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

Section 35.160 Communications (Section-by-Section Analysis)

The Department proposes to expand § 35.160(a) to clarify that a public entity's obligation to ensure effective communication extends not just to applicants, participants, and members of the public with disabilities, but to their companions as well.

The Department also proposes to add a new § 35.160(a)(2) that will define "companion" for the purposes of this section as a person who is a family member, friend, or associate of a program participant who, along with the participant, is an appropriate person with whom the public entity should communicate.

The Department is proposing to add companions to the scope of coverage of § 35.160 to emphasize that the ADA applies in some instances in which a public entity needs to communicate with a family member, friend, or associate of the program participant in order to provide its services.  Examples of such situations include when a school communicates with the parent of a child during a parent-teacher meeting; in a life-threatening situation, when a hospital needs to communicate with an injured person's companion to obtain necessary information; or when a person may need to communicate with a parole officer about a relative's release conditions.  In such situations, if the companion is deaf or hard of hearing, blind, has low vision, or has a disability that affects his or her speech, it is the public entity's responsibility to provide an appropriate auxiliary aid or service to communicate effectively with the companion.  Where communication with a companion is necessary to serve the interests of a person who is participating in a public entity's services, programs, or activities, effective communication must be assured.

This issue is particularly important in health care settings.  The Department has encountered confusion and reluctance by medical care providers regarding the scope of their obligations with respect to such companions.  Effective communication with a companion with a disability is necessary in a variety of circumstances.  For example, a companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel.  In addition, a companion may be the patient's next of kin or health care surrogate with whom hospital personnel communicate concerning the patient's medical condition.  Moreover, a companion could be designated by the patient to communicate with hospital personnel about the patient's symptoms, needs, condition, or medical history.  It has been the Department's longstanding position that public entities are required to provide effective communication to companions who are themselves deaf, hard of hearing, or who have other communication-related disabilities when they accompany patients to medical care providers for treatment.

Public entities must be aware, however, that considerations of privacy, confidentiality, emotional involvement, and other factors may adversely affect the ability of family members or friends to facilitate communication.  In addition, the Department stresses that privacy and confidentiality must be maintained.  We note that covered entities, such as hospitals, that are subject to the Privacy Rule, 45 CFR parts 160, 162, and 164, of the Health Insurance Portability and Accountability Act of 1996 (HIPPA), Public Law 104-191, are permitted to disclose to a patient's relative, close friend, or any other person identified by the patient (such as an interpreter) relevant patient information if the patient agrees to such disclosures.  The agreement need not be in writing.  Covered entities should consult the Privacy Rule regarding other ways disclosures might be able to be made to such persons.

The Department is proposing to amend § 35.160(b)(2) to recognize that the type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.  This addition is a codification of the Department's longstanding position, which is included in the Department of Justice's The Americans with Disabilities Act, Title II Technical Assistance Manual, Covering State and Local Government Programs and Services (Title II TA Manual), II-7.1000, available at http://www.ada.gov/taman2.html. For example, an individual who is deaf or hard of hearing may need a qualified interpreter to discuss with municipal hospital personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed medication (e.g., dosage, side effects, drug interactions, etc.), or to explain follow-up treatments, therapies, test results, or recovery.  In comparison, in a simpler, shorter interaction, the method to achieve effective communication can be more basic.  For example, an individual who is seeking local tax forms may only need an exchange of written notes to achieve effective communication.

The Department proposes adding § 35.160(c) to codify its longstanding policy that it is the obligation of the public entity, not the individual with a disability, to provide auxiliary aids and services when needed for effective communication.  In particular, the Department receives many complaints from individuals who are deaf or hard of hearing alleging that public entities expect them to provide their own sign language interpreters.  This burden is misplaced.  As such, § 35.160(c)(1) makes clear that a public entity may not require an individual with a disability to bring another individual to interpret for him or her. 

