. These
characteristics are similar to those of large breed dogs such as
Labrador Retrievers, Great Danes, and Mastiffs. Similar to dogs,
miniature horses can be trained through behavioral reinforcement to be
‘‘housebroken.’’ Most miniature service horse handlers and organizations
recommend that when the animals are not doing work or performing tasks,
the miniature horses should be kept outside in a designated area,
instead of indoors in a house.
According to information provided by an organization that
trains service horses, these miniature horses are trained to provide a
wide array of services to their handlers, primarily guiding individuals
who are blind or have low vision, pulling wheelchairs, providing
stability and balance for individuals with disabilities that impair the
ability to walk, and supplying leverage that enables a person with a
mobility disability to get up after a fall. According to the commenter,
miniature horses are particularly effective for large stature
individuals. The animals can be trained to stand (and in some cases, lie
down) at the handler’s feet in venues where space is at a premium, such
as assembly areas or inside some vehicles that provide public
transportation. Some individuals with disabilities have traveled by
train and have flown commercially with their miniature horses.
The miniature horse is not included in the definition of
service animal, which is limited to dogs. However, the Department has
added a specific provision at § 35.136(i) of the final rule covering
miniature horses. Under this provision, a public entity must make
reasonable modifications in policies, practices, or procedures to permit
the use of a miniature horse by an individual with a disability if the
miniature horse has been individually trained to do work or perform
tasks for the benefit of the individual with a disability. The public
entity may take into account a series of assessment factors in
determining whether to allow a miniature horse into a specific facility.
These include the type, size, and weight of the miniature horse;
whether the handler has sufficient control of the miniature horse;
whether the miniature horse is housebroken; and whether the miniature
horse’s presence in a specific facility compromises legitimate safety
requirements that are necessary for safe operation. In addition,
paragraphs (c)–(h) of this section, which are applicable to dogs, also
apply to miniature horses.
Ponies and full-size horses are not covered by § 35.136(i).
Also, because miniature horses can vary in size and can be larger and
less flexible than dogs, covered entities may exclude this type of
service animal if the presence of the miniature horse, because of its
larger size and lower level of flexibility, results in a fundamental
alteration to the nature of the programs activities, or services
provided.
Section 35.137 Mobility devices.
Section 35.137 of the NPRM clarified the scope and
circumstances under which covered entities are legally obligated to
accommodate various ‘‘mobility devices.’’ Section 35.137 set forth
specific requirements for the accommodation of ‘‘mobility devices,’’
including wheelchairs, manually-powered mobility aids, and other
power-driven mobility devices.
In both the NPRM and the final rule, §
35.137(a) states the general rule that in any areas open to pedestrians,
public entities shall permit individuals with mobility disabilities to
use wheelchairs and manually-powered mobility aids, including walkers,
crutches, canes, braces, or similar devices. Because mobility scooters
satisfy the definition of ‘‘wheelchair’’ (i.e.,
‘‘manually-operated or power-driven device designed primarily for use by
an individual with a mobility disability for the main purpose of
indoor, or of both indoor and outdoor locomotion’’), the reference to
them in § 35.137(a) of the final rule has been omitted to avoid
redundancy.
Some commenters expressed concern that permitting the use of
other power-driven mobility devices by individuals with mobility
disabilities would make such devices akin to wheelchairs and would
require them to make physical changes to their facilities to accommodate
their use. This concern is misplaced. If a facility complies with the
applicable design requirements in the 1991 Standards or the 2010
Standards, the public entity will not be required to exceed those
standards to accommodate the use of wheelchairs or other power-driven
mobility devices that exceed those requirements.
Legal standard for other power-driven mobility devices.
The NPRM version of § 35.137(b) provided that ‘‘[a] public entity
shall make reasonable modifications in its policies, practices, and
procedures to permit the use of other power-driven mobility devices by
individuals with disabilities, unless the public entity can demonstrate
that the use of the device is not reasonable or that its use will result
in a fundamental alteration in the public entity’s service, program, or
activity.’’ 73 FR 34466, 34505 (June 17, 2008). In other words, public
entities are by default required to permit the use of other power-driven
mobility devices; the burden is on them to prove the existence of a
valid exception.
Most commenters supported the notion of assessing whether the use of
a particular device is reasonable in the context of a particular venue.
Commenters, however, disagreed about the meaning of the word
‘‘reasonable’’ as it is used in § 35.137(b) of the NPRM. Advocacy and
nonprofit groups almost universally objected to the use of a general
reasonableness standard with regard to the assessment of whether a
particular device should be allowed at a particular venue. They argued
that the assessment should be based on whether reasonable modifications
could be made to allow a particular device at a particular venue, and
that the only factors that should be part of the calculus that results
in the exclusion of a particular device are undue burden, direct threat,
and fundamental alteration.
A few commenters opposed the proposed provision requiring
public entities to assess whether reasonable modifications can be made
to allow other power-driven mobility devices, preferring instead that
the Department issue guidance materials so that public entities would
not have to incur the cost of such analyses. Another commenter noted a
‘‘fox guarding the hen house’’-type of concern with regard to public
entities developing and enforcing their own modification policy.
In response to comments received, the Department has revised
§ 35.137(b) to provide greater clarity regarding the development of
legitimate safety requirements regarding other power-driven mobility
devices and has added a new § 35.130(h) (Safety) to the title II
regulation which specifically permits public entities to impose
legitimate safety requirements necessary for the safe operation of their
services, programs, and activities. (See discussion below.)
The Department has not retained the proposed NPRM language stating that
an other power-driven mobility device can be excluded if a public entity
can demonstrate that its use is unreasonable or will result in a
fundamental alteration of the entity’s service, program, or activity,
because the Department believes that this exception is covered by the
general reasonable modification requirement contained in § 35.130(b)(7).
Assessment factors. Section 35.137(c) of the NPRM
required public entities to ‘‘establish policies to permit the use of
other power-driven mobility devices’’ and articulated four factors upon
which public entities must base decisions as to whether a modification
is reasonable to allow the use of a class of other power-driven mobility
devices by individuals with disabilities in specific venues (e.g., parks, courthouses, office buildings, etc.). 73 FR 34466, 34504 (June 17, 2008).
The Department has relocated and modified the NPRM text that
appeared in § 35.137(c) to new paragraph § 35.137(b)(2) to clarify what
factors the public entity shall use in determining whether a particular
other power-driven mobility device can be allowed in a specific
facility as a reasonable modification. Section 35.137(b)(2) now states
that ‘‘[i]n determining whether a particular other power-driven mobility
device can be allowed in a specific facility as a reasonable
modification under (b)(1), a public entity shall consider’’ certain
enumerated factors. The assessment factors are designed to assist public
entities in determining whether allowing the use of a particular other
power-driven mobility device in a specific facility is reasonable. Thus,
the focus of the analysis must be on the appropriateness of the use of
the device at a specific facility, rather than whether it is necessary
for an individual to use a particular device.
The NPRM proposed the following specific assessment factors:
(1) The dimensions, weight, and operating speed of the mobility device
in relation to a wheelchair; (2) the potential risk of harm to others by
the operation of the mobility device; (3) the risk of harm to the
environment or natural or cultural resources or conflict with Federal
land management laws and regulations; and (4) the ability of the public
entity to stow the mobility device when not in use, if requested by the
user.
Factor 1 was designed to help public entities assess whether
a particular device was appropriate, given its particular physical
features, for a particular location. Virtually all commenters said the
physical features of the device affected their view of whether a
particular device was appropriate for a particular location. For
example, while many commenters supported the use of another power-driven
mobility device if the device were a Segway® PT, because of
environmental and health concerns they did not offer the same level of
support if the device were an off-highway vehicle, all-terrain vehicle
(ATV), golf car, or other device with a fuel-powered or combustion
engine. Most commenters noted that indicators such as speed, weight, and
dimension really were an assessment of the appropriateness of a
particular device in specific venues and suggested that factor 1 say
this more specifically.
The term ‘‘in relation to a wheelchair’’ in the NPRM’s
factor 1 apparently created some concern that the same legal standards
that apply to wheelchairs would be applied to other power-driven
mobility devices. The Department has omitted the term ‘‘in relation to a
wheelchair’’ from § 35.137(b)(2)(i) to clarify that if a facility that
is in compliance with the applicable provisions of the 1991 Standards or
the 2010 Standards grants permission for an other power-driven mobility
device to go on-site, it is not required to exceed those standards to
accommodate the use of other power-driven mobility devices.
In response to requests that NPRM factor 1 state more
specifically that it requires an assessment of an other power-driven
mobility device’s appropriateness under particular circumstances or in
particular venues, the Department has added several factors and more
specific language. In addition, although the NPRM made reference to the
operation of other power-driven mobility devices in ‘‘specific venues,’’
the Department’s intent is captured more clearly by referencing
‘‘specific facility’’ in paragraph (b)(2). The Department also notes
that while speed is included in factor 1, public entities should not
rely solely on a device’s top speed when assessing whether the device
can be accommodated; instead, public entities should also consider the
minimum speeds at which a device can be operated and whether the
development of speed limit policies can be established to address
concerns regarding the speed of the device. Finally, since the ability
of the public entity to stow the mobility device when not in use is an
aspect of its design and operational characteristics, the text proposed
as factor 4 in the NPRM has been incorporated in paragraph (b)(2)(iii).
The NPRM’s version of factor 2 provided that the ‘‘risk of
potential harm to others by the operation of the mobility device’’ is
one of the determinants in the assessment of whether other power-driven
mobility devices should be excluded from a site. The Department intended
this requirement to be consistent with the Department’s longstanding
interpretation, expressed in § II–3.5200 (Safety) of the 1993 Title II
Technical Assistance Manual, which provides that public entities may
‘‘impose legitimate safety requirements that are necessary for safe
operation.’’ (This language parallels the provision in the title III
regulation at § 36.301(b).) However, several commenters indicated that
they read this language, particularly the phrase ‘‘risk of potential
harm,’’ to mean that the Department had adopted a concept of risk
analysis different from that which is in the existing standards. The
Department did not intend to create a new standard and has changed the
language in paragraphs (b)(1) and (b)(2) to clarify the applicable
standards, thereby avoiding the introduction of new assessments of risk
beyond those necessary for the safe operation of the public entity. In
addition, the Department has added a new section, 35.130(h), which
incorporates the existing safety standard into the title II regulation.
While all applicable affirmative defenses are available to
public entities in the establishment and execution of their policies
regarding other power-driven mobility devices, the Department did not
explicitly incorporate the direct threat defense into the assessment
factors because § 35.130(h) provides public entities the appropriate
framework with which to assess whether legitimate safety requirements
that may preclude the use of certain other power-driven mobility devices
are necessary for the safe operation of the public entities. In order
to be legitimate, the safety requirement must be based on actual risks
and not mere speculation regarding the device or how it will be
operated. Of course, public entities may enforce legitimate safety rules
established by the public entity for the operation of other
power-driven mobility devices (e.g., reasonable speed
restrictions). Finally, NPRM factor 3 concerning environmental resources
and conflicts of law has been relocated to § 35.137(b)(2)(v).
As a result of these comments and requests, NPRM factors 1, 2, 3,
and 4 have been revised and renumbered within paragraph (b)(2) in the
final rule.
Several commenters requested that the Department provide
guidance materials or more explicit concepts of which considerations
might be appropriate for inclusion in a policy that allows the use of
other power-driven mobility devices. A public entity that has determined
that reasonable modifications can be made in its policies, practices,
or procedures to allow the use of other power-driven mobility devices
should develop a policy that clearly states the circumstances under
which the use of other power-driven mobility devices by individuals with
a mobility disability will be permitted. It also should include clear,
concise statements of specific rules governing the operation of such
devices. Finally, the public entity should endeavor to provide
individuals with disabilities who use other power-driven mobility
devices with advanced notice of its policy regarding the use of such
devices and what rules apply to the operation of these devices.
For example, the U.S. General Services Administration (GSA) has developed a policy allowing the use of the Segway® PT and other EPAMDs in all Federal buildings under GSA’s jurisdiction. See General Services Administration, Interim Segway® Personal Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/graphics/pbs/ Interim_Segway_Policy_121007.pdf
(last visited June 24, 2010). The GSA policy defines the policy’s scope
of coverage by setting out what devices are and are not covered by the
policy. The policy also sets out requirements for safe operation, such
as a speed limit, prohibits the use of EPAMDs on escalators, and
provides guidance regarding security screening of these devices and
their operators.
A public entity that determines that it can make reasonable
modifications to permit the use of an other power-driven mobility device
by an individual with a mobility disability might include in its policy
the procedure by which claims that the other power-driven mobility
device is being used for a mobility disability will be assessed for
legitimacy (i.e., a credible assurance that the device is being
used for a mobility disability, including a verbal representation by
the person with a disability that is not contradicted by observable
fact, or the presentation of a disability parking space placard or card,
or State-issued proof of disability); the type or classes of other
power-driven mobility devices are permitted to be used by individuals
with mobility disabilities; the size, weight, and dimensions of the
other power-driven mobility devices that are permitted to be used by
individuals with mobility disabilities; the speed limit for the other
power-driven mobility devices that are permitted to be used by
individuals with mobility disabilities; the places, times, or
circumstances under which the use of the other power-driven mobility
device is or will be restricted or prohibited; safety, pedestrian, and
other rules concerning the use of the other power-driven mobility
device; whether, and under which circumstances, storage for the other
power-driven mobility device will be made available; and how and where
individuals with a mobility disability can obtain a copy of the other
power-driven mobility device policy.
Public entities also might consider grouping other power-driven mobility devices by type (e.g.,
EPAMDs, golf cars, gasoline-powered vehicles, and other devices). For
example, an amusement park may determine that it is reasonable to allow
individuals with disabilities to use EPAMDs in a variety of outdoor
programs and activities, but that it would not be reasonable to allow
the use of golf cars as mobility devices in similar circumstances. At
the same time, the entity may address its concerns about factors such as
space limitations by disallowing use of EPAMDs by members of the
general public who do not have mobility disabilities.
The Department anticipates that, in many circumstances,
public entities will be able to develop policies that will allow the use
of other power-driven mobility devices by individuals with mobility
disabilities. Consider the following example:
A county courthouse has developed a policy whereby EPAMDs
may be operated in the pedestrian areas of the courthouse if the
operator of the device agrees not to operate the device faster than
pedestrians are walking; to yield to pedestrians; to provide a rack or
stand so that the device can stand upright; and to use the device only
in courtrooms that are large enough to accommodate such devices. If the
individual is selected for jury duty in one of the smaller courtrooms,
the county’s policy indicates that if it is not possible for the
individual with the disability to park the device and walk into the
courtroom, the location of the trial will be moved to a larger
courtroom.
Inquiry into the use of other power-driven mobility device.
The NPRM version of § 35.137(d) provided that ‘‘[a] public entity may
ask a person using a power-driven mobility device if the mobility device
is needed due to the person’s disability. A public entity shall not ask
a person using a mobility device questions about the nature and extent
of the person’s disability.’’ 73 FR 34466, 34504 (June 17, 2008).
Many environmental, transit system, and government commenters
expressed concern about people feigning mobility disabilities to be able
to use other power-driven mobility devices in public entities in which
their use is otherwise restricted. These commenters felt that a mere
inquiry into whether the device is being used for a mobility disability
was an insufficient mechanism by which to detect fraud by other
power-driven mobility device users who do not have mobility
disabilities. These commenters believed they should be given more
latitude to make inquiries of other power-driven mobility device users
claiming a mobility disability than they would be given for wheelchair
users. They sought the ability to establish a policy or method by which
public entities may assess the legitimacy of the mobility disability.
They suggested some form of certification, sticker, or other
designation. One commenter suggested a requirement that a sticker
bearing the international symbol for accessibility be placed on the
device or that some other identification be required to signal that the
use of the device is for a mobility disability. Other suggestions
included displaying a disability parking placard on the device or
issuing EPAMDs, like the Segway® PT, a permit that would be similar to permits associated with parking spaces reserved for those with disabilities.
Advocacy, nonprofit, and several individual commenters
balked at the notion of allowing any inquiry beyond whether the device
is necessary for a mobility disability and encouraged the Department to
retain the NPRM’s language on this topic. Other commenters, however,
were empathetic with commenters who had concerns about fraud. At least
one Segway® PT advocate suggested it would be permissible to
seek documentation of the mobility disability in the form of a simple
sign or permit.
The Department has sought to find common ground by balancing
the needs of public entities and individuals with mobility disabilities
wishing to use other power-driven mobility devices with the
Department’s longstanding, well-established policy of not allowing
public entities or establishments to require proof of a mobility
disability. There is no question that public entities have a legitimate
interest in ferreting out fraudulent representations of mobility
disabilities, especially given the recreational use of other
power-driven mobility devices and the potential safety concerns created
by having too many such devices in a specific facility at one time.
However, the privacy of individuals with mobility disabilities and
respect for those individuals, is also vitally important.
Neither § 35.137(d) of the NPRM nor § 35.137(c) of the
final rule permits inquiries into the nature of a person’s mobility
disability. However, the Department does not believe it is unreasonable
or overly intrusive for an individual with a mobility disability seeking
to use an other power-driven mobility device to provide a credible
assurance to verify that the use of the other power-driven mobility
device is for a mobility disability. The Department sought to minimize
the amount of discretion and subjectivity exercised by public entities
in assessing whether an individual has a mobility disability and to
allow public entities to verify the existence of a mobility disability.
The solution was derived from comments made by several individuals who
said they have been admitted with their Segway® PTs into
public entities and public accommodations that ordinarily do not allow
these devices on-site when they have presented or displayed State-issued
disability parking placards. In the examples provided by commenters,
the parking placards were accepted as verification that the Segway® PTs were being used as mobility devices.
Because many individuals with mobility disabilities avail themselves
of State programs that issue disability parking placards or cards and
because these programs have penalties for fraudulent representations of
identity and disability, utilizing the parking placard system as a means
to establish the existence of a mobility disability strikes a balance
between the need for privacy of the individual and fraud protection for
the public entity. Consequently, the Department has decided to include
regulatory text in § 35.137(c)(2) of the final rule that requires
public entities to accept the presentation of a valid, State-issued
disability parking placard or card, or State-issued proof of disability,
as verification that an individual uses the other power-driven mobility
device for his or her mobility disability. A ‘‘valid’’ disability
placard or card is one that is presented by the individual to whom it
was issued and is otherwise in compliance with the State of issuance’s
requirements for disability placards or cards. Public entities are
required to accept a valid, State-issued disability parking placard or
card, or State-issued proof of disability as a credible assurance, but
they cannot demand or require the presentation of a valid disability
placard or card, or State-issued proof of disability, as a prerequisite
for use of an other power-driven mobility device, because not all
persons with mobility disabilities have such means of proof. If an
individual with a mobility disability does not have such a placard or
card, or State-issued proof of disability, he or she may present other
information that would serve as a credible assurance of the existence of
a mobility disability.
In lieu of a valid, State-issued disability parking placard or card,
or State-issued proof of disability, a verbal representation, not
contradicted by observable fact, shall be accepted as a credible
assurance that the other power-driven mobility device is being used
because of a mobility disability. This does not mean, however, that a
mobility disability must be observable as a condition for allowing the
use of an other power-driven mobility device by an individual with a
mobility disability, but rather that if an individual represents that a
device is being used for a mobility disability and that individual is
observed thereafter engaging in a physical activity that is contrary to
the nature of the represented disability, the assurance given is no
longer credible and the individual may be prevented from using the
device.
Possession of a valid, State-issued disability parking
placard or card or a verbal assurance does not trump a public entity’s
valid restrictions on the use of other power-driven mobility devices.
Accordingly, a credible assurance that the other power-driven mobility
device is being used because of a mobility disability is not a guarantee
of entry to a public entity because, notwithstanding such credible
assurance, use of the device in a particular venue may be at odds with
the legal standard in § 35.137(b)(1) or with one or more of the §
35.137(b)(2) factors. Only after an individual with a disability has
satisfied all of the public entity’s policies regarding the use of other
power-driven mobility devices does a credible assurance become a factor
in allowing the use of the device. For example, if an individual
seeking to use an other power-driven mobility device fails to satisfy
any of the public entity’s stated policies regarding the use of other
power-driven mobility devices, the fact that the individual legitimately
possesses and presents a valid, State-issued disability parking placard
or card, or State-issued proof of disability, does not trump the policy
and require the public entity to allow the use of the device. In fact,
in some instances, the presentation of a legitimately held placard or
card, or State-issued proof of disability, will have no relevance or
bearing at all on whether the other power-driven mobility device may be
used, because the public entity’s policy does not permit the device in
question on-site under any circumstances (e.g., because its use
would create a substantial risk of serious harm to the immediate
environment or natural or cultural resources). Thus, an individual with a
mobility disability who presents a valid disability placard or card, or
State-issued proof of disability, will not be able to use an ATV as an
other power-driven mobility device in a State park if the State park has
adopted a policy banning their use for any or all of the
above-mentioned reasons. However, if a public entity permits the use of a
particular other power-driven mobility device, it cannot refuse to
admit an individual with a disability who uses that device if the
individual has provided a credible assurance that the use of the device
is for a mobility disability.
Section 35.138 Ticketing
The 1991 title II regulation did not contain specific
regulatory language on ticketing. The ticketing policies and practices
of public entities, however, are subject to title II’s nondiscrimination
provisions. Through the investigation of complaints, enforcement
actions, and public comments related to ticketing, the Department became
aware that some venue operators, ticket sellers, and distributors were
violating title II’s nondiscrimination mandate by not providing
individuals with disabilities the same opportunities to purchase tickets
for accessible seating as they provided to spectators purchasing
conventional seats. In the NPRM, the Department proposed § 35.138 to
provide explicit direction and guidance on discriminatory practices for
entities involved in the sale or distribution of tickets.
The Department received comments from advocacy groups,
assembly area trade associations, public entities, and individuals. Many
commenters supported the addition of regulatory language pertaining to
ticketing and urged the Department to retain it in the final rule.
Several commenters, however, questioned why there were inconsistencies
between the title II and title III provisions and suggested that the
same language be used for both titles. The Department has decided to
retain ticketing regulatory language and to ensure consistency between
the ticketing provisions in title II and title III.
Because many in the ticketing industry view season tickets
and other multi-event packages differently from individual tickets, the
Department bifurcated some season ticket provisions from those
concerning single-event tickets in the NPRM. This structure, however,
resulted in some provisions being repeated for both types of tickets but
not for others even though they were intended to apply to both types of
tickets. The result was that it was not entirely clear that some of the
provisions that were not repeated also were intended to apply to season
tickets. The Department is addressing the issues raised by these
commenters using a different approach. For the purposes of this section,
a single event refers to an individual performance for which tickets may be purchased. In contrast, a series of events
includes, but is not limited to, subscription events, event packages,
season tickets, or any other tickets that may be purchased for multiple
events of the same type over the course of a specified period of time
whose ownership right reverts to the public entity at the end of each
season or time period. Series-of-events tickets that give their holders
an enhanced ability to purchase such tickets from the public entity in
seasons or periods of time that follow, such as a right of first refusal
or higher ranking on waiting lists for more desirable seats, are
subject to the provisions in this section. In addition, the final rule
merges together some NPRM paragraphs that dealt with related topics and
has reordered and renamed some of the paragraphs that were in the NPRM.
Ticket sales. In the NPRM, the Department proposed,
in § 35.138(a), a general rule that a public entity shall modify its
policies, practices, or procedures to ensure that individuals with
disabilities can purchase tickets for accessible seating for an event or
series of events in the same way as others (i.e., during the
same hours and through the same distribution methods as other seating is
sold). 73 FR 34466, 34504 (June 17, 2008). ‘‘Accessible seating’’ is
defined in § 35.138(a)(1) of the final rule to mean ‘‘wheelchair spaces
and companion seats that comply with sections 221 and 802 of the 2010
Standards along with any other seats required to be offered for sale to
the individual with a disability pursuant to paragraph (d) of this
section.’’ The defined term does not include designated aisle seats. A
‘‘wheelchair space’’ refers to a space for a single wheelchair and its
occupant.
The NPRM proposed requiring that accessible seats be sold
through the ‘‘same methods of distribution’’ as non-accessible seats.
Comments from venue managers and others in the business community, in
general, noted that multiple parties are involved in ticketing, and
because accessible seats may not be allotted to all parties involved at
each stage, such parties should be protected from liability. For
example, one commenter noted that a third-party ticket vendor, like
Ticketmaster, can only sell the tickets it receives from its client.
Because § 35.138(a)(2)(iii) of the final rule requires venue operators
to make available accessible seating through the same methods of
distribution they use for their regular tickets, venue operators that
provide tickets to third-party ticket vendors are required to provide
accessible seating to the third-party ticket vendor. This provision will
enhance third-party ticket vendors’ ability to acquire and sell
accessible seating for sale in the future. The Department notes that
once third-party ticket vendors acquire accessible tickets, they are
obligated to sell them in accordance with these rules.
The Department also has received frequent complaints that
individuals with disabilities have not been able to purchase accessible
seating over the Internet, and instead have had to engage in a laborious
process of calling a customer service line, or sending an e-mail to a
customer service representative and waiting for a response. Not only is
such a process burdensome, but it puts individuals with disabilities at a
disadvantage in purchasing tickets for events that are popular and may
sell out in minutes. Because § 35.138(e) of the final rule authorizes
venues to release accessible seating in case of a sellout, individuals
with disabilities effectively could be cut off from buying tickets
unless they also have the ability to purchase tickets in real time over
the Internet. The Department’s new regulatory language is designed to
address this problem.
Several commenters representing assembly areas raised
concerns about offering accessible seating for sale over the Internet.
They contended that this approach would increase the incidence of fraud
since anyone easily could purchase accessible seating over the Internet.
They also asserted that it would be difficult technologically to
provide accessible seating for sale in real time over the Internet, or
that to do so would require simplifying the rules concerning the
purchase of multiple additional accompanying seats. Moreover, these
commenters argued that requiring an individual purchasing accessible
seating to speak with a customer service representative would allow the
venue to meet the patron’s needs most appropriately and ensure that
wheelchair spaces are reserved for individuals with disabilities who
require wheelchair spaces. Finally, these commenters argued that
individuals who can transfer effectively and conveniently from a
wheelchair to a seat with a movable armrest seat could instead purchase
designated aisle seats.
The Department considered these concerns carefully and has
decided to continue with the general approach proposed in the NPRM.
Although fraud is an important concern, the Department believes that it
is best combated by other means that would not have the effect of
limiting the ability of individuals with disabilities to purchase
tickets, particularly since restricting the purchase of accessible
seating over the Internet will, of itself, not curb fraud. In addition,
the Department has identified permissible means for covered entities to
reduce the incidence of fraudulent accessible seating ticket purchases
in § 35.138(h) of the final rule.
Several commenters questioned whether ticket websites themselves
must be accessible to individuals who are blind or have low vision, and
if so, what that requires. The Department has consistently interpreted
the ADA to cover websites that are operated by public entities and
stated that such sites must provide their services in an accessible
manner or provide an accessible alternative to the website that is
available 24 hours a day, seven days a week. The final rule, therefore,
does not impose any new obligation in this area. The accessibility of
websites is discussed in more detail in the section of Appendix A
entitled ‘‘Other Issues.’’
In § 35.138(b) of the NPRM, the Department also proposed
requiring public entities to make accessible seating available during
all stages of tickets sales including, but not limited to, pre-sales,
promotions, lotteries, waitlists, and general sales. For example, if
tickets will be presold for an event that is open only to members of a
fan club, or to holders of a particular credit card, then tickets for
accessible seating must be made available for purchase through those
means. This requirement does not mean that any individual with a
disability would be able to purchase those seats. Rather, it means that
an individual with a disability who meets the requirement for such a
sale (e.g., who is a member of the fan club or holds that credit
card) will be able to participate in the special promotion and purchase
accessible seating. The Department has maintained the substantive
provisions of the NPRM’s § 35.138(a) and (b) but has combined them in a
single paragraph at § 35.138(a)(2) of the final rule so that all of the
provisions having to do with the manner in which tickets are sold are
located in a single paragraph.
Identification of available accessible seating. In
the NPRM, the Department proposed § 35.138(c), which, as modified and
renumbered as paragraph (b)(3) in the final rule, requires a facility to
identify available accessible seating through seating maps, brochures,
or other methods if that information is made available about other seats
sold to the general public. This rule requires public entities to
provide information about accessible seating to the same degree of
specificity that it provides information about general seating. For
example, if a seating map displays color-coded blocks pegged to prices
for general seating, then accessible seating must be similarly
color-coded. Likewise, if covered entities provide detailed maps that
show exact seating and pricing for general seating, they must provide
the same for accessible seating.
The NPRM did not specify a requirement to identify prices for
accessible seating. The final rule requires that if such information is
provided for general seating, it must be provided for accessible seating
as well.
In the NPRM, the Department proposed in § 35.138(d) that a
public entity, upon being asked, must inform persons with disabilities
and their companions of the locations of all unsold or otherwise
available seating. This provision is intended to prevent the practice of
‘‘steering’’ individuals with disabilities to certain accessible
seating so that the facility can maximize potential ticket sales by
releasing unsold accessible seating, especially in preferred or
desirable locations, for sale to the general public. The Department
received no significant comment on this proposal. The Department has
retained this provision in the final rule but has added it, with minor
modifications, to § 35.138(b) as paragraph (1).
Ticket prices. In the NPRM, the Department proposed §
35.138(e) requiring that ticket prices for accessible seating be set no
higher than the prices for other seats in that seating section for that
event. The NPRM’s provision also required that accessible seating be
made available at every price range, and if an existing facility has
barriers to accessible seating within a particular price range, a
proportionate amount of seating (determined by the ratio of the total
number of seats at that price level to the total number of seats in the
assembly area) must be offered in an accessible location at that same
price. Under this rule, for example, if a public entity has a 20,000-
seat facility built in 1980 with inaccessible seating in the $20-price
category, which is on the upper deck, and it chooses not to put
accessible seating in that section, then it must place a proportionate
number of seats in an accessible location for $20. If the upper deck has
2,000 seats, then the facility must place 10 percent of its accessible
seating in an accessible location for $20 provided that it is part of a
seating section where ticket prices are equal to or more than $20—a
facility may not place the $20-accessible seating in a $10-seating
section. The Department received no significant comment on this rule,
and it has been retained, as amended, in the final rule in § 35.138(c).
Purchase of multiple tickets. In the NPRM, the
Department proposed § 35.138(i) to address one of the most common
ticketing complaints raised with the Department: That individuals with
disabilities are not able to purchase more than two tickets. The
Department proposed this provision to facilitate the ability of
individuals with disabilities to attend events with friends, companions,
or associates who may or may not have a disability by enabling
individuals with disabilities to purchase the maximum number of tickets
allowed per transaction to other spectators; by requiring venues to
place accompanying individuals in general seating as close as possible
to accessible seating (in the event that a group must be divided because
of the large size of the group); and by allowing an individual with a
disability to purchase up to three additional contiguous seats per
wheelchair space if they are available at the time of sale. Section
35.138(i)(2) of the NPRM required that a group containing one or more
wheelchair users must be placed together, if possible, and that in the
event that the group could not be placed together, the individuals with
disabilities may not be isolated from the rest of the group.
The Department asked in the NPRM whether this rule was
sufficient to effectuate the integration of individuals with
disabilities. Many advocates and individuals praised it as a welcome and
much-needed change, stating that the trade-off of being able to sit
with their family or friends was worth reducing the number of seats
available for individuals with disabilities. Some commenters went one
step further and suggested that the number of additional accompanying
seats should not be restricted to three.
Although most of the substance of the proposed provision on
the purchase of multiple tickets has been maintained in the final rule,
it has been renumbered as § 35.138(d), reorganized, and supplemented. To
preserve the availability of accessible seating for other individuals
with disabilities, the Department has not expanded the rule beyond three
additional contiguous seats. Section 35.138(d)(1) of the final rule
requires public entities to make available for purchase three additional
tickets for seats in the same row that are contiguous with the
wheelchair space provided that at the time of the purchase there are
three such seats available. The requirement that the additional seats be
‘‘contiguous with the wheelchair space’’ does not mean that each of the
additional seats must be in actual contact or have a border in common
with the wheelchair space; however, at least one of the additional seats
should be immediately adjacent to the wheelchair space. The Department
recognizes that it will often be necessary to use vacant wheelchair
spaces to provide for contiguous seating.
The Department has added paragraphs (d)(2) and (d)(3) to
clarify that in situations where there are insufficient unsold seats to
provide three additional contiguous seats per wheelchair space or a
ticket office restricts sales of tickets to a particular event to less
than four tickets per customer, the obligation to make available three
additional contiguous seats per wheelchair space would be affected. For
example, if at the time of purchase, there are only two additional
contiguous seats available for purchase because the third has been sold
already, then the ticket purchaser would be entitled to two such seats.
