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

Section 35.151 New Construction and Alterations (Section-by-Section Analysis)

Section 35.151, which provides that those buildings that are constructed or altered by, on behalf of, or for the use of a public entity shall be designed, constructed, or altered to be readily accessible to and usable by individuals with disabilities, is unchanged in the proposed rule, but current § 35.151(a) will be redesignated as § 35.151(a)(1). The Department will add a new section, designated as § 35.151(a)(2), to provide that full compliance with the requirements of this section is not required where an entity can demonstrate that it is structurally impracticable to meet the requirements.  Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.  This exception is now contained in the title III regulation and in the 1991 Standards (applicable to both public accommodations and facilities used by public entities), so it has applied to any covered facility that was constructed under the 1991 Standards since the effective date of the ADA.  The Department is adding it to the text of § 35.151 to maintain consistency between the design requirements that apply under title II and those that apply under title III.

Section 35.151(b) Alterations (Section-by-Section Analysis)

The Department's proposed rule would amend § 35.151(b)(2) to make clear that the path of travel requirements of § 35.151(b)(4) do not apply to measures taken solely to comply with program accessibility requirements.  This amendment is consistent with § 36.304(d)(1) of the title III regulation, which states that "[t]he path of travel requirements of § 36.403 shall not apply to measures taken solely to comply with the barrier removal requirements of this section."

The two requirements for alterations to historic facilities enumerated in current § 35.151(d)(1) and (2) have been combined under proposed § 35.151(b)(3), and one substantive change is proposed. Proposed § 35.151(b)(3) provides that alterations to historic properties shall comply, to the maximum extent feasible, with the provisions applicable to historic properties in the design standards specified in § 35.151(c). Currently, the regulation provides that alterations to historic facilities shall comply with section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards.  See 28 CFR 35.151(d)(1).  However, the proposed regulation requires that alterations to historic properties on or after six months after the effective date of the proposed regulation comply with the proposed standards, not UFAS or the 1991 Standards.  See § 35.151(c).  The substantive requirement in current § 35.151(d)(2)--that alternative methods of access shall be provided pursuant to the requirements of § 35.150 if it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility--is unchanged.

The Department proposes to add § 35.151(b)(4) in order to make the path of travel requirement in title II consistent with that in title III.  Both the Uniform Federal Accessibility Standards (UFAS) and the title III regulation contain requirements for provision of an accessible "path of travel" to the altered area when an existing facility is altered, although the circumstances that trigger the requirements are somewhat different under each statute.  Under section 4.1.6(3) of UFAS, an accessible route to the altered area, an accessible entrance, and (where applicable) accessible toilet facilities must be provided when a substantial alteration is made to an existing building.  An alteration is considered "substantial" if the total cost of all alterations within any twelve month period amounts to fifty percent (50%) or more of the full and fair cash value of the building.  The proposed rule eliminates the UFAS "substantial alteration" basis for path of travel requirements because it eliminates UFAS as an option.

The path of travel requirements of the Department's proposed title II rule are based on section 303(a)(2) of the ADA, which provides that when an entity undertakes an alteration to a place of public accommodation or commercial facility that affects or could affect the usability of or access to an area that contains a primary function, the entity shall ensure that, to the maximum extent feasible, the path of travel to the altered area--and the restrooms, telephones, and drinking fountains serving it--is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

The Department proposes to add a provision to the path of travel requirement in § 35.151(b)(4)(ii)(C) that would clarify that public entities that have brought required elements of the path of travel into compliance are not required to modify those elements in order to reflect incremental changes in the proposed standards when the public entity alters a primary function area that is served by the element.  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 planning an alteration to the element.

The proposed rule provides that areas such as mechanical rooms, boiler rooms, supply storage rooms, employee lounges and locker rooms, janitorial closets, entrances, and corridors are not areas containing a primary function.  Nor are restroom areas containing a primary function unless the provision of restrooms is the major reason that the facility is maintained by a public entity, such as at a highway rest stop.  In that situation, a restroom would be considered to be an "area containing a primary function" of the facility.

