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

General Issues

This section briefly introduces topics that are noteworthy because they are new to the title II regulation or have been the subject of considerable attention or comment.  Each topic is discussed in greater detail subsequently in the section-by-section analysis.

Safe harbor.

One of the most important issues the Department must address in proposing to adopt the 2004 ADAAG as its new ADA Standards for Accessible Design is the effect that the proposed standards will have on existing facilities under title II.  This issue was not addressed in the 2004 ADAAG because it is outside of the scope of the Access Board's authority under the ADA.

Under title II, program accessibility requires that state and local government agencies provide individuals with disabilities with access to their programs when "viewed in their entirety."  Title II does not require structural modifications in all circumstances in order to provide program access.  As a result of this flexibility, the Department believes that the program accessibility requirement as it is codified in the current regulation may appropriately mitigate any burdens on public entities without additional regulatory safeguards.  Nevertheless, in order to provide certainty and clarity, the Department is proposing a safe harbor for elements in existing facilities that are in compliance with either the 1991 Standards or the Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A.  This proposal is discussed below in § 35.150(b)(2) of the section-by-section analysis.

The Department invites comment on whether public entities that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG. Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in:  (1) The Access Board's supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002).  Under this scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements.  Public entities that operate existing facilities with play or recreation areas, pursuant to the ADA's requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.

Question 7:  Should the Department exempt public entities from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law? Please provide information on the effect of such a proposal on people with disabilities and public entities.

Service animals.

The Department wishes to clarify the obligations of public entities to accommodate individuals with disabilities who use service animals.  The Department continues to receive a large number of complaints from individuals with service animals.  It appears, therefore, that many covered entities are confused about their obligations under the ADA in this area.  At the same time, some individuals with  impairments--who would not be covered as qualified individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to the facilities of public entities.  Another trend is the use of wild or exotic animals, many of which are untrained, as service animals.  In order to clarify its position and avoid further misapplication of the ADA, the Department is proposing amendments to its regulation with regard to service animals.

Minimal protection.

In the Department's ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language in its definition of service animals within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).  Although the Department received comments urging it to eliminate the phrase "providing minimal protection" from its regulation, the Department continues to believe that the language serves the important function of excluding from coverage so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

The existing regulation implementing title III defines a "service animal" as "any guide dog, signal dog, or other animal."  At the time the regulation was promulgated, the Department believed that leaving the species selection up to the discretion of the individual with a disability was the best course of action.  Due to the proliferation of animal types that have been used as "service animals," including wild animals, the Department believes that this area needs established parameters.  Therefore, the Department is proposing to eliminate certain species from coverage under the ADA even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals.

Under the Department's present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or carry out tasks excluded all persons with mental disabilities from having service animals.  Others have assumed that any person with a psychiatric condition whose pet provided comfort to him or her was covered by the ADA.  The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for persons whose disability is covered by the ADA are protected by the Department's present regulatory approach.

Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects. Tasks performed by psychiatric service animals may include reminding the handler to take medicine; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger.

The Department is proposing new regulatory text in § 35.104 to formalize its position on emotional support or comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals."  The Department wishes to underscore that the exclusion of emotional support animals from ADA coverage does not mean that persons with psychiatric, cognitive, or mental disabilities cannot use service animals.  The Department proposes specific regulatory text in § 35.104 to make this clear: "[t]he term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities."  This language simply clarifies the Department's longstanding position.

The Department's rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals.  The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.  Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.

Proposed training standards.  The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.  While some advocacy groups have urged the Department to modify its position, the Department does not believe that such a modification would serve the array of individuals with disabilities who use service animals. 

Detailed regulatory text changes and the Department's response to public comments on these issues and others are discussed below in the definitions § 35.104 and in a newly-proposed  § 35.136.

Wheelchairs and other power-driven mobility devices.

Since the passage of the ADA, choices of mobility aids available to individuals with disabilities have vastly increased.  In addition to devices such as wheelchairs and mobility scooters, individuals with disabilities may use devices that are not designed primarily for use by individuals with disabilities, such as electronic personal assistive mobility devices (EPAMDs). (The only available model known to the Department is the Segway®.)  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices for locomotion in pedestrian areas.  These new or adapted mobility aids benefit individuals with disabilities, but also present new challenges for state and local governments.  

EPAMDs illustrate some of the challenges posed by new mobility devices. The basic Segway® model is a two-wheeled, gyroscopically stabilized, battery-powered personal transportation device.  The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle.  The EPAMD can travel up to 12½ miles per hour, compared to the average pedestrian walking speed of 3 to 4 miles per hour and the approximate maximum speed for power-operated wheelchairs of 6 miles per hour.  In a study of trail and other nonmotorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of people using EPAMDs ranged from 68¼ inches to 79½ inches.  See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than wheelchairs, and the average user is much taller than most wheelchair users.