In this situation, the public entity would be required to make up the
difference by offering one additional ticket for sale that is as close
as possible to the accessible seats. Likewise, if ticket purchases for
an event are limited to two per customer, a person who uses a wheelchair
who seeks to purchase tickets would be entitled to purchase only one
additional contiguous seat for the event.
The Department also has added paragraph (d)(4) to clarify
that the requirement for three additional contiguous seats is not
intended to serve as a cap if the maximum number of tickets that may be
purchased by members of the general public exceeds the four tickets an
individual with a disability ordinarily would be allowed to purchase (i.e.,
a wheelchair space and three additional contiguous seats). If the
maximum number of tickets that may be purchased by members of the
general public exceeds four, an individual with a disability is to be
allowed to purchase the maximum number of tickets; however, additional
tickets purchased by an individual with a disability beyond the
wheelchair space and the three additional contiguous seats provided in §
35.138(d)(1) do not have to be contiguous with the wheelchair space.
The NPRM proposed at § 35.138(i)(2) that for group sales, if
a group includes one or more individuals who use a wheelchair, then the
group shall be placed in a seating area with accessible seating so
that, if possible, the group can sit together. If it is necessary to
divide the group, it should be divided so that the individuals in the
group who use wheelchairs are not isolated from the rest of the members
of their group. The final rule retains the NPRM language in paragraph
(d)(5).
Hold-and-release of unsold accessible seating. The
Department recognizes that not all accessible seating will be sold in
all assembly areas for every event to individuals with disabilities who
need such seating and that public entities may have opportunities to
sell such seating to the general public. The Department proposed in the
NPRM a provision aimed at striking a balance between affording
individuals with disabilities adequate time to purchase accessible
seating and the entity’s desire to maximize ticket sales. In the NPRM,
the Department proposed § 35.138(f), which allowed for the release of
accessible seating under the following circumstances: (i) When all
seating in the facility has been sold, excluding luxury boxes, club
boxes, or suites; (ii) when all seating in a designated area has been
sold and the accessible seating being released is in the same area; or
(iii) when all seating in a designated price range has been sold and the
accessible seating being released is within the same price range.
The Department’s NPRM asked ‘‘whether additional regulatory
guidance is required or appropriate in terms of a more detailed or set
schedule for the release of tickets in conjunction with the three
approaches described above. For example, does the proposed regulation
address the variable needs of assembly areas covered by the ADA? Is
additional regulatory guidance required to eliminate discriminatory
policies, practices and procedures related to the sale, hold, and
release of accessible seating? What considerations should appropriately
inform the determination of when unsold accessible seating can be
released to the general public?’’ 73 FR 34466, 34484 (June 17, 2008).
The Department received comments both supporting and
opposing the inclusion of a hold-and-release provision. One side
proposed loosening the restrictions on the release of unsold accessible
seating. One commenter from a trade association suggested that tickets
should be released regardless of whether there is a sell-out, and that
these tickets should be released according to a set schedule.
Conversely, numerous individuals, advocacy groups, and at least one
public entity urged the Department to tighten the conditions under which
unsold tickets for accessible seating may be released. These commenters
suggested that venues should not be permitted to release tickets during
the first two weeks of sale, or alternatively, that they should not be
permitted to be released earlier than 48 hours before a sold-out event.
Many of these commenters criticized the release of accessible seating
under the second and third prongs of § 35.138(f) in the NPRM (when
there is a sell-out in general seating in a designated seating area or
in a price range), arguing that it would create situations where general
seating would be available for purchase while accessible seating would
not be.
Numerous commenters—both from the industry and from advocacy
groups—asked for clarification of the term ‘‘sell-out.’’ Business groups
commented that industry practice is to declare a sell-out when there
are only ‘‘scattered singles’’ available— isolated seats that cannot be
purchased as a set of adjacent pairs. Many of those same commenters also
requested that ‘‘sell-out’’ be qualified with the phrase ‘‘of all
seating available for sale’’ since it is industry practice to hold back
from release tickets to be used for groups connected with that event (e.g.,
the promoter, home team, or sports league). They argued that those
tickets are not available for sale and any return of these tickets to
the general inventory happens close to the event date. Noting the
practice of holding back tickets, one advocacy group suggested that
covered entities be required to hold back accessible seating in
proportion to the number of tickets that are held back for later
release.
The Department has concluded that it would be inappropriate
to interfere with industry practice by defining what constitutes a
‘‘sell-out’’ and that a public entity should continue to use its own
approach to defining a ‘‘sell-out.’’ If, however, a public entity
declares a sell-out by reference to those seats that are available for
sale, but it holds back tickets that it reasonably anticipates will be
released later, it must hold back a proportional percentage of
accessible seating to be released as well.
Adopting any of the alternatives proposed in the comments
summarized above would have upset the balance between protecting the
rights of individuals with disabilities and meeting venues’ concerns
about lost revenue from unsold accessible seating. As a result, the
Department has retained § 35.138(f) (renumbered as § 35.138(e)) in the
final rule.
The Department has, however, modified the regulation text to
specify that accessible seating may be released only when ‘‘all
nonaccessible tickets in a designated seating area have been sold and
the tickets for accessible seating are being released in the same
designated area.’’ As stated in the NPRM, the Department intended for
this provision to allow, for example, the release of accessible seating
at the orchestra level when all other seating at the orchestra level is
sold. The Department has added this language to the final rule at §
35.138(e)(1)(ii) to clarify that venues cannot designate or redesignate
seating areas for the purpose of maximizing the release of unsold
accessible seating. So, for example, a venue may not determine on an ad
hoc basis that a group of seats at the orchestra level is a designated
seating area in order to release unsold accessible seating in that area.
The Department also has maintained the hold-and-release
provisions that appeared in the NPRM but has added a provision to
address the release of accessible seating for series-of-events tickets
on a series-of-events basis. Many commenters asked the Department
whether unsold accessible seating may be converted to general seating
and released to the general public on a season-ticket basis or longer
when tickets typically are sold as a season-ticket package or other
long-term basis. Several disability rights organizations and individual
commenters argued that such a practice should not be permitted, and, if
it were, that conditions should be imposed to ensure that individuals
with disabilities have future access to those seats.
The Department interprets the fundamental principle of the
ADA as a requirement to give individuals with disabilities equal, not
better, access to those opportunities available to the general public.
Thus, for example, a public entity that sells out its facility on a
seasonticket only basis is not required to leave unsold its accessible
seating if no persons with disabilities purchase those season-ticket
seats. Of course, public entities may choose to go beyond what is
required by reserving accessible seating for individuals with
disabilities (or releasing such seats for sale to the general public) on
an individual-game basis.
If a covered entity chooses to release unsold accessible
seating for sale on a season-ticket or other long-term basis, it must
meet at least two conditions. Under § 35.138(g) of the final rule,
public entities must leave flexibility for game-day changeouts to
accommodate ticket transfers on the secondary market. And public
entities must modify their ticketing policies so that, in future years,
individuals with disabilities will have the ability to purchase
accessible seating on the same basis as other patrons (e.g., as
season tickets). Put differently, releasing accessible seating to the
general public on a season-ticket or other long-term basis cannot result
in that seating being lost to individuals with disabilities in
perpetuity. If, in future years, season tickets become available and
persons with disabilities have reached the top of the waiting list or
have met any other eligibility criteria for seasonticket purchases,
public entities must ensure that accessible seating will be made
available to the eligible individuals. In order to accomplish this, the
Department has added § 35.138(e)(3)(i) to require public entities that
release accessible season tickets to individuals who do not have
disabilities that require the features of accessible seating to
establish a process to prevent the automatic reassignment of such ticket
holders to accessible seating. For example, a public entity could have
in place a system whereby accessible seating that was released because
it was not purchased by individuals with disabilities is not in the pool
of tickets available for purchase for the following season unless and
until the conditions for ticket release have been satisfied in the
following season. Alternatively, a public entity might release tickets
for accessible seating only when a purchaser who does not need its
features agrees that he or she has no guarantee of or right to the same
seats in the following season, or that if season tickets are guaranteed
for the following season, the purchaser agrees that the offer to
purchase tickets is limited to non-accessible seats having to the extent
practicable, comparable price, view, and amenities to the accessible
seats such individuals held in the prior year. The Department is aware
that this rule may require some administrative changes but believes that
this process will not create undue financial and administrative
burdens. The Department believes that this approach is balanced and
beneficial. It will allow public entities to sell all of their seats and
will leave open the possibility, in future seasons or series of events,
that persons who need accessible seating may have access to it.
The Department also has added § 35.138(e)(3)(ii) to address
how season tickets or series-of-events tickets that have attached
ownership rights should be handled if the ownership right returns to the
public entity (e.g., when holders forfeit their ownership right
by failing to purchase season tickets or sell their ownership right back
to a public entity). If the ownership right is for accessible seating,
the public entity is required to adopt a process that allows an eligible
individual with a disability who requires the features of such seating
to purchase the rights and tickets for such seating.
Nothing in the regulatory text prevents a public entity from
establishing a process whereby such ticket holders agree to be
voluntarily reassigned from accessible seating to another seating area
so that individuals with mobility disabilities or disabilities that
require the features of accessible seating and who become newly eligible
to purchase season tickets have an opportunity to do so. For example, a
public entity might seek volunteers to relocate to another location
that is at least as good in terms of its location, price, and amenities,
or a public entity might use a seat with forfeited ownership rights as
an inducement to get a ticket holder to give up accessible seating he or
she does not need.
Ticket transfer. The Department received many
comments asking whether accessible seating has the same transfer rights
as general seats. The proposed regulation at § 35.138(e) required that
individuals with disabilities must be allowed to purchase season tickets
for accessible seating on the same terms and conditions as individuals
purchasing season tickets for general seating, including the right—if it
exists for other ticket-holders—to transfer individual tickets to
friends or associates. Some commenters pointed out that the NPRM
proposed explicitly allowing individuals with disabilities holding
season tickets to transfer tickets but did not address the transfer of
tickets purchased for individual events. Several commenters representing
assembly areas argued that persons with disabilities holding tickets
for an individual event should not be allowed to sell or transfer them
to third parties because such ticket transfers would increase the risk
of fraud or would make unclear the obligation of the entity to
accommodate secondary ticket transfers. They argued that individuals
holding accessible seating should either be required to transfer their
tickets to another individual with a disability or return them to the
facility for a refund.
Although the Department is sympathetic to concerns about
administrative burden, curtailing transfer rights for accessible seating
when other ticket holders are permitted to transfer tickets would be
inconsistent with the ADA’s guiding principle that individuals with
disabilities must have rights equal to others. Thus, the Department has
added language in the final rule in § 35.138(f) that requires that
individuals with disabilities holding accessible seating for any event
have the same transfer rights accorded other ticket holders for that
event. Section 35.138(f) also preserves the rights of individuals with
disabilities who hold tickets to accessible seats for a series of events
to transfer individual tickets to others, regardless of whether the
transferee needs accessible seating. This approach recognizes the common
practice of individuals splitting season tickets or other multi-event
ticket packages with friends, colleagues, or other spectators to make
the purchase of season tickets affordable; individuals with disabilities
should not be placed in the burdensome position of having to find
another individual with a disability with whom to share the package.
This provision, however, does not require public entities to
seat an individual who holds a ticket to an accessible seat in such
seating if the individual does not need the accessible features of the
seat. A public entity may reserve the right to switch these individuals
to different seats if they are available, but a public entity is not
required to remove a person without a disability who is using accessible
seating from that seating, even if a person who uses a wheelchair shows
up with a ticket from the secondary market for a non-accessible seat
and wants accessible seating.
Secondary ticket market. Section 35.138(g) is a new
provision in the final rule that requires a public entity to modify its
policies, practices, or procedures to ensure that an individual with a
disability, who acquires a ticket in the secondary ticket market, may
use that ticket under the same terms and conditions as other ticket
holders who acquire a ticket in the secondary market for an event or
series of events. This principle was discussed in the NPRM in connection
with § 35.138(e), pertaining to season-ticket sales. There, the
Department asked for public comment regarding a public entity’s proposed
obligation to accommodate the transfer of accessible seating tickets on
the secondary ticket market to those who do not need accessible seating
and vice versa.
The secondary ticket market, for the purposes of this rule,
broadly means any transfer of tickets after the public entity’s initial
sale of tickets to individuals or entities. It thus encompasses a wide
variety of transactions, from ticket transfers between friends to
transfers using commercial exchange systems. Many commenters noted that
the distinction between the primary and secondary ticket market has
become blurred as a result of agreements between teams, leagues, and
secondary market sellers. These commenters noted that the secondary
market may operate independently of the public entity, and parts of the
secondary market, such as ticket transfers between friends, undoubtedly
are outside the direct jurisdiction of the public entity.
To the extent that venues seat persons who have purchased
tickets on the secondary market, they must similarly seat persons with
disabilities who have purchased tickets on the secondary market. In
addition, some public entities may acquire ADA obligations directly by
formally entering the secondary ticket market.
The Department’s enforcement experience with assembly areas
also has revealed that venues regularly provide for and make last-minute
seat transfers. As long as there are vacant wheelchair spaces,
requiring venues to provide wheelchair spaces for patrons who acquired
inaccessible seats and need wheelchair spaces is an example of a
reasonable modification of a policy under title II of the ADA.
Similarly, a person who has a ticket for a wheelchair space but who does
not require its accessible features could be offered non-accessible
seating if such seating is available.
The Department’s longstanding position that title II of the
ADA requires venues to make reasonable modifications in their policies
to allow individuals with disabilities who acquired non-accessible
tickets on the secondary ticket market to be seated in accessible
seating, where such seating is vacant, is supported by the only Federal
court to address this issue. See Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). The Department has incorporated this position into the final rule at § 35.138(g)(2).
The NPRM contained two questions aimed at gauging concern
with the Department’s consideration of secondary ticket market sales.
The first question asked whether a secondary purchaser who does not have
a disability and who buys an accessible seat should be required to move
if the space is needed for someone with a disability.
Many disability rights advocates answered that the
individual should move provided that there is a seat of comparable or
better quality available for him and his companion. Some venues,
however, expressed concerns about this provision, and asked how they are
to identify who should be moved and what obligations apply if there are
no seats available that are equivalent or better in quality.
The Department’s second question asked whether there are
particular concerns about the obligation to provide accessible seating,
including a wheelchair space, to an individual with a disability who
purchases an inaccessible seat through the secondary market.
Industry commenters contended that this requirement would
create a ‘‘logistical nightmare,’’ with venues scrambling to reseat
patrons in the short time between the opening of the venues’ doors and
the commencement of the event. Furthermore, they argued that they might
not be able to reseat all individuals and that even if they were able to
do so, patrons might be moved to inferior seats (whether in accessible
or non-accessible seating). These commenters also were concerned that
they would be sued by patrons moved under such circumstances.
These commenters seem to have misconstrued the rule. Covered
entities are not required to seat every person who acquires a ticket
for inaccessible seating but needs accessible seating, and are not
required to move any individual who acquires a ticket for accessible
seating but does not need it. Covered entities that allow patrons to buy
and sell tickets on the secondary market must make reasonable
modifications to their policies to allow persons with disabilities to
participate in secondary ticket transfers. The Department believes that
there is no one-size-fits-all rule that will suit all assembly areas. In
those circumstances where a venue has accessible seating vacant at the
time an individual with a disability who needs accessible seating
presents his ticket for inaccessible seating at the box office, the
venue must allow the individual to exchange his ticket for an accessible
seat in a comparable location if such an accessible seat is vacant.
Where, however, a venue has sold all of its accessible seating, the
venue has no obligation to provide accessible seating to the person with
a disability who purchased an inaccessible seat on the secondary
market. Venues may encourage individuals with disabilities who hold
tickets for inaccessible seating to contact the box office before the
event to notify them of their need for accessible seating, even though
they may not require ticketholders to provide such notice.
The Department notes that public entities are permitted,
though not required, to adopt policies regarding moving patrons who do
not need the features of an accessible seat. If a public entity chooses
to do so, it might mitigate administrative concerns by marking tickets
for accessible seating as such, and printing on the ticket that
individuals who purchase such seats but who do not need accessible
seating are subject to being moved to other seats in the facility if the
accessible seating is required for an individual with a disability.
Such a venue might also develop and publish a ticketing policy to
provide transparency to the general public and to put holders of tickets
for accessible seating who do not require it on notice that they may be
moved.
Prevention of fraud in purchase of accessible seating. Assembly
area managers and advocacy groups have informed the Department that the
fraudulent purchase of accessible seating is a pressing concern.
Curbing fraud is a goal that public entities and individuals with
disabilities share. Steps taken to prevent fraud, however, must be
balanced carefully against the privacy rights of individuals with
disabilities. Such measures also must not impose burdensome requirements
upon, nor restrict the rights of, individuals with disabilities.
In the NPRM, the Department struck a balance between these
competing concerns by proposing § 35.138(h), which prohibited public
entities from asking for proof of disability before the purchase of
accessible seating but provided guidance in two paragraphs on
appropriate measures for curbing fraud. Paragraph (1) proposed allowing a
public entity to ask individuals purchasing single-event tickets for
accessible seating whether they are wheelchair users. Paragraph (2)
proposed allowing a public entity to require the individuals purchasing
accessible seating for season tickets or other multi-event ticket
packages to attest in writing that the accessible seating is for a
wheelchair user. Additionally, the NPRM proposed to permit venues, when
they have good cause to believe that an individual has fraudulently
purchased accessible seating, to investigate that individual.
Several commenters objected to this rule on the ground that
it would require a wheelchair user to be the purchaser of tickets. The
Department has reworded this paragraph to reflect that the individual
with a disability does not have to be the ticket purchaser. The final
rule allows third parties to purchase accessible tickets at the request
of an individual with a disability.
Commenters also argued that other individuals with
disabilities who do not use wheelchairs should be permitted to purchase
accessible seating. Some individuals with disabilities who do not use
wheelchairs urged the Department to change the rule, asserting that
they, too, need accessible seating. The Department agrees that such
seating, although designed for use by a wheelchair user, may be used by
non-wheelchair users, if those persons are persons with a disability who
need to use accessible seating because of a mobility disability or
because their disability requires the use of the features that
accessible seating provides (e.g., individuals who cannot bend
their legs because of braces, or individuals who, because of their
disability, cannot sit in a straight-back chair).
Some commenters raised concerns that allowing venues to ask
questions to determine whether individuals purchasing accessible seating
are doing so legitimately would burden individuals with disabilities in
the purchase of accessible seating. The Department has retained the
substance of this provision in § 35.138(h) of the final rule, but
emphasizes that such questions should be asked at the initial time of
purchase. For example, if the method of purchase is via the Internet,
then the question(s) should be answered by clicking a yes or no box
during the transaction. The public entity may warn purchasers that
accessible seating is for individuals with disabilities and that
individuals purchasing such tickets fraudulently are subject to
relocation.
One commenter argued that face-to-face contact between the
venue and the ticket holder should be required in order to prevent fraud
and suggested that individuals who purchase accessible seating should
be required to pick up their tickets at the box office and then enter
the venue immediately. The Department has declined to adopt that
suggestion. It would be discriminatory to require individuals with
disabilities to pick up tickets at the box office when other spectators
are not required to do so. If the assembly area wishes to make
face-to-face contact with accessible seating ticket holders to curb
fraud, it may do so through its ushers and other customer service
personnel located within the seating area.
Some commenters asked whether it is permissible for assembly
areas to have voluntary clubs where individuals with disabilities
self-identify to the public entity in order to become a member of a club
that entitles them to purchase accessible seating reserved for club
members or otherwise receive priority in purchasing accessible seating.
The Department agrees that such clubs are permissible, provided that a
reasonable amount of accessible seating remains available at all prices
and dispersed at all locations for individuals with disabilities who are
non-members.
§ 35.139 Direct threat.
In Appendix A of the Department’s 1991 title II regulation,
the Department included a detailed discussion of ‘‘direct threat’’ that,
among other things, explained that ‘‘the principles established in §
36.208 of the Department’s [title III] regulation’’ were ‘‘applicable’’
as well to title II, insofar as ‘‘questions of safety are involved.’’ 28
CFR part 35, app. A at 565 (2009). In the final rule, the Department
has included specific requirements related to ‘‘direct threat’’ that
parallel those in the title III rule. These requirements are found in
new § 35.139.
Subpart D—Program Accessibility
Section 35.150(b)(2) Safe harbor
The ‘‘program accessibility’’ requirement in regulations
implementing title II of the Americans with Disabilities Act requires
that each service, program, or activity, when viewed in its entirety, be
readily accessible to and usable by individuals with disabilities. 28
CFR 35.150(a). Because title II evaluates a public entity’s programs,
services, and activities in their entirety, public entities have
flexibility in addressing accessibility issues. Program access does not
necessarily require a public entity to make each of its existing
facilities accessible to and usable by individuals with disabilities,
and public entities are not required to make structural changes to
existing facilities where other methods are effective in achieving
program access. See id. 3
Public entities do, however, have program access considerations that
are independent of, but may coexist with, requirements imposed by new
construction or alteration requirements in those same facilities.
Where a public entity opts to alter existing facilities to
comply with its program access requirements, the entity must meet the
accessibility requirements for alterations set out in § 35.151. Under
the final rule, these alterations will be subject to the 2010 Standards.
The 2010 Standards introduce technical and scoping specifications for
many elements not covered by the 1991 Standards. In existing facilities,
these supplemental requirements need to be taken into account by a
public entity in ensuring program access. Also included in the 2010
Standards are revised technical and scoping requirements for a number of
elements that were addressed in the 1991 Standards. These revised
requirements reflect incremental changes that were added either because
of additional study by the Access Board or in order to harmonize
requirements with the model codes.
Although the program accessibility standard offers public
entities a level of discretion in determining how to achieve program
access, in the NPRM, the Department proposed an addition to § 35.150 at §
35.150(b)(2), denominated ‘‘Safe Harbor,’’ to clarify that ‘‘[i]f a
public entity has constructed or altered elements * * * in accordance
with the specifications in either the 1991 Standards or the Uniform
Federal Accessibility Standard, such public entity is not, solely
because of the Department’s adoption of the [2010] Standards, required
to retrofit such elements to reflect incremental changes in the proposed
standards.’’ 73 FR 34466, 34505 (June 17, 2008). In these
circumstances, the public entity would be entitled to a safe harbor for
the already compliant elements until those elements are altered. The
safe harbor does not negate a public entity’s new construction or
alteration obligations. A public entity must comply with the new
construction or alteration requirements in effect at the time of the
construction or alteration. With respect to existing facilities designed
and constructed after January 26, 1992, but before the public entities
are required to comply with the 2010 Standards, the rule is that any
elements in these facilities that were not constructed in conformance
with UFAS or the 1991 Standards are in violation of the ADA and must be
brought into compliance. If elements in existing facilities were altered
after January 26, 1992, and those alterations were not made in
conformance with the alteration requirements in effect at the time, then
those alteration violations must be corrected. Section 35.150(b)(2) of
the final rule specifies that until the compliance date for the
Standards (18 months from the date of publication of the rule),
facilities or elements covered by § 35.151(a) or (b) that are
noncompliant with either the 1991 Standards or UFAS shall be made
accessible in accordance with the 1991 Standards, UFAS, or the 2010
Standards. Once the compliance date is reached, such noncompliant
facilities or elements must be made accessible in accordance with the
2010 Standards.
The Department received many comments on the safe harbor during the
60-day public comment period. Advocacy groups were opposed to the safe
harbor for compliant elements in existing facilities. These commenters
objected to the Department’s characterization of revisions between the
1991 and 2010 Standards as incremental changes and assert that these
revisions represent important advances in accessibility for individuals
with disabilities. Commenters saw no basis for ‘‘grandfathering’’
outdated accessibility standards given the flexibility inherent in the
program access standard. Others noted that title II’s ‘‘undue financial
and administrative burdens’’ and ‘‘fundamental alteration’’ defenses
eliminate any need for further exemptions from compliance. Some
commenters suggested that entities’ past efforts to comply with the
program access standard of 28 CFR 35.150(a) might appropriately be a
factor in determining what is required in the future.
Many public entities welcomed the Department’s proposed safe
harbor. These commenters contend that the safe harbor allows public
entities needed time to evaluate program access in light of the 2010
Standards, and incorporate structural changes in a careful and
thoughtful way toward increasing accessibility entity-wide. Many felt
that it would be an ineffective use of public funds to update buildings
to retrofit elements that had already been constructed or modified to
Department-issued and sanctioned specifications. One entity pointed to
the ‘‘possibly budget-breaking’’ nature of forcing compliance with
incremental changes.
The Department has reviewed and considered all information
received during the 60-day public comment period. Upon review, the
Department has decided to retain the title II safe harbor with minor
revisions. The Department believes that the safe harbor provides an
important measure of clarity and certainty for public entities as to the
effect of the final rule with respect to existing facilities.
Additionally, by providing a safe harbor for elements already in
compliance with the technical and scoping specifications in the 1991
Standards or UFAS, funding that would otherwise be spent on incremental
changes and repeated retrofitting is freed up to be used toward
increased entity-wide program access. Public entities may thereby make
more efficient use of the resources available to them to ensure equal
access to their services, programs, or activities for all individuals
with disabilities.
The safe harbor adopted with this final rule is a narrow
one, as the Department recognizes that this approach may delay, in some
cases, the increased accessibility that the revised requirements would
provide, and that for some individuals with disabilities the impact may
be significant. This safe harbor operates only with respect to elements
that are in compliance with the scoping and technical specifications in
either the 1991 Standards or UFAS; it does not apply to supplemental
requirements, those elements for which scoping and technical
specifications are first provided in the 2010 Standards.
Existing Facilities
Existing play areas. The 1991 Standards do not include
specific requirements for the design and construction of play areas. To
meet program accessibility requirements where structural changes are
necessary, public entities have been required to apply the general new
construction and alteration standards to the greatest extent possible,
including with respect to accessible parking, routes to the playground,
playground equipment, and playground amenities (e.g., picnic
tables and restrooms). The Access Board published final guidelines for
play areas in October 2000. The guidelines extended beyond general
playground access to establish specific scoping and technical
requirements for ground-level and elevated play components, accessible
routes connecting the components, accessible ground surfaces, and
maintenance of those surfaces. These guidelines filled a void left by
the 1991 Standards. They have been referenced in Federal playground
construction and safety guidelines and have been used voluntarily when
many play areas across the country have been altered or constructed.
In adopting the 2004 ADAAG (which includes the 2000 play
area guidelines), the Department acknowledges both the importance of
integrated, full access to play areas for children and parents with
disabilities, as well as the need to avoid placing an untenable fiscal
burden on public entities. In the NPRM, the Department stated it was
proposing two specific provisions to reduce the impact on existing
facilities that undertake structural modifications pursuant to the
program accessibility requirement. First, the Department proposed in §
35.150(b)(4) that existing play areas that are not being altered would
be permitted to meet a reduced scoping requirement with respect to their
elevated play components. Elevated play components, which are found on
most playgrounds, are the individual components that are linked together
to form large-scale composite playground equipment (e.g., the
monkey bars attached to the suspension bridge attached to the tube
slide, etc.) The 2010 Standards provide that a play area that includes
both ground level and elevated play components must ensure that a
specified number of the ground-level play components and at least 50
percent of the elevated play components are accessible.
In the NPRM, the Department asked for specific public
comment with regard to whether existing play areas should be permitted
to substitute additional ground-level play components for the elevated
play components they would otherwise have been required to make
accessible. The Department also queried if there were other requirements
applicable to play areas in the 2004 ADAAG for which the Department
should consider exemptions or reduced scoping. Many commenters opposed
permitting existing play areas to make such substitutions. Several
commenters stated that the Access Board already completed significant
negotiation and cost balancing in its rulemaking, so no additional
exemptions should be added in either meeting program access requirements
or in alterations. Others noted that elevated components are generally
viewed as the more challenging and exciting by children, so making more
ground than elevated play components accessible would result in
discrimination against children with disabilities in general and older
children with disabilities in particular. They argued that the ground
components would be seen as equipment for younger children and children
with disabilities, while elevated components would serve only older
children without disabilities. In addition, commenters advised that
including additional ground-level play components would require more
accessible route and use zone surfacing, which would result in a higher
cost burden than making elevated components accessible.
The Department also asked for public comment on whether it
would be appropriate for the Access Board to consider issuing guidelines
for alterations to play and recreational facilities that would permit
reduced scoping of accessible components or substitution of ground-level
play components in lieu of elevated play components. Most commenters
opposed any additional reductions in scoping and substitutions. These
commenters uniformly stated that the Access Board completed sufficient
negotiation during its rulemaking on its play area guidelines published
in 2000 and that those guidelines consequently should stand as is. One
commenter advocated reduced scoping and substitution of ground play
components during alterations only for those play areas built prior to
the finalization of the guidelines.
The Department has considered the comments it has received
and has determined that it is not necessary to provide a specific
exemption to the scoping for components for existing play areas or to
recommend reduced scoping or additional exemptions for alteration, and
has deleted the reduced scoping proposed in NPRM § 35.150(b)(4)(i) from
the final rule. The Department believes that it is preferable for public
entities to try to achieve compliance with the design standards
established in the 2010 Standards. If this is not possible to achieve in
an existing setting, the requirements for program accessibility provide
enough flexibility to permit the covered entity to pursue alternative
approaches to provide accessibility.
Second, in § 35.150(b)(5)(i) of the NPRM, the Department
proposed language stating that existing play areas that are less than
1,000 square feet in size and are not otherwise being altered, need not
comply with the scoping and technical requirements for play areas in
section 240 of the 2004 ADAAG. The Department stated it selected this
size based on the provision in section 1008.2.4.1 of the 2004 ADAAG,
Exception 1, which permits play areas less than 1,000 square feet in
size to provide accessible routes with a reduced clear width (44 inches
instead of 60 inches). In its 2000 regulatory assessment for the play
area guidelines, the Access Board assumed that such ‘‘small’’ play areas
represented only about 20 percent of the play areas located in public
schools, and none of the play areas located in city and State parks
(which the Board assumed were typically larger than 1,000 square feet).
In the NPRM, the Department asked if existing play areas
less than 1,000 square feet should be exempt from the requirements
applicable to play areas. The vast majority of commenters objected to
such an exemption. One commenter stated that many localities that have
parks this size are already making them accessible; many cited concerns
that this would leave all or most public playgrounds in small towns
inaccessible; and two commenters stated that, since many of New York
City’s parks are smaller than 1,000 square feet, only scattered larger
parks in the various boroughs would be obliged to become accessible.
Residents with disabilities would then have to travel substantial
distances outside their own neighborhoods to find accessible
playgrounds. Some commenters responded that this exemption should not
apply in instances where the play area is the only one in the program,
while others said that if a play area is exempt for reasons of size, but
is the only one in the area, then it should have at least an accessible
route and 50 percent of its ground-level play components accessible.
One commenter supported the exemption as presented in the question.
The Department is persuaded by these comments that it is
inappropriate to exempt public play areas that are less than 1,000
square feet in size. The Department believes that the factors used to
determine program accessibility, including the limits established by the
undue financial and administrative burdens defense, provide sufficient
flexibility to public entities in determining how to make their existing
play areas accessible. In those cases where a title II entity believes
that present economic concerns make it an undue financial and
administrative burden to immediately make its existing playgrounds
accessible in order to comply with program accessibility requirements,
then it may be reasonable for the entity to develop a multiyear plan to
bring its facilities into compliance.
In addition to requesting public comment about the specific
sections in the NPRM, the Department also asked for public comment about
the appropriateness of a general safe harbor for existing play areas
and a safe harbor for public entities that have complied with State or
local standards specific to play areas. In the almost 200 comments
received on title II play areas, the vast majority of commenters
strongly opposed all safe harbors, exemptions, and reductions in
scoping. By contrast, one commenter advocated a safe harbor from
compliance with the 2004 ADAAG play area requirements along with reduced
scoping and exemptions for both program accessibility and alterations; a
second commenter advocated only the general safe harbor from compliance
with the supplemental requirements.
In response to the question of whether the Department should
exempt public entities from specific compliance with the supplemental
requirements for play areas, commenters stated that since no specific
standards previously existed, play areas are more than a decade behind
in providing full access for individuals with disabilities. When
accessible play areas were created, public entities, acting in good
faith, built them according to the 2004 ADAAG requirements; many
equipment manufacturers also developed equipment to meet those
guidelines. If existing playgrounds were exempted from compliance with
the supplemental guidelines, commenters said, those entities would be
held to a lesser standard and left with confusion, a sense of wasted
resources, and federally condoned discrimination and segregation.
Commenters also cited Federal agency settlement agreements on play areas
that required compliance with the guidelines. Finally, several
commenters observed that the provision of a safe harbor in this instance
was invalid for two reasons: (1) The rationale for other safe
harbors—that entities took action to comply with the 1991 Standards and
should not be further required to comply with new standards—does not
exist; and (2) concerns about financial and administrative burdens are
adequately addressed by program access requirements.
