28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Accessible Cells in Detention and Correctional Facilities (Section-by-Section Analysis)

Through complaints received, investigations, and compliance reviews of jails, prisons, and other detention and correctional facilities, the Department has found that many detention and correctional facilities have too few or no accessible cells and shower facilities to meet the needs of their inmates with mobility disabilities.  The insufficient numbers of accessible cells are, in part, due to the fact that most jails and prisons were built long before the ADA became law and, since then, have undergone few alterations.  However, the Department believes that the unmet demand for accessible cells is also due to the changing demographics of the inmate population.  With thousands of prisoners serving life sentences without eligibility for parole, prisoners are aging, and the prison population of individuals with disabilities and elderly individuals is growing.  A recent article illustrates this change.  Since 1990, the number of Oklahoma inmates age 45 or older has quadrupled, and, in 2006, ten percent (10%) of the Oklahoma state prison population was elderly.  Angel Riggs, Now in Business: Handicapped Accessible Prison:  State Opens First Prison for Disabled, in Tulsa World (Feb. 20, 2007).  Reflecting this trend of aging inmate populations, corrections conferences now routinely include workshops on strategies to address the needs of elderly prisoners, including the increased health care needs.  In addition, the Federal Bureau of Prisons requires that three percent (3%) of inmate housing at BOP facilities is accessible.  Bureau of Prisons, Design Construction Branch, Design Guidelines, Attachment A: Accessibility Guidelines for Design, Construction, and Alteration of Federal Bureau of Prisons (Oct. 31, 2006).

The lack of sufficient accessible cells is further demonstrated by complaints received by the Department.  The Department receives dozens of complaints per year alleging that detention and correctional facilities have too few accessible cells, toilets, and showers for inmates with mobility disabilities.  Other complaints allege that inmates with mobility disabilities are housed in medical units or infirmaries separate from the general population simply because there are no accessible cells.  Another common complaint to the Department is from inmates alleging that they are housed at a more restrictive classification level simply because no accessible housing exists at the appropriate classification level.

Further, the Department's onsite reviews and investigations of detention and correctional facilities confirm the complaints that there are too few accessible cells.  The need for accessible cells can vary widely from facility to facility, depending on the population housed. While the requirement that two percent (2%) of the cells have mobility features would be adequate to meet current needs in some facilities the Department has reviewed, it would not begin to meet current needs at other facilities.  For example, at one facility with a population of almost 300 inmates, ten percent (10%) of the inmates use wheelchairs.  The requirement that two percent (2%) of cells at this facility must be accessible would not meet the needs of inmates with mobility disabilities, since it would not be adequate to meet the needs of wheelchair users alone.  Another facility has a geriatric unit for 60 inmates. A two percent (2%) standard would fall far short of meeting the needs of this largely bedridden population.  Another building at this same facility has 600 cells and houses more than 18 inmates who need accessible cells.  Under the two percent (2%) standard, only twelve accessible cells would be required.

According to the Bureau of Justice Statistics (BJS) 2002 survey of jail inmates, "two percent of jail inmates said they had a mobility impairment, requiring the use of a cane, walker, wheelchair, or other aids to do daily activities."  Laura M. Maruschak, Bureau of Justice Statistics (BJS), Medical Problems of Jail Inmates (2006), available at http://www.ojp.usdoj.gov/bjs/abstract/mpji.htm. In a 1997 survey, BJS reported that among state prison inmates age 45 or older, twenty-five percent (25%) said they had a "physical condition."  Laura M. Maruschak and Allen J. Beck, Ph.D., Bureau of Justice Statistics, Medical Problems of Inmates, 1997 (2001), available at http://www.ojp.usdoj.gov/bjs/abstract/mpi97.htm.

Number of accessible cells. (Section-by-Section Analysis)

Section 232.2.1 of the 2004 ADAAG requires at least two percent (2%), but no fewer than one, of the cells in newly constructed detention and correctional facilities to have accessibility features for individuals with mobility disabilities. Section 232.3 provides that, where special holding cells or special housing cells are provided, at least one cell serving each purpose shall have mobility features.  While the 2004 ADAAG establishes these requirements for cells in newly constructed detention and correctional facilities, it does not establish requirements for accessible cells in alterations to existing facilities, deferring that decision to the Attorney General. 

