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

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.