The question of whether accessibility of play areas should
continue to be assessed on the basis of case-by-case evaluations
elicited conflicting responses. One commenter asserted that there is no
evidence that the case-by-case approach is not working and so it should
continue until found to be inconsistent with the ADA’s goals. Another
commenter argued that case-by-case evaluations result in unpredictable
outcomes which result in costly and long court actions. A third
commenter, advocating against case-by-case evaluations, requested
instead increased direction and scoping to define what constitutes an
accessible play area program.
The Department has considered all of the comments it
received in response to its questions and has concluded that there is
insufficient basis to establish a safe harbor from compliance with the
supplemental guidelines. Thus, the Department has eliminated the
proposed exemption contained in § 35.150(b)(5)(i) of the NPRM for
existing play areas that are less than 1,000 square feet. The Department
believes that the factors used to determine program accessibility,
including the limits established by the undue financial and
administrative burdens defense, provide sufficient flexibility to public
entities in determining how to make their existing play areas
accessible.
In the NPRM, the Department also asked whether there are
State and local standards addressing play and recreation area
accessibility and, to the extent that there are such standards, whether
facilities currently governed by, and in compliance with, such State and
local standards or codes should be subject to a safe harbor from
compliance with applicable requirements in the 2004 ADAAG. The
Department also asked whether it would be appropriate for the Access
Board to consider the implementation of guidelines that would permit
such a safe harbor with respect to play and recreation areas undertaking
alterations. In response, commenters stated that few State or local
governments have standards that address issues of accessibility in play
areas, and one commenter organization said that it was unaware of any
State or local standards written specifically for accessible play areas.
One commenter observed from experience that most State and local
governments were waiting for the Access Board guidelines to become
enforceable standards as they had no standards themselves to follow.
Another commenter offered that public entities across the United States
already include in their playground construction bid specifications
language that requires compliance with the Access Board’s guidelines. A
number of commenters advocated for the Access Board’s guidelines to
become comprehensive Federal standards that would complement any
abbreviated State and local standards. One commenter, however, supported
a safe harbor for play areas undergoing alterations if the areas
currently comply with State or local standards.
The Department is persuaded by these comments that there is
insufficient basis to establish a safe harbor for program access or
alterations for play areas built in compliance with State or local laws.
In the NPRM, the Department asked whether ‘‘a reasonable
number, but at least one’’ is a workable standard to determine the
appropriate number of existing play areas that a public entity must make
accessible. Many commenters objected to this standard, expressing
concern that the phrase ‘‘at least one’’ would be interpreted as a
maximum rather than a minimum requirement. Such commenters feared that
this language would allow local governments to claim compliance by
making just one public park accessible, regardless of the locality’s
size, budget, or other factors, and would support segregation, forcing
children with disabilities to leave their neighborhoods to enjoy an
accessible play area. While some commenters criticized what they viewed
as a new analysis of program accessibility, others asserted that the
requirements of program accessibility should be changed to address
issues related to play areas that are not the main program in a facility
but are essential components of a larger program (e.g., drop-in child care for a courthouse).
The Department believes that those commenters who opposed
the Department’s ‘‘reasonable number, but at least one’’ standard for
program accessibility misunderstood the Department’s proposal. The
Department did not intend any change in its longstanding interpretation
of the program accessibility requirement. Program accessibility requires
that each service, program, or activity be operated ‘‘so that the
service, program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities,’’ 28 CFR
35.150(a), subject to the undue financial and administrative burdens and
fundamental alterations defenses provided in 28 CFR 35.150. In
determining how many facilities of a multi-site program must be made
accessible in order to make the overall program accessible, the standard
has always been an assessment of what is reasonable under the
circumstances to make the program readily accessible to and usable by
individuals with disabilities, taking into account such factors as the
size of the public entity, the particular program features offered at
each site, the geographical distance between sites, the travel times to
the sites, the number of sites, and availability of public
transportation to the sites. In choosing among available methods for
meeting this requirement, public entities are required to give priority
‘‘to those methods that offer services, programs, and activities * * *
in the most integrated setting appropriate.’’ 28 CFR 35.150(b)(1). As a
result, in cases where the sites are widely dispersed with difficult
travel access and where the program features offered vary widely between
sites, program accessibility will require a larger number of facilities
to be accessible in order to ensure program accessibility than where
multiple sites are located in a concentrated area with easy travel
access and uniformity in program offerings.
Commenters responded positively to the Department’s question
in the NPRM whether the final rule should provide a list of factors
that a public entity should use to determine how many of its existing
play areas should be made accessible. Commenters also asserted strongly
that the number of existing parks in the locality should not be the main
factor. In addition to the Department’s initial list—including number
of play areas in an area, travel times or geographic distances between
play areas, and the size of the public entity—commenters recommended
such factors as availability of accessible pedestrian routes to the
playgrounds, ready availability of accessible transportation, comparable
amenities and services in and surrounding the play areas, size of the
playgrounds, and sufficient variety in accessible play components within
the playgrounds. The Department agrees that these factors should be
considered, where appropriate, in any determination of whether program
accessibility has been achieved. However, the Department has decided
that it need not address these factors in the final rule itself because
the range of factors that might need to be considered would vary
depending upon the circumstances of particular public entities. The
Department does not believe any list would be sufficiently comprehensive
to cover every situation.
The Department also requested public comment about whether
there was a ‘‘tipping point’’ at which the costs of compliance with the
new requirements for existing play areas would be so burdensome that the
entity would simply shut down the playground. Commenters generally
questioned the feasibility of determining a ‘‘tipping point.’’ No
commenters offered a recommended ‘‘tipping point.’’ Moreover, most
commenters stated that a ‘‘tipping point’’ is not a valid consideration
for various reasons, including that ‘‘tipping points’’ will vary based
upon each entity’s budget and other mandates, and costs that are too
high will be addressed by the limitations of the undue financial and
administrative burdens defense in the program accessibility requirement
and that a ‘‘tipping point’’ must be weighed against quality of life
issues, which are difficult to quantify. The Department has decided that
comments did not establish any clear ‘‘tipping point’’ and therefore
provides no regulatory requirement in this area.
Swimming pools. The 1991 Standards do not contain
specific scoping or technical requirements for swimming pools. As a
result, under the 1991 title II regulation, title II entities that
operate programs or activities that include swimming pools have not been
required to provide an accessible route into those pools via a ramp or
pool lift, although they are required to provide an accessible route to
such pools. In addition, these entities continue to be subject to the
general title II obligation to make their programs usable and accessible
to persons with disabilities.
The 2004 ADAAG includes specific technical and scoping
requirements for new and altered swimming pools at sections 242 and
1009. In the NPRM, the Department sought to address the impact of these
requirements on existing swimming pools. Section 242.2 of the 2004 ADAAG
states that swimming pools must provide two accessible means of entry,
except that swimming pools with less than 300 linear feet of swimming
pool wall are only required to provide one accessible means of entry,
provided that the accessible means of entry is either a swimming pool
lift complying with section 1009.2 or a sloped entry complying with
section 1009.3.
In the NPRM, the Department proposed, in § 35.150(b)(4)(ii),
that for measures taken to comply with title II’s program accessibility
requirements, existing swimming pools with at least 300 linear feet of
swimming pool wall would be required to provide only one accessible
means of access that complied with section 1009.2 or section 1009.3 of
the 2004 ADAAG.
The Department specifically sought comment from public
entities and individuals with disabilities on the question whether the
Department should ‘‘allow existing public entities to provide only one
accessible means of access to swimming pools more than 300 linear feet
long?’’ The Department received significant public comment on this
proposal.
Most commenters opposed any reduction in the scoping
required in the 2004 ADAAG, citing the fact that swimming is a common
therapeutic form of exercise for many individuals with disabilities.
Many commenters also stated that the cost of a swimming pool lift,
approximately $5,000, or other nonstructural options for pool access
such as transfer steps, transfer walls, and transfer platforms, would
not be an undue financial and administrative burden for most title II
entities. Other commenters pointed out that the undue financial and
administrative burdens defense already provided public entities with a
means to reduce their scoping requirements. A few commenters cited
safety concerns resulting from having just one accessible means of
access, and stated that because pools typically have one ladder for
every 75 linear feet of pool wall, they should have more than one
accessible means of access. One commenter stated that construction costs
for a public pool are approximately $4,000– 4,500 per linear foot,
making the cost of a pool with 300 linear feet of swimming pool wall
approximately $1.2 million, compared to $5,000 for a pool lift. Some
commenters did not oppose the one accessible means of access for larger
pools so long as a lift was used. A few commenters approved of the one
accessible means of access for larger pools. The Department also
considered the American National Standard for Public Swimming Pools,
ANSI/NSPI–1 2003, section 23 of which states that all pools should have
at least two means of egress.
In the NPRM, the Department also proposed at §
35.150(b)(5)(ii) that existing swimming pools with less than 300 linear
feet of swimming pool wall be exempted from having to comply with the
provisions of section 242.2. The Department’s NPRM requested public
comment about the potential effect of this approach, asking whether
existing swimming pools with less than 300 linear feet of pool wall
should be exempt from the requirements applicable to swimming pools.
Most commenters were opposed to this proposal. A number of
commenters stated, based on the Access Board estimates that 90 percent
of public high school pools, 40 percent of public park and community
center pools, and 30 percent of public college and university pools have
less than 300 linear feet of pool wall, that a large number of public
swimming pools would fall under this exemption. Other commenters pointed
to the existing undue financial and administrative burdens defenses as
providing public entities with sufficient protection from excessive
compliance costs. Few commenters supported this exemption.
The Department also considered the fact that many existing
swimming pools owned or operated by public entities are recipients of
Federal financial assistance and therefore, are also subject to the
program accessibility requirements of section 504 of the Rehabilitation
Act.
The Department has carefully considered all the information
available to it including the comments submitted on these two proposed
exemptions for swimming pools owned or operated by title II entities.
The Department acknowledges that swimming provides important
therapeutic, exercise, and social benefits for many individuals with
disabilities and is persuaded that exemption of many publicly owned or
operated pools from the 2010 Standards is neither appropriate nor
necessary. The Department agrees with the commenters that title II
already contains sufficient limitations on public entities’ obligations
to make their programs accessible. In particular, the Department agrees
that those public entities that can demonstrate that making particular
existing swimming pools accessible in accordance with the 2010 Standards
would be an undue financial and administrative burden are sufficiently
protected from excessive compliance costs. Thus, the Department has
eliminated proposed §§ 35.150(b)(4)(ii) and (b)(5)(ii) from the final
rule.
In addition, although the NPRM contained no specific proposed
regulatory language on this issue, the NPRM sought comment on what would
be a workable standard for determining the appropriate number of
existing swimming pools that a public entity must make accessible for
its program to be accessible. The Department asked whether a
‘‘reasonable number, but at least one’’ would be a workable standard
and, if not, whether there was a more appropriate specific standard. The
Department also asked if, in the alternative, the Department should
provide ‘‘a list of factors that a public entity could use to determine
how many of its existing swimming pools to make accessible, e.g., number of swimming pools, travel times or geographic distances between swimming pools, and the size of the public entity?”
A number of commenters expressed concern over the
‘‘reasonable number, but at least one’’ standard and contended that, in
reality, public entities would never provide more than one accessible
existing pool, thus segregating individuals with disabilities. Other
commenters felt that the existing program accessibility standard was
sufficient. Still others suggested that one in every three existing
pools should be made accessible. One commenter suggested that all public
pools should be accessible. Some commenters proposed a list of factors
to determine how many existing pools should be accessible. Those factors
include the total number of pools, the location, size, and type of
pools provided, transportation availability, and lessons and activities
available. A number of commenters suggested that the standard should be
based on geographic areas, since pools serve specific neighborhoods. One
commenter argued that each pool should be examined individually to
determine what can be done to improve its accessibility.
The Department did not include any language in the final
rule that specifies the ‘‘reasonable number, but at least one’’ standard
for program access. However, the Department believes that its proposal
was misunderstood by many commenters. Each service, program, or activity
conducted by a public entity, when viewed in its entirety, must still
be readily accessible to and usable by individuals with disabilities
unless doing so would result in a fundamental alteration in the nature
of the program or activity or in undue financial and administrative
burdens. Determining which pool(s) to make accessible and whether more
than one accessible pool is necessary to provide program access requires
analysis of a number of factors, including, but not limited to, the
size of the public entity, geographical distance between pool sites,
whether more than one community is served by particular pools, travel
times to the pools, the total number of pools, the availability of
lessons and other programs and amenities at each pool, and the
availability of public transportation to the pools. In many instances,
making one existing swimming pool accessible will not be sufficient to
ensure program accessibility. There may, however, be some circumstances
where a small public entity can demonstrate that modifying one pool is
sufficient to provide access to the public entity’s program of providing
public swimming pools. In all cases, a public entity must still
demonstrate that its programs, including the program of providing public
swimming pools, when viewed in their entirety, are accessible.
Wading pools. The 1991 Standards do not address
wading pools. Section 242.3 of the 2004 ADAAG requires newly constructed
or altered wading pools to provide at least one sloped means of entry
to the deepest part of the pool. The Department was concerned about the
potential impact of this new requirement on existing wading pools.
Therefore, in the NPRM, the Department sought comments on whether
existing wading pools that are not being altered should be exempt from
this requirement, asking, ‘‘[w]hat site constraints exist in existing
facilities that could make it difficult or infeasible to install a
sloped entry in an existing wading pool? Should existing wading pools
that are not being altered be exempt from the requirement to provide a
sloped entry? ’’ 73 FR 34466, 34487–88 (June 17, 2008). Most commenters
agreed that existing wading pools that are not being altered should be
exempt from this requirement. Almost all commenters felt that during
alterations a sloped entry should be provided unless it was technically
infeasible to do so. Several commenters felt that the required clear
deck space surrounding a pool provided sufficient space for a sloped
entry during alterations.
The Department also solicited comments on the possibility of
exempting existing wading pools from the obligation to provide program
accessibility. Most commenters argued that installing a sloped entry in
an existing wading pool is not very feasible. Because covered entities
are not required to undertake modifications that would be technically
infeasible, the Department believes that the rule as drafted provides
sufficient protection from unwarranted expense to the operators of small
existing wading pools. Other existing wading pools, particularly those
larger pools associated with facilities such as aquatic centers or water
parks, must be assessed on a case-by-case basis. Therefore, the
Department has not included such an exemption for wading pools in its
final rule.
Saunas and steam rooms. The 1991 Standards do not address
saunas and steam rooms. Section 35.150(b)(5)(iii) of the NPRM exempted
existing saunas and steam rooms that seat only two individuals and were
not being altered from section 241 of the 2004 ADAAG, which requires an
accessible turning space. Two commenters objected to this exemption as
unnecessary, and argued that the cost of accessible saunas is not high
and public entities still have an undue financial and administrative
burdens defense.
The Department considered these comments and has decided to
eliminate the exemption for existing saunas and steam rooms that seat
only two people. Such an exemption is unnecessary because covered
entities will not be subject to program accessibility requirements to
make existing saunas and steam rooms accessible if doing so constitutes
an undue financial and administrative burden. The Department believes it
is likely that because of their prefabricated forms, which include
built-in seats, it would be either technically infeasible or an undue
financial and administrative burden to modify such saunas and steams
rooms. Consequently, a separate exemption for saunas and steam rooms
would have been superfluous. Finally, employing the program
accessibility standard for small saunas and steam rooms is consistent
with the Department’s decisions regarding the proposed exemptions for
play areas and swimming pools.
Several commenters also argued in favor of a specific
exemption for existing spas. The Department notes that the technical
infeasibility and program accessibility defenses are applicable equally
to existing spas and declines to adopt such an exemption.
Other recreational facilities. In the NPRM, the
Department asked about a number of issues relating to recreation
facilities such as team or player seating areas, areas of sport
activity, exercise machines, boating facilities, fishing piers and
platforms, and miniature golf courses. The Department’s questions
addressed the costs and benefits of applying the 2004 ADAAG to these
spaces and facilities and the application of the specific technical
requirements in the 2004 ADAAG for these spaces and facilities. The
discussion of the comments received by the Department on these issues
and the Department’s response to those comments can be found in either
the section of Appendix A to this rule entitled ‘‘Other Issues,’’ or in Appendix B to the final title III rule, which will be published today elsewhere in this volume.
Section 35.151 New construction and alterations
Section 35.151(a), which provided that those facilities that
are constructed or altered by, on behalf of, or for the use of a public
entity shall be designed, constructed, or altered to be readily
accessible to and usable by individuals with disabilities, is unchanged
in the final rule, but has been redesignated as § 35.151(a)(1). The
Department has added a new section, designated as § 35.151(a)(2), to
provide that full compliance with the requirements of this section is
not required where an entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be
considered structurally impracticable only in those rare circumstances
when the unique characteristics of terrain prevent the incorporation of
accessibility features. This exception was contained in the title III
regulation and in the 1991 Standards (applicable to both public
accommodations and facilities used by public entities), so it has
applied to any covered facility that was constructed under the 1991
Standards since the effective date of the ADA. The Department added it
to the text of § 35.151 to maintain consistency between the design
requirements that apply under title II and those that apply under title
III. The Department received no significant comments about this section.
Section 35.151(b) Alterations
The 1991 title II regulation does not contain any specific
regulatory language comparable to the 1991 title III regulation relating
to alterations and path of travel for covered entities, although the
1991 Standards describe standards for path of travel during alterations
to a primary function. See 28 CFR part 36, app A., section 4.1.6(a) (2009).
The path of travel requirements contained in the title III
regulation are based on section 303(a)(2) of the ADA, 42 U.S.C.
12183(a)(2), which provides that when an entity undertakes an alteration
to a place of public accommodation or commercial facility that affects
or could affect the usability of or access to an area that contains a
primary function, the entity shall ensure that, to the maximum extent
feasible, the path of travel to the altered area—and the restrooms,
telephones, and drinking fountains serving it—is readily accessible to
and usable by individuals with disabilities, including individuals who
use wheelchairs.
The NPRM proposed amending § 35.151 to add both the path of
travel requirements and the exemption relating to barrier removal (as
modified to apply to the program accessibility standard in title II)
that are contained in the title III regulation to the title II
regulation. Proposed § 35.151(b)(4) contained the requirements for path
of travel. Proposed § 35.151(b)(2) stated that the path of travel
requirements of § 35.151(b)(4) shall not apply to measures taken solely
to comply with program accessibility requirements.
Where the specific requirements for path of travel apply
under title III, they are limited to the extent that the cost and scope
of alterations to the path of travel are disproportionate to the cost of
the overall alteration, as determined under criteria established by the
Attorney General.
The Access Board included the path of travel requirement for
alterations to facilities covered by the standards (other than those
subject to the residential facilities standards) in section 202.4 of
2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes the
criteria for determining when the cost of alterations to the path of
travel is ‘‘disproportionate’’ to the cost of the overall alteration.
The NPRM also provided that areas such as supply storage
rooms, employee lounges and locker rooms, janitorial closets, entrances,
and corridors are not areas containing a primary function. Nor are
restroom areas considered to contain a primary function unless the
provision of restrooms is a primary purpose of the facility, such as at a
highway rest stop. In that situation, a restroom would be considered to
be an ‘‘area containing a primary function’’ of the facility.
The Department is not changing the requirements for program
accessibility. As provided in § 35.151(b)(2) of the regulation, the path
of travel requirements of § 35.151(b)(4) only apply to alterations
undertaken solely for purposes other than to meet the program
accessibility requirements. The exemption for the specific path of
travel requirement was included in the regulation to ensure that the
specific requirements and disproportionality exceptions for path of
travel are not applied when areas are being altered to meet the title II
program accessibility requirements in § 35.150. In contrast, when areas
are being altered to meet program accessibility requirements, they must
comply with all of the applicable requirements referenced in section
202 of the 2010 Standards. A covered title II entity must provide
accessibility to meet the requirements of § 35.150 unless doing so is an
undue financial and administrative burden in accordance with §
35.150(a)(3). A covered title II entity may not use the
disproportionality exception contained in the path of travel provisions
as a defense to providing an accessible route as part of its obligation
to provide program accessibility. The undue financial and administrative
burden standard does not contain any bright line financial tests.
The Department’s proposed § 35.151(b)(4) adopted the
language now contained in § 36.403 of the title III regulation,
including the disproportionality limitation (i.e., alterations
made to provide an accessible path of travel to the altered area would
be deemed disproportionate to the overall alteration when the cost
exceeds 20 percent of the cost of the alteration to the primary function
area). Proposed § 35.151(b)(2) provided that the path of travel
requirements do not apply to alterations undertaken solely to comply
with program accessibility requirements.
The Department received a substantial number of comments objecting
to the Department’s adoption of the exemption for the path of travel
requirements when alterations are undertaken solely to meet program
accessibility requirements. These commenters argued that the Department
had no statutory basis for providing this exemption nor does it serve
any purpose. In addition, these commenters argued that the path of
travel exemption has the effect of placing new limitations on the
obligations to provide program access. A number of commenters argued
that doing away with the path of travel requirement would render
meaningless the concept of program access. They argued that just as the
requirement to provide an accessible path of travel to an altered area
(regardless of the reason for the alteration), including making the
restrooms, telephones, and drinking fountains that serve the altered
area accessible, is a necessary requirement in other alterations, it is
equally necessary for alterations made to provide program access.
Several commenters expressed concern that a readily accessible path of
travel be available to ensure that persons with disabilities can get to
the physical location in which programs are held. Otherwise, they will
not be able to access the public entity’s service, program, or activity.
Such access is a cornerstone of the protections provided by the ADA.
Another commenter argued that it would be a waste of money to create an
accessible facility without having a way to get to the primary area.
This commenter also stated that the International Building Code (IBC)
requires the path of travel to a primary function area, up to 20 percent
of the cost of the project. Another commenter opposed the exemption,
stating that the trigger of an alteration is frequently the only time
that a facility must update its facilities to comply with evolving
accessibility standards.
In the Department’s view, the commenters objecting to the
path of travel exemption contained in § 35.151(b)(2) did not understand
the intention behind the exemption. The exemption was not intended to
eliminate any existing requirements related to accessibility for
alterations undertaken in order to meet program access obligations under
§ 35.149 and § 35.150. Rather, it was intended to ensure that covered
entities did not apply the path of travel requirements in lieu of the
overarching requirements in this Subpart that apply when making a
facility accessible in order to comply with program accessibility. The
exemption was also intended to make it clear that the disproportionality
test contained in the path of travel standards is not applicable in
determining whether providing program access results in an undue
financial and administration burden within the meaning of §
35.150(a)(3). The exemption was also provided to maintain consistency
with the title III path of travel exemption for barrier removal, See § 36.304(d), in keeping with the Department’s regulatory authority under title II of the ADA. See 42 U.S.C. 12134(b); See
also H. R Rep. No. 101B485, pt. 2, at 84 (1990) (‘‘The committee
intends, however, that the forms of discrimination prohibited by section
202 be identical to those set out in the applicable provisions of
titles I and III of this legislation.’’).
For title II entities, the path of travel requirements are
of significance in those cases where an alteration is being made solely
for reasons other than program accessibility. For example, a public
entity might have six courtrooms in two existing buildings and might
determine that only three of those courtrooms and the public use and
common use areas serving those courtrooms in one building are needed to
be made accessible in order to satisfy its program access obligations.
When the public entity makes those courtrooms and the public use and
common use areas serving them accessible in order to meet its program
access obligations, it will have to comply with the 2010 Standards
unless the public entity can demonstrate that full compliance would
result in undue financial and administrative burdens as described in §
35.150(a)(3). If such action would result in an undue financial or
administrative burden, the public entity would nevertheless be required
to take some other action that would not result in such an alteration or
such burdens but would ensure that the benefits and services provided
by the public entity are readily accessible to persons with
disabilities. When the public entity is making modifications to meet its
program access obligation, it may not rely on the path of travel
exception under § 35.151(b)(4), which limits the requirement to those
alterations where the cost and scope of the alterations are not
disproportionate to the cost and scope of the overall alterations. If
the public entity later decides to alter courtrooms in the other
building, for purposes of updating the facility (and, as previously
stated, has met its program access obligations) then in that case, the
public entity would have to comply with the path of travel requirements
in the 2010 Standards subject to the disproportionality exception set
forth in § 35.151(b)(4).
The Department has slightly revised proposed § 35.151(b)(2) to make
it clearer that the path of travel requirements only apply when
alterations are undertaken solely for purposes other than program
accessibility.
Section 35.151(b)(4)(ii)(C) Path of travel— safe harbor
In § 35.151(b)(4)(ii)(C) of the NPRM, the Department
included a provision that stated that public entities that have brought
required elements of path of travel into compliance with the 1991
Standards are not required to retrofit those elements in order to
reflect incremental changes in the 2010 Standards solely because of an
alteration to a primary function area that is served by that path of
travel. In these circumstances, the public entity is entitled to a safe
harbor and is only required to modify elements to comply with the 2010
Standards if the public entity is planning an alteration to the element.
A substantial number of commenters objected to the
Department’s imposition of a safe harbor for alterations to facilities
of public entities that comply with the 1991 Standards. These commenters
argued that if a public entity is already in the process of altering
its facility, there should be a legal requirement that individuals with
disabilities be entitled to increased accessibility by using the 2010
Standards for path of travel work. They also stated that they did not
believe there was a statutory basis for ‘‘grandfathering’’ facilities
that comply with the 1991 Standards.
The ADA is silent on the issue of ‘‘grandfathering’’ or
establishing a safe harbor for measuring compliance in situations where
the covered entity is not undertaking a planned alteration to specific
building elements. The ADA delegates to the Attorney General the
responsibility for issuing regulations that define the parameters of
covered entities’ obligations when the statute does not directly address
an issue. This regulation implements that delegation of authority.
One commenter proposed that a previous record of barrier
removal be one of the factors in determining, prospectively, what
renders a facility, when viewed in its entirety, usable and accessible
to persons with disabilities. Another commenter asked the Department to
clarify, at a minimum, that to the extent compliance with the 1991
Standards does not provide program access, particularly with regard to
areas not specifically addressed in the 1991 Standards, the safe harbor
will not operate to relieve an entity of its obligations to provide
program access.
One commenter supported the proposal to add a safe harbor for path of travel.
The final rule retains the safe harbor for required elements of a
path of travel to altered primary function areas for public entities
that have already complied with the 1991 Standards with respect to those
required elements. The Department believes that this safe harbor
strikes an appropriate balance between ensuring that individuals with
disabilities are provided access to buildings and facilities and
potential financial burdens on existing public entities that are
undertaking alterations subject to the 2010 Standards. This safe harbor
is not a blanket exemption for facilities. If a public entity undertakes
an alteration to a primary function area, only the required elements of
a path of travel to that area that already comply with the 1991
Standards are subject to the safe harbor. If a public entity undertakes
an alteration to a primary function area and the required elements of a
path of travel to the altered area do not comply with the 1991
Standards, then the public entity must bring those elements into
compliance with the 2010 Standards.
Section 35.151(b)(3) Alterations to historic facilities
The final rule renumbers the requirements for alterations to
historic facilities enumerated in current § 35.151(d)(1) and (2) as §
35.151(b)(3)(i) and (ii). Currently, the regulation provides that
alterations to historic facilities shall comply to the maximum extent
feasible with section 4.1.7 of UFAS or section 4.1.7 of the 1991
Standards. See 28 CFR 35.151(d)(1). Section 35.151(b)(3)(i) of
the final rule eliminates the option of using UFAS for alterations that
commence on or after March 15, 2012. The substantive requirement in
current § 35.151(d)(2)—that alternative methods of access shall be
provided pursuant to the requirements of § 35.150 if it is not feasible
to provide physical access to an historic property in a manner that will
not threaten or destroy the historic significance of the building or
facility—is contained in § 35.151(b)(3)(ii).
Section 35.151(c) Accessibility standards for new construction and alterations
Section 35.151(c) of the NPRM proposed to adopt ADA Chapter
1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with
Disabilities Act and Architectural Barriers Act Guidelines (2004 ADAAG)
into the ADA Standards for Accessible Design (2010 Standards). As the
Department has noted, the development of these standards represents the
culmination of a lengthy effort by the Access Board to update its
guidelines, to make the Federal guidelines consistent to the extent
permitted by law, and to harmonize the Federal requirements with the
private sector model codes that form the basis of many State and local
building code requirements. The full text of the 2010 Standards is
available for public review on the ADA Home Page (http://www.ada.gov) and on the Access Board’s Web site (http:// www.access-board.gov/gs.htm)
(last visited June 24, 2010). The Access Board site also includes an
extensive discussion of the development of the 2004 ADA/ABA Guidelines,
and a detailed comparison of the 1991 Standards, the 2004 ADA/ABA
Guidelines, and the 2003 International Building Code.
Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney
General to issue regulations to implement title II that are consistent
with the minimum guidelines published by the Access Board. The Attorney
General (or his designee) is a statutory member of the Access Board (see
29 U.S.C. 792(a)(1)(B(vii)) and was involved in the development of the
2004 ADAAG. Nevertheless, during the process of drafting the NPRM, the
Department reviewed the 2004 ADAAG to determine if additional regulatory
provisions were necessary. As a result of this review, the Department
decided to propose new sections, which were contained in § 35.151(e)–(h)
of the NPRM, to clarify how the Department will apply the proposed
standards to social service center establishments, housing at places of
education, assembly areas, and medical care facilities. Each of these
provisions is discussed below.
Congress anticipated that there would be a need for close
coordination of the ADA building requirements with State and local
building code requirements. Therefore, the ADA authorized the Attorney
General to establish an ADA code certification process under title III
of the ADA. That process is addressed in 28 CFR part 36, subpart F.
Revisions to that process are addressed in the regulation amending the
title III regulation published elsewhere in the Federal Register
today. In addition, the Department operates an extensive technical
assistance program. The Department anticipates that once this rule is
final, revised technical assistance material will be issued to provide
guidance about its implementation.
Section 35.151(c) of the 1991 title II regulation
establishes two standards for accessible new construction and
alteration. Under paragraph (c), design, construction, or alteration of
facilities in conformance with UFAS or with the 1991 Standards (which,
at the time of the publication of the rule were also referred to as the
Americans with Disabilities Act Accessibility Guidelines for Buildings
and Facilities (1991 ADAAG)) is deemed to comply with the requirements
of this section with respect to those facilities (except that if the
1991 Standards are chosen, the elevator exemption does not apply). The
1991 Standards were based on the 1991 ADAAG, which was initially
developed by the Access Board as guidelines for the accessibility of
buildings and facilities that are subject to title III. The Department
adopted the 1991 ADAAG as the standards for places of public
accommodation and commercial facilities under title III of the ADA and
it was published as Appendix A to the Department’s regulation
implementing title III, 56 FR 35592 (July 26, 1991) as amended, 58 FR
17522 (April 5, 1993), and as further amended, 59 FR 2675 (Jan. 18,
1994), codified at 28 CFR part 36 (2009).
Section 35.151(c) of the final rule adopts the 2010
Standards and establishes the compliance date and triggering events for
the application of those standards to both new construction and
alterations. Appendix B of the final title III rule
(Analysis and Commentary on the 2010 ADA Standards for Accessible
Design) (which will be published today elsewhere in this volume and
codified as Appendix B to 28 CFR part 36) provides a description of the
major changes in the 2010 Standards (as compared to the 1991 ADAAG) and a
discussion of the public comments that the Department received on
specific sections of the 2004 ADAAG. A number of commenters asked the
Department to revise certain provisions in the 2004 ADAAG in a manner
that would reduce either the required scoping or specific technical
accessibility requirements. As previously stated, although the ADA
requires the enforceable standards issued by the Department under title
II and title III to be consistent with the minimum guidelines published
by the Access Board, it is the sole responsibility of the Attorney
General to promulgate standards and to interpret and enforce those
standards. The guidelines adopted by the Access Board are ‘‘minimum
guidelines.’’ 42 U.S.C. 12186(c).
Compliance date. When the ADA was enacted, the
effective dates for various provisions were delayed in order to provide
time for covered entities to become familiar with their new obligations.
Titles II and III of the ADA generally became effective on January 26,
1992, six months after the regulations were published. See 42
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under title II
and alterations under either title II or title III had to comply with
the design standards on that date. See 42 U.S.C. 12183(a)(1).
For new construction under title III, the requirements applied to
facilities designed and constructed for first occupancy after January
26, 1993—18 months after the 1991 Standards were published by the
Department. In the NPRM, the Department proposed to amend §
35.151(c)(1) by revising the current language to limit the application
of the 1991 standards to facilities on which construction commences
within six months of the final rule adopting revised standards. The NPRM
also proposed adding paragraph (c)(2) to § 35.151, which states that
facilities on which construction commences on or after the date six
months following the effective date of the final rule shall comply with
the proposed standards adopted by that rule.
As a result, under the NPRM, for the first six months after the
effective date, public entities would have the option to use either UFAS
or the 1991 Standards and be in compliance with title II. Six months
after the effective date of the rule, the new standards would take
effect. At that time, construction in accordance with UFAS would no
longer satisfy ADA requirements. The Department stated that in order to
avoid placing the burden of complying with both standards on public
entities, the Department would coordinate a government-wide effort to
revise Federal agencies’ section 504 regulations to adopt the 2004 ADAAG
as the standard for new construction and alterations.
