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

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.