The requirement for an accessible path of travel does not apply, however, to the extent that the cost and scope of alterations to the path of travel is disproportionate to the cost of the overall alteration, as determined under criteria established by the Attorney General. Sections 227, 42 U.S.C. 12147, and 242, 42 U.S.C. 12162, of the ADA adopt the same requirement for public transportation facilities under title II.

Section 202.4 of the proposed standards adopts the statutory path of travel requirement, and § 36.403 of the Department's title III regulation establishes the criteria for determining when the cost of alterations to the path of travel is "disproportionate" to the cost of the overall alteration.  The Department's proposed § 35.151(b)(4) will adopt the language now contained in the title III regulation in its entirety, including the disproportionality limitation (i.e., alterations made to provide an accessible path of travel to the altered area would be deemed disproportionate to the overall alteration when the cost exceeds twenty percent (20%) of the cost of the alteration to the primary function area).

Section 35.151(c) Accessibility Standards for New Construction and Alterations (Section-by-Section Analysis)

Section 35.151(c) proposes to adopt Parts I and III of the Americans with Disabilities Act and Architectural Barriers Act Guidelines, 69 FR 44084 (July 23, 2004) (2004 ADAAG) as the ADA Standards for Accessible Design (proposed standards).  As the Department noted above, the development of these proposed standards represents the culmination of a lengthy effort by the Access Board to update its guidelines, to make the federal guidelines consistent to the extent permitted by law, and to harmonize the federal requirements with the private sector model codes that form the basis of many state and local building code requirements.  The full text of the 2004 ADAAG is available for public review on the ADA Home Page (http://www.ada.gov) and on the Access Board's web site (http://www.access-board.gov).  The Access Board site also includes an extensive discussion of the development of the 2004 ADAAG, and a detailed comparison of the 1991 Standards, the 2004 ADAAG, and the 2003 International Building Code.

Appendix A to this proposed rule is an analysis of the major changes in the proposed standards and a discussion of the public comments that the Department received on specific sections of the 2004 ADAAG. Comments discussing the costs and benefits of the proposed standards have been considered and taken into account by the Department's regulatory impact analysis.  Comments on the effect of the proposed standards on existing facilities are discussed in conjunction with the analysis of § 35.150 of this proposed rule.

The remaining comments addressed global issues, such as the Department's proposal to adopt the 2004 ADAAG as the ADA Standards for Accessible Design without significant changes.

Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney General to issue regulations to implement title II that are consistent with the guidelines published by the Access Board.  Commenters suggested that the Department should not adopt the 2004 ADAAG, but should develop an independent regulation.  The Department is a statutory member of the Access Board and was actively involved in the development of the 2004 ADAAG. Because of its long involvement with the process, the Department does not believe that it is necessary or appropriate to begin that lengthy development process again.  Nevertheless, during the process of drafting this NPRM, the Department has reviewed the 2004 ADAAG to determine if additional regulatory provisions are necessary.  As a result of this review, the Department decided to propose new sections, which are contained in § 35.151(d)-(h), to clarify how the Department will apply the proposed standards to social service establishments, housing at places of education, assembly areas, and medical care facilities.  Each of these provisions is discussed below.         

Another general comment suggested that the Department should adopt a system for providing formal interpretations of the standards, analogous to the code interpretation systems used by states and the major model codes.  Because the ADA is a civil rights statute, not a building code, the statute does not contemplate or authorize a formal code interpretation system.  The ADA anticipated that there would be a need for close coordination of the ADA building requirements with the state and local requirements.  Therefore, the statute authorized the Attorney General to establish an ADA code certification process under title III of the ADA. That process is addressed in 28 CFR part 36, subpart F.  Revisions to that process are being proposed in an NPRM to amend the title III regulation that is being published elsewhere in the Federal Register today.  In addition, the Department operates an extensive technical assistance program.  The Department anticipates that once this rule is final, it will issue revised technical assistance material to provide guidance about the implementation of this rule.