The purpose of the proposed six-month delay in requiring
compliance with the 2010 Standards was to allow covered entities a
reasonable grace period to transition between the existing and the
proposed standards. For that reason, if a title II entity preferred to
use the 2010 Standards as the standard for new construction or
alterations commenced within the six-month period after the effective
date of the final rule, such entity would be considered in compliance
with title II of the ADA.
The Department received a number of comments about the
proposed six-month effective date for the title II regulation that were
similar in content to those received on this issue for the proposed
title III regulation. Several commenters supported the six-month
effective date. One commenter stated that any revisions to its State
building code becomes effective six months after adoption and that this
has worked well. In addition, this commenter stated that since 2004
ADAAG is similar to IBC 2006 and ICC/ANSI A117.1– 2003, the transition
should be easy. By contrast, another commenter advocated for a minimum
12-month effective date, arguing that a shorter effective date could
cause substantial economic hardships to many cities and towns because of
the lengthy lead time necessary for construction projects. This
commenter was concerned that a six-month effective date could lead to
projects having to be completely redrawn, rebid, and rescheduled to
ensure compliance with the new standards. Other commenters advocated
that the effective date be extended to at least 18 months after the
publication of the rule. One of these commenters expressed concern that
the kinds of bureaucratic organizations subject to the title II
regulations lack the internal resources to quickly evaluate the
regulatory changes, determine whether they are currently compliant with
the 1991 standards, and determine what they have to do to comply with
the new standards. The other commenter argued that 18 months is the
minimum amount of time necessary to ensure that projects that have
already been designed and approved do not have to undergo costly design
revisions at taxpayer expense.
The Department is persuaded by the concerns raised by
commenters for both the title II and III regulations that the six-month
compliance date proposed in the NPRM for application of the 2010
Standards may be too short for certain projects that are already in the
midst of the design and permitting process. The Department has
determined that for new construction and alterations, compliance with
the 2010 Standards will not be required until 18 months from the date
the final rule is published. Until the time compliance with the 2010
Standards is required, public entities will have the option of complying
with the 2010 Standards, the UFAS, or the 1991 Standards. However,
public entities that choose to comply with the 2010 Standards in lieu of
the 1991 Standards or UFAS prior to the compliance date described in
this rule must choose one of the three standards, and may not rely on
some of the requirements contained in one standard and some of the
requirements contained in the other standards.
Triggering event. In § 35.151(c)(2) of the NPRM,
the Department proposed that the commencement of construction serve as
the triggering event for applying the proposed standards to new
construction and alterations under title II. This language is consistent
with the triggering event set forth in § 35.151(a) of the 1991 title II
regulation. The Department received only four comments on this section
of the title II rule. Three commenters supported the use of ‘‘start of
construction’’ as the triggering event. One commenter argued that the
Department should use the ‘‘last building permit or start of physical
construction, whichever comes first,’’ stating that ‘‘altering a design
after a building permit has been issued can be an undue burden.’’
After considering these comments, the Department has decided
to continue to use the commencement of physical construction as the
triggering event for application of the 2010 Standards for entities
covered by title II. The Department has also added clarifying language
at § 35.151(c)(4) to the regulation to make it clear that the date of
ceremonial groundbreaking or the date a structure is razed to make it
possible for construction of a facility to take place does not qualify
as the commencement of physical construction.
Section 234 of the 2010 Standards provides accessibility
guidelines for newly designed and constructed amusement rides. The
amusement ride provisions do not provide a ‘‘triggering event’’ for new
construction or alteration of an amusement ride. An industry commenter
requested that the triggering event of ‘‘first use,’’ as noted in the
Advisory note to section 234.1 of the 2004 ADAAG, be included in the
final rule. The Advisory note provides that ‘‘[a] custom designed and
constructed ride is new upon its first use, which is the first time
amusement park patrons take the ride.’’ The Department declines to treat
amusement rides differently than other types of new construction and
alterations. Under the final rule, they are subject to § 35.151(c).
Thus, newly constructed and altered amusement rides shall comply with
the 2010 Standards if the start of physical construction or the
alteration is on or after 18 months from the publication date of this
rule. The Department also notes that section 234.4.2 of the 2010
Standards only applies where the structural or operational
characteristics of an amusement ride are altered. It does not apply in
cases where the only change to a ride is the theme.
Noncomplying new construction and alterations. The
element-by-element safe harbor referenced in § 35.150(b)(2) has no
effect on new or altered elements in existing facilities that were
subject to the 1991 Standards or UFAS on the date that they were
constructed or altered, but do not comply with the technical and scoping
specifications for those elements in the 1991 Standards or UFAS.
Section 35.151(c)(5) of the final rule sets forth the rules for
noncompliant new construction or alterations in facilities that were
subject to the requirements of this part. Under those provisions,
noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and before
March 15, 2012 shall, before March 15, 2012, be made accessible in
accordance with either the 1991 Standards, UFAS, or the 2010 Standards.
Noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and before
March 15, 2012, shall, on or after March 15, 2012 be made accessible in
accordance with the 2010 Standards.
Section 35.151(d) Scope of coverage
In the NPRM, the Department proposed a new provision, §
35.151(d), to clarify that the requirements established by § 35.151,
including those contained in the 2004 ADAAG, prescribe what is necessary
to ensure that buildings and facilities, including fixed or built-in
elements in new or altered facilities, are accessible to individuals
with disabilities. Once the construction or alteration of a facility has
been completed, all other aspects of programs, services, and activities
conducted in that facility are subject to the operational requirements
established in this final rule. Although the Department may use the
requirements of the 2010 Standards as a guide to determining when and
how to make equipment and furnishings accessible, those determinations
fall within the discretionary authority of the Department.
The Department also wishes to clarify that the advisory
notes, appendix notes, and figures that accompany the 1991 and 2010
Standards do not establish separately enforceable requirements unless
specifically stated otherwise in the text of the standards. This
clarification has been made to address concerns expressed by ANPRM
commenters who mistakenly believed that the advisory notes in the 2004
ADAAG established requirements beyond those established in the text of
the guidelines (e.g., Advisory 504.4 suggests, but does not
require, that covered entities provide visual contrast on stair tread
nosing to make them more visible to individuals with low vision). The
Department received no significant comments on this section and it is
unchanged in the final rule.
Definitions of residential facilities and transient lodging.
The 2010 Standards add a definition of ‘‘residential dwelling unit’’
and modify the current definition of ‘‘transient lodging.’’ Under
section 106.5 of the 2010 Standards, ‘‘residential dwelling unit’’ is
defined as ‘‘[a] unit intended to be used as a residence, that is
primarily long-term in nature’’ and does not include transient lodging,
inpatient medical care, licensed long-term care, and detention or
correctional facilities. Additionally, section 106.5 of the 2010
Standards changes the definition of ‘‘transient lodging’’ to a building
or facility ‘‘containing one or more guest room(s) for sleeping that
provides accommodations that are primarily short-term in nature.’’
‘‘Transient lodging’’ does not include residential dwelling units
intended to be used as a residence. The references to ‘‘dwelling units’’
and ‘‘dormitories’’ that are in the definition of the 1991 Standards
are omitted from the 2010 Standards.
The comments about the application of transient lodging or
residential standards to social service center establishments, and
housing at a place of education are addressed separately below. The
Department received one additional comment on this issue from an
organization representing emergency response personnel seeking an
exemption from the transient lodging accessibility requirements for crew
quarters and common use areas serving those crew quarters (e.g.,
locker rooms, exercise rooms, day room) that are used exclusively by
on-duty emergency response personnel and that are not used for any
public purpose. The commenter argued that since emergency response
personnel must meet certain physical qualifications that have the effect
of exempting persons with mobility disabilities, there is no need to
build crew quarters and common use areas serving those crew quarters to
meet the 2004 ADAAG. In addition, the commenter argued that applying the
transient lodging standards would impose significant costs and create
living space that is less usable for most emergency response personnel.
The ADA does not exempt spaces because of a belief or policy
that excludes persons with disabilities from certain work. However, the
Department believes that crew quarters that are used exclusively as a
residence by emergency response personnel and the kitchens and bathrooms
exclusively serving those quarters are more like residential dwelling
units and are therefore covered by the residential dwelling standards in
the 2010 Standards, not the transient lodging standards. The
residential dwelling standards address most of the concerns of the
commenter. For example, the commenter was concerned that sinks in
kitchens and lavatories in bathrooms that are accessible under the
transient lodging standards would be too low to be comfortably used by
emergency response personnel. The residential dwelling standards allow
such features to be adaptable so that they would not have to be lowered
until accessibility was needed. Similarly, grab bars and shower seats
would not have to be installed at the time of construction provided that
reinforcement has been installed in walls and located so as to permit
their installation at a later date.
Section 35.151(e) Social service center establishments
In the NPRM, the Department proposed a new § 35.151(e)
requiring group homes, halfway houses, shelters, or similar social
service center establishments that provide temporary sleeping
accommodations or residential dwelling units to comply with the
provisions of the 2004 ADAAG that apply to residential facilities,
including, but not limited to, the provisions in sections 233 and 809.
The NPRM explained that this proposal was based on two
important changes in the 2004 ADAAG. First, for the first time,
residential dwelling units are explicitly covered in the 2004 ADAAG in
section 233. Second, the 2004 ADAAG eliminates the language contained in
the 1991 Standards addressing scoping and technical requirements for
homeless shelters, group homes, and similar social service center
establishments. Currently, such establishments are covered in section
9.5 of the transient lodging section of the 1991 Standards. The deletion
of section 9.5 creates an ambiguity of coverage that must be addressed.
The NPRM explained the Department’s belief that transferring
coverage of social service center establishments from the transient
lodging standards to the residential facilities standards would
alleviate conflicting requirements for social service center providers.
The Department believes that a substantial percentage of social service
center establishments are recipients of Federal financial assistance
from the Department of Housing and Urban Development (HUD). The
Department of Health and Human Services (HHS) also provides financial
assistance for the operation of shelters through the Administration for
Children and Families programs. As such, these establishments are
covered both by the ADA and section 504 of the Rehabilitation Act. UFAS
is currently the design standard for new construction and alterations
for entities subject to section 504. The two design standards for
accessibility— the 1991 Standards and UFAS—have confronted many social
service providers with separate, and sometimes conflicting, requirements
for design and construction of facilities. To resolve these conflicts,
the residential facilities standards in the 2004 ADAAG have been
coordinated with the section 504 requirements. The transient lodging
standards, however, are not similarly coordinated. The deletion of
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two
options: (1) Require coverage under the transient lodging standards, and
subject such facilities to separate, conflicting requirements for
design and construction; or (2) require coverage under the residential
facilities standards, which would harmonize the regulatory requirements
under the ADA and section 504. The Department chose the option that
harmonizes the regulatory requirements: coverage under the residential
facilities standards.
In the NPRM, the Department expressed concern that the
residential facilities standards do not include a requirement for clear
floor space next to beds similar to the requirement in the transient
lodging standards and as a result, the Department proposed adding a
provision that would require certain social service center
establishments that provide sleeping rooms with more than 25 beds to
ensure that a minimum of 5 percent of the beds have clear floor space in
accordance with section 806.2.3 of the 2004 ADAAG.
In the NPRM, the Department requested information from
providers who operate homeless shelters, transient group homes, halfway
houses, and other social service center establishments, and from the
clients of these facilities who would be affected by this proposed
change, asking, ‘‘[t]o what extent have conflicts between the ADA and
section 504 affected these facilities? What would be the effect of
applying the residential dwelling unit requirements to these facilities,
rather than the requirements for transient lodging guest rooms?’’ 73 FR
34466, 34491 (June 17, 2008).
Many of the commenters supported applying the residential
facilities requirements to social service center establishments, stating
that even though the residential facilities requirements are less
demanding in some instances, the existence of one clear standard will
result in an overall increased level of accessibility by eliminating the
confusion and inaction that are sometimes caused by the current
existence of multiple requirements. One commenter also stated that ‘‘it
makes sense to treat social service center establishments like
residential facilities because this is how these establishments function
in practice.’’
Two commenters agreed with applying the residential
facilities requirements to social service center establishments but
recommended adding a requirement for various bathing options, such as a
roll-in shower (which is not required under the residential standards).
One commenter objected to the change and asked the
Department to require that social service center establishments continue
to comply with the transient lodging standards. One commenter stated
that it did not agree that the standards for residential coverage would
serve persons with disabilities as well as the 1991 transient lodging
standards. This commenter expressed concern that the Department had
eliminated guidance for social service agencies and that the rule should
be put on hold until those safeguards are restored. Another commenter
argued that the rule that would provide the greatest access for persons
with disabilities should prevail.
Several commenters argued for the application of the
transient lodging standards to all social service center establishments
except those that were ‘‘intended as a person’s place of abode,’’
referencing the Department’s question related to the definition of
‘‘place of lodging’’ in the title III NPRM. One commenter stated that
the International Building Code requires accessible units in all
transient facilities. The commenter expressed concern that group homes
should be built to be accessible, rather than adaptable.
The Department continues to be concerned about alleviating
the challenges for social service providers that are also subject to
section 504 and would likely be subject to conflicting requirements if
the transient lodging standards were applied. Thus, the Department has
retained the requirement that social service center establishments
comply with the residential dwelling standards. The Department believes,
however, that social service center establishments that provide
emergency shelter to large transient populations should be able to
provide bathing facilities that are accessible to persons with mobility
disabilities who need roll-in showers. Because of the transient nature
of the population of these large shelters, it will not be feasible to
modify bathing facilities in a timely manner when faced with a need to
provide a roll-in shower with a seat when requested by an overnight
visitor. As a result, the Department has added a requirement that social
service center establishments with sleeping accommodations for more
than 50 individuals must provide at least one roll-in shower with a seat
that complies with the relevant provisions of section 608 of the 2010
Standards. Transfer-type showers are not permitted in lieu of a roll-in
shower with a seat and the exceptions in sections 608.3 and 608.4 for
residential dwelling units are not permitted. When separate shower
facilities are provided for men and for women, at least one roll-in
shower shall be provided for each group. This supplemental requirement
to the residential facilities standards is in addition to the
supplemental requirement that was proposed in the NPRM for clear floor
space in sleeping rooms with more than 25 beds.
The Department also notes that while dwelling units at some
social service center establishments are also subject to the Fair
Housing Act (FHAct) design and construction requirements that require
certain features of adaptable and accessible design, FHAct units do not
provide the same level of accessibility that is required for residential
facilities under the 2010 Standards. The FHAct requirements, where also
applicable, should not be considered a substitute for the 2010
Standards. Rather, the 2010 Standards must be followed in addition to
the FHAct requirements.
The Department also notes that whereas the NPRM used the
term ‘‘social service establishment,’’ the final rule uses the term
‘‘social service center establishment.’’ The Department has made this
editorial change so that the final rule is consistent with the
terminology used in the ADA. See 42 U.S.C. 12181(7)(k).
Section 35.151(f) Housing at a place of education
The Department of Justice and the Department of Education
share responsibility for regulation and enforcement of the ADA in
postsecondary educational settings, including its requirements for
architectural features. In addition, the Department of Housing and Urban
Development (HUD) has enforcement responsibility for housing subject to
title II of the ADA. Housing facilities in educational settings range
from traditional residence halls and dormitories to apartment or
townhouse-style residences. In addition to title II of the ADA, public
universities and schools that receive Federal financial assistance are
also subject to section 504, which contains its own accessibility
requirements through the application of UFAS. Residential housing in an
educational setting is also covered by the FHAct, which requires newly
constructed multifamily housing to include certain features of
accessible and adaptable design. Covered entities subject to the ADA
must always be aware of, and comply with, any other Federal statutes or
regulations that govern the operation of residential properties.
Although the 1991 Standards mention dormitories as a form of
transient lodging, they do not specifically address how the ADA applies
to dormitories or other types of residential housing provided in an
educational setting. The 1991 Standards also do not contain any specific
provisions for residential facilities, allowing covered entities to
elect to follow the residential standards contained in UFAS. Although
the 2004 ADAAG contains provisions for both residential facilities and
transient lodging, the guidelines do not indicate which requirements
apply to housing provided in an educational setting, leaving it to the
adopting agencies to make that choice. After evaluating both sets of
standards, the Department concluded that the benefits of applying the
transient lodging standards outweighed the benefits of applying the
residential facilities standards. Consequently, in the NPRM, the
Department proposed a new § 35.151(f) that provided that residence halls
or dormitories operated by or on behalf of places of education shall
comply with the provisions of the proposed standards for transient
lodging, including, but not limited to, the provisions in sections 224
and 806 of the 2004 ADAAG.
Both public and private school housing facilities have
varied characteristics. College and university housing facilities
typically provide housing for up to one academic year, but may be closed
during school vacation periods. In the summer, they are often used for
short-term stays of one to three days, a week, or several months.
Graduate and faculty housing is often provided year-round in the form of
apartments, which may serve individuals or families with children.
These housing facilities are diverse in their layout. Some are
double-occupancy rooms with a shared toilet and bathing room, which may
be inside or outside the unit. Others may contain cluster, suite, or
group arrangements where several rooms are located inside a defined unit
with bathing, kitchen, and similar common facilities. In some cases,
these suites are indistinguishable in features from traditional
apartments. Universities may build their own housing facilities or enter
into agreements with private developers to build, own, or lease housing
to the educational institution or to its students. Academic housing may
be located on the campus of the university or may be located in nearby
neighborhoods.
Throughout the school year and the summer, academic housing
can become program areas in which small groups meet, receptions and
educational sessions are held, and social activities occur. The ability
to move between rooms—both accessible rooms and standard rooms—in order
to socialize, to study, and to use all public use and common use areas
is an essential part of having access to these educational programs and
activities. Academic housing is also used for short-term transient
educational programs during the time students are not in regular
residence and may be rented out to transient visitors in a manner
similar to a hotel for special university functions.
The Department was concerned that applying the new
construction requirements for residential facilities to educational
housing facilities could hinder access to educational programs for
students with disabilities. Elevators are not generally required under
the 2004 ADAAG residential facilities standards unless they are needed
to provide an accessible route from accessible units to public use and
common use areas, while under the 2004 ADAAG as it applies to other
types of facilities, multistory public facilities must have elevators
unless they meet very specific exceptions. In addition, the residential
facilities standards do not require accessible roll-in showers in
bathrooms, while the transient lodging requirements require some of the
accessible units to be served by bathrooms with roll-in showers. The
transient lodging standards also require that a greater number of units
have accessible features for persons with communication disabilities.
The transient lodging standards provide for installation of the required
accessible features so that they are available immediately, but the
residential facilities standards allow for certain features of the unit
to be adaptable. For example, only reinforcements for grab bars need to
be provided in residential dwellings, but the actual grab bars must be
installed under the transient lodging standards. By contrast, the
residential facilities standards do require certain features that
provide greater accessibility within units, such as more usable
kitchens, and an accessible route throughout the dwelling. The
residential facilities standards also require 5 percent of the units to
be accessible to persons with mobility disabilities, which is a
continuation of the same scoping that is currently required under UFAS,
and is therefore applicable to any educational institution that is
covered by section 504. The transient lodging standards require a lower
percentage of accessible sleeping rooms for facilities with large
numbers of rooms than is required by UFAS. For example, if a dormitory
had 150 rooms, the transient lodging standards would require seven
accessible rooms while the residential standards would require eight. In
a large dormitory with 500 rooms, the transient lodging standards would
require 13 accessible rooms and the residential facilities standards
would require 25. There are other differences between the two sets of
standards as well with respect to requirements for accessible windows,
alterations, kitchens, accessible route throughout a unit, and clear
floor space in bathrooms allowing for a side transfer.
In the NPRM, the Department requested public comment on how
to scope educational housing facilities, asking, ‘‘[w]ould the
residential facility requirements or the transient lodging requirements
in the 2004 ADAAG be more appropriate for housing at places of
education? How would the different requirements affect the cost when
building new dormitories and other student housing?’’ 73 FR 34466, 34492
(June 17, 2008).
The vast majority of the comments received by the Department
advocated using the residential facilities standards for housing at a
place of education instead of the transient lodging standards, arguing
that housing at places of public education are in fact homes for the
students who live in them. These commenters argued, however, that the
Department should impose a requirement for a variety of options for
accessible bathing and should ensure that all floors of dormitories be
accessible so that students with disabilities have the same
opportunities to participate in the life of the dormitory community that
are provided to students without disabilities. Commenters representing
persons with disabilities and several individuals argued that, although
the transient lodging standards may provide a few more accessible
features (such as roll-in showers), the residential facilities standards
would ensure that students with disabilities have access to all rooms
in their assigned unit, not just to the sleeping room, kitchenette, and
wet bar. One commenter stated that, in its view, the residential
facilities standards were congruent with overlapping requirements from
HUD, and that access provided by the residential facilities requirements
within alterations would ensure dispersion of accessible features more
effectively. This commenter also argued that while the increased number
of required accessible units for residential facilities as compared to
transient lodging may increase the cost of construction or alteration,
this cost would be offset by a reduced need to adapt rooms later if the
demand for accessible rooms exceeds the supply. The commenter also
encouraged the Department to impose a visitability (accessible doorways
and necessary clear floor space for turning radius) requirement for both
the residential facilities and transient lodging requirements to allow
students with mobility impairments to interact and socialize in a fully
integrated fashion.
Two commenters supported the Department’s proposed approach.
One commenter argued that the transient lodging requirements in the
2004 ADAAG would provide greater accessibility and increase the
opportunity of students with disabilities to participate fully in campus
life. A second commenter generally supported the provision of
accessible dwelling units at places of education, and pointed out that
the relevant scoping in the International Building Code requires
accessible units ‘‘consistent with hotel accommodations.’’
The Department has considered the comments recommending the
use of the residential facilities standards and acknowledges that they
require certain features that are not included in the transient lodging
standards and that should be required for housing provided at a place of
education. In addition, the Department notes that since educational
institutions often use their academic housing facilities as short-term
transient lodging in the summers, it is important that accessible
features be installed at the outset. It is not realistic to expect that
the educational institution will be able to adapt a unit in a timely
manner in order to provide accessible accommodations to someone
attending a one-week program during the summer.
The Department has determined that the best approach to this
type of housing is to continue to require the application of transient
lodging standards, but at the same time to add several requirements
drawn from the residential facilities standards related to accessible
turning spaces and work surfaces in kitchens, and the accessible route
throughout the unit. This will ensure the maintenance of the transient
lodging standard requirements related to access to all floors of the
facility, roll-in showers in facilities with more than 50 sleeping
rooms, and other important accessibility features not found in the
residential facilities standards, but will also ensure usable kitchens
and access to all the rooms in a suite or apartment.
The Department has added a new definition to § 35.104,
‘‘Housing at a Place of Education,’’ and has revised § 35.151(f) to
reflect the accessible features that now will be required in addition to
the requirements set forth under the transient lodging standards. The
Department also recognizes that some educational institutions provide
some residential housing on a year-round basis to graduate students and
staff which is comparable to private rental housing, and which contains
no facilities for educational programming.
Section 35.151(f)(3) exempts from the transient lodging
standards apartments or townhouse facilities provided by or on behalf of
a place of education that are leased on a year-round basis exclusively
to graduate students or faculty, and do not contain any public use or
common use areas available for educational programming; instead, such
housing shall comply with the requirements for residential facilities in
sections 233 and 809 of the 2010 Standards. Section 35.151(f) uses the
term ‘‘sleeping room’’ in lieu of the term ‘‘guest room,’’ which is the
term used in the transient lodging standards. The Department is using
this term because it believes that, for the most part, it provides a
better description of the sleeping facilities used in a place of
education than ‘‘guest room.’’ The final rule states that the Department
intends the terms to be used interchangeably in the application of the
transient lodging standards to housing at a place of education.
Section 35.151(g) Assembly areas
In the NPRM, the Department proposed § 35.151(g) to
supplement the assembly area requirements of the 2004 ADAAG, which the
Department is adopting as part of the 2010 Standards. The NPRM proposed
at § 35.151(g)(1) to require wheelchair spaces and companion seating
locations to be dispersed to all levels of the facility and are served
by an accessible route. The Department received no significant comments
on this paragraph and has decided to adopt the proposed language with
minor modifications. The Department has retained the substance of this
section in the final rule but has clarified that the requirement applies
to stadiums, arenas, and grandstands. In addition, the Department has
revised the phrase ‘‘wheelchair and companion seating locations’’ to
‘‘wheelchair spaces and companion seats.’’
Section 35.151(g)(1) ensures that there is greater
dispersion of wheelchair spaces and companion seats throughout stadiums,
arenas, and grandstands than would otherwise be required by sections
221 and 802 of the 2004 ADAAG. In some cases, the accessible route may
not be the same route that other individuals use to reach their seats.
For example, if other patrons reach their seats on the field by an
inaccessible route (e.g., by stairs), but there is an accessible
route that complies with section 206.3 of the 2010 Standards that could
be connected to seats on the field, wheelchair spaces and companion
seats must be placed on the field even if that route is not generally
available to the public.
Regulatory language that was included in the 2004 ADAAG
advisory, but that did not appear in the NPRM, has been added by the
Department in § 35.151(g)(2). Section 35.151(g)(2) now requires an
assembly area that has seating encircling, in whole or in part, a field
of play or performance area such as an arena or stadium, to place
wheelchair spaces and companion seats around the entire facility. This
rule, which is designed to prevent a public entity from placing
wheelchair spaces and companion seats on one side of the facility only,
is consistent with the Department’s enforcement practices and reflects
its interpretation of section 4.33.3 of the 1991 Standards.
In the NPRM, the Department proposed § 35.151(g)(2) which
prohibits wheelchair spaces and companion seating locations from being
‘‘located on, (or obstructed by) temporary platforms or other moveable
structures.’’ Through its enforcement actions, the Department discovered
that some venues place wheelchair spaces and companion seats on
temporary platforms that, when removed, reveal conventional seating
underneath, or cover the wheelchair spaces and companion seats with
temporary platforms on top of which they place risers of conventional
seating. These platforms cover groups of conventional seats and are used
to provide groups of wheelchair seats and companion seats.
Several commenters requested an exception to the prohibition
of the use of temporary platforms for public entities that sell most of
their tickets on a season-ticket or other multi-event basis. Such
commenters argued that they should be able to use temporary platforms
because they know, in advance, that the patrons sitting in certain areas
for the whole season do not need wheelchair spaces and companion seats.
The Department declines to adopt such an exception. As it explained in
detail in the NPRM, the Department believes that permitting the use of
movable platforms that seat four or more wheelchair users and their
companions have the potential to reduce the number of available
wheelchair seating spaces below the level required, thus reducing the
opportunities for persons who need accessible seating to have the same
choice of ticket prices and amenities that are available to other
patrons in the facility. In addition, use of removable platforms may
result in instances where last minute requests for wheelchair and
companion seating cannot be met because entire sections of accessible
seating will be lost when a platform is removed. See 73 FR
34466, 34493 (June 17, 2008). Further, use of temporary platforms allows
facilities to limit persons who need accessible seating to certain
seating areas, and to relegate accessible seating to less desirable
locations. The use of temporary platforms has the effect of neutralizing
dispersion and other seating requirements (e.g., line of sight) for wheelchair spaces and companion seats. Cf. Independent Living Resources v. Oregon Arena Corp., 1
F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding that while a public
accommodation may ‘‘infill’’ wheelchair spaces with removable seats when
the wheelchair spaces are not needed to accommodate individuals with
disabilities, under certain circumstances ‘‘[s]uch a practice might well
violate the rule that wheelchair spaces must be dispersed throughout
the arena in a manner that is roughly proportionate to the overall
distribution of seating’’). In addition, using temporary platforms to
convert unsold wheelchair spaces to conventional seating undermines the
flexibility facilities need to accommodate secondary ticket markets
exchanges as required by § 35.138(g) of the final rule.
As the Department explained in the NPRM, however, this
provision was not designed to prohibit temporary seating that increases
seating for events (e.g., placing temporary seating on the floor
of a basketball court for a concert). Consequently, the final rule, at §
35.151(g)(3), has been amended to clarify that if an entire seating
section is on a temporary platform for a particular event, then
wheelchair spaces and companion seats may be in that seating section.
However, adding a temporary platform to create wheelchair spaces and
companion seats that are otherwise dissimilar from nearby fixed seating
and then simply adding a small number of additional seats to the
platform would not qualify as an ‘‘entire seating section’’ on the
platform. In addition, § 35.151(g)(3) clarifies that facilities may fill
in wheelchair spaces with removable seats when the wheelchair spaces
are not needed by persons who use wheelchairs.
The Department has been responsive to assembly areas’
concerns about reduced revenues due to unused accessible seating.
Accordingly, the Department has reduced scoping requirements
significantly—by almost half in large assembly areas—and determined that
allowing assembly areas to infill unsold wheelchair spaces with readily
removable temporary individual seats appropriately balances their
economic concerns with the rights of individuals with disabilities. See section 221.2 of the 2010 Standards.
For stadium-style movie theaters, in § 35.151(g)(4) of the
NPRM the Department proposed requiring placement of wheelchair seating
spaces and companion seats on a riser or cross-aisle in the stadium
section of the theater and placement of such seating so that it
satisfies at least one of the following criteria: (1) It is located
within the rear 60 percent of the seats provided in the auditorium; or
(2) it is located within the area of the auditorium where the vertical
viewing angles are between the 40th to 100th percentile of vertical
viewing angles for all seats in that theater as ranked from the first
row (1st percentile) to the back row (100th percentile). The vertical
viewing angle is the angle between a horizontal line perpendicular to
the seated viewer’s eye to the screen and a line from the seated
viewer’s eye to the top of the screen.
The Department proposed this bright-line rule for two reasons: (1)
The movie theater industry petitioned for such a rule; and (2) the
Department has acquired expertise on the design of stadium style
theaters from litigation against several major movie theater chains. See U.S. v. AMC Entertainment, 232 F. Supp. 2d 1092 (C.D. Ca. 2002), rev’d in part, 549 F. 3d 760 (9th Cir. 2008); U.S. v. Cinemark USA, Inc., 348 F. 3d 569 (6th Cir. 2003), cert. denied,
542 U.S. 937 (2004). Two industry commenters—at least one of whom
otherwise supported this rule—requested that the Department explicitly
state that this rule does not apply retroactively to existing theaters.
Although this rule on its face applies to new construction and
alterations, these commenters were concerned that the rule could be
interpreted to apply retroactively because of the Department’s statement
in the ANPRM that this bright-line rule, although newly-articulated,
does not represent a ‘‘substantive change from the existing
line-of-sight requirements’’ of section 4.33.3 of the 1991 Standards. See 69 FR 58768, 58776 (Sept. 30, 2004).
Although the Department intends for § 35.151(g)(4) of this
rule to apply prospectively to new construction and alterations, this
rule is not a departure from, and is consistent with, the line-of-sight
requirements in the 1991 Standards. The Department has always
interpreted the line-of-sight requirements in the 1991 Standards to
require viewing angles provided to patrons who use wheelchairs to be
comparable to those afforded to other spectators. Section 35.151(g)(4)
merely represents the application of these requirements to stadium-style
movie theaters.
One commenter from a trade association sought clarification whether §
35.151(g)(4) applies to stadium-style theaters with more than 300
seats, and argued that it should not since dispersion requirements apply
in those theaters. The Department declines to limit this rule to
stadium-style theaters with 300 or fewer seats; stadium-style theaters
of all sizes must comply with this rule. So, for example, stadium-style
theaters that must vertically disperse wheelchair and companion seats
must do so within the parameters of this rule.
The NPRM included a provision that required assembly areas
with more than 5,000 seats to provide at least five wheelchair spaces
with at least three companion seats for each of those five wheelchair
spaces. The Department agrees with commenters who asserted that group
seating is better addressed through ticketing policies rather than
design and has deleted that provision from this section of the final
rule.
Section 35.151(h) Medical care facilities
In the 1991 title II regulation, there was no provision
addressing the dispersion of accessible sleeping rooms in medical care
facilities. The Department is aware, however, of problems that
individuals with disabilities face in receiving full and equal medical
care when accessible sleeping rooms are not adequately dispersed. When
accessible rooms are not fully dispersed, a person with a disability is
often placed in an accessible room in an area that is not medically
appropriate for his or her condition, and is thus denied quick access to
staff with expertise in that medical specialty and specialized
equipment. While the Access Board did not establish specific design
requirements for dispersion in the 2004 ADAAG, in response to extensive
comments in support of dispersion it added an advisory note, Advisory
223.1 General, encouraging dispersion of accessible rooms within the
facility so that accessible rooms are more likely to be proximate to
appropriate qualified staff and resources.
