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

Integration of inmates and detainees with disabilities. (Section-by-Section Analysis)

The Department is also proposing a specific application of the ADA's general integration mandate.  Section 35.152(b)(2) would require public entities to ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individual.  Unless the public entity can demonstrate that it is appropriate for a specific individual, a public entity--

(1) Should not place inmates or detainees with disabilities in locations that exceed their security classification because there are no accessible cells or beds in the appropriate classification;

(2) Should not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment;

(3) Should not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would ordinarily be housed;

(4) Should not place inmates or detainees with disabilities in facilities further away from their families in order to provide accessible cells or beds, thus diminishing their opportunity for visitation based on their disability.

The Department recognizes that there are a wide range of considerations that affect decisions to house inmates or detainees and that in specific cases there may be compelling reasons why a placement that does not follow the provisions of § 35.152(b) may, nevertheless, comply with the ADA.  However, the Department believes that it is essential that the planning process initially assume that inmates or detainees with disabilities will be assigned within the system under the same criteria that would be applied to inmates who do not have disabilities.  Exceptions may be made on a case-by-case basis if the specific situation warrants different treatment.  For example, if an inmate is deaf and communicates only using sign language, a prison may consider whether it is more appropriate to give priority to housing the prisoner in a facility close to his family that houses no other deaf inmates, or if it would be preferable to house the prisoner in a setting where there are other sign language users with whom he can communicate. 

Question 48:  The Department is particularly interested in hearing from prison administrators and from the public about the potential effect of the assignment scheme proposed here on inmates and detainees who are deaf or who have other disabilities.  Are there other, more appropriate tests to apply?