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

SECTION-BY-SECTION ANALYSIS AND RESPONSE TO COMMENTS

This section provides a detailed description of the Department's proposed changes to the title II regulation, the reasoning behind the proposals, and responses to public comments received on the topic. The section-by-section analysis follows the order of the current title II regulation, except that if the Department is not proposing a change to a regulation section, the unchanged section is not discussed.  In addition, this section includes specific questions for which the Department requests public response.  These questions are numbered and italicized in order to make them easier for readers to locate and reference.

Subpart A--General (Section-by-Section Analysis)

Section 35.104 Definitions (Section-by-Section Analysis)

"1991 Standards" and "2004 ADAAG" (Section-by-Section Analysis)

The Department is proposing to add to the proposed regulation definitions of both the "1991 Standards" and the "2004 ADAAG."  The term "1991 Standards" refers to the currently enforceable ADA Standards for Accessible Design, codified at 28 CFR part 36, App. A.  The term "2004 ADAAG" refers to Parts I and III of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which were issued by the Architectural and Transportation Barriers Compliance Board on July 23, 2004, at 69 FR 44084 (to be codified at 36 CFR 1191), and which the Department is proposing to adopt in this NPRM.  These terms are included in the definitions section for ease of reference.

"Auxiliary Aids and Services" (Section-by-Section Analysis)

Several types of auxiliary aids that have become more readily available have been added to § 35.104 under the definition of auxiliary aids and services.

For purposes of clarification, the Department has added the exchange of written notes as an example of an auxiliary aid or service.  This common-sense example is a codification of the Department's longstanding policy with regard to title III entities.  See The Americans with Disabilities Act, Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities (Title III TA Manual), III-4.300, available at http://www.ada.gov/taman3.html. The title III definition of auxiliary aids and services provided the framework for the same definition in title II.  See  56 FR 35544, 35565 (July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991).  This additional example of an appropriate auxiliary aid and service was inserted because many public entities do not realize that this easy and efficient technique is available to them.  While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine requests for written information, for a police officer issuing a speeding ticket, or as a means of communication while awaiting the arrival of an interpreter.

Also in paragraph (1) of the definition, the Department has replaced the term "telecommunications devices for deaf persons (TDD)" with "text telephones (TTYs)."  Although "TDD" is the term used in the ADA, the use of "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  The Department has also included in paragraph (1) "accessible electronic and information technology" as another example of auxiliary aids and services.  Lastly, "computer-aided" has been added to describe "transcription services" to make it consistent with title III.

The Department has added to paragraph (1) a new technology, video interpreting services (VIS), which consists of a video phone, video monitors, cameras, a high speed Internet connection, and an interpreter. VIS is specifically discussed below in the proposed definition of VIS.

In paragraph (2) of the definition, the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision.  The preamble to the original regulation makes clear that the original list in the regulation was "not an all-inclusive or exhaustive catalogue of possible or available auxiliary aids or services.  It is not possible to provide an exhaustive list, and an attempt to do so would omit the new devices that will become available with emerging technology."  See 56 FR 35694, 35697 (July 26, 1991). Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.

"Direct Threat" (Section-by-Section Analysis)

In the Department's proposed § 35.136(b)(3), a service animal may be removed from the premises of a public entity if the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.  Direct threat is not defined in title II, but it is defined in § 36.208(b) of the current title III regulation as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services."  The Department proposes taking the definition from its current location in title III and placing it in the definitions section in both title II (§ 35.104) and title III (§ 36.104).

"Existing Facility" (Section-by-Section Analysis)

Under the ADA, a facility may be one or more of three types at different points in time:  (1) an existing facility, (2) an altered facility, or (3) a newly designed and constructed facility.  In the current regulation, title II defines new construction at § 35.151(a) and alterations at § 35.151(b).  In contrast, the term "existing facility" is not defined although it is used in the statute and in the regulations for titles II and III.  42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150.

The Department's enforcement of the ADA is premised on a broad understanding of "existing facilities."  The classifications of facilities under the ADA regulation are not static.  Rather, a building that was newly designed and constructed at one time--and, therefore, subject to the accessibility standards in effect at the time--becomes an "existing facility" after it is completed.  At some point in its life, it may also be considered "altered" and then again become "existing."

The added definition of "existing facility" in the proposed regulation clarifies that the term means exactly what it says:  A facility in existence on any given date is an existing facility under the ADA.  If a facility exists, it is an existing facility whether it was built in 1989, 1999, or 2009.  Of course, if the construction of a facility at issue begins after the triggering dates for the new construction standards, then the facility is subject to the new construction standards, and if it is altered, it is subject to the alterations standards.

