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

Effective communication and auxiliary aids.

Revised § 35.160(a) of the title II regulation requires a public entity to take appropriate steps to ensure that communications with individuals with disabilities, including applicants, participants, members of the public, and their companions, are as effective as communications with others.  The Department has investigated hundreds of complaints alleging that public entities have failed to provide effective communication, many of which resulted in settlement agreements and consent decrees.  During the course of its investigations, the Department has determined that public entities sometimes misunderstand the scope of their obligations under the statute and the regulation.  Moreover, the number of individuals with hearing loss continues to grow in this country as a large segment of the population ages and as individuals live longer. 

The Department is proposing several changes and additions to §§ 35.104, 35.160, and 35.161 of the title II regulation to address these issues.  Among other amendments, these changes update the regulatory language in response to numerous technological advances and breakthroughs in the area of auxiliary aids and services since the regulation was promulgated sixteen years ago.  The most significant changes relate to video interpreting services (VIS) and the provision of effective communication for companions.

A technology that has emerged since promulgation of the original regulation is video interpreting services (VIS), and the Department proposes to include it in the regulation.  VIS permits an individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location) who can see and sign to the individual through a camera located on or near the monitor.  VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day in a variety of situations by allowing individuals in separate locations to have live, face-to-face communications.

The specific amendments to the section on auxiliary aids and services, in addition to the provision of VIS, are described in §§ 35.104, 35.160, and 35.161 of the section-by-section analysis below.