Current § 35.151(c) establishes two standards for accessible new construction and alteration.  Under paragraph (c), design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) or with the 1991 Standards (which, at the time of the publication of the rule were also referred to as the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG)) is deemed to comply with the requirements of this section with respect to those facilities (except that if the 1991 Standards are chosen, the elevator exemption does not apply).  The 1991 Standards were based on the ADAAG that were initially developed by the Access Board as guidelines for the accessibility of buildings and facilities that are subject to title III.  The Department adopted the ADAAG as the standards for places of public accommodation and commercial facilities under title III of the ADA and it was published as Appendix A to the Department's regulation implementing title III, 28 CFR part 36, and amended on Jan. 18, 1994, 59 FR 2674.

The Department's proposed rule would revise the existing § 35.151(c) to adopt the 2004 ADAAG as the ADA Standards for Accessible Design.  The proposed rule amends current § 35.151(c)(1) by revising the current language to limit its application to facilities on which construction commences within six months of the publication of the final rule adopting revised standards.  The proposed rule adds paragraph (c)(2) to § 35.151, which states that facilities on which construction commences on or after the date six months following the publication of the final rule shall comply with the proposed standards adopted by that rule.

As a result, for the first six months after the effective date of the proposed regulation, public entity recipients can continue to use either UFAS or the 1991 Standards and be in compliance with title II.  Six months after the effective date of the rule, the new standards will take effect.  Construction in accordance with UFAS will no longer satisfy ADA requirements.  To avoid placing the burden of complying with both standards on public entities, the Department will coordinate a government-wide effort to revise federal agencies' section 504 regulations to adopt the 2004 ADAAG as the standard for new construction and alterations.

The purpose of the six-month delay in requiring compliance with the 2004 Standards is to allow covered entities a reasonable grace period to transition between the existing and the proposed standards. For that reason, if a title II entity prefers to use the 2004 ADAAG as the standard for new construction or alterations commenced within the six-month period after the effective date of the proposed regulation, such entity will be considered in compliance with title II of the ADA.

Section 35.151(d) Scope of Coverage (Section-by-Section Analysis)

The Department is proposing § 35.151(d) to clarify that the requirements established by this section, including those contained in the proposed standards, prescribe what is necessary to ensure that fixed or built-in elements in new or altered facilities are accessible to individuals with disabilities.  Once the construction or alteration of a facility has been completed, all other aspects of programs, services, and activities conducted in that facility are subject to the operational requirements established in this regulation.  Although the Department often chooses to use the requirements of the 1991 Standards as a guide to determining when and how to make equipment and furnishings accessible, those determinations fall within the discretionary authority of the Department and do not flow automatically from the Standards.

The Department is also clarifying that the advisory notes, appendix notes, and figures that accompany the 1991 Standards do not establish separately enforceable requirements.  This clarification has been made to address concerns expressed by commenters who mistakenly believed that the advisory notes in the 2004 ADAAG established requirements beyond those established in the text of the guidelines (e.g., Advisory 504.4 suggests, but does not require, that covered entities provide visual contrast on stair tread nosing to make them more visible to individuals with low vision).     

Section 35.151(e) Social Service Establishments (Section-by-Section Analysis)

The Department is proposing a new § 35.151(e) that provides that group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units shall comply with the provisions of the proposed standards that apply to residential facilities, including, but not limited to, the provisions in §§ 233 and 809 of the 2004 ADAAG.

The reasons for this proposal are based on two important changes in the 2004 ADAAG.  For the first time, residential dwelling units are explicitly covered in the 2004 ADAAG in section 233.  Second, the language addressing scoping and technical requirements for homeless shelters, group homes, and similar social service establishments is eliminated.  Currently, such establishments are covered in section 9.5 of the transient lodging section of the 1991 Standards.  The deletion of section 9.5 creates an ambiguity of coverage that must be addressed.