EPAMDs have been the subject of debate among users, pedestrians, disability advocates, state and local governments, businesses, and bicyclists.  The fact that a device is not designed primarily for use by or marketed primarily to individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of whether individuals with disabilities should be allowed to operate them in areas and facilities where other powered devices are not allowed.  Those who question the use of EPAMDs in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.  Although the question of EPAMD safety has not been resolved, many states have passed legislation addressing EPAMD operation on sidewalks, bicycle paths, and roads.  In addition, some states, such as Iowa and Oregon, have minimum age requirements, or mandatory helmet laws.  New Jersey requires helmets for all EPAMD users, while Hawaii and Pennsylvania require helmets for users under a certain age.

While there may be legitimate safety issues for EPAMD users and bystanders, EPAMDs and other nontraditional mobility devices can deliver real benefits to individuals with disabilities.  For example, individuals with severe respiratory conditions who can walk limited distances and individuals with multiple sclerosis have reported benefitting significantly from EPAMDs.  Such individuals often find that EPAMDs are more comfortable and easier to use than wheelchairs, and assist with balance, circulation, and digestion in ways that wheelchairs do not.  See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004.

The Department has received questions and complaints from individuals with disabilities and covered entities about which mobility aids must be accommodated and under what circumstances.  While some individuals with disabilities support the use of unique mobility devices, other individuals with disabilities are concerned about their personal safety when others are using such devices.  There is also concern about the impact of such mobility devices on facilities, such as the weight of the device on fragile floor surfaces.

The Department intends to address these issues and proposes to adopt a policy that sets the parameters for when these devices must be accommodated.  Toward that end, the Department proposes new definitions of the terms "wheelchair"--which includes manually and power-driven wheelchairs and mobility scooters--and "other power-driven mobility device" and accompanying regulatory text.  The proposed definitions are discussed in the section-by-section analysis of § 35.104, and the proposed regulatory text is discussed in the section-by-section analysis of § 35.137.

Much of the debate surrounding mobility aids has centered on appropriate definitions for the terms "wheelchair" and "other power-driven mobility devices."  The Department has not defined the term "manually powered mobility aids."  Instead, the proposed rule provides a list including wheelchairs, walkers, crutches, canes, braces, or similar devices.  The inclusion of the term "similar devices" indicates that the list is not intended to be exhaustive.  The Department would like input as to whether addressing "manually powered mobility aids" in this manner (i.e., via examples of such devices) is appropriate.  The Department also would like information as to whether there are any other non-powered or manually powered mobility aids that should be added to the list and an explanation of the reasons they should be included.  If an actual definition is preferred, the Department would welcome input with regard to the language that might be used to define "manually powered mobility aids," and an explanation of the reasons this language would better serve the public.       

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.

Alterations to prison cells.

The 2004 ADAAG establishes requirements for the design and construction of cells in correctional facilities.  When the Access Board adopted these new requirements, it deferred one decision to the Attorney General, specifically:  "Alterations to cells shall not be required to comply except to the extent determined by the Attorney General."  The unique environment and security concerns of a correctional facility present challenges that are not an issue in other government buildings, so the Department must strike a balance between the accessibility needs of inmates with disabilities and the concerns of the prison officials and staff that run the facilities.  Therefore, in the ANPRM, the Department sought public comment about the most effective means to ensure that existing correctional facilities are made accessible to prisoners with disabilities and presented three options:  (1) Require all altered elements to be accessible, which would maintain the current policy that applies to other ADA alterations requirements; (2) permit substitute cells to be made accessible within the same facility, which would permit correctional authorities to meet their obligation by providing the required accessible features in cells within the same facility, other than those specific cells in which alterations are planned; or (3) permit substitute cells to be made accessible within a prison system, which would focus on ensuring that prisoners with disabilities are housed in facilities that best meet their needs, since alterations within a prison environment often result in piecemeal accessibility.  Discussion of the proposed options and submitted comments are described below in the section-by-section analysis of § 35.152, a newly proposed section on matters related to detention and correctional facilities.

Equipment and furniture.

Question seven of the ANPRM asked for comment on whether regulatory guidance is needed with respect to the acquisition and use of mobile, portable, and other free-standing equipment or furnishings used by covered entities to provide services, and asked for specific examples of situations that should be addressed.  The ANPRM explained that free-standing equipment was already addressed in the regulations in several different contexts, but that since covered entities continue to raise questions about the extent of their obligation to provide accessible free-standing equipment, the Department was considering adding specific language on equipment.

The Department received comments both in favor and against this proposal with a majority of comments in favor of requiring accessible equipment and furniture.  However, the Department has decided to add no new regulatory text with respect to equipment at this time.  A few title II entities submitted very brief comments, with about half in favor of specific requirements for free-standing equipment and half opposed.  Most individuals and organizations representing individuals with disabilities were in favor of adding or clarifying requirements for accessible equipment.  Disability organizations pointed out that from the user's perspective, it is irrelevant whether the equipment (e.g., ATMs or vending machines) is free-standing or fixed, since the equipment must be accessible in order for them to use it.         