The Department seeks input on how best to meet the needs of inmates with mobility disabilities in the design, construction, and alteration of detention and correctional facilities. The Department seeks comments on the following issues:

Question 45:  Are the requirements for accessible cells in sections 232.2 and 232.3 of the 2004 ADAAG adequate to meet the needs of the aging inmate population in prisons?  If not, should the percentage of cells required to have accessible features for individuals with mobility disabilities be greater and, if so, what is the appropriate percentage?  Should the requirement be different for prisons than for other detention and correctional facilities?

Question 46:  Should the Department establish a program accessibility requirement that public entities modify additional cells at a detention or correctional facility to incorporate the accessibility features needed by specific inmates with mobility disabilities when the number of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of their inmate population?  Under this option, additional cells provided for inmates with mobility disabilities would not necessarily be required to comply with all requirements of section 807.2 of the 2004 ADAAG, so long as a cell had the mobility features needed by the inmate it housed.

Dispersion of cells. (Section-by-Section Analysis)

In the 2004 ADAAG, Advisory 232.2 recommends that "[a]ccessible cells or rooms should be dispersed among different levels of security, housing categories, and holding classifications (e.g., male/female and adult/juvenile) to facilitate access."  In explaining the basis for recommending, but not requiring, this type of dispersal, the Access Board stated that "[m]any detention and correctional facilities are designed so that certain areas (e.g., 'shift' areas) can be adapted to serve as different types of housing according to need" and that "[p]lacement of accessible cells or rooms in shift areas may allow additional flexibility in meeting requirements for dispersion of accessible cells or rooms."  During its onsite reviews of detention and correctional facilities, the Department has observed that male and female inmates, adult and juvenile inmates, and inmates at different security classifications are typically housed in separate areas of detention and correctional facilities.  In many instances, detention and correctional facilities have housed inmates in inaccessible cells, even though accessible cells were available elsewhere in the facility, because there were no cells in the areas where they needed to be housed, such as the women's section of the facility, the juvenile section of the facility, or in a particular security classification area. 

Question 47:  Please comment on whether the dispersal of accessible cells recommended in Advisory 232.2 of the 2004 ADAAG should be required.

Alterations to cells. (Section-by-Section Analysis)

In section 232.2 of the 2004 ADAAG, the Access Board deferred one decision to the Attorney General, specifically:  "Alterations to cells shall not be required to comply except to the extent determined by the Attorney General."  The security concerns of detention and correctional facilities present challenges that do not exist in other government buildings, so the Department must strike a balance that accommodates the accessibility needs of inmates with disabilities while addressing security concerns.  Therefore, in the ANPRM, the Department sought public comment on three options for the most effective means of ensuring that existing detention and correctional facilities are made accessible to inmates with disabilities.  The proposed options and submitted comments are discussed below in the section-by-section analysis for a new proposed section on detention and correctional facilities.

Introduction of new § 35.152 for detention and correctional facilities. (Section-by-Section Analysis)

In view of the statistics regarding the current percentage of inmates with mobility disabilities, the fact that prison populations include large numbers of aging inmates who are not eligible for parole, the allegations in complaints received by the Department from inmates, and the Department's own experience with detention and correctional facilities, the Department is proposing regulatory language in a new section (§ 35.152) on correctional facilities, and seeking public comment on these issues. 

The proposed rule at § 35.152 is intended to address these frequent problems for inmates with disabilities by:  1) Proposing specific requirements to ensure accessibility when a correctional or detention facility alters cells; 2) specifying that public entities shall not place inmates or detainees with disabilities in locations that exceed their security classification in order to provide accessible cells; 3) requiring that public entities shall not place inmates in designated medical units and infirmaries solely due to disability; 4) specifying that public entities shall not relocate inmates and detainees solely based on disability to different, accessible facilities without equivalent programs than where they would ordinarily be housed; and 5) requiring that public entities shall not deprive inmates or detainees from visitation with family members by placing them in distant facilities based on their disabilities.  The additions to the existing title II regulation, including each of these proposals and any public comments received on this topic, are discussed in turn below.

Contractual arrangements with private entities. (Section-by-Section Analysis)

Prisons that are built or run by private entities have caused some confusion with regard to requirements under the ADA.  The Department believes that title II obligations extend to the public entity as soon as the building is used by or on behalf of a state or local government entity, irrespective of whether the public entity contracts with a private entity to run the correctional facility.  The power to incarcerate citizens rests with the state, not a private entity.  As the Department stated in the preamble to the current title II regulation, "[a]ll governmental activities of public entities are covered, even if they are carried out by contractors."  56 FR 35694, 35696 (July 26, 1991).  If a prison is occupied by state prisoners and is inaccessible, the state is responsible under title II of the ADA.  In essence, the private builder or contractor that operates the correctional facility does so at the direction of the state government, unless the private entity elects to use the facility for something other than incarceration, in which case title III may apply.  For that reason, the proposed § 35.152(a) makes it clear that this section's requirements will apply to prisons operated by public entities directly or through contractual or other relationships.