The Department proposed in the ANPRM that the establishments currently covered by section 9.5 be covered as residential dwelling units in the 2004 ADAAG (section 233), rather than as transient lodging guest rooms in section 224.  The Department believes this is a prudent action based on its effect on social service providers.  Transferring coverage of social service establishments from transient lodging to residential dwelling units will alleviate conflicting requirements for social service providers.  The Department believes that a substantial percentage of social service providers are recipients of federal financial assistance from the HUD.  The Department of Health and Human Services (HHS) also provides financial assistance for the operation of shelters through the Administration for Children and Families programs.  As such, they are covered both by the ADA and section 504.  The two design standards for accessibility--i.e., the 1991 Standards and UFAS--have confronted many social service providers with separate, and sometimes conflicting, requirements for design and construction of facilities.  To resolve these conflicts, the residential dwelling unit standards in the 2004 ADAAG have been coordinated with the section 504 requirements.  The transient lodging standards, however, are not similarly coordinated.  The deletion of section 9.5 of the 1991 Standards from the 2004 ADAAG presented two options:  (1) Require coverage under the transient lodging standards, and subject such facilities to separate, conflicting requirements for design and construction; or (2) require coverage under the residential dwelling unit section, which harmonizes the regulatory requirements under the ADA and section 504.  The Department chose the option that harmonizes the regulatory requirements: Coverage under the residential dwelling units requirements.

In response to its request for public comments on this issue, the Department received a total of eleven responses from industry and disability rights groups and advocates. Some commenters representing disability rights groups expressed concern that the residential dwelling unit requirements in the 2004 ADAAG are less stringent than the revised transient lodging requirements, and would result in diminished access for individuals with disabilities.

The commenters are correct that in some circumstances, the residential requirements are less stringent, particularly with respect to accessibility for individuals with communication-related disabilities.  Other differences between the residential standards and the transient lodging standards include:  The residential guidelines do not require elevator access to upper floors if the required accessible features can be provided on a single, accessible level; and the residential guidelines do not expressly require roll-in showers.  Despite this, the Department still believes that applying the residential dwelling unit requirements to homeless shelters and similar social service establishments is appropriate to the nature of the services being offered at those facilities, and that it will harmonize the ADA and section 504 requirements applicable to those facilities.  In addition, the Department believes that the proposal is consistent with its obligations under the Regulatory Flexibility Act to provide some regulatory relief to small entities that operate on limited budgets.

Nevertheless, the Department is requesting information from providers who operate homeless shelters, transient group homes, halfway houses, and other social service establishments, and from the clients of these facilities who would be affected by this proposed change.

Question 40:  To what extent have conflicts between the ADA and section 504 affected these facilities?  What would be the effect of applying the residential dwelling unit requirements to these facilities, rather than the requirements for transient lodging guest rooms?

Another commenter expressed concern about how the Department would address dormitory-style settings in homeless shelters, transient group homes, halfway houses, and other social service establishments if they are scoped as residential dwelling units.  The commenter noted that the transient lodging requirements include a specific provision that in guest rooms with more than twenty-five beds, at least five percent (5%) of the beds must have parallel clear floor space enabling a person using a wheelchair to access and transfer to the bed.  See sections 224.3, 806.2.3, 305 of the 2004 ADAAG. The residential dwelling unit section does not explicitly include a similar provision.

In response to this concern, the Department has added § 35.151(e)(1), which states that in settings where the sleeping areas include more than twenty-five beds, and in which the residential dwelling unit requirements apply, five percent (5%) of the beds must comply with section 806.2.3 of the 2004 ADAAG (i.e., at least five percent (5%) must have parallel clear floor space on both sides of the bed enabling a person using a wheelchair to access and transfer to the bed).