In the NPRM, the Department sought additional comment on the
issue, asking whether it should require medical care facilities, such
as hospitals, to disperse their accessible sleeping rooms, and if so, by
what method (by specialty area, floor, or other criteria). All of the
comments the Department received on this issue supported dispersing
accessible sleeping rooms proportionally by specialty area. These
comments, from individuals, organizations, and a building code
association, argued that it would not be difficult for hospitals to
disperse rooms by specialty area, given the high level of regulation to
which hospitals are subject and the planning that hospitals do based on
utilization trends. Further, commenters suggested that without a
requirement, it is unlikely that hospitals would disperse the rooms. In
addition, concentrating accessible rooms in one area perpetuates
segregation of individuals with disabilities, which is counter to the
purpose of the ADA.
The Department has decided to require medical care
facilities to disperse their accessible sleeping rooms in a manner that
is proportionate by type of medical specialty. This does not require
exact mathematical proportionality, which at times would be impossible.
However, it does require that medical care facilities disperse their
accessible rooms by medical specialty so that persons with disabilities
can, to the extent practical, stay in an accessible room within the wing
or ward that is appropriate for their medical needs. The language used
in this rule (‘‘in a manner that is proportionate by type of medical
specialty’’) is more specific than that used in the NPRM (‘‘in a manner
that enables patients with disabilities to have access to appropriate
specialty services’’) and adopts the concept of proportionality proposed
by the commenters. Accessible rooms should be dispersed throughout all
medical specialties, such as obstetrics, orthopedics, pediatrics, and
cardiac care.
Section 35.151(i) Curb ramps
Section 35.151(e) on curb ramps in the 1991 rule has been
redesignated as § 35.151(i). In the NPRM, the Department proposed making
a minor editorial change to this section, deleting the phrase ‘‘other
sloped areas’’ from the two places in which it appears in the 1991 title
II regulation. In the NPRM, the Department stated that the phrase
‘‘other sloped areas’’ lacks technical precision. The Department
received no significant public comments on this proposal. Upon further
consideration, however, the Department has concluded that the regulation
should acknowledge that there are times when there are transitions from
sidewalk to road surface that do not technically qualify as ‘‘curb
ramps’’ (sloped surfaces that have a running slope that exceed 5
percent). Therefore, the Department has decided not to delete the phrase
‘‘other sloped areas.’’
Section 35.151(j) Residential housing for sale to individual owners
Although public entities that operate residential housing
programs are subject to title II of the ADA, and therefore must provide
accessible residential housing, the 1991 Standards did not contain
scoping or technical standards that specifically applied to residential
housing units. As a result, under the Department’s title II regulation,
these agencies had the choice of complying with UFAS, which contains
specific scoping and technical standards for residential housing units,
or applying the ADAAG transient lodging standards to their housing.
Neither UFAS nor the 1991 Standards distinguish between residential
housing provided for rent and those provided for sale to individual
owners. Thus, under the 1991 title II regulation, public entities that
construct residential housing units to be sold to individual owners must
ensure that some of those units are accessible. This requirement is in
addition to any accessibility requirements imposed on housing programs
operated by public entities that receive Federal financial assistance
from Federal agencies such as HUD.
The 2010 Standards contain scoping and technical standards
for residential dwelling units. However, section 233.3.2 of the 2010
Standards specifically defers to the Department and to HUD, the
standard-setting agency under the ABA, to decide the appropriate scoping
for those residential dwelling units built by or on behalf of public
entities with the intent that the finished units will be sold to
individual owners. These programs include, for example, HUD’s public
housing and HOME programs as well as State-funded programs to construct
units for sale to individuals. In the NPRM, the Department did not make a
specific proposal for this scoping. Instead, the Department stated that
after consultation and coordination with HUD, the Department would make
a determination in the final rule. The Department also sought public
comment on this issue stating that ‘‘[t]he Department would welcome
recommendations from individuals with disabilities, public housing
authorities, and other interested parties that have experience with
these programs. Please comment on the appropriate scoping for
residential dwelling units built by or on behalf of public entities with
the intent that the finished units will be sold to individual owners.’’
73 FR 34466, 34492 (June 17, 2008).
All of the public comments received by the Department in
response to this question were supportive of the Department’s ensuring
that the residential standards apply to housing built on behalf of
public entities with the intent that the finished units would be sold to
individual owners. The vast majority of commenters recommended that the
Department require that projects consisting of five or more units,
whether or not the units are located on one or multiple locations,
comply with the 2004 ADAAG requirements for scoping of residential
units, which require that 5 percent, and no fewer than one, of the
dwelling units provide mobility features, and that 2 percent, and no
fewer than one, of the dwelling units provide communication features. See
2004 ADAAG Section 233.3. These commenters argued that the Department
should not defer to HUD because HUD has not yet adopted the 2004 ADAAG
and there is ambiguity on the scope of coverage of pre-built for sale
units under HUD’s current section 504 regulations. In addition, these
commenters expressed concern that HUD’s current regulation, 24 CFR 8.29,
presumes that a prospective buyer is identified before design and
construction begins so that disability features can be incorporated
prior to construction. These commenters stated that State and Federally
funded homeownership programs typically do not identify prospective
buyers before construction has commenced. One commenter stated that, in
its experience, when public entities build accessible for-sale units,
they often sell these units through a lottery system that does not make
any effort to match persons who need the accessible features with the
units that have those features. Thus, accessible units are often sold to
persons without disabilities. This commenter encouraged the Department
to make sure that accessible for-sale units built or funded by public
entities are placed in a separate lottery restricted to income-eligible
persons with disabilities.
Two commenters recommended that the Department develop rules
for four types of for-sale projects: single family pre-built (where
buyer selects the unit after construction), single family post-built
(where the buyer chooses the model prior to its construction),
multi-family pre-built, and multi-family post-built. These commenters
recommended that the Department require pre-built units to comply with
the 2004 ADAAG 233.1 scoping requirements. For post-built units, the
commenters recommended that the Department require all models to have an
alternate design with mobility features and an alternate design with
communications features in compliance with 2004 ADAAG. Accessible models
should be available at no extra cost to the buyer. One commenter
recommended that, in addition to required fully accessible units, all
ground floor units should be readily convertible for accessibility or
for sensory impairments technology enhancements.
The Department believes that consistent with existing
requirements under title II, housing programs operated by public
entities that design and construct or alter residential units for sale
to individual owners should comply with the 2010 Standards, including
the requirements for residential facilities in sections 233 and 809.
These requirements will ensure that a minimum of 5 percent of the units,
but no fewer than one unit, of the total number of residential dwelling
units will be designed and constructed to be accessible for persons
with mobility disabilities. At least 2 percent, but no fewer than one
unit, of the total number of residential dwelling units shall provide
communication features.
The Department recognizes that there are some programs (such
as the one identified by the commenter), in which units are not
designed and constructed until an individual buyer is identified. In
such cases, the public entity is still obligated to comply with the 2010
Standards. In addition, the public entity must ensure that
pre-identified buyers with mobility disabilities and visual and hearing
disabilities are afforded the opportunity to buy the accessible units.
Once the program has identified buyers who need the number of accessible
units mandated by the 2010 Standards, it may have to make reasonable
modifications to its policies, practices, and procedures in order to
provide accessible units to other buyers with disabilities who request
such units.
The Department notes that the residential facilities
standards allow for construction of units with certain features of
adaptability. Public entities that are concerned that fully accessible
units are less marketable may choose to build these units to include the
allowable adaptable features, and then adapt them at their own expense
for buyers with mobility disabilities who need accessible units. For
example, features such as grab bars are not required but may be added by
the public entity if needed by the buyer at the time of purchase and
cabinets under sinks may be designed to be removable to allow access to
the required knee space for a forward approach.
The Department agrees with the commenters that covered
entities may have to make reasonable modifications to their policies,
practices, and procedures in order to ensure that when they offer
pre-built accessible residential units for sale, the units are offered
in a manner that gives access to those units to persons with
disabilities who need the features of the units and who are otherwise
eligible for the housing program. This may be accomplished, for example,
by adopting preferences for accessible units for persons who need the
features of the units, holding separate lotteries for accessible units,
or other suitable methods that result in the sale of accessible units to
persons who need the features of such units. In addition, the
Department believes that units designed and constructed or altered that
comply with the requirements for residential facilities and are offered
for sale to individuals must be provided at the same price as units
without such features.
Section 35.151(k) Detention and correctional facilities
The 1991 Standards did not contain specific accessibility
standards applicable to cells in correctional facilities. However,
correctional and detention facilities operated by or on behalf of public
entities have always been subject to the nondiscrimination and program
accessibility requirements of title II of the ADA. The 2004 ADAAG
established specific requirements for the design and construction and
alterations of cells in correctional facilities for the first time.
Based on complaints received by the Department,
investigations, and compliance reviews of jails, prisons, and other
detention and correctional facilities, the Department has determined
that many detention and correctional facilities do not have enough
accessible cells, toilets, and shower facilities to meet the needs of
their inmates with mobility disabilities and some do not have any at
all. Inmates are sometimes housed in medical units or infirmaries
separate from the general population simply because there are no
accessible cells. In addition, some inmates have alleged that they are
housed at a more restrictive classification level simply because no
accessible housing exists at the appropriate classification level. The
Department’s compliance reviews and investigations have substantiated
certain of these allegations.
The Department believes that the insufficient number of
accessible cells is, in part, due to the fact that most jails and
prisons were built long before the ADA became law and, since then, have
undergone few alterations that would trigger the obligation to provide
accessible features in accordance with UFAS or the 1991 Standards. In
addition, the Department has found that even some new correctional
facilities lack accessible features. The Department believes that the
unmet demand for accessible cells is also due to the changing
demographics of the inmate population. With thousands of prisoners
serving life sentences without eligibility for parole, prisoners are
aging, and the prison population of individuals with disabilities and
elderly individuals is growing. A Bureau of Justice Statistics study of
State and Federal sentenced inmates (those sentenced to more than one
year) shows the total estimated count of State and Federal prisoners
aged 55 and older grew by 36,000 inmates from 2000 (44,200) to 2006
(80,200). William J. Sabol et al., Prisoners in 2006, Bureau of Justice Statistics Bulletin, Dec. 2007, at 23 (app. table 7), available at http://bjs.ojp.usdoj.gov/ index.cfm?ty=pbdetail&iid=908 (last visited July 16, 2008); Allen J. Beck et al., Prisoners in 2000, Bureau of Justice Statistics Bulletin, Aug. 2001, at 10 (Aug. 2001) (Table 14), available at bjs.ojp.usdoj.gov/ index.cfm?ty=pbdetail&iid=927
(last visited July 16, 2008). This jump constitutes an increase of 81
percent in prisoners aged 55 and older during this period.
In the NPRM, the Department proposed a new section, §
35.152, which combined a range of provisions relating to both program
accessibility and application of the proposed standards to detention and
correctional facilities. In the final rule, the Department is placing
those provisions that refer to design, construction, and alteration of
detention and correction facilities in a new paragraph (k) of § 35.151,
the section of the rule that addresses new construction and alterations
for covered entities. Those portions of the final rule that address
other issues, such as placement policies and program accessibility, are
placed in the new § 35.152.
In the NPRM, the Department also sought input on how best to
meet the needs of inmates with mobility disabilities in the design,
construction, and alteration of detention and correctional facilities.
The Department received a number of comments in response to this
question.
New Construction. The NPRM did not expressly
propose that new construction of correctional and detention facilities
shall comply with the proposed standards because the Department assumed
it would be clear that the requirements of § 35.151 would apply to new
construction of correctional and detention facilities in the same manner
that they apply to other facilities constructed by covered entities.
The Department has decided to create a new section, § 35.151(k)(1),
which clarifies that new construction of jails, prisons, and other
detention facilities shall comply with the requirements of 2010
Standards. Section 35.151(k)(1) also increases the scoping for
accessible cells from the 2 percent specified in the 2004 ADAAG to 3
percent.
Alterations. Although the 2010 Standards contain
specifications for alterations in existing detention and correctional
facilities, section 232.2 defers to the Attorney General the decision as
to the extent these requirements will apply to alterations of cells.
The NPRM proposed at § 35.152(c) that ‘‘[a]lterations to jails, prisons,
and other detention and correctional facilities will comply with the
requirements of § 35.151(b).’’ 73 FR 34466, 34507 (June 17, 2008). The
final rule retains that requirement at § 35.151(k)(2), but increases the
scoping for accessible cells from the 2 percent specified in the 2004
ADAAG to 3 percent.
Substitute cells. In the ANPRM, the Department
sought public comment about the most effective means to ensure that
existing correctional facilities are made accessible to prisoners with
disabilities and presented three options: (1) Require all altered
elements to be accessible, which would maintain the current policy that
applies to other ADA alteration requirements; (2) permit substitute
cells to be made accessible within the same facility, which would permit
correctional authorities to meet their obligation by providing the
required accessible features in cells within the same facility, other
than those specific cells in which alterations are planned; or (3)
permit substitute cells to be made accessible within a prison system,
which would focus on ensuring that prisoners with disabilities are
housed in facilities that best meet their needs, as alterations within a
prison environment often result in piecemeal accessibility.
In § 35.152(c) of the NPRM, the Department proposed language
based on Option 2, providing that when cells are altered, a covered
entity may satisfy its obligation to provide the required number of
cells with mobility features by providing the required mobility features
in substitute cells (i.e., cells other than those where
alterations are originally planned), provided that each substitute cell
is located within the same facility, is integrated with other cells to
the maximum extent feasible, and has, at a minimum, physical access
equal to that of the original cells to areas used by inmates or
detainees for visitation, dining, recreation, educational programs,
medical services, work programs, religious services, and participation
in other programs that the facility offers to inmates or detainees.
The Department received few comments on this proposal. The
majority who chose to comment supported an approach that allowed
substitute cells to be made accessible within the same facility. In
their view, such an approach balanced administrators’ needs, cost
considerations, and the needs of inmates with disabilities. One
commenter noted, however, that with older facilities, required
modifications may be inordinately costly and technically infeasible. A
large county jail system supported the proposed approach as the most
viable option allowing modification or alteration of existing cells
based on need and providing a flexible approach to provide program and
mobility accessibility. It noted, as an alternative, that permitting
substitute cells to be made accessible within a prison system would also
be a viable option since such an approach could create a centralized
location for accessibility needs and, because that jail system’s
facilities were in close proximity, it would have little impact on
families for visitation or on accessible programming.
A large State department of corrections objected to the
Department’s proposal. The commenter stated that some very old prison
buildings have thick walls of concrete and reinforced steel that are
difficult, if not impossible to retrofit, and to do so would be very
expensive. This State system approaches accessibility by looking at its
system as a whole and providing access to programs for inmates with
disabilities at selected prisons. This commenter explained that not all
of its facilities offer the same programs or the same levels of medical
or mental health services. An inmate, for example, who needs education,
substance abuse treatment, and sex offender counseling may be
transferred between facilities in order to meet his needs. The inmate
population is always in flux and there are not always beds or program
availability for every inmate at his security level. This commenter
stated that the Department’s proposed language would put the State in
the position of choosing between adding accessible cells and modifying
paths of travel to programs and services at great expense or not
altering old facilities, causing them to become in states of disrepair
and obsolescent, which would be fiscally irresponsible.
The Department is persuaded by these comments and has
modified the alterations requirement in § 35.151(k)(2)(iv) in the final
rule to allow that if it is technically infeasible to provide substitute
cells in the same facility, cells can be provided elsewhere within the
corrections system.
Number of accessible cells. Section 232.2.1 of the
2004 ADAAG requires at least 2 percent, but no fewer than one, of the
cells in newly constructed detention and correctional facilities to have
accessibility features for individuals with mobility disabilities.
Section 232.3 provides that, where special holding cells or special
housing cells are provided, at least one cell serving each purpose shall
have mobility features. The Department sought input on whether these
2004 ADAAG requirements are sufficient to meet the needs of inmates with
mobility disabilities. A major association representing county jails
throughout the country stated that the 2004 ADAAG 2 percent requirement
for accessible cells is sufficient to meet the needs of county jails.
Similarly, a large county sheriff’s department advised that the 2
percent requirement far exceeds the need at its detention facility,
where the average age of the population is 32. This commenter stressed
that the regulations need to address the differences between a local
detention facility with low average lengths of stay as opposed to a
State prison housing inmates for lengthy periods. This commenter
asserted that more stringent requirements will raise construction costs
by requiring modifications that are not needed. If more stringent
requirements are adopted, the commenter suggested that they apply only
to State and Federal prisons that house prisoners sentenced to long
terms. The Department notes that a prisoner with a mobility disability
needs a cell with mobility features regardless of the length of
incarceration. However, the length of incarceration is most relevant in
addressing the needs of an aging population.
The overwhelming majority of commenters responded that the 2
percent ADAAG requirement is inadequate to meet the needs of the
incarcerated. Many commenters suggested that the requirement be expanded
to apply to each area, type, use, and class of cells in a facility.
They asserted that if a facility has separate areas for specific
programs, such as a dog training program or a substance abuse unit, each
of these areas should also have 2 percent accessible cells but not less
than one. These same commenters suggested that 5–7 percent of cells
should be accessible to meet the needs of both an aging population and
the larger number of inmates with mobility disabilities. One
organization recommended that the requirement be increased to 5 percent
overall, and that at least 2 percent of each type and use of cell be
accessible. Another commenter recommended that 10 percent of cells be
accessible. An organization with extensive corrections experience noted
that the integration mandate requires a sufficient number and
distribution of accessible cells so as to provide distribution of
locations relevant to programs to ensure that persons with disabilities
have access to the programs.
Through its investigations and compliance reviews, the
Department has found that in most detention and correctional facilities,
a 2 percent accessible cell requirement is inadequate to meet the needs
of the inmate population with disabilities. That finding is supported
by the majority of the commenters that recommended a 5–7 percent
requirement. Indeed, the Department itself requires more than 2 percent
of the cells to be accessible at its own corrections facilities. The
Federal Bureau of Prisons is subject to the requirements of the 2004
ADAAG through the General Services Administration’s adoption of the 2004
ADAAG as the enforceable accessibility standard for Federal facilities
under the Architectural Barriers Act of 1968. 70 FR 67786, 67846–47
(Nov. 8, 2005). However, in order to meet the needs of inmates with
mobility disabilities, the Bureau of Prisons has elected to increase
that percentage and require that 3 percent of inmate housing at its
facilities be accessible. Bureau of Prisons, Design Construction Branch,
Design Guidelines, Attachment A: Accessibility Guidelines for Design,
Construction, and Alteration of Federal Bureau of Prisons (Oct. 31,
2006).
The Department believes that a 3 percent accessible
requirement is reasonable. Moreover, it does not believe it should
impose a higher percentage on detention and corrections facilities than
it utilizes for its own facilities. Thus, the Department has adopted a 3
percent requirement in § 35.151(k) for both new construction and
alterations. The Department notes that the 3 percent requirement is a
minimum. As corrections systems plan for new facilities or alterations,
the Department urges planners to include numbers of inmates with
disabilities in their population projections in order to take the
necessary steps to provide a sufficient number of accessible cells to
meet inmate needs.
Dispersion of Cells. The NPRM did not contain
express language addressing dispersion of cells in a facility. However,
Advisory 232.2 of the 2004 ADAAG recommends that ‘‘[a]ccessible cells or
rooms should be dispersed among different levels of security, housing
categories, and holding classifications (e.g., male/female and
adult/ juvenile) to facilitate access.’’ In explaining the basis for
recommending, but not requiring, this type of dispersal, the Access
Board stated that ‘‘[m]any detention and correctional facilities are
designed so that certain areas (e.g., ‘shift’ areas) can be
adapted to serve as different types of housing according to need’’ and
that ‘‘[p]lacement of accessible cells or rooms in shift areas may allow
additional flexibility in meeting requirements for dispersion of
accessible cells or rooms.’’
The Department notes that inmates are typically housed in
separate areas of detention and correctional facilities based on a
number of factors, including their classification level. In many
instances, detention and correctional facilities have housed inmates in
inaccessible cells, even though accessible cells were available
elsewhere in the facility, because there were no cells in the areas
where they needed to be housed, such as in administrative or
disciplinary segregation, the women’s section of the facility, or in a
particular security classification area.
The Department received a number of comments stating that
dispersal of accessible cells together with an adequate number of
accessible cells is necessary to prevent inmates with disabilities from
placement in improper security classification and to ensure integration.
Commenters recommended modification of the scoping requirements to
require a percentage of accessible cells in each program,
classification, use or service area. The Department is persuaded by
these comments. Accordingly, § 35.151(k)(1) and (k)(2) of the final rule
require accessible cells in each classification area.
Medical facilities. The NPRM also did not propose
language addressing the application of the 2004 ADAAG to medical and
long-term care facilities in correctional and detention facilities. The
provisions of the 2004 ADAAG contain requirements for licensed medical
and long-term care facilities, but not those that are unlicensed. A
disability advocacy group and a number of other commenters recommended
that the Department expand the application of section 232.4 to apply to
all such facilities in detention and correctional facilities, regardless
of licensure. They recommended that whenever a correctional facility
has a program that is addressed specifically in the 2004 ADAAG, such as a
long-term care facility, the 2004 ADAAG scoping and design features
should apply for those elements. Similarly, a building code organization
noted that its percentage requirements for accessible units is based on
what occurs in the space, not on the building type.
The Department is persuaded by these comments and has added §
35.151(k)(3), which states that ‘‘[w]ith respect to medical and
long-term care facilities in jails, prisons, and other detention and
correctional facilities, public entities shall apply the 2010 Standards
technical and scoping requirements for those facilities irrespective of
whether those facilities are licensed.’’
Section 35.152 Detention and correctional facilities—program requirements
As noted in the discussion of § 35.151(k), the Department
has determined that inmates with mobility and other disabilities in
detention and correctional facilities do not have equal access to prison
services. The Department’s concerns are based not only on complaints it
has received, but the Department’s substantial experience in
investigations and compliance reviews of jails, prisons, and other
detention and correctional facilities. Based on that review, the
Department has found that many detention and correctional facilities
have too few or no accessible cells, toilets, and shower facilities to
meet the needs of their inmates with mobility disabilities. These
findings, coupled with statistics regarding the current percentage of
inmates with mobility disabilities and the changing demographics of the
inmate population reflecting thousands of prisoners serving life
sentences and increasingly large numbers of aging inmates who are not
eligible for parole, led the Department to conclude that a new
regulation was necessary to address these concerns.
In the NPRM, the Department proposed a new section, §
35.152, which combined a range of provisions relating to both program
accessibility and application of the proposed standards to detention and
correctional facilities. As mentioned above, in the final rule, the
Department is placing those provisions that refer to design,
construction, and alteration of detention and correction facilities in
new paragraph (k) in § 35.151 dealing with new construction and
alterations for covered entities. Those portions of the final rule that
address other program requirements remain in § 35.152.
The Department received many comments in response to the
program accessibility requirements in proposed § 35.152. These comments
are addressed below.
Facilities operated through contractual, licensing, or other arrangements with other public entities or private entities. The
Department is aware that some public entities are confused about the
applicability of the title II requirements to correctional facilities
built or run by other public entities or private entities. It has
consistently been the Department’s position that title II requirements
apply to correctional facilities used by State or local government
entities, irrespective of whether the public entity contracts with
another public or private entity to build or run the correctional
facility. The power to incarcerate citizens rests with the State or
local government, not a private entity. As the Department stated in the
preamble to the original title II regulation, ‘‘[a]ll governmental
activities of public entities are covered, even if they are carried out
by contractors.’’ 28 CFR part 35, app. A at 558 (2009). If a prison is
occupied by State prisoners and is inaccessible, the State is
responsible under title II of the ADA. The same is true for a county or
city jail. In essence, the private builder or contractor that operates
the correctional facility does so at the direction of the government
entity. Moreover, even if the State enters into a contractual,
licensing, or other arrangement for correctional services with a public
entity that has its own title II obligations, the State is still
responsible for ensuring that the other public entity complies with
title II in providing these services.
Also, through its experience in investigations and
compliance reviews, the Department has noted that public entities
contract for a number of services to be run by private or other public
entities, for example, medical and mental health services, food
services, laundry, prison industries, vocational programs, and drug
treatment and substance abuse programs, all of which must be operated in
accordance with title II requirements.
Proposed § 35.152(a) in the NPRM was designed to make it
clear that title II applies to all State and local detention and
correctional facilities, regardless of whether the detention or
correctional facility is directly operated by the public entity or
operated by a private entity through a contractual, licensing, or other
arrangement. Commenters specifically supported the language of this
section. One commenter cited Department of Justice statistics stating
that of the approximately 1.6 million inmates in State and Federal
facilities in December 2006, approximately 114,000 of these inmates were
held in private prison facilities. See William J. Sabol et al., Prisoners in 2006, Bureau of Justice Statistics Bulletin, Dec. 2007, at 1, 4, available at http:// bjs.ojp.usdoj.gov/ index.cfm?ty=pbdetail&iid=908.
Some commenters wanted the text ‘‘through contracts or other
arrangements’’ changed to read ‘‘through contracts or any other
arrangements’’ to make the intent clear. However, a large number of
commenters recommended that the text of the rule make explicit that it
applies to correctional facilities operated by private contractors. Many
commenters also suggested that the text make clear that the rule
applies to adult facilities, juvenile justice facilities, and community
correctional facilities. In the final rule, the Department is adopting
these latter two suggestions in order to make the section’s intent
explicit.
Section 35.152(a) of the final rule states specifically that
the requirements of the section apply to public entities responsible
for the operation or management of correctional facilities, ‘‘either
directly or through contractual, licensing, or other arrangements with
public or private entities, in whole or in part, including private
correctional facilities.’’ Additionally, the section explicitly provides
that it applies to adult and juvenile justice detention and
correctional facilities and community correctional facilities.
Discrimination prohibited. In the NPRM, §
35.152(b)(1) proposed language stating that public entities are
prohibited from excluding qualified detainees and inmates from
participation in, or denying, benefits, services, programs, or
activities because a facility is inaccessible to persons with
disabilities ‘‘unless the public entity can demonstrate that the
required actions would result in a fundamental alteration or undue
burden.’’ 73 FR 34446, 34507 (June 17, 2008). One large State department
of corrections objected to the entire section applicable to detention
and correctional facilities, stating that it sets a higher standard for
correctional and detention facilities because it does not provide a
defense for undue administrative burden. The Department has not retained
the proposed NPRM language referring to the defenses of fundamental
alteration or undue burden because the Department believes that these
exceptions are covered by the general language of 35.150(a)(3), which
states that a public entity is not required to take ‘‘any action that it
can demonstrate would result in a fundamental alteration in the nature
of a service, program, or activity, or in undue financial and
administrative burdens.’’ The Department has revised the language of §
35.152(b)(1) accordingly.
Integration of inmates and detainees with disabilities.
In the NPRM, the Department proposed language in § 35.152(b)(2)
specifically applying the ADA’s general integration mandate to detention
and correctional facilities. The proposed language would have required
public entities to ensure that individuals with disabilities are housed
in the most integrated setting appropriate to the needs of the
individual. It further stated that unless the public entity can
demonstrate that it is appropriate to make an exception for a specific
individual, a public entity:
(1) Should not place inmates or detainees with
disabilities in locations that exceed their security classification
because there are no accessible cells or beds in the appropriate
classification;
(2) should not place inmates or detainees with
disabilities in designated medical areas unless they are actually
receiving medical care or treatment;
(3) should not place inmates or detainees with
disabilities in facilities that do not offer the same programs as the
facilities where they would ordinarily be housed; and
(4) should not place inmates or detainees with
disabilities in facilities farther away from their families in order to
provide accessible cells or beds, thus diminishing their opportunity for
visitation based on their disability. 73 FR 34466, 34507 (June 17,
2008).
In the NPRM, the Department recognized that there are a wide
range of considerations that affect decisions to house inmates or
detainees and that in specific cases there may be compelling reasons why
a placement that does not meet the general requirements of §
35.152(b)(2) may, nevertheless, comply with the ADA. However, the
Department noted that it is essential that the planning process
initially assume that inmates or detainees with disabilities will be
assigned within the system under the same criteria that would be applied
to inmates who do not have disabilities. Exceptions may be made on a
case-by-case basis if the specific situation warrants different
treatment. For example, if an inmate is deaf and communicates only using
sign language, a prison may consider whether it is more appropriate to
give priority to housing the prisoner in a facility close to his family
that houses no other deaf inmates, or if it would be preferable to house
the prisoner in a setting where there are sign language interpreters
and other sign language users with whom he can communicate.
In general, commenters strongly supported the NPRM’s
clarification that the title II integration mandate applies to State and
local corrections agencies and the facilities in which they house
inmates. Commenters pointed out that inmates with disabilities continue
to be segregated based on their disabilities and also excluded from
participation in programs. An organization actively involved in
addressing the needs of prisoners cited a number of recent lawsuits in
which prisoners allege such discrimination.
The majority of commenters objected to the language in
proposed § 35.152(b)(2) that creates an exception to the integration
mandate when the ‘‘public entity can demonstrate that it is appropriate
to make an exception for a specific individual.’’ 73 FR 34466, 34507
(June 17, 2008). The vast majority of commenters asserted that, given
the practice of many public entities to segregate and cluster inmates
with disabilities, the exception will be used to justify the status quo.
The commenters acknowledged that the intent of the section is to ensure
that an individual with a disability who can be better served in a less
integrated setting can legally be placed in that setting. They were
concerned, however, that the proposed language would allow certain
objectionable practices to continue, e.g., automatically placing
persons with disabilities in administrative segregation. An advocacy
organization with extensive experience working with inmates recommended
that the inmate have ‘‘input’’ in the placement decision.
Others commented that the exception does not provide
sufficient guidance on when a government entity may make an exception,
citing the need for objective standards. Some commenters posited that a
prison administration may want to house a deaf inmate at a facility
designated and equipped for deaf inmates that is several hundred miles
from the inmate’s home. Although under the exception language, such a
placement may be appropriate, these commenters argued that this outcome
appears to contradict the regulation’s intent to eliminate or reduce the
segregation of inmates with disabilities and prevent them from being
placed far from their families. The Department notes that in some
jurisdictions, the likelihood of such outcomes is diminished because
corrections facilities with different programs and levels of
accessibility are clustered in close proximity to one another, so that
being far from family is not an issue. The Department also takes note of
advancements in technology that will ease the visitation dilemma, such
as family visitation through the use of videoconferencing.
Only one commenter, a large State department of corrections,
objected to the integration requirement. This commenter stated it
houses all maximum security inmates in maximum security facilities.
Inmates with lower security levels may or may not be housed in lower
security facilities depending on a number of factors, such as
availability of a bed, staffing, program availability, medical and
mental health needs, and enemy separation. The commenter also objected
to the proposal to prohibit housing inmates with disabilities in medical
areas unless they are receiving medical care. This commenter stated
that such housing may be necessary for several days, for example, at a
stopover facility for an inmate with a disability who is being
transferred from one facility to another. Also, this commenter stated
that inmates with disabilities in disciplinary status may be housed in
the infirmary because not every facility has accessible cells in
disciplinary housing. Similarly the commenter objected to the
prohibition on placing inmates in facilities without the same programs
as facilities where they normally would be housed. Finally, the
commenter objected to the prohibition on placing an inmate at a facility
distant from where the inmate would normally be housed. The commenter
stressed that in its system, there are few facilities near most inmates’
homes. The commenter noted that most inmates are housed at facilities
far from their homes, a fact shared by all inmates, not just inmates
with disabilities. Another commenter noted that in some jurisdictions,
inmates who need assistance in activities of daily living cannot obtain
that assistance in the general population, but only in medical
facilities where they must be housed.
The Department has considered the concerns raised by the
commenters with respect to this section and recognizes that corrections
systems may move inmates routinely and for a variety of reasons, such as
crowding, safety, security, classification change, need for specialized
programs, or to provide medical care. Sometimes these moves are within
the same facility or prison system. On other occasions, inmates may be
transferred to facilities in other cities, counties, and States. Given
the nature of the prison environment, inmates have little say in their
placement and administrators must have flexibility to meet the needs of
the inmates and the system. The Department has revised the language of
the exception contained in renumbered § 35.152(b)(2) to better
accommodate corrections administrators’ need for flexibility in making
placement decisions based on legitimate, specific reasons. Moreover, the
Department believes that temporary, short-term moves that are necessary
for security or administrative purposes (e.g., placing an inmate
with a disability in a medical area at a stopover facility during a
transfer from one facility to another) do not violate the requirements
of § 35.152(b)(2).
The Department notes that § 35.150(a)(3) states that a
public entity is not required to take ‘‘any action that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity or in undue financial and administrative
burdens.’’ Thus, corrections systems would not have to comply with the
requirements of § 35.152(b)(1) in any specific circumstance where these
defenses are met.
Several commenters recommended that the word ‘‘should’’ be
changed to ‘‘shall’’ in the subparts to § 35.152(b)(2). The Department
agrees that because the rule contains a specific exception and because
the integration requirement is subject to the defenses provided in
paragraph (a) of that section, it is more appropriate to use the word
‘‘shall’’ and the Department accordingly is making that change in the
final rule.