Section 35.160(c)(2) codifies the Department's policy that there are very limited instances when a public entity may rely on an accompanying individual to interpret or facilitate communication:  1) In an emergency involving a threat to public safety or welfare; or 2) if the individual with a disability specifically requests it, the accompanying individual agrees to provide the assistance, and reliance on that individual for this assistance is appropriate under the circumstances.  In such instances, the public entity is still required to offer to provide an interpreter free of charge.  In no circumstances should a child be used to facilitate communication with a parent about a sensitive matter.  The Department has produced a video and several publications that explain this and other ADA obligations in law enforcement settings.  They may be viewed at http://www.ada.gov or ordered from the ADA Information Line (800-514-0301 (voice) or 800-514-0383 (TTY)).

Video interpreting services. (Section-by-Section Analysis)

Section 35.160(d) has been added to establish performance standards for video interpreting services (VIS), a system the Department recognizes as a means to provide qualified interpreters quickly and easily.  (The mechanics of VIS are discussed above in the definition of VIS in the section-by-section analysis of § 35.104.)  VIS also has economic advantages, is readily available, and because of advances in video technology, can provide a high quality interpreting experience.  VIS can circumvent the difficulty of providing live interpreters quickly, which is why more public entities are providing qualified interpreters via VIS.

There are downsides to VIS, such as frozen images on the screen, or when an individual is in a medical care facility and is limited in moving his or her head, hands, or arms.  Another downside is that the camera may mistakenly focus on an individual's head, which makes communication difficult or impossible.  Also, the accompanying audio transmission might be choppy or garbled, making spoken communication unintelligible.  The Department is aware of complaints that some public entities have difficulty setting up and operating VIS because staff have not been appropriately trained to do so.

To address the potential problems associated with the use of VIS, the Department is proposing the inclusion of four performance standards for VIS to ensure effective communication:  (1) High quality, clear, real time, full-motion video and audio over a dedicated high speed Internet connection; (2) a clear, sufficiently large, and sharply delineated picture of the participants' heads, arms, hands, and fingers, regardless of the body position of the person who is deaf; (3) clear transmission of voices; and (4) nontechnicians who are trained to set up and operate the VIS quickly.

Captioning at sporting venues. (Section-by-Section Analysis)

The Department is aware that individuals who are deaf or hard of hearing have expressed concerns that they are unaware of information that is provided over the public address systems.  Therefore, the Department is proposing requiring that sports stadiums with a capacity of 25,000 or more provide captioning for patrons who are deaf or hard of hearing for safety and emergency information announcements made over the public address system.  There are various options that could be used for providing captioning, such as on a scoreboard, on a line board, on a handheld device, or other methods. 

Question 49:  The Department believes that requiring captioning of safety and emergency information made over the public address system in stadiums seating fewer than 25,000 has the potential of creating an undue burden for smaller entities.  However, the Department requests public comment about the effect of requiring captioning of emergency announcements in all stadiums, regardless of size.  Would such a request be feasible for small stadiums?

Question 50:  The Department is considering requiring captioning of safety and emergency information in sports stadiums with a capacity of 25,000 or more within a year of the effective date of the regulation.  Would a larger threshold, such as sports stadiums with a capacity of 50,000 or more, be more appropriate or would a lower threshold, such as stadiums with a capacity of 15,000 or more, be more appropriate?

Question 51:  If the Department adopted a requirement for captioning at sports stadiums, should there be a specific means required?  That is, should it be provided through any effective means (scoreboards, line boards, handheld devices, or other means), or are there problems with some means, such as handheld devices, that should eliminate them as options?

Question 52:  The Department is aware that several major stadiums that host sporting events, including National Football League football games at Fed Ex Field in Prince Georges County, Maryland, currently provide open captioning of all public address announcements, and do not limit captioning to safety and emergency information.  What would be the effect of a requirement to provide captioning for patrons who are deaf or hard of hearing for game-related information (e.g., penalties), safety and emergency information, and any other relevant announcements?