Definitions of residential facilities and transient lodging. (Section-by-Section Analysis)

The 2004 ADAAG adds a definition of "residential dwelling unit" and modifies the current definition of "transient lodging."

Under section 106.5 of the 2004 ADAAG, a "residential dwelling unit" is defined as "a unit intended to be used as a residence, that is primarily long-term in nature" and does not include transient lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities.  Additionally, section 106.5 of the 2004 ADAAG, changes the definition of "transient lodging" to a building or facility "containing one or more guest room[s] for sleeping that provides accommodations that are primarily short-term in nature" and does not include residential dwelling units intended to be used as a residence.  The references to "dwelling units" and "dormitories" that are in the definition of the 1991 Standards are omitted from the 2004 ADAAG definition of transient lodging.

The Department said in the ANPRM that by applying the 2004 ADAAG residential facility standards to transient group homes, homeless shelters, halfway houses, and other social service establishments, these facilities would be more appropriately classified according to the nature of the services they provide, rather than the duration of those services.  Participants in these programs may be housed on either a short-term or long-term basis in such facilities, and variations occur even within the same programs and the same facility.  Therefore, duration is an inconsistent way of classifying these facilities.

Several commenters stated that the definitions of residential dwellings and transient lodging in the 2004 ADAAG are not clear and will confuse social service providers.  They noted that including "primarily long-term" and "primarily short-term" in the respective definitions creates confusion when applied to the listed facilities because they serve individuals for widely varying lengths of time.

The Department is aware of the wide range and duration of services provided by social service establishments.  Therefore, rather than focus on the length of a person's stay at a facility, the Department believes that it makes more sense to look at a facility according to the type of services provided.  For that reason, rather than saying that social service establishments "are" residential facilities, the Department has drafted the proposed § 35.151(e) to provide that group homes, and other listed facilities, shall comply with the provisions in the 2004 ADAAG that would apply to residential facilities.

Finally, the Department received comments from code developers and architects commending the decision to coordinate the 2004 ADAAG with the requirements of section 504, and asking the Department to coordinate the 2004 ADAAG with the Fair Housing Act's accessibility requirements.  The Department believes that the coordination of the Fair Housing Act with the other applicable disability rights statutes is within the jurisdiction of HUD.  HUD is the agency charged with the responsibility to develop regulations to implement the Fair Housing Act, the Architectural Barriers Act, and the provisions of section 504 applicable to federally funded housing programs.

Scoping of residential dwelling units for sale to individual owners. (Section-by-Section Analysis)

In the 2004 ADAAG, the Access Board deferred to the Department and to HUD, the standard-setting agency under the ABA, to decide the appropriate scoping for residential dwelling units built by or on behalf of public entities with the intent that the finished units will be sold to individual owners.  These programs include, for example, HUD's HOME program.  In addition, some states have their own state-funded programs to construct units for sale to individuals.  The Department expects that, after consultation and coordination with HUD, the Department will make a determination in the final rule.

Question 41:  The Department would welcome recommendations from individuals with disabilities, public housing authorities, and other interested parties that have experience with these programs.  Please comment on the appropriate scoping for residential dwelling units built by or on behalf of public entities with the intent that the finished units will be sold to individual owners.

Section 35.151(f) Housing at a Place of Education (Section-by-Section Analysis)

The Department of Justice and the Department of Education share responsibility for regulation and enforcement of the ADA in postsecondary educational settings, including architectural features.  Housing types in educational settings range from traditional residence halls and dormitories to apartment or townhouse-style residences.  In addition to the ADA and section 504, other federal laws, including the Fair Housing Act of 1968, may apply.  Covered entities subject to the ADA must always be aware of, and comply with, any other federal statutes or regulations that govern the operation of residential properties.

