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

Section 35.150(b)(2) Safe Harbor (Section-by-Section Analysis)

Under the "program accessibility" requirement in title II, each service, program, or activity, when viewed in its entirety, must be readily accessible to and usable by individuals with disabilities.  28 CFR 35.150 (emphasis added).  The title II regulation makes clear that, unlike public accommodations under title III, a public entity is not required to make each of its existing facilities accessible to and usable by individuals with disabilities.  28 CFR 35.150(a)(1).  Moreover, public entities are not required to make structural changes to existing facilities where other methods are effective in ensuring program accessibility.  28 CFR 35.150(b)(1).

Given that program accessibility is not an element-by-element inquiry, but rather looks to the program when "viewed in its entirety," and that structural changes are not always required in order to provide access to the programs, services, or activities of a public entity, the Department believes that the program accessibility requirement, itself, may appropriately mitigate any burdens on public entities with respect to their existing facilities.

Nevertheless, in order to provide certainty to public entities and individuals with disabilities alike, the Department proposes to add a provision to the program accessibility requirement in § 35.150 that would clarify that public entities that have brought elements into compliance in existing facilities are not, simply because of the Department's adoption of the 2004 ADAAG as its new standards, required to modify those elements in order to reflect incremental changes in the proposed standards.  In these circumstances, the public entity is entitled to a safe harbor, and is only required to modify elements to comply with the proposed standards if the public entity is, independently, planning an alteration that is not undertaken in fulfillment of its program accessibility obligations.  See 28 CFR 35.151(b).  The proposed safe harbor for title II operates only with respect to elements that are in compliance with the scoping and technical specifications in either the 1991 Standards or the UFAS; it does not apply to elements that are addressed by supplemental requirements in the 2004 ADAAG.  The Department proposes a new § 35.150(b)(2), denominated Safe Harbor, to § 35.150 (Program Accessibility).  Section 35.150(a) includes general provisions, and paragraph (b) of that section describes the methods by which a public entity complies with the program accessibility requirements.  Historic preservation programs, which are addressed in § 35.150(b)(2) in the current regulation, have been moved to § 35.150(b)(3) in the proposed rule.

The Department proposes in § 35.150(b)(2) that if elements in an existing facility are in compliance with either the 1991 Standards or UFAS, the public entity is not required to alter--or retrofit again--such elements to reflect incremental changes in the 2004 ADAAG simply because the Department is adopting new ADA Standards.  As explained above, this safe harbor operates on an element-by-element basis, and does not apply to elements subject to requirements that are not included in the current ADA Standards for Accessible Design, but rather are supplemental requirements in the 2004 ADAAG.