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

"Auxiliary Aids and Services" (Section-by-Section Analysis)

Several types of auxiliary aids that have become more readily available have been added to § 35.104 under the definition of auxiliary aids and services.

For purposes of clarification, the Department has added the exchange of written notes as an example of an auxiliary aid or service.  This common-sense example is a codification of the Department's longstanding policy with regard to title III entities.  See The Americans with Disabilities Act, Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities (Title III TA Manual), III-4.300, available at http://www.ada.gov/taman3.html. The title III definition of auxiliary aids and services provided the framework for the same definition in title II.  See  56 FR 35544, 35565 (July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991).  This additional example of an appropriate auxiliary aid and service was inserted because many public entities do not realize that this easy and efficient technique is available to them.  While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine requests for written information, for a police officer issuing a speeding ticket, or as a means of communication while awaiting the arrival of an interpreter.

Also in paragraph (1) of the definition, the Department has replaced the term "telecommunications devices for deaf persons (TDD)" with "text telephones (TTYs)."  Although "TDD" is the term used in the ADA, the use of "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  The Department has also included in paragraph (1) "accessible electronic and information technology" as another example of auxiliary aids and services.  Lastly, "computer-aided" has been added to describe "transcription services" to make it consistent with title III.

The Department has added to paragraph (1) a new technology, video interpreting services (VIS), which consists of a video phone, video monitors, cameras, a high speed Internet connection, and an interpreter. VIS is specifically discussed below in the proposed definition of VIS.

In paragraph (2) of the definition, the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision.  The preamble to the original regulation makes clear that the original list in the regulation was "not an all-inclusive or exhaustive catalogue of possible or available auxiliary aids or services.  It is not possible to provide an exhaustive list, and an attempt to do so would omit the new devices that will become available with emerging technology."  See 56 FR 35694, 35697 (July 26, 1991). Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.