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

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.