Program requirements. In a unanimous decision, the Supreme Court, in Pennsylvania Department of Corrections v. Yeskey,
524 U.S. 206 (1998), stated explicitly that the ADA covers the
operations of State prisons; accordingly, title II’s program
accessibility requirements apply to State and local correctional and
detention facilities. In the NPRM, in addressing the accessibility of
existing correctional and detention facilities, the Department
considered the challenges of applying the title II program access
requirement for existing facilities under § 31.150(a) in light of the
realities of many inaccessible correctional facilities and strained
budgets.
Correctional and detention facilities commonly provide a
variety of different programs for education, training, counseling, or
other purposes related to rehabilitation. Some examples of programs
generally available to inmates include programs to obtain GEDs, computer
training, job skill training and on-the-job training, religious
instruction and guidance, alcohol and substance abuse groups, anger
management, work assignments, work release, halfway houses, and other
programs. Historically, individuals with disabilities have been excluded
from such programs because they are not located in accessible
locations, or inmates with disabilities have been segregated in units
without equivalent programs. In light of the Supreme Court’s decision in
Yeskey and the requirements of title II, however, it is
critical that public entities provide these opportunities to inmates
with disabilities. In proposed § 35.152, the Department sought to
clarify that title II required equal access for inmates with
disabilities to participate in programs offered to inmates without
disabilities.
The Department wishes to emphasize that detention and
correctional facilities are unique facilities under title II. Inmates
cannot leave the facilities and must have their needs met by the
corrections system, including needs relating to a disability. If the
detention and correctional facilities fail to accommodate prisoners with
disabilities, these individuals have little recourse, particularly when
the need is great (e.g., an accessible toilet; adequate
catheters; or a shower chair). It is essential that corrections systems
fulfill their nondiscrimination and program access obligations by
adequately addressing the needs of prisoners with disabilities, which
include, but are not limited to, proper medication and medical
treatment, accessible toilet and shower facilities, devices such as a
bed transfer or a shower chair, and assistance with hygiene methods for
prisoners with physical disabilities.
In the NPRM, the Department also sought input on whether it
should establish a program accessibility requirement that public
entities modify additional cells at a detention or correctional facility
to incorporate the accessibility features needed by specific inmates
with mobility disabilities when the number of cells required by sections
232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of
their inmate population.
Commenters supported a program accessibility requirement,
viewing it as a flexible and practical means of allowing facilities to
meet the needs of inmates in a cost effective and expedient manner. One
organization supported a requirement to modify additional cells when the
existing number of accessible cells is inadequate. It cited the example
of a detainee who was held in a hospital because the local jail had no
accessible cells. Similarly, a State agency recommended that the number
of accessible cells should be sufficient to accommodate the population
in need. One group of commenters voiced concern about accessibility
being provided in a timely manner and recommended that the rule specify
that the program accessibility requirement applies while waiting for the
accessibility modifications. A group with experience addressing inmate
needs recommended the inmate’s input should be required to prevent
inappropriate segregation or placement in an inaccessible or
inappropriate area.
The Department is persuaded by these comments. Accordingly, §
35.152(b)(3) requires public entities to ‘‘implement reasonable
policies, including physical modifications to additional cells in
accordance with the 2010 Standards, so as to ensure that each inmate
with a disability is housed in a cell with the accessible elements
necessary to afford the inmate access to safe, appropriate housing.’’
Communication. Several large disability advocacy
organizations commented on the 2004 ADAAG section 232.2.2 requirement
that at least 2 percent of the general holding cells and housing cells
must be equipped with audible emergency alarm systems. Permanently
installed telephones within these cells must have volume control.
Commenters said that the communication features in the 2004 ADAAG do not
address the most common barriers that deaf and hard-of-hearing inmates
face. They asserted that few cells have telephones and the requirements
to make them accessible is limited to volume control, and that emergency
alarm systems are only a small part of the amplified information that
inmates need. One large association commented that it receives many
inmate complaints that announcements are made over loudspeakers or
public address systems, and that inmates who do not hear announcements
for inmate count or other instructions face disciplinary action for
failure to comply. They asserted that inmates who miss announcements
miss meals, exercise, showers, and recreation. They argued that systems
that deliver audible announcements, signals, and emergency alarms must
be made accessible and that TTYs must be made available. Commenters also
recommended that correctional facilities should provide access to
advanced forms of telecommunications. Additional commenters noted that
few persons now use TTYs, preferring instead to communicate by email,
texting, and videophones.
The Department agrees with the commenters that correctional
facilities and jails must ensure that inmates who are deaf or hard of
hearing actually receive the same information provided to other inmates.
The Department believes, however, that the reasonable modifications,
program access, and effective communications requirements of title II
are sufficient to address the needs of individual deaf and hard of
hearing inmates, and as a result, declines to add specific requirements
for communications features in cells for deaf and hard of hearing
inmates at this time. The Department notes that as part of its ongoing
enforcement of the reasonable modifications, program access, and
effective communications requirements of title II, the Department has
required correctional facilities and jails to provide communication
features in cells serving deaf and hard of hearing inmates.
Subpart E—Communications
Section 35.160 Communications.
Section 35.160 of the 1991 title II regulation requires a
public entity to take appropriate steps to ensure that communications
with applicants, participants, and members of the public with
disabilities are as effective as communications with others. 28 CFR
35.160(a). In addition, a public entity must ‘‘furnish appropriate
auxiliary aids and services where necessary to afford an individual with
a disability an equal opportunity to participate in, and enjoy the
benefits of, a service, program, or activity conducted by a public
entity.’’ 28 CFR 35.160(b)(1). Moreover, the public entity must give
‘‘primary consideration to the requests of the individual with
disabilities’’ in determining what type of auxiliary aid and service is
necessary. 28 CFR 35.160(b)(2).
Since promulgation of the 1991 title II regulation, the
Department has investigated hundreds of complaints alleging failures by
public entities to provide effective communication, and many of these
investigations resulted in settlement agreements and consent decrees.
From these investigations, the Department has concluded that public
entities sometimes misunderstand the scope of their obligations under
the statute and the regulation. Section 35.160 in the final rule
codifies the Department’s longstanding policies in this area and
includes provisions that reflect technological advances in the area of
auxiliary aids and services.
In the NPRM, the Department proposed adding ‘‘companion’’ to
the scope of coverage under § 35.160 to codify the Department’s
longstanding position that a public entity’s obligation to ensure
effective communication extends not just to applicants, participants,
and members of the public with disabilities, but to companions as well,
if any of them are individuals with disabilities. The NPRM defined
companion as a person who is a family member, friend, or associate of a
program participant, who, along with the program participant, is ‘‘an
appropriate person with whom the public entity should communicate.’’ 73
FR 34466, 34507 (June 17, 2008).
Many commenters supported inclusion of ‘‘companions’’ in the
rule, and urged even more specific language about public entities’
obligations. Some commenters asked the Department to clarify that a
companion with a disability may be entitled to effective communication
from a public entity even though the applicants, participants, or
members of the general public seeking access to, or participating in,
the public entity’s services, programs, or activities are not
individuals with disabilities. Others requested that the Department
explain the circumstances under which auxiliary aids and services should
be provided to companions. Still others requested explicit
clarification that where the individual seeking access to or
participating in the public entity’s program, services, or activities
requires auxiliary aids and services, but the companion does not, the
public entity may not seek out, or limit its communications to, the
companion instead of communicating directly with the individual with a
disability when it would be appropriate to do so.
Some in the medical community objected to the inclusion of
any regulatory language regarding companions, asserting that such
language is overbroad, seeks services for individuals whose presence is
not required by the public entity, is not necessary for the delivery of
the services or participation in the program, and places additional
burdens on the medical community. These commenters asked that the
Department limit the public entity’s obligation to communicate
effectively with a companion to situations where such communications are
necessary to serve the interests of the person who is receiving the
public entity’s services.
After consideration of the many comments on this issue, the
Department believes that explicit inclusion of ‘‘companions’’ in the
final rule is appropriate to ensure that public entities understand the
scope of their effective communication obligations. There are many
situations in which the interests of program participants without
disabilities require that their companions with disabilities be provided
effective communication. In addition, the program participant need not
be physically present to trigger the public entity’s obligations to a
companion. The controlling principle is that auxiliary aids and services
must be provided if the companion is an appropriate person with whom
the public entity should or would communicate.
Examples of such situations include back-to- school nights
or parent-teacher conferences at a public school. If the faculty writes
on the board or otherwise displays information in a visual context
during a back-to-school night, this information must be communicated
effectively to parents or guardians who are blind or have low vision. At
a parent-teacher conference, deaf parents or guardians must be provided
with appropriate auxiliary aids and services to communicate effectively
with the teacher and administrators. It makes no difference that the
child who attends the school does not have a disability. Likewise, when a
deaf spouse attempts to communicate with public social service agencies
about the services necessary for the hearing spouse, appropriate
auxiliary aids and services to the deaf spouse must be provided by the
public entity to ensure effective communication. Parents or guardians,
including foster parents, who are individuals with disabilities, may
need to interact with child services agencies on behalf of their
children; in such a circumstance, the child services agencies would need
to provide appropriate auxiliary aids and services to those parents or
guardians.
Effective communication with companions is particularly
critical in health care settings where miscommunication may lead to
misdiagnosis and improper or delayed medical treatment. The Department
has encountered confusion and reluctance by medical care providers
regarding the scope of their obligation with respect to such companions.
Effective communication with a companion is necessary in a variety of
circumstances. For example, a companion may be legally authorized to
make health care decisions on behalf of the patient or may need to help
the patient with information or instructions given by hospital
personnel. A companion may be the patient’s next-of-kin or health care
surrogate with whom hospital personnel must communicate about the
patient’s medical condition. A companion could be designated by the
patient to communicate with hospital personnel about the patient’s
symptoms, needs, condition, or medical history. Or the companion could
be a family member with whom hospital personnel normally would
communicate.
Accordingly, § 35.160(a)(1) in the final rule now reads,
‘‘[a] public entity shall take appropriate steps to ensure that
communications with applicants, participants, members of the public, and
companions with disabilities are as effective as communications with
others.’’ Section 35.160(a)(2) further defines ‘‘companion’’ as ‘‘a
family member, friend, or associate of an individual seeking access to a
service, program, or activity of a public entity, who, along with the
individual, is an appropriate person with whom the public entity should
communicate.’’ Section 35.160(b)(1) clarifies that the obligation to
furnish auxiliary aids and services extends to companions who are
individuals with disabilities, whether or not the individual accompanied
also is an individual with a disability. The provision now states that
‘‘[a] public entity shall furnish appropriate auxiliary aids and
services where necessary to afford individuals with disabilities,
including applicants, participants, companions, and members of the
public, an equal opportunity to participate in, and enjoy the benefits
of, a service, program, or activity of a public entity.’’
These provisions make clear that if the companion is someone
with whom the public entity normally would or should communicate, then
the public entity must provide appropriate auxiliary aids and services
to that companion to ensure effective communication with the companion.
This common-sense rule provides the guidance necessary to enable public
entities to properly implement the nondiscrimination requirements of the
ADA.
As set out in the final rule, § 35.160(b)(2) states, in
pertinent part, that ‘‘[t]he type of auxiliary aid or service necessary
to ensure effective communication will vary in accordance with the
method of communication used by the individual, the nature, length, and
complexity of the communication involved, and the context in which the
communication is taking place. In determining what types of auxiliary
aids and services are necessary, a public entity shall give primary
consideration to the requests of individuals with disabilities.’’
The second sentence of § 35.160(b)(2) of the final rule
restores the ‘‘primary consideration’’ obligation set out at §
35.160(b)(2) in the 1991 title II regulation. This provision was
inadvertently omitted from the NPRM, and the Department agrees with the
many commenters on this issue that this provision should be retained. As
noted in the preamble to the 1991 title II regulation, and reaffirmed
here: ‘‘The public entity shall honor the choice [of the individual with
a disability] unless it can demonstrate that another effective means of
communication exists or that use of the means chosen would not be
required under § 35.164. Deference to the request of the individual with
a disability is desirable because of the range of disabilities, the
variety of auxiliary aids and services, and different circumstances
requiring effective communication.’’ 28 CFR part 35, app. A at 580
(2009).
The first sentence in § 35.160(b)(2) codifies the axiom that
the type of auxiliary aid or service necessary to ensure effective
communication will vary with the situation, and provides factors for
consideration in making the determination, including the method of
communication used by the individual; the nature, length, and complexity
of the communication involved; and the context in which the
communication is taking place. Inclusion of this language under title II
is consistent with longstanding policy in this area. See , e.g., The
Americans with Disabilities Act Title II Technical Assistance Manual
Covering State and Local Government Programs and Services, section II–7.1000, available at www.ada.gov/ taman2.html
(‘‘The type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the length and complexity of
the communication involved. * * * Sign language or oral interpreters,
for example, may be required when the information being communicated in a
transaction with a deaf individual is complex, or is exchanged for a
lengthy period of time. Factors to be considered in determining whether
an interpreter is required include the context in which the
communication is taking place, the number of people involved, and the
importance of the communication.’’); See also 28 CFR part 35,
app. A at 580 (2009). As explained in the NPRM, an individual who is
deaf or hard of hearing may need a qualified interpreter to communicate
with municipal hospital personnel about diagnoses, procedures, tests,
treatment options, surgery, or prescribed medication (e.g.,
dosage, side effects, drug interactions, etc.), or to explain follow-up
treatments, therapies, test results, or recovery. In comparison, in a
simpler, shorter interaction, the method to achieve effective
communication can be more basic. An individual who is seeking local tax
forms may only need an exchange of written notes to achieve effective
communication.
Section 35.160(c)(1) has been added to the final rule to
make clear that a public entity shall not require an individual with a
disability to bring another individual to interpret for him or her. The
Department receives many complaints from individuals who are deaf or
hard of hearing alleging that public entities expect them to provide
their own sign language interpreters. Proposed § 35.160(c)(1) was
intended to clarify that when a public entity is interacting with a
person with a disability, it is the public entity’s responsibility to
provide an interpreter to ensure effective communication. It is not
appropriate to require the person with a disability to bring another
individual to provide such services.
Section 35.160(c)(2) of the NPRM proposed codifying the Department’s
position that there are certain limited instances when a public entity
may rely on an accompanying individual to interpret or facilitate
communication: (1) In an emergency involving a threat to the public
safety or welfare; or (2) if the individual with a disability
specifically requests it, the accompanying individual agrees to provide
the assistance, and reliance on that individual for this assistance is
appropriate under the circumstances.
Many commenters supported this provision, but sought more specific language to address what they See
as a particularly entrenched problem. Some commenters requested that
the Department explicitly require the public entity first to notify the
individual with a disability that the individual has a right to request
and receive appropriate auxiliary aids and services without charge from
the public entity before using that person’s accompanying individual as a
communication facilitator. Advocates stated that an individual who is
unaware of his or her rights may decide to use a third party simply
because he or she believes that is the only way to communicate with the
public entity.
The Department has determined that inclusion of specific
language requiring notification is unnecessary. Section 35.160(b)(1)
already states that is the responsibility of the public entity to
provide auxiliary aids and services. Moreover, § 35.130(f) already
prohibits the public entity from imposing a surcharge on a particular
individual with a disability or on any group of individuals with
disabilities to cover the costs of auxiliary aids. However, the
Department strongly advises public entities that they should first
inform the individual with a disability that the public entity can and
will provide auxiliary aids and services, and that there would be no
cost for such aids or services.
Many commenters requested that the Department make clear that the
public entity cannot request, rely upon, or coerce an adult accompanying
an individual with a disability to provide effective communication for
that individual with a disability—that only a voluntary offer is
acceptable. The Department states unequivocally that consent of, and
for, the adult accompanying the individual with a disability to
facilitate communication must be provided freely and voluntarily both by
the individual with a disability and the accompanying third
party—absent an emergency involving an imminent threat to the safety or
welfare of an individual or the public where there is no interpreter
available. The public entity may not coerce or attempt to persuade
another adult to provide effective communication for the individual with
a disability. Some commenters expressed concern that the regulation
could be read by public entities, including medical providers, to
prevent parents, guardians, or caregivers from providing effective
communication for children or that a child, regardless of age, would
have to specifically request that his or her caregiver act as
interpreter. The Department does not intend § 35.160(c)(2) to prohibit
parents, guardians, or caregivers from providing effective communication
for children where so doing would be appropriate. Rather, the rule
prohibits public entities, including medical providers, from requiring,
relying on, or forcing adults accompanying individuals with
disabilities, including parents, guardians, or caregivers, to facilitate
communication.
Several commenters asked that the Department make absolutely
clear that children are not to be used to provide effective
communication for family members and friends, and that it is the public
entity’s responsibility to provide effective communication, stating that
often interpreters are needed in settings where it would not be
appropriate for children to be interpreting, such as those involving
medical issues, domestic violence, or other situations involving the
exchange of confidential or adult-related material. Commenters observed
that children are often hesitant to turn down requests to provide
communication services, and that such requests put them in a very
difficult position vis-a-vis family members and friends. The Department
agrees. It is the Department’s position that a public entity shall not
rely on a minor child to facilitate communication with a family member,
friend, or other individual, except in an emergency involving imminent
threat to the safety or welfare of an individual or the public where
there is no interpreter available. Accordingly, the Department has
revised the rule to state: ‘‘A public entity shall not rely on a minor
child to interpret or facilitate communication, except in an emergency
involving imminent threat to the safety or welfare of an individual or
the public where there is no interpreter available.’’ § 35.160(c)(3).
Sections 35.160(c)(2) and (3) have no application in circumstances where
an interpreter would not otherwise be required in order to provide
effective communication (e.g., in simple transactions such as
purchasing movie tickets at a theater). The Department stresses that
privacy and confidentiality must be maintained but notes that covered
entities, such as hospitals, that are subject to the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Public Law 104–191,
Privacy Rules are permitted to disclose to a patient’s relative, close
friend, or any other person identified by the patient (such as an
interpreter) relevant patient information if the patient agrees to such
disclosures. See 45 CFR parts 160 and 164. The agreement need
not be in writing. Covered entities should consult the HIPAA Privacy
Rules regarding other ways disclosures might be able to be made to such
persons.
With regard to emergency situations, the NPRM proposed
permitting reliance on an individual accompanying an individual with a
disability to interpret or facilitate communication in an emergency
involving a threat to the public safety or welfare. Commenters requested
that the Department make clear that often a public entity can obtain
appropriate auxiliary aids and services in advance of an emergency by
making necessary advance arrangements, particularly in anticipated
emergencies such as predicted dangerous weather or certain medical
situations such as childbirth. These commenters did not want public
entities to be relieved of their responsibilities to provide effective
communication in emergency situations, noting that the obligation to
provide effective communication may be more critical in such situations.
Several commenters requested a separate rule that requires public
entities to provide timely and effective communication in the event of
an emergency, noting that the need for effective communication escalates
in an emergency.
Commenters also expressed concern that public entities,
particularly law enforcement authorities and medical personnel, would
apply the ‘‘emergency situation’’ provision in inappropriate
circumstances and would rely on accompanying individuals without making
any effort to seek appropriate auxiliary aids and services. Other
commenters asked that the Department narrow this provision so that it
would not be available to entities that are responsible for emergency
preparedness and response. Some commenters noted that certain exigent
circumstances, such as those that exist during and perhaps immediately
after, a major hurricane, temporarily may excuse public entities of
their responsibilities to provide effective communication. However, they
asked that the Department clarify that these obligations are ongoing
and that, as soon as such situations begin to abate or stabilize, the
public entity must provide effective communication.
The Department recognizes that the need for effective
communication is critical in emergency situations. After due
consideration of all of these concerns raised by commenters, the
Department has revised § 35.160(c) to narrow the exception permitting
reliance on individuals accompanying the individual with a disability
during an emergency to make it clear that it only applies to emergencies
involving an ‘‘imminent threat to the safety or welfare of an
individual or the public.’’ See § 35.160(c)(2)–(3). Arguably,
all visits to an emergency room or situations to which emergency workers
respond are by definition emergencies. Likewise, an argument can be
made that most situations that law enforcement personnel respond to
involve, in one way or another, a threat to the safety or welfare of an
individual or the public. The imminent threat exception in §
35.160(c)(2)– (3) is not intended to apply to the typical and
foreseeable emergency situations that are part of the normal operations
of these institutions. As such, a public entity may rely on an
accompanying individual to interpret or facilitate communication under
the § 35.160(c)(2)–(3) imminent threat exception only where in truly
exigent circumstances, i.e., where any delay in providing immediate services to the individual could have life-altering or life-ending consequences.
Many commenters urged the Department to stress the obligation of
State and local courts to provide effective communication. The
Department has received many complaints that State and local courts
often do not provide needed qualified sign language interpreters to
witnesses, litigants, jurors, potential jurors, and companions and
associates of persons participating in the legal process. The Department
cautions public entities that without appropriate auxiliary aids and
services, such individuals are denied an opportunity to participate
fully in the judicial process, and denied benefits of the judicial
system that are available to others.
Another common complaint about access to State and local
court systems is the failure to provide effective communication in
deferral programs that are intended as an alternative to incarceration,
or for other court-ordered treatment programs. These programs must
provide effective communication, and courts referring individuals with
disabilities to such programs should only refer individuals with
disabilities to programs or treatment centers that provide effective
communication. No person with a disability should be denied access to
the benefits conferred through participation in a court-ordered referral
program on the ground that the program purports to be unable to provide
effective communication.
The general nondiscrimination provision in § 35.130(a)
provides that no individual with a disability shall, on the basis of
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity. The
Department consistently interprets this provision and § 35.160 to
require effective communication in courts, jails, prisons, and with law
enforcement officers. Persons with disabilities who are participating in
the judicial process as witnesses, jurors, prospective jurors, parties
before the court, or companions of persons with business in the court,
should be provided auxiliary aids and services as needed for effective
communication. The Department has developed a variety of technical
assistance and guidance documents on the requirements for title II
entities to provide effective communication; those materials are
available on the Department Web site at: http:// www.ada.gov.
Many advocacy groups urged the Department to add language in
the final rule that would require public entities to provide accessible
material in a manner that is timely, accurate, and private. The
Department has included language in § 35.160(b)(2) stating that ‘‘[i]n
order to be effective, auxiliary aids and services must be provided in
accessible formats, in a timely manner, and in such a way so as to
protect the privacy and independence of the individual with a
disability.’’
Because the appropriateness of particular auxiliary aids and
services may vary as a situation changes, the Department strongly
encourages public entities to do a communication assessment of the
individual with a disability when the need for auxiliary aids and
services is first identified, and to reassess communication
effectiveness regularly throughout the communication. For example, a
deaf individual may go to an emergency department of a public community
health center with what is at first believed to be a minor medical
emergency, such as a sore knee, and the individual with a disability and
the public community health center both believe that exchanging written
notes will be effective. However, during that individual’s visit, it is
determined that the individual is, in fact, suffering from an anterior
cruciate ligament tear and must have surgery to repair the torn
ligament. As the situation develops and the diagnosis and recommended
course of action evolve into surgery, an interpreter most likely will be
necessary. A public entity has a continuing obligation to assess the
auxiliary aids and services it is providing, and should consult with
individuals with disabilities on a continuing basis to assess what
measures are required to ensure effective communication. Public entities
are further advised to keep individuals with disabilities apprised of
the status of the expected arrival of an interpreter or the delivery of
other requested or anticipated auxiliary aids and services.
Video remote interpreting (VRI) services. In §
35.160(d) of the NPRM, the Department proposed the inclusion of four
performance standards for VRI (which the NPRM termed video interpreting
services (VIS)), for effective communication: (1) High-quality, clear,
real-time, full-motion video and audio over a dedicated high-speed
Internet connection; (2) a clear, sufficiently large, and sharply
delineated picture of the participating individual’s head, arms, hands,
and fingers, regardless of his body position; (3) clear transmission of
voices; and (4) persons who are trained to set up and operate the VRI
quickly. Commenters generally approved of those performance standards,
but recommended that some additional standards be included in the final
rule. Some State agencies and advocates for persons with disabilities
requested that the Department add more detail in the description of the
first standard, including modifying the term ‘‘dedicated high-speed
Internet connection’’ to read ‘‘dedicated high-speed, wide-bandwidth
video connection.’’ These commenters argued that this change was
necessary to ensure a high-quality video image that will not produce
lags, choppy images, or irregular pauses in communication. The
Department agrees with those comments and has amended the provision in
the final rule accordingly.
For persons who are deaf with limited vision, commenters
requested that the Department include an explicit requirement that
interpreters wear high-contrast clothing with no patterns that might
distract from their hands as they are interpreting, so that a person
with limited vision can see the signs made by the interpreter. While the
Department reiterates the importance of such practices in the delivery
of effective VRI, as well as in-person interpreting, the Department
declines to adopt such performance standards as part of this rule. In
general, professional interpreters already follow such practices—the
Code of Professional Conduct for interpreters developed by the Registry
of Interpreters for the Deaf, Inc. and the National Association of the
Deaf incorporates attire considerations into their standards of
professionalism and conduct. (This code is available at http:// www.vid.org/userfiles/file/pdfs/codeofethics. pdf
(Last visited July 18, 2010). Moreover, as a result of this code, many
VRI agencies have adopted detailed dress standards that interpreters
hired by the agency must follow. In addition, commenters urged that a
clear image of the face and eyes of the interpreter and others be
explicitly required. Because the face includes the eyes, the Department
has amended § 35.160(d)(2) of the final rule to include a requirement
that the interpreter’s face be displayed.
In response to comments seeking more training for users and
non-technicians responsible for VRI in title II facilities, the
Department is extending the requirement in § 35.160(d)(4) to require
training for ‘‘users of the technology’’ so that staff who would have
reason to use the equipment in an emergency room, State or local court,
or elsewhere are properly trained. Providing for such training will
enhance the success of VRI as means of providing effective
communication.
Captioning at sporting venues. In the NPRM at §
35.160(e), the Department proposed that sports stadiums that have a
capacity of 25,000 or more shall provide captioning for safety and
emergency information on scoreboards and video monitors. In addition,
the Department posed four questions about captioning of information,
especially safety and emergency information announcements, provided over
public address (PA) systems. The Department received many extremely
detailed and divergent responses to each of the four questions and the
proposed regulatory text. Because comments submitted on the Department’s
title II and title III proposals were intertwined, because of the
similarity of issues involved for title II entities and title III
entities, and in recognition of the fact that many large sports stadiums
are covered by both title II and title III as joint operations of State
or local governments and one or more public accommodations, the
Department presents here a single consolidated review and summary of the
issues raised in comments.
The Department asked whether requiring captioning of safety
and emergency information made over the public address system in
stadiums seating fewer than 25,000 would create an undue burden for
smaller entities, whether it would be feasible for small stadiums, or
whether a larger threshold, such as sports stadiums with a capacity of
50,000 or more, would be appropriate.
There was a consensus among the commenters, including
disability advocates as well as venue owners and stadium designers and
operators, that using the stadium size or seating capacity as the
exclusive deciding factor for any obligation to provide captioning for
safety and emergency information broadcast over the PA system is not
preferred. Most disability advocacy organizations and individuals with
disabilities complained that using size or seating capacity as a
threshold for captioning safety and emergency information would
undermine the ‘‘undue burden’’ defense found in both titles II and III.
Many commenters provided examples of facilities like professional hockey
arenas that seat less than 25,000 fans but which, commenters argued,
should be able to provide real-time captioning. Other commenters
suggested that some high school or college stadiums, for example, may
hold 25,000 fans or more and yet lack the resources to provide real-time
captioning. Many commenters noted that real-time captioning would
require trained stenographers and that most high school and college
sports facilities rely upon volunteers to operate scoreboards and PA
systems, and they would not be qualified stenographers, especially in
case of an emergency. One national association noted that the typical
stenographer expense for a professional football game in Washington, DC
is about $550 per game. Similarly, one trade association representing
venues estimated that the cost for a professional stenographer at a
sporting event runs between $500 and $1,000 per game or event, the cost
of which, they argued, would be unduly burdensome in many cases. Some
commenters posited that schools that do not sell tickets to athletic
events would find it difficult to meet such expenses, in contrast to
major college athletic programs and professional sports teams, which
would be less likely to prevail using an ‘‘undue burden’’ defense.
Some venue owners and operators and other covered entities
argued that stadium size should not be the key consideration when
requiring scoreboard captioning. Instead, these entities suggested that
equipment already installed in the stadium, including necessary
electrical equipment and backup power supply, should be the determining
factor for whether captioning is mandated. Many commenters argued that
the requirement to provide captioning should only apply to stadiums with
scoreboards that meet the National Fire Protection Association (NFPA)
National Fire Alarm Code (NFPA 72). Commenters reported that NFPA 72
requires at least two independent and reliable power supplies for
emergency information systems, including one source that is a generator
or battery sufficient to run the system in the event the primary power
fails. Alternatively, some stadium designers and title II entities
commented that the requirement should apply when the facility has at
least one elevator providing firefighter emergency operation, along with
approval of authorities with responsibility for fire safety. Other
commenters argued for flexibility in the requirements for providing
captioning and that any requirement should only apply to stadiums
constructed after the effective date of the regulation.
In the NPRM, the Department also asked whether the rule
should address the specific means of captioning equipment, whether it
should be provided through any effective means (scoreboards, line
boards, handheld devices, or other means), or whether some means, such
as handheld devices, should be eliminated as options. This question
elicited many comments from advocates for persons with disabilities as
well as from covered entities. Advocacy organizations and individuals
with experience using handheld devices argue that such devices do not
provide effective communication. These commenters noted that information
is often delayed in the transmission to such devices, making them hard
to use when following action on the playing field or in the event of an
emergency when the crowd is already reacting to aural information
provided over the PA system well before it is received on the handheld
device.
Several venue owners and operators and others commented that
handheld technology offers advantages of flexibility and portability so
that it may be used successfully regardless of where in the facility
the user is located, even when not in the line of sight of a scoreboard
or other captioning system. Still other commenters urged the Department
not to regulate in such a way as to limit innovation and use of such
technology now and in the future. Cost considerations were included in
some comments from some stadium designers and venue owners and
operators, who reported that the cost of providing handheld systems is
far less than the cost of real-time captioning on scoreboards,
especially in facilities that do not currently have the capacity to
provide real-time captions on existing equipment. Others noted that
handheld technology is not covered by fire and safety model codes,
including the NFPA, and thus would be more easily adapted into existing
facilities if captioning were required by the Department.
The Department also asked about providing open captioning of
all public address announcements, and not limiting captioning to safety
and emergency information. A variety of advocates and persons with
disabilities argued that all information broadcast over a PA system
should be captioned in real time at all facilities in order to provide
effective communication and that a requirement only to provide emergency
and safety information would not be sufficient. A few organizations for
persons with disabilities commented that installation of new systems
should not be required, but that all systems within existing facilities
that are capable of providing captioning must be utilized to the maximum
extent possible to provide captioning of as much information as
possible. Several organizations representing persons with disabilities
commented that all facilities must include in safety planning the
requirement to caption all aurally-provided information for patrons with
communication disabilities. Some advocates suggested that demand for
captions will only increase as the number of deaf and hard of hearing
persons grows with the aging of the general population and with
increasing numbers of veterans returning from war with disabilities.
Multiple comments noted that the captioning would benefit others as well
as those with communication disabilities.
By contrast, venue owners and operators and others commented
that the action on the sports field is self-explanatory and does not
require captioning and they objected to an explicit requirement to
provide real-time captioning for all information broadcast on the PA
system at a sporting event. Other commenters objected to requiring
captioning even for emergency and safety information over the scoreboard
rather than through some other means. By contrast, venue operators,
State government agencies, and some model code groups, including NFPA,
commented that emergency and safety information must be provided in an
accessible format and that public safety is a paramount concern. Other
commenters argued that the best method to deliver safety and emergency
information would be television monitors showing local TV broadcasts
with captions already mandated by the FCC. Some commenters posited that
the most reliable information about a major emergency would be provided
on the television news broadcasts. Several commenters argued that
television monitors may be located throughout the facility, improving
line of sight for patrons, some of whom might not be able to See
the scoreboard from their seats or elsewhere in the facility. Some
stadium designers, venue operators, and model code groups pointed out
that video monitors are not regulated by the NFPA or other agencies, so
that such monitors could be more easily provided. Video monitors may
receive transmissions from within the facility and could provide
real-time captions if there is the necessary software and equipment to
feed the captioning signal to a closed video network within the
facility. Several comments suggested that using monitors would be
preferable to requiring captions on the scoreboard if the regulation
mandates realtime captioning. Some venue owners and operators argued
that retrofitting existing stadiums with new systems could easily cost
hundreds of thousands of dollars per scoreboard or system. Some stadium
designers and others argued that captioning should only be required in
stadiums built after the effective date of the regulation. For stadiums
with existing systems that allow for real-time captioning, one commenter
posited that dedicating the system exclusively to real-time captioning
would lead to an annual loss of between $2 and $3 million per stadium in
revenue from advertising currently running in that space.