Since the enactment of the ADA, the Department has received many questions about how the ADA applies to educational settings, including school dormitories.  Neither the 1991 Standards nor the 2004 ADAAG specifically addresses how it applies to housing in educational settings. Therefore, the Department is proposing a new § 35.151(f) that provides that residence halls or dormitories operated by or on behalf of places of education shall comply with the provisions of the proposed standards for transient lodging, including, but not limited to, the provisions in sections 224 and 806 of the 2004 ADAAG.  Housing provided via individual apartments or townhouses will be subject to the requirements for residential dwelling units.

Public and private school dormitories have varied characteristics.  Like social service establishments, schools are generally recipients of federal financial assistance and are subject to both the ADA and section 504.  College and university dormitories typically provide housing for up to one academic year, but may be closed during school vacation periods.  In the summer, they are often used for short-term stays of one to three days, a week, or several months.  They are also diverse in their layout. Some have double-occupancy rooms and a toilet and bathing room shared with a hallway of others, while some may have cluster, suite, or group arrangements where several rooms are located inside a secure area with bathing, kitchen, and common facilities.

Public schools are subject to title II and program access requirements.  Throughout the school year and the summer, school dormitories become program areas where small groups meet, receptions and educational sessions are held, and social activities occur.  The ability to move between rooms, both accessible rooms and standard rooms, in order to socialize, to study, and to use all public and common use areas is an essential part of having access to these educational programs and activities.

If the requirements for residential facilities were applied to dormitories operated by schools, this could hinder access to educational programs for students with disabilities.  The prior discussion about social service establishments with sleeping accommodations explained that the requirements for dispersing accessible units would not necessarily require an elevator or access to different levels of a facility.  Conversely, applying the transient lodging requirements to school dormitories would necessitate greater access throughout the facility to students with disabilities. Therefore, the Department requests public comment on how to scope school dormitories.

Question 42:  Would the residential facility requirements or the transient lodging requirements in the 2004 ADAAG be more appropriate for housing at places of education?  How would the different requirements affect the cost when building new dormitories and other student housing?  Please provide examples, if possible.

Section 35.151(g) Assembly Areas (Section-by-Section Analysis)

The Department is proposing a new § 35.151(g) to supplement the assembly area requirements in the proposed standards.  This provision would add five additional requirements.

Section 35.151(g)(1) would require wheelchair and companion seating locations to be dispersed so that some seating is available on each level served by an accessible route.  This requirement should have the effect of ensuring the full range of ticket prices, services, and amenities offered in the facility.  Factors distinguishing specialty seating areas are generally dictated by the type of facility or event, but may include, for example, such distinct services and amenities as reserved seating (when other seats are sold on a first-come-first-served basis only); reserved seating in sections or rows located in premium locations (e.g., behind home plate or near the home team's end zone) that are not otherwise available for purchase by other spectators; access to wait staff for in-seat food or beverage service; availability of catered food or beverages for pre-game, intermission, or post-game meals; restricted access to lounges with special amenities, such as couches or flat screen televisions; or access to team personnel or facilities for team-sponsored events (e.g., autograph sessions, sideline passes, or facility tours) not otherwise available to other spectators.

Section 35.151(g)(2) adds the prohibition that the seating may not be placed on temporary platforms or other movable structures.  The Department has become aware that a growing trend in the design of large sports facilities is to provide wheelchair seating on removable platforms that seat four or more wheelchair users and their companions.  These platforms cover one or more rows of non-wheelchair seating.  The platforms are designed to be removed so that the part of the seating bowl that they cover can be used to seat additional ambulatory spectators.  The sale of any seats in the covered area requires removal of the platform, thereby eliminating some of the required wheelchair seating locations.  In another design that produces a similar result, removable platforms configured to provide multiple, non-wheelchair seats, are installed over some or all of the required wheelchair seating locations.  In this configuration, selling a ticket for one wheelchair location requires the removal of multiple non-wheelchair seats.