The Department believes that accessible equipment and furnishings are required when appropriate under the existing regulations governing modifications of policies, practices, and procedures, and in the requirement for program accessibility.  28 CFR 35.130(7); 35.150.  In addition, some equipment may also be subject to the effective communication requirements.  28 CFR 35.160.  The existing regulation at § 35.150(a) requires that entities operate each service, program, or activity so that, when viewed in its entirety, each is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden. Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment."  Section 35.160(a) requires covered entities to provide effective communication to program participants.  Consequently, providing accessible equipment is required when appropriate under the existing regulations.  The Department has decided to continue with this approach and not to add any specific regulatory guidance addressing equipment at this time.

The 2004 ADAAG includes revised requirements for some types of fixed equipment that are specifically addressed in the 1991 Standards, such as ATMs and vending machines, as well as detailed requirements for fixed equipment that is not addressed by name in the current Standards, such as depositories, change machines, and fuel dispensers.  Because the 2004 ADAAG provides detailed requirements for many types of fixed equipment, covered entities should consult those requirements in determining what steps are appropriate for making free-standing equipment accessible.  The Department also agrees that when federal guidance for accessibility exists for equipment required to be accessible to individuals who are blind or have low vision, entities should consult such guidance (e.g., federal standards implementing section 508 of the Rehabilitation Act, 36 CFR part 1194, or the guidelines that specify communication accessibility for ATMs and fare card machines in the 2004 ADAAG, 36 CFR part 1191, App. D).  The Department intends to continue to monitor the use of accessible equipment by covered entities and to analyze the economic impact of possibly providing more detailed requirements in future regulations governing specific types of free-standing equipment.  

Accessible golf cars.

Question six of the ANPRM asked whether golf courses should be required to make at least one, and possibly two, specialized golf cars available for the use of individuals with disabilities, with no greater advance notice required to obtain them than for use of other golf cars.  The Department also asked about the golf car's safety and use on golf course greens.  Accessible single-user golf cars are cars for use by individuals with mobility impairments that are driven with hand controls, and from which a person with a disability can hit the golf ball while remaining in the seat of the car.  Some golf cars have a swivel, elevated seat that allows the golfer to play from a semi-standing position.  These cars can be used by individuals without disabilities as well. 

The Department received many comments regarding accessible golf cars, with the majority of commenters in favor of requiring accessible golf cars.  The comments in opposition to requiring accessible golf cars came from some individuals and from entities covered by title III.  The Department has decided to propose no new regulations specific to accessible golf cars at this time.                                                                           

Many commenters in favor of requiring accessible golf cars noted the social aspect of golf, generally, and its specific--albeit informal--importance, in many business transactions, thus affecting both the social lives and the careers of some individuals with disabilities. 

Comments opposed to requiring accessible golf cars generally came from individuals and golf course owners and associations covered by title III.  Some commenters believed that there is little demand for accessible golf cars, or that the problem is solved by putting "medical" flags on traditional cars to identify individuals with disabilities who are then permitted to drive onto the greens, which otherwise would not be permitted. Others stated that accessible golf cars were too expensive or were specialized equipment that individuals with disabilities should purchase for themselves. One city representative commented that courses that do not provide golf cars should not be required to provide accessible golf cars.

Safety and the impact on golf course grounds were other areas addressed by the comments.  Again, opinions were divided. Some commenters said that the single-user golf cars are safe, do not damage the greens, and speed up the pace of play.  Others argued that the cars should pass the American National Standards Institute (ANSI) standards[2] for traditional golf cars, and that the single-user cars should not be required until there are safety standards for these cars.

Other concerns raised by public comments were the effect of allowing accessible golf car use on the greens and their impact on maintenance of the course.  Some commenters suggested that the cars would damage the greens and that the repair costs would be more significant than for traditional golf cars.  In addition, one commenter suggested that courses exceeding certain slope and degree standards be exempted from having single-user cars because of safety concerns.

Comments from golf courses that have provided accessible golf cars were generally positive in terms of safety and maintenance of the course. Further, courses that provide accessible cars do not report any safety issues or more than minimal damage to the greens.

With respect to making golf cars available, most supporters of providing accessible golf cars believe that no advance notice should be required to reserve the golf cars.  One association supported requiring golf courses to have accessible cars with advance notice, which could be achieved through pooling arrangements with other courses.  Some commenters explained that at least two cars per course should be required so that golfers with disabilities can play together.

Commenters also addressed whether courses that provide no cars at all should provide accessible cars.  Some commenters supported requiring every golf course, whether or not it provides traditional golf cars, to provide accessible cars because individuals with disabilities will not be able to play without an accessible car.      

The Department has decided not to add a regulation specifically addressing accessible golf cars at this time.  The existing regulation, which requires that entities operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden, will continue to govern this issue.  28 CFR 35.150(a).

The Department is aware that the Department of Defense has recently undertaken an extensive study of the accessibility of golf courses operated for military personnel.  As a result of its study, the Department of Defense plans to provide two accessible golf cars at each of the 174 golf courses that the Department of Defense operates, except those at which it would be unsafe to operate such golf cars because of the terrain of the course.  See U.S. Department of Defense, Report to Congress: Access of Disabled Persons to Morale, Recreation, and Welfare (MRW) Facilities and Activities (Sept. 25, 2007).  The Department of Justice plans to study the Defense Department's implementation of its plan to determine if it provides an effective framework for ensuring golf course accessibility.