After carefully considering the wide range of public
comments on this issue, the Department has concluded that the final rule
will not provide additional requirements for effective communication or
emergency information provided at sports stadiums at this time. The
1991 title II and title III regulations and statutory requirements are
not in any way affected by this decision. The decision to postpone
rulemaking on this complex issue is based on a number of factors,
including the multiple layers of existing regulation by various agencies
and levels of government, and the wide array of information, requests,
and recommendations related to developing technology offered by the
public. In addition, there is a huge variety of covered entities,
information and communication systems, and differing characteristics
among sports stadiums. The Department has concluded that further
consideration and review would be prudent before it issues specific
regulatory requirements.
Section 35.161 Telecommunications.
The Department proposed to retitle this section
‘‘Telecommunications’’ to reflect situations in which the public entity
must provide an effective means to communicate by telephone for
individuals with disabilities. First, the NPRM proposed redesignating §
35.161 as § 35.161(a) and replacing the term ‘‘Telecommunications
devices for the deaf (TDD)’’ with ‘‘Text telephones (TTY).’’ Public
comment was universally supportive of this change in nomenclature to
TTY.
In the NPRM, at § 35.161(b), the Department addressed
automated-attendant systems that handle telephone calls electronically.
Often individuals with disabilities, including persons who are deaf or
hard of hearing, are unable to use such automated systems. Some systems
are not compatible with TTYs or the telecommunications relay service.
Automated systems can and often do disconnect calls from TTYs or relay
calls, making it impossible for persons using a TTY or relay system to
do business with title II entities in the same manner as others. The
Department proposed language that would require a telecommunications
service to permit persons using relay or TTYs or other assistive
technology to use the automated-attendant system provided by the public
entity. The FCC raised this concern with the Department after the 1991
title II regulation went into effect, and the Department acted upon that
request in the NPRM. Comments from disability advocates and persons
with disabilities consistently requested the provision be amended to
cover ‘‘voice mail, messaging, auto-attendant, and interactive voice
response systems.’’ The Department recognizes that those are important
features of widely used telecommunications technology that should be as
accessible to persons who are deaf or hard of hearing as they are to
others, and has amended the section in the final rule to include the
additional features.
Many commenters, including advocates and persons with
disabilities, as well as State agencies and national organizations,
asked that all automated systems have an option for the caller to bypass
the automated system and speak to a live person who could communicate
using relay services. The Department understands that automated
telecommunications systems typically do not offer the opportunity to
avoid or bypass the automated system and speak to a live person. The
Department believes that at this time it is inappropriate to add a
requirement that all such systems provide an override capacity that
permits a TTY or relay caller to speak with a live clerk on a
telecommunications relay system. However, if a system already provides
an option to speak to a person, that system must accept TTY and relay
calls and must not disconnect or refuse to accept such calls.
Other comments from advocacy organizations and individuals
urged the Department to require specifications for the operation of such
systems that would involve issuing technical requirements for encoding
and storage of automated text, as well as controls for speed, pause,
rewind, and repeat, and prompts without any background noise. The same
comments urged that these requirements should be consistent with a
pending advisory committee report to the Access Board, submitted in
April 2008. See Telecommunications and Electronic Information
Technology Advisory Committee, Report to the Access Board Refreshed
Accessibility Standards and Guidelines in Telecommunications and
Electronic and Information Technology (Apr. 2008) available at http://www.access-board. gov/sec508/refresh/report/.
The Department is declining at this time to preempt ongoing
consideration of these issues by the Board. Instead, the Department will
monitor activity by the Board. The Department is convinced that the
general requirement to make such automated systems usable by persons
with disabilities is appropriate at this time and title II entities
should evaluate their automated systems in light of concerns about
providing systems that offer effective communication to persons with
disabilities.
Finally, the Department has adopted in § 35.161(c) of the
final rule the requirement that all such systems must not disconnect or
refuse to take calls from all forms of FCC-approved telecommunications
relay systems, including Internet-based relay systems. (Internet-based
relay systems refer to the mechanism by which the message is relayed).
They do not require a public entity to have specialized computer
equipment. Commenters from some State agencies, many advocacy
organizations, and individuals strongly urged the Department to mandate
such action because of the high proportion of TTY calls and relay
service calls that are not completed because the title II entity’s phone
system or employees do not take the calls. This presents a serious
obstacle for persons doing business with State and local government and
denies persons with disabilities access to use the telephone for
business that is typically handled over the phone for others.
In addition, commenters requested that the Department include
‘‘real-time’’ before any mention of ‘‘computer-aided’’ technology to
highlight the value of simultaneous translation of any communication.
The Department has added ‘‘real-time’’ before ‘‘computer-aided
transcription services’’ in the definition of ‘‘auxiliary aids in §
35.104 and before ‘‘communication’’ in § 35.161(b).
Subpart F—Compliance Procedures
Section 35.171 Acceptance of complaints.
In the NPRM, the Department proposed changing the current
language in § 35.171(a)(2)(i) regarding misdirected complaints to make
it clear that if an agency receives a complaint for which it lacks
jurisdiction either under section 504 or as a designated agency under
the ADA, the agency may refer the complaint to the appropriate agency
with title II or section 504 jurisdiction or to the Department of
Justice. The language of the 1991 title II regulation only requires the
agency to refer such a complaint to the Department, which in turn refers
the complaint to the appropriate designated agency. The proposed
revisions to § 35.171 made it clear that an agency can refer a
misdirected complaint either directly to the appropriate agency or to
the Department. This amendment was intended to protect against the
unnecessary backlogging of complaints and to prevent undue delay in an
agency taking action on a complaint.
Several commenters supported this amendment as a more
efficient means of directing title II complaints to the appropriate
enforcing agency. One commenter requested that the Department emphasize
the need for timeliness in referring a complaint. The Department does
not believe it is appropriate to adopt a specific time frame but will
continue to encourage designated agencies to make timely referrals. The
final rule retains, with minor modifications, the language in proposed §
35.171(a)(2)(i). The Department has also amended § 35.171(a)(2)(ii) to
be consistent with the changes in the rule at § 35.190(e), as discussed
below.
Section 35.172 Investigations and compliance reviews.
In the NPRM, the Department proposed a number of changes to
language in § 35.172 relating to the resolution of complaints. Subtitle A
of title II of the ADA defines the remedies, procedures, and rights
provided for qualified individuals with disabilities who are
discriminated against on the basis of disability in the services,
programs, or activities of State and local governments. 42 U.S.C.
12131–12134. Subpart F of the current regulation establishes
administrative procedures for the enforcement of title II of the ADA. 28
CFR 35.170–35.178. Subpart G identifies eight ‘‘designated agencies,’’
including the Department, that have responsibility for investigating
complaints under title II. See 28 CFR 35.190(b).
The Department’s 1991 title II regulation is based on the
enforcement procedures established in regulations implementing section
504. Thus, the Department’s 1991 title II regulation provides that the
designated agency ‘‘shall investigate each complete complaint’’ alleging
a violation of title II and shall ‘‘attempt informal resolution’’ of
such complaint. 28 CFR 35.172(a). The full range of remedies (including
compensatory damages) that are available to the Department when it
resolves a complaint or resolves issues raised in a compliance review
are available to designated agencies when they are engaged in informal
complaint resolution or resolution of issues raised in a compliance
review under title II.
In the years since the 1991 title II regulation went into
effect, the Department has received many more complaints alleging
violations of title II than its resources permit it to resolve. The
Department has reviewed each complaint that the Department has received
and directed its resources to resolving the most critical matters. In
the NPRM, the Department proposed deleting the word ‘‘each’’ as it
appears before ‘‘complaint’’ in § 35.172(a) of the 1991 title II
regulation as a means of clarifying that designated agencies may
exercise discretion in selecting title II complaints for resolution.
Many commenters opposed the removal of the term ‘‘each,’’
requesting that all title II complaints be investigated. The commenters
explained that complaints against title II entities implicate the
fundamental right of access to government facilities and programs,
making an administrative enforcement mechanism critical. Rather than
aligning enforcement discretion of title II complaints with the
discretion under the enforcement procedures of title III, the commenters
favored obtaining additional resources to address more complaints. The
commenters highlighted the advantage afforded by Federal involvement in
complaint investigations in securing favorable voluntary resolutions.
When Federal involvement results in settlement agreements, commenters
believed those agreements are more persuasive to other public entities
than private settlements. Private litigation as a viable alternative was
rejected by the commenters because of the financial limitations of many
complainants, and because in some scenarios legal barriers foreclose
private litigation as an option.
Several of those opposing this amendment argued that
designated agencies are required to investigate each complaint under
section 504, and a departure for title II complaints would be an
inconsistency. The Department believes that § 35.171(a) of the final
rule is consistent with the obligation to evaluate all complaints.
However, there is no statutory requirement that every title II complaint
receive a full investigation. Section 203 of the ADA, 42 U.S.C. 12133,
adopts the ‘‘remedies, procedures, and rights set forth in section 505
of the Rehabilitation Act of 1973’’ (29 U.S.C. 794a). Section 505 of the
Rehabilitation Act, in turn, incorporates the remedies available under
title VI of the Civil Rights Act of 1964 into section 504. Under these
statutes, agencies may engage in conscientious enforcement without fully
investigating each citizen complaint. An agency’s decision to conduct a
full investigation requires a complicated balancing of a number of
factors that are particularly within its expertise. Thus, the agency
must not only assess whether a violation may have occurred, but also
whether agency resources are best spent on this complaint or another,
whether the agency is likely to succeed if it acts, and whether the
particular enforcement action requested best fits the agency’s overall
policies. Availability of resources will always be a factor, and the
Department believes discretion to maximize these limited resources will
result in the most effective enforcement program. If agencies are bound
to investigate each complaint fully, regardless of merit, such a
requirement could have a deleterious effect on their overall enforcement
efforts. The Department continues to expect that each designated agency
will review the complaints the agency receives to determine whether
further investigation is appropriate.
The Department also proposed revising § 35.172 to add a new
paragraph (b) that provided explicit authority for compliance reviews
consistent with the Department’s longstanding position that such
authority exists. The proposed section stated, ‘‘[t]he designated agency
may conduct compliance reviews of public entities based on information
indicating a possible failure to comply with the nondiscrimination
requirements of this part.’’ Several commenters supported this
amendment, identifying title III compliance reviews as having been a
successful means for the Department and designated agencies to improve
accessibility. The Department has retained this section. However, the
Department has modified the language of the section to make the
authority to conduct compliance reviews consistent with that available
under section 504 and title VI. See , e.g., 28 CFR
42.107(a). The new provision reads as follows: ‘‘(b) The designated
agency may conduct compliance reviews of public entities in order to
ascertain whether there has been a failure to comply with the
nondiscrimination requirements of this part.’’ The Department has also
added a provision to § 35.172(c)(2) clarifying the Department’s
longstanding view that agencies may obtain compensatory damages on
behalf of complainants as the result of a finding of discrimination
pursuant to a compliance review or in informal resolution of a
complaint.
Finally, in the NPRM, the Department proposed revising the
requirements for letters of findings for clarification and to reflect
current practice. Section 35.172(a) of the 1991 title II regulation
required designated agencies to issue a letter of findings at the
conclusion of an investigation if the complaint was not resolved
informally, and to attempt to negotiate a voluntary compliance agreement
if a violation was found. The Department’s proposed changes to the 1991
title II regulation moved the discussion of letters of findings to a
new paragraph (c) in the NPRM, and clarified that letters of findings
are only required when a violation is found.
One commenter opposed the proposal to eliminate the
obligation of the Department and designated agencies to issue letters of
finding at the conclusion of every investigation. The commenter argued
that it is beneficial for public entities, as well as complainants, for
the Department to provide a reasonable explanation of both compliance
and noncompliance findings.
The Department has considered this comment but continues to
believe that this change will promote the overall effectiveness of its
enforcement program. The final rule retains the proposed language.
Subpart G—Designated Agencies
Section 35.190 Designated agencies.
Subpart G of the 1991 title II regulation designates
specific Federal agencies to investigate certain title II complaints.
Paragraph 35.190(b) specifies these agency designations. Paragraphs
35.190(c) and (d), respectively, grant the Department discretion to
designate further oversight responsibilities for matters not
specifically assigned or where there are apparent conflicts of
jurisdiction. The NPRM proposed adding a new § 35.190(e) further
refining procedures for complaints filed with the Department of Justice.
Proposed § 35.190(e) provides that when the Department receives a
complaint alleging a violation of title II that is directed to the
Attorney General but may fall within the jurisdiction of a designated
agency or another Federal agency with jurisdiction under section 504,
the Department may exercise its discretion to retain the complaint for
investigation under this part. The Department would, of course, consult
with the designated agency when the Department plans to retain a
complaint. In appropriate circumstances, the Department and the
designated agency may conduct a joint investigation.
Several commenters supported this amendment as a more
efficient means of processing title II complaints. The commenters
supported the Department using its discretion to conduct timely
investigations of such complaints. The language of the proposed §
35.190(e) remains unchanged in the final rule.
Other Issues
Questions Posed in the NPRM Regarding Costs and Benefits of Complying With the 2010 Standards
In the NPRM, the Department requested comment on various
cost and benefit issues related to eight requirements in the
Department’s Initial Regulatory Impact Analysis (Initial RIA), available
at ada.gov/ NPRM2008/ria.htm), that were projected to have
incremental costs exceeding monetized benefits by more than $100 million
when using the 1991 Standards as the comparative baseline, i.e.,
side reach, water closet clearances in single-user toilet rooms with
in-swinging doors, stairs, elevators, location of accessible routes to
stages, accessible attorney areas and witness stands, assistive
listening systems, and accessible teeing grounds, putting greens, and
weather shelters at golf courses. 73 FR 34466, 34469 (June 17, 2008).
The Department noted that pursuant to the ADA, the Department does not
have statutory authority to modify the 2004 ADAAG and is required
instead to issue regulations implementing the ADA that are consistent
with the Board’s guidelines. In that regard, the Department also
requested comment about whether any of these eight elements in the 2010
Standards should be returned to the Access Board for further
consideration, in particular as applied to alterations. Many of the
comments received by the Department in response to these questions
addressed both titles II and III. As a result, the Department’s
discussion of these comments and its response are collectively presented
for both titles.
Side reach. The 1991 Standards at section 4.2.6
establish a maximum side-reach height of 54 inches. The 2010 Standards
at section 308.3 reduce that maximum height to 48 inches. The 2010
Standards also add exceptions for certain elements to the scoping
requirement for operable parts.
The vast majority of comments the Department received were
in support of the lower side-reach maximum of 48 inches in the 2010
Standards. Most of these comments, but not all, were received from
individuals of short stature, relatives of individuals of short stature,
or organizations representing the interests of persons with
disabilities, including individuals of short stature. Comments from
individuals with disabilities and disability advocacy groups stated that
the 48-inch side reach would permit independence in performing many
activities of daily living for individuals with disabilities, including
individuals of short stature, persons who use wheelchairs, and persons
who have limited upper body strength. In this regard, one commenter who
is a business owner pointed out that as a person of short stature there
were many occasions when he was unable to exit a public restroom
independently because he could not reach the door handle. The commenter
said that often elevator control buttons are out of his reach and, if he
is alone, he often must wait for someone else to enter the elevator so
that he can ask that person to press a floor button for him. Another
commenter, who is also a person of short stature, said that he has on
several occasions pulled into a gas station only to find that he was
unable to reach the credit card reader on the gas pump. Unlike other
customers who can reach the card reader, swipe their credit or debit
cards, pump their gas and leave the station, he must use another method
to pay for his gas. Another comment from a person of short stature
pointed out that as more businesses take steps to reduce labor costs—a
trend expected to continue—staffed booths are being replaced with
automatic machines for the sale, for example, of parking tickets and
other products. He observed that the ‘‘ability to access and operate
these machines becomes ever more critical to function in society,’’ and,
on that basis, urged the Department to adopt the 48-inch side-reach
requirement. Another individual commented that persons of short stature
should not have to carry with them adaptive tools in order to access
building or facility elements that are out of their reach, any more than
persons in wheelchairs should have to carry ramps with them in order to
gain access to facilities.
Many of the commenters who supported the revised side-reach
requirement pointed out that lowering the side-reach requirement to 48
inches would avoid a problem sometimes encountered in the built
environment when an element was mounted for a parallel approach at 54
inches only to find afterwards that a parallel approach was not
possible. Some commenters also suggested that lowering the maximum
unobstructed side reach to 48 inches would reduce confusion among design
professionals by making the unobstructed forward and side-reach
maximums the same (the unobstructed forward reach in both the 1991 and
2010 Standards is 48 inches maximum). These commenters also pointed out
that the ICC/ANSI A117.1 Standard, which is a private sector model
accessibility standard, has included a 48-inch maximum high side-reach
requirement since 1998. Many jurisdictions have already incorporated
this requirement into their building codes, which these commenters
believed would reduce the cost of compliance with the 2010 Standards.
Because numerous jurisdictions have already adopted the 48-inch
side-reach requirement, the Department’s failure to adopt the 48-inch
side-reach requirement in the 2010 Standards, in the view of many
commenters, would result in a significant reduction in accessibility,
and would frustrate efforts that have been made to harmonize private
sector model construction and accessibility codes with Federal
accessibility requirements. Given these concerns, they overwhelmingly
opposed the idea of returning the revised side-reach requirement to the
Access Board for further consideration.
The Department also received comments in support of the
48-inch side-reach requirement from an association of professional
commercial property managers and operators and from State governmental
entities. The association of property managers pointed out that the
revised side-reach requirement provided a reasonable approach to
‘‘regulating elevator controls and all other operable parts’’ in
existing facilities in light of the manner in which the safe harbor,
barrier removal, and alterations obligations will operate in the 2010
Standards. One governmental entity, while fully supporting the 48-inch
side-reach requirement, encouraged the Department to adopt an exception
to the lower reach range for existing facilities similar to the
exception permitted in the ICC/ANSI A117.1 Standard. In response to this
latter concern, the Department notes that under the safe harbor,
existing facilities that are in compliance with the 1991 Standards,
which require a 54-inch side-reach maximum, would not be required to
comply with the lower side-reach requirement, unless there is an
alteration. See § 35.150(b)(2).
A number of commenters expressed either concern with, or
opposition to, the 48-inch side-reach requirement and suggested that it
be returned to the Access Board for further consideration. These
commenters included trade and business associations, associations of
retail stores, associations of restaurant owners, retail and convenience
store chains, and a model code organization. Several businesses
expressed the view that the lower side-reach requirement would
discourage the use of their products and equipment by most of the
general public. In particular, concerns were expressed by a national
association of pay phone service providers regarding the possibility
that pay telephones mounted at the lower height would not be used as
frequently by the public to place calls, which would result in an
economic burden on the pay phone industry. The commenter described the
lower height required for side reach as creating a new ‘‘barrier’’ to
pay phone use, which would reduce revenues collected from pay phones
and, consequently, further discourage the installation of new pay
telephones. In addition, the commenter expressed concern that phone
service providers would simply decide to remove existing pay phones
rather than incur the costs of relocating them at the lower height. With
regard to this latter concern, the commenter misunderstood the manner
in which the safe harbor obligation will operate in the revised title II
regulation for elements that comply with the 1991 Standards. If the pay
phones comply with the 1991 Standards or UFAS, the adoption of the 2010
Standards does not require retrofitting of these elements to reflect
incremental changes in the 2010 Standards (see § 35.150(b)(2)). However,
pay telephones that were required to meet the 1991 Standards as part of
new construction or alterations, but do not in fact comply with those
standards, will need to be brought into compliance with the 2010
Standards as of 18 months from the publication date of this final rule. See § 35.151(c)(5)(ii).
The Department does not agree with the concerns expressed by
the commenter about reduced revenues from pay phones mounted at lower
heights. The Department believes that, while given the choice some
individuals may prefer to use a pay phone that is at a higher height,
the availability of some phones at a lower height will not deter
individuals from making needed calls.
The 2010 Standards will not require every pay phone to be
installed or moved to a lowered height. The table accompanying section
217.2 of the 2010 Standards makes clear that, where one or more
telephones are provided on a floor, level, or an exterior site, only one
phone per floor, level, or exterior site must be placed at an
accessible height. Similarly, where there is one bank of phones per
floor, level, or exterior site, only one phone per floor, level, or
exterior site must be accessible. And if there are two or more banks of
phones per floor, level, or exterior site, only one phone per bank must
be placed at an accessible height.
Another comment in opposition to the lower reach range
requirement was submitted on behalf of a chain of convenience stores
with fuel stops. The commenter expressed the concern that the 48-inch
side reach ‘‘will make it uncomfortable for the majority of the
public,’’ including persons of taller stature who would need to stoop to
use equipment such as fuel dispensers mounted at the lower height. The
commenter offered no objective support for the observation that a
majority of the public would be rendered uncomfortable if, as required
in the 2010 Standards, at least one of each type of fuel dispenser at a
facility was made accessible in compliance with the lower reach range.
Indeed, the Department received no comments from any individuals of tall
stature expressing concern about accessible elements or equipment being
mounted at the 48-inch height.
Several convenience store, restaurant, and amusement park
commenters expressed concern about the burden the lower side-reach
requirement would place on their businesses in terms of self-service
food stations and vending areas if the 48-inch requirement were applied
retroactively. The cost of lowering counter height, in combination with
the lack of control businesses exercise over certain prefabricated
service or vending fixtures, outweighed, they argued, any benefits to
persons with disabilities. For this reason, they suggested the lower
side-reach requirement be referred back to the Access Board.
These commenters misunderstood the safe harbor and barrier
removal obligations that will be in effect under the 2010 Standards.
Those existing self-service food stations and vending areas that already
are in compliance with the 1991 Standards will not be required to
satisfy the 2010 Standards unless they engage in alterations. With
regard to prefabricated vending machines and food service components
that will be purchased and installed in businesses after the 2010
Standards become effective, the Department expects that companies will
design these machines and fixtures to comply with the 2010 Standards in
the future, as many have already done in the 10 years since the 48- inch
side-reach requirement has been a part of the model codes and standards
used by many jurisdictions as the basis for their construction codes.
A model code organization commented that the lower
side-reach requirement would create a significant burden if it required
entities to lower the mounting height for light switches, environmental
controls, and outlets when an alteration did not include the walls where
these elements were located, such as when ‘‘an area is altered or as a
path of travel obligation.’’ The Department believes that the final rule
adequately addresses those situations about which the commenter
expressed concern by not requiring the relocation of existing elements,
such as light switches, environmental controls, and outlets, unless they
are altered. Moreover, under § 35.151(b)(4)(iii) of the final rule,
costs for altering the path of travel to an altered area of primary
function that exceed 20 percent of the overall costs of the alteration
will be deemed disproportionate.
The Department has determined that the revised side-reach
requirement should not be returned to the Access Board for further
consideration, based in large part on the views expressed by a majority
of the commenters regarding the need for, and importance of, the lower
side-reach requirement to ensure access for persons with disabilities.
Alterations and Water Closet Clearances in Single-User Toilet Rooms With In-Swinging Doors
The 1991 Standards allow a lavatory to be placed a minimum
of 18 inches from the water closet centerline and a minimum of 36 inches
from the side wall adjacent to the water closet, which precludes side
transfers. The 1991 Standards do not allow an in-swinging door in a
toilet or bathing room to overlap the required clear floor space at any
accessible fixture. To allow greater transfer options, section 604.3.2
of the 2010 Standards prohibits lavatories from overlapping the clear
floor space at water closets, except in residential dwelling units.
Section 603.2.3 of the 2010 Standards maintains the prohibition on doors
swinging into the clear floor space or clearance required for any
fixture, except that they permit the doors of toilet or bathing rooms to
swing into the required turning space, provided that there is
sufficient clearance space for the wheelchair outside the door swing. In
addition, in single-user toilet or bathing rooms, exception 2 of
section 603.2.3 of the 2010 Standards permits the door to swing into the
clear floor space of an accessible fixture if a clear floor space that
measures at least 30 inches by 48 inches is available outside the arc of
the door swing.
The majority of commenters believed that this requirement
would increase the number of toilet rooms accessible to individuals with
disabilities who use wheelchairs or mobility scooters, and will make it
easier for them to transfer. A number of commenters stated that there
was no reason to return this provision to the Access Board. Numerous
commenters noted that this requirement is already included in other
model accessibility standards and many State and local building codes
and that the adoption of the 2010 Standards is an important part of
harmonization efforts.
Other commenters, mostly trade associations, opposed this
requirement, arguing that the added cost to the industry outweighs any
increase in accessibility. Two commenters stated that these proposed
requirements would add two feet to the width of an accessible
single-user toilet room; however, another commenter said the drawings in
the proposed regulation demonstrated that there would be no substantial
increase in the size of the toilet room. Several commenters stated that
this requirement would require moving plumbing fixtures, walls, or
doors at significant additional expense. Two commenters wanted the
permissible overlap between the door swing and clearance around any
fixture eliminated. One commenter stated that these new requirements
will result in fewer alterations to toilet rooms to avoid triggering the
requirement for increased clearances, and suggested that the Department
specify that repairs, maintenance, or minor alterations would not
trigger the need to provide increased clearances. Another commenter
requested that the Department exempt existing guest room bathrooms and
single-user toilet rooms that comply with the 1991 Standards from
complying with the increased clearances in alterations.
After careful consideration of these comments, the
Department believes that the revised clearances for single-user toilet
rooms will allow safer and easier transfers for individuals with
disabilities, and will enable a caregiver, aide, or other person to
accompany an individual with a disability into the toilet room to
provide assistance. The illustrations in Appendix B to the final title III rule,
‘‘Analysis and Commentary on the 2010 ADA Standards for Accessible
Design,’’ published elsewhere in this volume and codified as Appendix B
to 28 CFR part 36, describe several ways for public entities and public
accommodations to make alterations while minimizing additional costs or
loss of space. Further, in any isolated instances where existing
structural limitations may entail loss of space, the public entity and
public accommodation may have a technical infeasibility defense for that
alteration. The Department also recognizes that in attempting to create
the required clear floor space pursuant to section 604.3.2, there may
be certain specific circumstances where it would be technically
infeasible for a covered entity to comply with the clear floor space
requirement, such as where an entity must move a plumbing wall in a
multistory building where the mechanical chase for plumbing is an
integral part of a building’s structure or where the relocation of a
wall or fixture would violate applicable plumbing codes. In such
circumstances, the required clear floor space would not have to be
provided although the covered entity would have to provide accessibility
to the maximum extent feasible. The Department has, therefore, decided
not to return this requirement to the Access Board.
Alterations to stairs. The 1991 Standards only
require interior and exterior stairs to be accessible when they provide
access to levels that are not connected by an elevator, ramp, or other
accessible means of vertical access. In contrast, section 210.1 of the
2010 Standards requires all newly constructed stairs that are part of a
means of egress to be accessible. However, exception 2 of section 210.1
of the 2010 Standards provides that in alterations, stairs between
levels connected by an accessible route need not be accessible, except
that handrails shall be provided. Most commenters were in favor of this
requirement for handrails in alterations, and stated that adding
handrails to stairs during alterations was not only feasible and not
cost-prohibitive, but also provided important safety benefits. One
commenter stated that making all points of egress accessible increased
the number of people who could use the stairs in an emergency. A
majority of the commenters did not want this requirement returned to the
Access Board for further consideration.
The International Building Code (IBC), which is a private
sector model construction code, contains a similar provision, and most
jurisdictions enforce a version of the IBC as their building code,
thereby minimizing the impact of this provision on public entities and
public accommodations. The Department believes that by requiring only
the addition of handrails to altered stairs where levels are connected
by an accessible route, the costs of compliance for public entities and
public accommodations are minimized, while safe egress for individuals
with disabilities is increased. Therefore, the Department has decided
not to return this requirement to the Access Board.
Alterations to elevators. Under the 1991 Standards,
if an existing elevator is altered, only that altered elevator must
comply with the new construction requirements for accessible elevators
to the maximum extent feasible. It is therefore possible that a bank of
elevators controlled by a single call system may contain just one
accessible elevator, leaving an individual with a disability with no way
to call an accessible elevator and thus having to wait indefinitely
until an accessible elevator happens to respond to the call system. In
the 2010 Standards, when an element in one elevator is altered, section
206.6.1 will require the same element to be altered in all elevators
that are programmed to respond to the same call button as the altered
elevator.
Most commenters favored the proposed requirement. This
requirement, according to these commenters, is necessary so a person
with a disability need not wait until an accessible elevator responds to
his or her call. One commenter suggested that elevator owners could
also comply by modifying the call system so the accessible elevator
could be summoned independently. One commenter suggested that this
requirement would be difficult for small businesses located in older
buildings, and one commenter suggested that this requirement be sent
back to the Access Board.
After considering the comments, the Department agrees that
this requirement is necessary to ensure that when an individual with a
disability presses a call button, an accessible elevator will arrive in a
timely manner. The IBC contains a similar provision, and most
jurisdictions enforce a version of the IBC as their building code,
minimizing the impact of this provision on public entities and public
accommodations. Public entities and businesses located in older
buildings need not comply with this requirement where it is technically
infeasible to do so. Further, as pointed out by one commenter, modifying
the call system so the accessible elevator can be summoned
independently is another means of complying with this requirement in
lieu of altering all other elevators programmed to respond to the same
call button. Therefore, the Department has decided not to return this
requirement to the Access Board.
Location of accessible routes to stages. The 1991
Standards at section 4.33.5 require an accessible route to connect the
accessible seating and the stage, as well as other ancillary spaces used
by performers. The 2010 Standards at section 206.2.6 provide in
addition that where a circulation path directly connects the seating
area and the stage, the accessible route must directly connect the
accessible seating and the stage, and, like the 1991 Standards, an
accessible route must connect the stage with the ancillary spaces used
by performers.
In the NPRM, the Department asked operators of auditoria
about the extent to which auditoria already provide direct access to
stages and whether there were planned alterations over the next 15 years
that included accessible direct routes to stages. The Department also
asked how to quantify the benefits of this requirement for persons with
disabilities, and invited commenters to provide illustrative anecdotal
experiences about the requirement’s benefits. The Department received
many comments regarding the costs and benefits of this requirement.
Although little detail was provided, many industry and governmental
entity commenters anticipated that the costs of this requirement would
be great and that it would be difficult to implement. They noted that
premium seats may have to be removed and that load-bearing walls may
have to be relocated. These commenters suggested that the significant
costs would deter alterations to the stage area for a great many
auditoria. Some commenters suggested that ramps to the front of the
stage may interfere with means of egress and emergency exits. Several
commenters requested that the requirement apply to new construction
only, and one industry commenter requested an exemption for stages used
in arenas or amusement parks where there is no audience participation or
where the stage is a work area for performers only. One commenter
requested that the requirement not apply to temporary stages.
The final rule does not require a direct accessible route to
be constructed where a direct circulation path from the seating area to
the stage does not exist. Consequently, those commenters who expressed
concern about the burden imposed by the revised requirement (i.e.,
where the stage is constructed with no direct circulation path
connecting the general seating and performing area) should note that the
final rule will not require the provision of a direct accessible route
under these circumstances. The final rule applies to permanent stages,
as well as ‘‘temporary stages,’’ if there is a direct circulation path
from the seating area to the stage. However, the Department does
recognize that in some circumstances, such as an alteration to a primary
function area, the ability to provide a direct accessible route to a
stage may be costly or technically infeasible, the auditorium owner is
not precluded by the revised requirement from asserting defenses
available under the regulation. In addition, the Department notes that
since section 4.33.5 of the 1991 Standards requires an accessible route
to a stage, the safe harbor will apply to existing facilities whose
stages comply with the 1991 Standards.
Several governmental entities supported accessible auditoria
and the revised requirement. One governmental entity noted that its
State building code already required direct access, that it was possible
to provide direct access, and that creative solutions had been found to
do so.
Many advocacy groups and individual commenters strongly
supported the revised requirement, discussing the acute need for direct
access to stages as it impacts a great number of people at important
life events such as graduations and awards ceremonies, at collegiate and
competitive performances and other school events, and at entertainment
events that include audience participation. Many commenters expressed
the belief that direct access is essential for integration mandates to
be satisfied and that separate routes are stigmatizing and unequal. The
Department agrees with these concerns.
Commenters described the impact felt by persons in
wheelchairs who are unable to access the stage at all when others are
able to do so. Some of these commenters also discussed the need for
performers and production staff who use wheelchairs to have direct
access to the stage and provided a number of examples that illustrated
the importance of the rule proposed in the NPRM. Personal anecdotes were
provided in comments and at the Department’s public hearing on the
NPRM. One mother spoke passionately and eloquently about the unequal
treatment experienced by her daughter, who uses a wheelchair, at awards
ceremonies and band concerts. Her daughter was embarrassed and ashamed
to be carried by her father onto a stage at one band concert. When the
venue had to be changed for another concert to an accessible auditorium,
the band director made sure to comment that he was unhappy with the
switch. Rather than endure the embarrassment and indignities, her child
dropped out of band the following year. Another father commented about
how he was unable to speak from the stage at a PTA meeting at his
child’s school. Speaking from the floor limited his line of sight and
his participation. Several examples were provided of children who could
not participate on stage during graduation, awards programs, or special
school events, such as plays and festivities. One student did not attend
his college graduation because he would not be able to get on stage.