Alterations to cells and program access. (Section-by-Section Analysis)

When addressing the issue of alterations of prison cells, the Department must consider the realities of many inaccessible state prisons and strained budgets against the title II program access requirement for existing facilities under § 35.150(a), which states:  "A public entity shall operate each service, program, or activity, so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities."  The Supreme Court, in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), unanimously held that the ADA unmistakably covers state prisons and prisoners, so program access does apply to state correctional facilities; the question remains how best to achieve that within the unique confines of a prison system.

Correctional and detention facilities commonly provide a variety of different programs for education, training, counseling, or other purposes related to rehabilitation.  Some examples of programs generally available to inmates include:  Programs to obtain G.E.Ds; English as a second language; computer training; job skill training and on-the-job training; religious instruction and guidance; alcohol and substance abuse groups; anger management; and other programs.  Historically, individuals with disabilities have been excluded from such programs because they are not located in accessible locations, or inmates with disabilities have been segregated to units without equivalent programs.  In light of the Supreme Court's decision in Yeskey and the requirements of title II, however, it is critical that public entities provide these opportunities.  The Department's proposed rule aims to specifically require equivalent opportunities to such programs.

The Department wishes to emphasize that detention and correctional facilities are unique facilities under title II. Inmates cannot leave the facilities and must have their needs met--including those relating to a disability--by the state corrections system.  If the state fails to accommodate prisoners with disabilities, these individuals have little recourse, particularly when the need is urgent (e.g., an accessible toilet or clean needles for insulin injections for prisoners with diabetes). 

In light of a public entity's obligation to provide program access to prisoners with disabilities, coupled with the Department's proposal for a more flexible alterations standard, the Department believes that the state has a higher responsibility to provide accommodations based on disability.  Therefore, it is essential that state corrections systems fulfill their program access requirements by adequately addressing the needs of prisoners with disabilities, which include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities.  Therefore, the Department is proposing a new § 35.152 that will require public entities to ensure that inmates with disabilities do not experience discrimination because the prison facilities or programs are not accessible to them.

Integration of inmates and detainees with disabilities. (Section-by-Section Analysis)

The Department is also proposing a specific application of the ADA's general integration mandate.  Section 35.152(b)(2) would require public entities to ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individual.  Unless the public entity can demonstrate that it is appropriate for a specific individual, a public entity--

(1) Should not place inmates or detainees with disabilities in locations that exceed their security classification because there are no accessible cells or beds in the appropriate classification;

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

(3) Should not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would ordinarily be housed;

(4) Should not place inmates or detainees with disabilities in facilities further away from their families in order to provide accessible cells or beds, thus diminishing their opportunity for visitation based on their disability.

The Department recognizes that there are a wide range of considerations that affect decisions to house inmates or detainees and that in specific cases there may be compelling reasons why a placement that does not follow the provisions of § 35.152(b) may, nevertheless, comply with the ADA.  However, the Department believes that it is essential that the planning process initially assume that inmates or detainees with disabilities will be assigned within the system under the same criteria that would be applied to inmates who do not have disabilities.  Exceptions may be made on a case-by-case basis if the specific situation warrants different treatment.  For example, if an inmate is deaf and communicates only using sign language, a prison may consider whether it is more appropriate to give priority to housing the prisoner in a facility close to his family that houses no other deaf inmates, or if it would be preferable to house the prisoner in a setting where there are other sign language users with whom he can communicate. 

Question 48:  The Department is particularly interested in hearing from prison administrators and from the public about the potential effect of the assignment scheme proposed here on inmates and detainees who are deaf or who have other disabilities.  Are there other, more appropriate tests to apply?

Alterations to cells. (Section-by-Section Analysis)

In the ANPRM, the Department proposed three options for altering cells.  The vast majority of commenters (numbering three to one) supported Option II, which would allow substitute cells to be made accessible within the same facility, over Option III.  Only one commenter expressed support for Option I, and a handful of commenters supported Option III.  The comments on each option are discussed below.

Option I:  Require all altered elements to be accessible.

