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

Introduction of new § 35.152 for detention and correctional facilities. (Section-by-Section Analysis)

In view of the statistics regarding the current percentage of inmates with mobility disabilities, the fact that prison populations include large numbers of aging inmates who are not eligible for parole, the allegations in complaints received by the Department from inmates, and the Department's own experience with detention and correctional facilities, the Department is proposing regulatory language in a new section (§ 35.152) on correctional facilities, and seeking public comment on these issues. 

The proposed rule at § 35.152 is intended to address these frequent problems for inmates with disabilities by:  1) Proposing specific requirements to ensure accessibility when a correctional or detention facility alters cells; 2) specifying that public entities shall not place inmates or detainees with disabilities in locations that exceed their security classification in order to provide accessible cells; 3) requiring that public entities shall not place inmates in designated medical units and infirmaries solely due to disability; 4) specifying that public entities shall not relocate inmates and detainees solely based on disability to different, accessible facilities without equivalent programs than where they would ordinarily be housed; and 5) requiring that public entities shall not deprive inmates or detainees from visitation with family members by placing them in distant facilities based on their disabilities.  The additions to the existing title II regulation, including each of these proposals and any public comments received on this topic, are discussed in turn below.