Another student was unable to participate in the class Christmas
programs or end-of-year parties unless her father could attend and lift
her onto the stage. These commenters did not provide a method to
quantify the benefits that would accrue by having direct access to
stages. One commenter stated, however, that ‘‘the cost of dignity and
respect is without measure.’’
Many industry commenters and governmental entities suggested
that the requirement be sent back to the Access Board for further
consideration. One industry commenter mistakenly noted that some
international building codes do not incorporate the requirement and that
therefore there is a need for further consideration. However, the
Department notes that both the 2003 and 2006 editions of the IBC include
scoping provisions that are almost identical to this requirement and
that these editions of the model code are the most frequently used. Many
individuals and advocacy group commenters requested that the
requirement be adopted without further delay. These commenters spoke of
the acute need for direct access to stages and the amount of time it
would take to resubmit the requirement to the Access Board. Several
commenters noted that the 2004 ADAAG tracks recent model codes and thus
there is no need for further consideration. The Department agrees that
no further delay is necessary and therefore has decided not to return
the requirement to the Access Board for further consideration.
Attorney areas and witness stands. The 1991
Standards do not require that public entities meet specific
architectural standards with regard to the construction and alteration
of courtrooms and judicial facilities. Because it is apparent that the
judicial facilities of State and local governments have often been
inaccessible to individuals with disabilities, as part of the NPRM, the
Department proposed the adoption of sections 206.2.4, 231.2, 808, 304,
305, and 902 of the 2004 ADAAG concerning judicial facilities and
courtrooms, including requirements for accessible courtroom stations and
accessible jury boxes and witness stands.
Those who commented on access to judicial facilities and
courtrooms uniformly favored the adoption of the 2010 Standards.
Virtually all of the commenters stated that accessible judicial
facilities are crucial to ensuring that individuals with disabilities
are afforded due process under law and have an equal opportunity to
participate in the judicial process. None of the commenters favored
returning this requirement to the Access Board for further
consideration.
The majority of commenters, including many disability rights
and advocacy organizations, stated that it is crucial for individuals
with disabilities to have effective and meaningful access to our
judicial system so as to afford them due process under law. They
objected to asking the Access Board to reconsider this requirement. In
addition to criticizing the initial RIA for virtually ignoring the
intangible and non-monetary benefits associated with accessible
courtrooms, these commenters frequently cited the Supreme Court’s
decision in Tennessee v. Lane, 541 U.S. 509, 531 (2004),4 as
ample justification for the requirement, noting the Court’s finding
that ‘‘[t]he unequal treatment of disabled persons in the administration
of judicial services has a long history, and has persisted despite
several legislative efforts to remedy the problem of disability
discrimination.’’ Id. at 531. These commenters also made a
number of observations, including the following: providing effective
access to individuals with mobility impairments is not possible when
architectural barriers impede their path of travel and negatively
emphasize an individual’s disability; the perception generated by
makeshift accommodations discredits witnesses and attorneys with
disabilities, who should not be stigmatized or treated like second-class
citizens; the cost of accessibility modifications to existing
courthouses can often be significantly decreased by planning ahead, by
focusing on low-cost options that provide effective access, and by
addressing existing barriers when reasonable modifications to the
courtroom can be made; by planning ahead and by following best
practices, jurisdictions can avoid those situations where it is apparent
that someone's disability is the reason why ad hoc arrangements have to
be made prior to the beginning of court proceedings; and accessibility
should be a key concern during the planning and construction process so
as to ensure that both courtroom grandeur and accessibility are
achieved. One commenter stated that, in order for attorneys with
disabilities to perform their professional duties to their clients and
the court, it is essential that accessible courtrooms, conference rooms,
law libraries, judicial chambers, and other areas of a courthouse be
made barrier-free by taking accessible design into account prior to
construction.
Numerous commenters identified a variety of benefits that
would accrue as a result of requiring judicial facilities to be
accessible. These included the following: maintaining the decorum of the
courtroom and eliminating the disruption of court proceedings when
individuals confront physical barriers; providing an accessible route to
the witness stand and attorney area and clear floor space to
accommodate a wheelchair within the witness area; establishing crucial
lines of sight between the judge, jury, witnesses, and attorneys—which
commenters described as crucial; ensuring that the judge and the jury
will not miss key visual indicators of a witness; maintaining a
witness’s or attorney’s dignity and credibility; shifting the focus from
a witness’s disability to the substance of that person’s testimony;
fostering the independence of an individual with disability; allowing
persons with mobility impairments to testify as witnesses, including as
expert witnesses; ensuring the safety of various participants in a
courtroom proceeding; and avoiding unlawful discrimination. One
commenter stated that equal access to the well of the courtroom for both
attorney and client is important for equal participation and
representation in our court system. Other commenters indicated that
accessible judicial facilities benefit a wide range of people, including
many persons without disabilities, senior citizens, parents using
strollers with small children, and attorneys and court personnel
wheeling documents into the courtroom. One commenter urged the adoption
of the work area provisions because they would result in better
workplace accessibility and increased productivity. Several commenters
urged the adoption of the rule because it harmonizes the ADAAG with the
model IBC, the standards developed by the American National Standards
Institute (ANSI), and model codes that have been widely adopted by State
and local building departments, thus increasing the prospects for
better understanding and compliance with the ADAAG by architects,
designers, and builders.
Several commenters mentioned the report ‘‘Justice for All: Designing Accessible Courthouses’’ (Nov. 15, 2006), available at http://www.access-board.gov/caac/ report.htm
(Nov. 24, 2009) (last visited June 24, 2010). The report, prepared by
the Courthouse Access Advisory Committee for the Access Board, contained
recommendations for the Board’s use in developing and disseminating
guidance on accessible courthouse design under the ADA and the ABA.
These commenters identified some of the report’s best practices
concerning courtroom accessibility for witness stands, jury boxes, and
attorney areas; addressed the costs and benefits arising from the use of
accessible courtrooms; and recommended that the report be incorporated
into the Department’s final rule. With respect to existing courtrooms,
one commenter in this group suggested that consideration be given to
ensuring that there are barrier-free emergency evacuation routes for all
persons in the courtroom, including different evacuation routes for
different classes of individuals given the unique nature of judicial
facilities and courtrooms.
The Department declines to incorporate the report into the
regulation. However, the Department encourages State and local
governments to consult the Committee report as a useful guide on ways to
facilitate and increase accessibility of their judicial facilities. The
report includes many excellent examples of accessible courtroom design.
One commenter proposed that the regulation also require a
sufficient number of accessible benches for judges with disabilities.
Under section 206.2.4 of the 2004 ADAAG, raised courtroom stations used
by judges and other judicial staff are not required to provide full
vertical access when first constructed or altered, as long as the
required clear floor space, maneuvering space, and any necessary
electrical service for future installation of a means of vertical
access, is provided at the time of new construction or can be achieved
without substantial reconstruction during alterations. The Department
believes that this standard easily allows a courtroom station to be
adapted to provide vertical access in the event a judge requires an
accessible judge’s bench.
The Department received several anecdotal accounts of
courtroom experiences of individuals with disabilities. One commenter
recalled numerous difficulties that her law partner faced as the result
of inaccessible courtrooms, and their concerns that the attention of
judge and jury was directed away from the merits of case to the lawyer
and his disability. Among other things, the lawyer had to ask the judges
on an appellate panel to wait while he maneuvered through insufficient
space to the counsel table; ask judges to relocate bench conferences to
accessible areas; and make last-minute preparations and rearrangements
that his peers without disabilities did not have to make. Another
commenter with extensive experience as a lawyer, witness, juror, and
consultant observed that it is common practice for a witness who uses
mobility devices to sit in front of the witness stand. He described how
disconcerting and unsettling it has been for him to testify in front of
the witness stand, which allowed individuals in the courtroom to See his hands or legs shaking because of spasticity, making him feel like a second-class citizen.
Two other commenters with mobility disabilities described
their experiences testifying in court. One accessibility consultant
stated that she was able to represent her clients successfully when she
had access to an accessible witness stand because it gave her the
ability ‘‘to look the judge in the eye, speak comfortably and be heard,
hold up visual aids that could be seen by the judge, and perform without
an architectural stigma.’’ She did not believe that she was able to
achieve a comparable outcome or have meaningful access to the justice
system when she testified from an inaccessible location. Similarly, a
licensed clinical social worker indicated that she has testified in
several cases in accessible courtrooms, and that having full access to
the witness stand in the presence of the judge and the jury was
important to her effectiveness as an expert witness. She noted that
accessible courtrooms often are not available, and that she was aware of
instances in which victims, witnesses, and attorneys with disabilities
have not been able to obtain needed disability accommodations in order
to fulfill their roles at trial.
Two other commenters indicated that they had been chosen for
jury duty but that they were effectively denied their right to
participate as jurors because the courtrooms were not accessible.
Another commenter indicated that he has had to sit apart from the other
jurors because the jury box was inaccessible.
A number of commenters expressed approval of actions taken
by States to facilitate access in judicial facilities. A member of a
State commission on disability noted that the State had been working
toward full accessibility since 1997 when the Uniform Building Code
required interior accessible routes. This commenter stated that the
State’s district courts had been renovated to the maximum extent
feasible to provide greater access. This commenter also noted that a
combination of Community Development Block Grant money and State funds
are often awarded for renovations of courtroom areas. One advocacy group
that has dealt with court access issues stated that members of the
State legal community and disability advocates have long been promoting
efforts to ensure that the State courts are accessible to individuals
with disabilities. The comment cited a publication distributed to the
Washington State courts by the State bar association entitled,
‘‘Ensuring Equal Access to the Courts for Persons with Disabilities.’’
(Aug. 2006), available at http:// www.wsba.org/ensuringaccessguidebook.pdf
(last visited July 20, 2010). In addition, the commenter also indicated
that the State supreme court had promulgated a new rule governing how
the courts should respond to requests of accommodation based upon
disability; the State legislature had created the position of Disability
Access Coordinator for Courts to facilitate accessibility in the court
system; and the State legislature had passed a law requiring that all
planned improvements and alterations to historic courthouses be approved
by the ADA State facilities program manager and committee in order to
ensure that the alterations will enhance accessibility.
The Department has decided to adopt the requirements in the
2004 ADAAG with respect to judicial facilities and courtrooms and will
not ask the Access Board to review these requirements. The final rule is
wholly consistent with the objectives of the ADA. It addresses a
well-documented history of discrimination with respect to judicial
administration and significantly increases accessibility for individuals
with disabilities. It helps ensure that they will have an opportunity
to participate equally in the judicial process. As stated, the final
rule is consistent with a number of model and local building codes that
have been widely adopted by State and local building departments and
provides greater uniformity for planners, architects, and builders.
Assistive listening systems. The 1991 Standards at
sections 4.33.6 and 4.33.7 require assistive listening systems (ALS) in
assembly areas and prescribe general performance standards for ALS
systems. In the NPRM, the Department proposed adopting the technical
specifications in the 2004 ADAAG for ALS that are intended to ensure
better quality and effective delivery of sound and information for
persons with hearing impairments, especially those using hearing aids.
The Department noted in the NPRM that since 1991, advancements in ALS
and the advent of digital technology have made these systems more
amenable to uniform standards, which, among other things, should ensure
that a certain percentage of required ALS systems are hearing-aid
compatible. 73 FR 34466, 34471 (June 17, 2008). The 2010 Standards at
section 219 provide scoping requirements and at section 706 address
receiver jacks, hearing aid compatibility, sound pressure level,
signal-to-noise ratio, and peak clipping level. The Department requested
comments specifically from arena and assembly area administrators on
the cost and maintenance issues associated with ALS, asked generally
about the costs and benefits of ALS, and asked whether, based upon the
expected costs of ALS, the issue should be returned to the Access Board
for further consideration.
Comments from advocacy organizations noted that persons who
develop significant hearing loss often discontinue their normal routines
and activities, including meetings, entertainment, and large group
events, due to a sense of isolation caused by the hearing loss or
embarrassment. Individuals with longstanding hearing loss may never have
participated in group activities for many of the same reasons.
Requiring ALS may allow individuals with disabilities to contribute to
the community by joining in government and public events, and increasing
economic activity associated with community activities and
entertainment. Making public events and entertainment accessible to
persons with hearing loss also brings families and other groups that
include persons with hearing loss into more community events and
activities, thus exponentially increasing the benefit from ALS.
Many commenters noted that when a person has significant
hearing loss, that person may be able to hear and understand information
in a quiet situation with the use of hearing aids or cochlear implants;
however, as background noise increases and the distance between the
source of the sound and the listener grows, and especially where there
is distortion in the sound, an ALS becomes essential for basic
comprehension and understanding. Commenters noted that among the 31
million Americans with hearing loss, and with a projected increase to
over 78 million Americans with hearing loss by 2030, the benefit from
ALS is huge and growing. Advocates for persons with disabilities and
individuals commented that they appreciated the improvements in the 2004
ADAAG standards for ALS, including specifications for the ALS systems
and performance standards. They noted that neckloops that translate the
signal from the ALS transmitter to a frequency that can be heard on a
hearing aid or cochlear implant are much more effective than separate
ALS system headsets, which sometimes create feedback, often malfunction,
and may create distractions for others seated nearby. Comments from
advocates and users of ALS systems consistently noted that the
Department’s regulation should, at a minimum, be consistent with the
2004 ADAAG. Although there were requests for adjustments in the scoping
requirements from advocates seeking increased scoping requirements, and
from large venue operators seeking fewer requirements, there was no
significant concern expressed by commenters about the technical
specifications for ALS in the 2004 ADAAG.
Some commenters from trade associations and large venue
owners criticized the scoping requirements as too onerous and one
commenter asked for a remand to the Access Board for new scoping rules.
However, one State agency commented that the 2004 ADAAG largely
duplicates the requirements in the 2006 IBC and the 2003 ANSI codes,
which means that entities that comply with those standards would not
incur additional costs associated with ADA compliance.
According to one State office of the courts, the cost to
install either an infrared system or an FM system at average-sized
facilities, including most courtrooms covered by title II, would be
between $500 and $2,000, which the agency viewed as a small price in
comparison to the benefits of inclusion. Advocacy organizations
estimated wholesale costs of ALS systems at about $250 each and
individual neckloops to link the signal from the ALS transmitter to
hearing aids or cochlear implants at less than $50 per unit. Many
commenters pointed out that if a facility already is using induction
neckloops, it would already be in compliance and would not have any
additional installation costs. One major city commented that annual
maintenance is about $2,000 for the entire system of performance venues
in the city. A trade association representing very large venues
estimated annual maintenance and upkeep expenses, including labor and
replacement parts, to be at most about $25,000 for a very large
professional sports stadium.
One commenter suggested that the scoping requirements for
ALS in the 2004 ADAAG were too stringent and that the Department should
return them to the Access Board for further review and consideration.
Others commented that the requirement for new ALS systems should mandate
multichannel receivers capable of receiving audio description for
persons who are blind, in addition to a channel for amplification for
persons who are hard of hearing. Some comments suggested that the
Department should require a set schedule and protocol of mandatory
maintenance. Department regulations already require maintenance of
accessible features at § 35.133(a) of the title II regulation, which
obligates a title II entity to maintain ALS in good working order. The
Department recognizes that maintenance of ALS is key to its usability.
Necessary maintenance will vary dramatically from venue to venue based
upon a variety of factors including frequency of use, number of units,
quality of equipment, and others items. Accordingly, the Department has
determined that it is not appropriate to mandate details of maintenance,
but notes that failure to maintain ALS would violate § 35.133(a) of
this rule.
The NPRM asked whether the Department should return the
issue of ALS requirements to the Access Board. The Department has
received substantial feedback on the technical and scoping requirements
for ALS and is convinced that these requirements are reasonable and that
the benefits justify the requirements. In addition, the Department
believes that the new specifications will make ALS work more effectively
for more persons with disabilities, which, together with a growing
population of new users, will increase demand for ALS, thus mooting
criticism from some large venue operators about insufficient demand.
Thus, the Department has determined that it is unnecessary to refer this
issue back to the Access Board for reconsideration.
Accessible teeing grounds, putting greens, and weather shelters.
In the NPRM, the Department sought public input on the proposed
requirements for accessible golf courses. These requirements
specifically relate to accessible routes within the boundaries of
courses, as well as the accessibility of golfing elements (e.g., teeing grounds, putting greens, weather shelters).
In the NPRM, the Department sought information from the
owners and operators of golf courses, both public and private, on the
extent to which their courses already have golf car passages, and, if
so, whether they intended to avail themselves of the proposed accessible
route exception for golf car passages. 73 FR 34466, 34471 (June 17,
2008).
Most commenters expressed support for the adoption of an
accessible route requirement that includes an exception permitting golf
car passage as all or part of an accessible route. Comments in favor of
the proposed standard came from golf course owners and operators,
individuals, organizations, and disability rights groups, while comments
opposing adoption of the golf course requirements generally came from
golf courses and organizations representing the golf course industry.
The majority of commenters expressed the general viewpoint
that nearly all golf courses provide golf cars and have either
well-defined paths or permit golf cars to drive on the course where
paths are not present, thus meeting the accessible route requirement.
Several commenters disagreed with the assumption in the initial RIA,
that virtually every tee and putting green on an existing course would
need to be regraded in order to provide compliant accessible routes.
According to one commenter, many golf courses are relatively flat with
little slope, especially those heavily used by recreational golfers.
This commenter concurred with the Department that it is likely that most
existing golf courses have a golf car passage to tees and greens,
thereby substantially minimizing the cost of bringing an existing golf
course into compliance with the proposed standards. One commenter
reported that golf course access audits found that the vast majority of
public golf courses would have little difficulty in meeting the proposed
golf course requirements. In the view of some commenters, providing
access to golf courses would increase golf participation by individuals
with disabilities.
The Department also received many comments requesting
clarification of the term ‘‘golf car passage.’’ For example, one
commenter requesting clarification of the term ‘‘golf car passage’’
argued that golf courses typically do not provide golf car paths or
pedestrian paths onto the actual teeing grounds or greens, many of which
are higher or lower than the car path. This commenter argued that if
golf car passages were required to extend onto teeing grounds and greens
in order to qualify for an exception, then some golf courses would have
to substantially regrade teeing grounds and greens at a high cost.
After careful consideration of the comments, the Department
has decided to adopt the 2010 Standards specific to golf facilities. The
Department believes that in order for individuals with mobility
disabilities to have an opportunity to play golf that is equal to
golfers without disabilities, it is essential that golf courses provide
an accessible route or accessible golf car passage to connect accessible
elements and spaces within the boundary of the golf course, including
teeing grounds, putting greens, and weather shelters.
Public Comments on Other NPRM Issues
Equipment and furniture. In the 1991 title II
regulation, there are no specific provisions addressing equipment and
furniture, although § 35.150(b) states that one means by which a public
entity can make its program accessible to individuals with disabilities
is ‘‘redesign of equipment.’’ In the NPRM, the Department announced its
intention not to regulate equipment, proposing instead to continue with
the current approach, under which equipment and furniture are covered by
other provisions, including those requiring reasonable modifications of
policies, practices, or procedures, program accessibility, and
effective communication. The Department suggested that entities apply
the accessibility standards for fixed equipment in the 2004 ADAAG to
analogous free-standing equipment in order to ensure that such equipment
is accessible, and that entities consult relevant portions of the 2004
ADAAG and standards from other Federal agencies to make equipment
accessible to individuals who are blind or have low vision (e.g., the communication-related standards for ATMs in the 2004 ADAAG).
The Department received numerous comments objecting to this
decision and urging the Department to issue equipment and furniture
regulations. Based on these comments, the Department has decided that it
needs to revisit the issuance of equipment and furniture regulations
and it intends to do so in future rulemaking.
Among the commenters’ key concerns, many from the disability
community and some public entities, were objections to the Department’s
earlier decision not to issue equipment regulations, especially for
medical equipment. These groups recommended that the Department list by
name certain types of medical equipment that must be accessible,
including exam tables (that lower to 15 inches above floor or lower),
scales, medical and dental chairs, and radiologic equipment (including
mammography equipment). These commenters emphasized that the provision
of medically related equipment and furniture should also be specifically
regulated since they are not included in the 2004 ADAAG (while
depositories, change machines, fuel dispensers, and ATMs were) and
because of their crucial role in the provision of healthcare. Commenters
described how the lack of accessible medical equipment negatively
affects the health of individuals with disabilities. For example, some
individuals with mobility disabilities do not get thorough medical care
because their health providers do not have accessible examination tables
or scales.
Commenters also said that the Department’s stated plan to
assess the financial impact of free-standing equipment on businesses was
not necessary, as any regulations could include a financial balancing
test. Other commenters representing persons who are blind or have low
vision urged the Department to mandate accessibility for a wide range of
equipment— including household appliances (stoves, washers, microwaves,
and coffee makers), audiovisual equipment (stereos and DVD players),
exercise machines, vending equipment, ATMs, computers at Internet cafes
or hotel business centers, reservations kiosks at hotels, and
point-of-sale devices— through speech output and tactile labels and
controls. They argued that modern technology allows such equipment to be
made accessible at minimal cost. According to these commenters, the
lack of such accessibility in point-of-sale devices is particularly
problematic because it forces blind individuals to provide personal or
sensitive information (such as personal identification numbers) to third
parties, which exposes them to identity fraud. Because the ADA does not
apply directly to the manufacture of products, the Department lacks the
authority to issue design requirements for equipment designed
exclusively for use in private homes. See Department of Justice, Americans with Disabilities Act, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, III–4.4200, available at http://www.ada.gov/ taman3.htm.
Some commenters urged the Department to require swimming
pool operators to provide aquatic wheelchairs for the use of persons
with disabilities when the swimming pool has a sloped entry. If there is
a sloped entry, a person who uses a wheelchair would require a
wheelchair designed for use in the water in order to gain access to the
pool because taking a personal wheelchair into water would rust and
corrode the metal on the chair and damage any electrical components of a
power wheelchair. Providing an aquatic wheelchair made of non-corrosive
materials and designed for access into the water will protect the water
from contamination and avoid damage to personal wheelchairs or other
mobility aids.
Additionally, many commenters urged the Department to
regulate the height of beds in accessible hotel guest rooms and to
ensure that such beds have clearance at the floor to accommodate a
mechanical lift. These commenters noted that in recent years, hotel beds
have become higher as hotels use thicker mattresses, thereby making it
difficult or impossible for many individuals who use wheelchairs to
transfer onto hotel beds. In addition, many hotel beds use a solid-sided
platform base with no clearance at the floor, which prevents the use of
a portable lift to transfer an individual onto the bed. Consequently,
individuals who bring their own lift to transfer onto the bed cannot
independently get themselves onto the bed. Some commenters suggested
various design options that might avoid these situations.
The Department intends to provide specific guidance relating
to both hotel beds and aquatic wheelchairs in a future rulemaking. For
the present, the Department reminds covered entities that they have an
obligation to undertake reasonable modifications to their current
policies and to make their programs accessible to persons with
disabilities. In many cases, providing aquatic wheelchairs or adjusting
hotel bed heights may be necessary to comply with those requirements.
The Department has decided not to add specific scoping or
technical requirements for equipment and furniture in this final rule.
Other provisions of the regulation, including those requiring reasonable
modifications of policies, practices, or procedures, program
accessibility, and effective communication may require the provision of
accessible equipment in individual circumstances. The 1991 title II
regulation at § 35.150(a) requires that entities operate each service,
program, or activity so that, when viewed in its entirety, each is
readily accessible to, and usable by, individuals with disabilities,
subject to a defense of fundamental alteration or undue financial and
administrative burdens. Section 35.150(b) specifies that such entities
may meet their program accessibility obligation through the ‘‘redesign
of equipment.’’ The Department expects to undertake a rulemaking to
address these issues in the near future.
Accessible golf cars. An accessible golf car means a
device that is designed and manufactured to be driven on all areas of a
golf course, is independently usable by individuals with mobility
disabilities, has a hand-operated brake and accelerator, carries golf
clubs in an accessible location, and has a seat that both swivels and
raises to put the golfer in a standing or semi-standing position.
The 1991 title II regulation contained no language
specifically referencing accessible golf cars. After considering the
comments addressing the ANPRM’s proposed requirement that golf courses
make at least one specialized golf car available for the use of
individuals with disabilities, and the safety of accessible golf cars
and their use on golf course greens, the Department stated in the NPRM
that it would not issue regulations specific to golf cars.
The Department received many comments in response to its
decision to propose no new regulation specific to accessible golf cars.
The majority of commenters urged the Department to require golf courses
to provide accessible golf cars. These comments came from individuals,
disability advocacy and recreation groups, a manufacturer of accessible
golf cars, and representatives of local government. Comments supporting
the Department’s decision not to propose a new regulation came from golf
course owners, associations, and individuals.
Many commenters argued that while the existing title II
regulation covered the issue, the Department should nonetheless adopt
specific regulatory language requiring golf courses to provide
accessible golf cars. Some commenters noted that many local governments
and park authorities that operate public golf courses have already
provided accessible golf cars. Experience indicates that such golf cars
may be used without damaging courses. Some argued that having accessible
golf cars would increase golf course revenue by enabling more golfers
with disabilities to play the game. Several commenters requested that
the Department adopt a regulation specifically requiring each golf
course to provide one or more accessible golf cars. Other commenters
recommended allowing golf courses to make ‘‘pooling’’ arrangements to
meet demands for such cars. A few commenters expressed support for using
accessible golf cars to accommodate golfers with and without
disabilities. Commenters also pointed out that the Departments of the
Interior and Defense have already mandated that golf courses under their
jurisdictional control must make accessible golf cars available unless
it can be demonstrated that doing so would change the fundamental nature
of the game.
While an industry association argued that at least two
models of accessible golf cars meet the specifications recognized in the
field, and that accessible golf cars cause no more damage to greens or
other parts of golf courses than players standing or walking across the
course, other commenters expressed concerns about the potential for
damage associated with the use of accessible golf cars. Citing safety
concerns, golf organizations recommended that an industry safety
standard be developed.
Although the Department declines to add specific scoping or
technical requirements for golf cars to this final rule, the Department
expects to address requirements for accessible golf cars in future
rulemaking. In the meantime, the Department believes that golfers with
disabilities who need accessible golf cars are protected by other
existing provisions in the title II regulation, including those
requiring reasonable modifications of policies, practices, or
procedures, and program accessibility.
Web site accessibility. Many commenters expressed
disappointment that the NPRM did not require title II entities to make
their Web sites, through which they offer programs and services,
accessible to individuals with disabilities, including those who are
blind or have low vision. Commenters argued that the cost of making Web
sites accessible, through Web site design, is minimal, yet critical to
enabling individuals with disabilities to benefit from the entity’s
programs and services. Internet Web sites, when accessible, provide
individuals with disabilities great independence, and have become an
essential tool for many Americans. Commenters recommended that the
Department require covered entities, at a minimum, to meet the section
508 Standard for Electronic and Information Technology for Internet
accessibility. Under section 508 of the Rehabilitation Act of 1973,
Federal agencies are required to make their Web sites accessible. 29
U.S.C. 794(d); 36 CFR 1194.
The Department agrees that the ability to access, on an
equal basis, the programs and activities offered by public entities
through Internet-based Web sites is of great importance to individuals
with disabilities, particularly those who are blind or who have low
vision. When the ADA was enacted in 1990, the Internet was unknown to
most Americans. Today, the Internet plays a critical role in daily life
for personal, civic, commercial, and business purposes. In a period of
shrinking resources, public entities increasingly rely on the web as an
efficient and comprehensive way to deliver services and to inform and
communicate with their citizens and the general public. In light of the
growing importance Web sites play in providing access to public services
and to disseminating the information citizens need to participate fully
in civic life, accessing the Web sites of public entities can play a
significant role in fulfilling the goals of the ADA.
Although the language of the ADA does not explicitly mention
the Internet, the Department has taken the position that title II
covers Internet Web site access. Public entities that choose to provide
services through web-based applications (e.g., renewing library
books or driver’s licenses) or that communicate with their constituents
or provide information through the Internet must ensure that individuals
with disabilities have equal access to such services or information,
unless doing so would result in an undue financial and administrative
burden or a fundamental alteration in the nature of the programs,
services, or activities being offered. The Department has issued
guidance on the ADA as applied to the Web sites of public entities in a
2003 publication entitled, Accessibility of State and Local Government Web sites to People with Disabilities, (June 2003) available at http://www.ada.gov/websites2.htm.
As the Department stated in that publication, an agency with an
inaccessible Web site may also meet its legal obligations by providing
an alternative accessible way for citizens to use the programs or
services, such as a staffed telephone information line. However, such an
alternative must provide an equal degree of access in terms of hours of
operation and the range of options and programs available. For example,
if job announcements and application forms are posted on an
inaccessible Web site that is available 24 hours a day, seven days a
week to individuals without disabilities, then the alternative
accessible method must also be available 24 hours a day, 7 days a week.
Additional guidance is available in the Web Content Accessibility
Guidelines (WCAG), (May 5, 1999) available at http://www.w3.org/ TR/WAI–WEBCONTENT
(last visited June 24, 2010) which are developed and maintained by the
Web Accessibility Initiative, a subgroup of the World Wide Web
Consortium (W3C®).
The Department expects to engage in rulemaking relating to
website accessibility under the ADA in the near future. The Department
has enforced the ADA in the area of website accessibility on a
case-by-case basis under existing rules consistent with the guidance
noted above, and will continue to do so until the issue is addressed in a
final regulation.
Multiple chemical sensitivities. The Department
received comments from a number of individuals asking the Department to
add specific language to the final rule addressing the needs of
individuals with chemical sensitivities. These commenters expressed
concern that the presence of chemicals interferes with their ability to
participate in a wide range of activities. These commenters also urged
the Department to add multiple chemical sensitivities to the definition
of a disability.
The Department has determined not to include specific
provisions addressing multiple chemical sensitivities in the final rule.
In order to be viewed as a disability under the ADA, an impairment must
substantially limit one or more major life activities. An individual’s
major life activities of respiratory or neurological functioning may be
substantially limited by allergies or sensitivity to a degree that he or
she is a person with a disability. When a person has this type of
disability, a covered entity may have to make reasonable modifications
in its policies and practices for that person. However, this
determination is an individual assessment and must be made on a
case-by-case basis.
Examinations and Courses. The Department received
one comment requesting that it specifically include language regarding
examinations and courses in the title II regulation. Because section 309
of the ADA 42 U.S.C. 12189, reaches ‘‘[a]ny person that offers
examinations or courses related to applications, licensing,
certification, or credentialing for secondary or post secondary
education, professional, or trade purposes,’’ public entities also are
covered by this section of the ADA. Indeed, the requirements contained
in title II (including the general prohibitions against discrimination,
the program access requirements, the reasonable modifications
requirements, and the communications requirements) apply to courses and
examinations administered by public entities that meet the requirements
of section 309. While the Department considers these requirements to be
sufficient to ensure that examinations and courses administered by
public entities meet the section 309 requirements, the Department
acknowledges that the title III regulation, because it addresses
examinations in some detail, is useful as a guide for determining what
constitutes discriminatory conduct by a public entity in testing
situations. See 28 CFR 36.309.
Hotel Reservations. In the NPRM, at § 36.302(e),
the Department proposed adding specific language to title III addressing
the requirements that hotels, timeshare resorts, and other places of
lodging make reasonable modifications to their policies, practices, or
procedures, when necessary to ensure that individuals with disabilities
are able to reserve accessible hotel rooms with the same efficiency,
immediacy, and convenience as those who do not need accessible guest
rooms. The NPRM did not propose adding comparable language to the title
II regulation as the Department believes that the general
nondiscrimination, program access, effective communication, and
reasonable modifications requirements of title II provide sufficient
guidance to public entities that operate places of lodging (i.e.,
lodges in State parks, hotels on public college campuses). The
Department received no public comments suggesting that it add language
on hotel reservations comparable to that proposed for the title III
regulation. Although the Department continues to believe that it is
unnecessary to add specific language to the title II regulation on this
issue, the Department acknowledges that the title III regulation,
because it addresses hotel reservations in some detail, is useful as a
guide for determining what constitutes discriminatory conduct by a
public entity that operates a reservation system serving a place of
lodging. See 28 CFR 36.302(e).
•18. Revise the heading to Appendix B to read as follows:
Appendix B to Part 35—Guidance on ADA Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services Originally Published July 26, 1991
Dated: July 23, 2010.
Eric H. Holder, Jr., Attorney General.
3The term "existing facility" is defined in § 35.104 as amended by this rule.
4 The
Supreme Court in Tennessee v. Lane, 541 U.S. 509, 5330534 (2004), held
that title II of the ADA constitutes a valid exercise of Congress’
enforcement power under the Fourteenth Amendment in cases implicating
the fundamental access to the courts.