Only one commenter supported this option, stating that providing alternative approaches could allow those running the prison to provide a lower level of accessibility, and that any deviation from the 1991 Standards on alterations should be addressed through a barrier removal plan, transition plan, or a claim of technical infeasibility.  A few commenters argued that this option would result in piecemeal accessibility, which would be inadequate.  As one commenter stated, "providing an accessible lavatory or water closet (often a single unit) in an inaccessible cell makes no sense."

Option II:  Permit substitute cells to be made accessible within the same facility.

Commenters supporting Option II favored the more flexible plan to achieve accessibility within a prison context.  Many expressed support for this option because it would allow individuals with disabilities to remain close to their families.  One commenter requested accessible cells by type (e.g., women's, men's, juvenile, different security levels, etc.).  Another commenter offered that the unique safety concerns of a correctional facility require a balance between staff and inmate safety and accessibility.  One advocacy group reasoned that Option II was best because it would allow prison operators to determine the most appropriate location for the accessible cells.  One group commented that this option would allow the prison officials more flexibility, which is necessary in a correctional environment.  Equally important, keeping inmates in the same facility may allow them to remain closer to their homes; the third option could create segregated facilities.  In the end, this group asserted that each facility--rather than each system--should be looked at "in its entirety."

One large advocacy group stated that Option II was acceptable, stressing that program access requires the same training and work opportunities that other prisoners have.  An architectural association asserted that this option should only apply to existing correctional cells, but that any other part of a correctional facility should be made accessible when it is altered.  The Department, however, is only addressing the alterations of prison cells in this rulemaking.  While expressing support for Option II, a few commenters stressed that cells made accessible in a different location in the facility must provide equal access to dining, recreational, educational, medical, and visitor areas as the former location.  Another commenter stated that the alternate cell location should not require longer travel distances.

The Department has evaluated all of the comments and proposes regulatory language reflecting Option II, which provides an appropriate balance between the needs of prisoners with disabilities and the unique requirements of detention and correctional facilities.

Option III:  Permit substitute cells to be made accessible within a prison system.

The biggest problem that commenters had with Option III was that it would be more likely to separate prisoners from their families and communities.  One advocacy group asserted that this option could lead to the illegal segregation of inmates with disabilities; moreover, some of the accessible facilities may not have the same programs or services (e.g., Alcoholics Anonymous, etc.).  One group argued that this option would give preference to the needs of the prison system over the needs of individuals with disabilities, while another group found this option unacceptable because it had seen its own state correctional system "funneling" its wheelchair-using inmates into a few facilities, which sometimes exceeded the prisoners' security level requirements.  Moreover, some prisoners with disabilities are sent to "special housing" units in a facility because they are the only areas with accessible cells.

In support of Option III, one state building code commissioner stressed that this plan would maximize the flexibility of corrections officials to place individuals with disabilities in facilities best suited to their needs; prison accessibility extends far beyond cells; and barrier removal in a very old prison could be cost prohibitive.  Another commenter, a state department of labor representative, argued that Option III is the most reasonable for state-run facilities (but that Option I should extend to private correctional facilities) due to tremendous budget constraints.  As the Department expressed initially, the same title II accessibility requirements apply to a facility, irrespective of whether it is run directly by the state or a private entity with which the state contracts.

While expressing some support for Option II, one public interest law firm representing individuals with disabilities stated that Option III is the best, because many older prisons are inaccessible.  "Simply having one accessible cell in an otherwise inaccessible facility does little good."  Therefore, requiring an entire prison system to have at least one fully accessible facility is the better approach.

The Department appreciates that Option III affords state corrections systems the maximum amount of flexibility with regard to placement of individuals with disabilities.  Unfortunately, many commenters expressed legitimate concerns, most significantly that prisoners will, more likely, be separated from family, friends, and community, which is critical to their rehabilitation and successful release, and many programs at the new facility will not be the same.  Lastly, the fact that certain facilities could become exclusively, or largely, designated for prisoners with disabilities would result in segregation, even if it is not intended. 

Proposed requirement for cell alterations. (Section-by-Section Analysis)

The Department has concluded that Option II provides the best balance. Therefore, the Department is proposing § 35.152(c) that would provide that when cells are being altered, a covered entity may satisfy its obligation to provide the required number of cells with mobility features by providing the required mobility features in substitute cells (i.e., cells other than those where alterations are originally planned), provided that:  Each substitute cell is located within the same facility; is integrated with other cells to the maximum extent feasible; and has, at a minimum, equal physical access as the original cells to areas used by inmates or detainees for visitation, dining, recreation, educational programs, medical services, work programs, religious services, and participation in other programs that the facility offers to inmates or detainees.