The Department believes that both of these designs violate both the letter and the intent of this regulation.  Both designs have the potential to reduce the number of available wheelchair seating spaces below the level required.  Reducing the number of available spaces is likely to result in reducing the opportunity for people who use wheelchairs to have the same choice of ticket prices and access to amenities that are available to other patrons in the facility.  In addition, placing wheelchair seating on removable platforms may have a disproportionate effect on the availability of seating for individuals who use wheelchairs and their companions attempting to buy tickets on the day of the event.  Use of removable platforms may result in instances where last minute requests for wheelchair and companion seating cannot be met because entire sections of wheelchair seating will be lost when a platform is removed.  The use of movable seats, on the other hand, could meet such a demand without eliminating blocks of wheelchair seating at a time, converting only those seats that are needed for ambulatory spectators and are not wanted by individuals who use wheelchairs and their companions.

For these reasons, the Department believes that it is necessary and appropriate to prohibit the use of temporary platforms in fixed seating areas.  Nothing in § 35.151(g) is intended to prohibit the use of temporary platforms to increase the available seating, e.g., platforms that cover a basketball court or hockey rink when the arena is being used for a concert.  These areas of temporary seating do not remove required wheelchair locations and, therefore, would not violate the requirements of this regulation.  In addition, covered entities would still be permitted to use individual movable seats to infill any wheelchair locations that are not sold to wheelchair users.  

Section 35.151(g)(3) would require facilities that have more than 5,000 seats to provide at least five wheelchair locations with at least three companion seats for each wheelchair space.  The Department is proposing this requirement to address complaints from many wheelchair users that the practice of providing a strict one-to-one relationship between wheelchair locations and companion seating often prevents family members from attending events together.

Section 35.151(g)(4) would provide more precise guidance for designers of stadium-style movie theaters by requiring such facilities to locate wheelchair seating spaces and companion seating on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria:

(i) it is located within the rear sixty percent (60%) of the seats provided in an auditorium; or

(ii) it is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).

Section 35.151(h) Medical Care Facilities (Section-by-Section Analysis)

The Department is proposing a new § 35.151(h) on medical care facilities, which now must comply with the applicable sections of the proposed standards.  The Department also proposes that medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 of the proposed standards in a manner that enables patients with disabilities to have access to appropriate specialty services.

The Department is aware that the Access Board sought comment on how dispersion of accessible sleeping rooms can effectively be achieved and maintained in medical care facilities such as hospitals.  In response, commenters representing individuals with disabilities supported a requirement for dispersion of accessible sleeping rooms among all types of medical specialty areas, such as obstetrics, orthopedics, pediatrics, and cardiac care.  Conversely, commenters representing the health care industry pointed out that treatment areas in health care facilities can be very fluid due to fluctuation in the population and other demographic and medical funding trends.  The Access Board decided not to add a dispersion requirement because compliance over the lifetime of the facility could prove difficult given the need for flexibility of spaces within such facilities.  The Department recognizes that it may be difficult to ensure a perfect distribution of rooms throughout all specialty areas in a hospital, but the Department is concerned that the absence of any dispersion requirement may result in inappropriate concentrations of accessible rooms.

Question 43:  The Department is seeking information from hospital designers and hospital administrators that will help it determine how to ensure that accessible hospital rooms are dispersed throughout the facility in a way that will not unduly restrain the ability of hospital administrators to allocate space as needed.  The proposed standards require that ten percent (10%) of the patient bedrooms in hospitals that do not specialize in treating conditions that affect mobility be accessible.  If it is not feasible to distribute these rooms among each of the specialty areas, would it be appropriate to require the accessible rooms to be dispersed so that there are accessible patient rooms on each floor?  Are there other methods of dispersal that would be more effective?

Section 35.151(i) Curb Ramps (Section-by-Section Analysis)

The current § 35.151(e) on curb ramps has been redesignated as § 35.151(i).  The Department has made a minor editorial change, deleting the phrase "other sloped areas" from the two places in which it appears in the current rule.  The phrase "other sloped areas" lacks technical precision.  Both the 1991 Standards and the proposed standards provide technical guidance for the installation of curb ramps.