"Other Power-Driven Mobility Device" (Section-by-Section Analysis)

The proposed regulation defines the term "other power-driven mobility device" as "any of a large range of devices powered by batteries, fuel, or other engines--whether or not designed solely for use by individuals with mobility impairments--that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs) (e.g., Segway®), or any mobility aid designed to operate in areas without defined pedestrian routes."  The definition is designed to be broad and inclusive because the Department recognizes the diverse needs and preferences of individuals with disabilities and does not wish to impede individual choice except when necessary.  Power-driven mobility devices are included in this category. Mobility aids that are designed for areas or conditions without defined pedestrian areas, such as off-road bike paths, roads (except where allowed by law or where a sidewalk is not provided), freeways, or natural surfaces such as beaches where there is not a defined circulation route for pedestrians, are also included in this category.

Question 8:  Please comment on the proposed definition of other power-driven mobility devices.  Is the definition overly inclusive of power-driven mobility devices that may be used by individuals with disabilities?

The Department's proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed below in § 35.137 of the section-by-section analysis.

The Department's proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed below in § 35.137 of the section-by-section analysis. [sic]

"Proposed Standards" (Section-by-Section Analysis)

The Department has added the term "proposed standards" to mean the 2004 ADAAG as revised or amended by the Department in this rulemaking.  The full text of the 2004 ADAAG is available for review at http://www.access-board.gov along with a detailed comparison of the 1991 Standards and the 2004 ADAAG that identifies the differences between the two documents.

"Qualified Interpreter" (Section-by-Section Analysis)

The Department proposes to add to the definition of "qualified interpreter" to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued speech interpreters. 

Not all interpreters are qualified for all situations.  For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally.  Also, someone with just a rudimentary familiarity with sign language or finger spelling is not a qualified sign language interpreter.  Likewise, a qualified sign language interpreter would not include someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words.

The revised definition includes examples of different types of interpreters.  An oral interpreter has special skill and training to mouth a speaker's words silently for individuals who are deaf or hard of hearing, many of whom were raised orally and were taught to read lips or were diagnosed with hearing loss later in life and do not know sign language.  An individual who is deaf or hard of hearing may need an oral interpreter if the speaker's voice is unclear, there is a quick-paced exchange of communication (e.g., in a meeting), or when the speaker does not directly face the individual who is deaf or hard of hearing.  A cued speech interpreter functions in the same manner as an oral interpreter except that he or she also uses a hand code, or cue, to represent each speech sound.

"Qualified Reader" (Section-by-Section Analysis)

The current regulation identifies a qualified reader as an auxiliary aid, but it does not define the term.  See 28 CFR 35.104(2).  Based upon the Department's investigation of complaints alleging that some entities have provided ineffective readers, the Department proposes to define "qualified reader" similarly to "qualified interpreter" to ensure that entities select qualified individuals to read an examination or other written information in an effective, accurate, and impartial manner.  Failing to provide a qualified reader to a person with a disability could amount to discrimination based upon disability.

"Service Animal" (Section-by-Section Analysis)

Although there is no specific language in the current title II regulation concerning service animals, title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the nature of the service, program, or activity.  28 CFR 35.130(b)(7).  In order to qualify for coverage under title II, a person must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."  28 CFR 35.104.  The Department is proposing to add to the title II regulation the same definition of "service animal" that it will propose for the title III regulation.  The title III regulation currently contains a definition of "service animal" in § 36.104.

The current definition of "service animal" in § 36.104 is, "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."  The Department would modify that current definition, and add the same definition, as modified, to the title II regulation at § 35.104. The changes that would be made to the title III definition, and that would be incorporated in the title II definition are as follows:

1. Remove "guide" or "signal" as descriptions of types of service dogs, add "other common domestic" animal, and add "qualified" to "individual" in the Department's current definition;

2. Remove "individuals with impaired vision" and replace it with "individuals who are blind or have low vision;"

3. Change "individuals with impaired hearing" to "individuals who are deaf or hard of hearing;"

4. Replace the term "intruders" with the phrase "the presence of people" in the section on alerting individuals who are deaf or hard of hearing;

5. Add the following to the list of work and task examples:  Assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation;

6. Add that "service animal" includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, or mental disabilities;

7. Add that "service animal" does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, pony, miniature horse, pig, and goat), ferrets, amphibians, and rodents; and

8. Add that animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.

The Department is proposing these changes in response to concerns expressed by commenters regarding the Department's ANPRM. Issues raised by the commenters include:

"Minimal protection." (Section-by-Section Analysis)

There were many comments by service dog users urging the Department to remove from the definition the phrase "providing minimal protection."  The commenters set forth the following reasons for why the phrase should be deleted:  1) The current phrase can be interpreted to apply coverage under the ADA to "protection dogs" that are trained to be aggressive and protective, so long as they are paired with a person with a disability; and 2) since some view the minimal protection language to mean that a dog's very presence can act as a crime deterrent, the language may be interpreted to allow any untrained pet dog to provide minimal protection by its mere presence.  These interpretations were not contemplated by the ADA.

Question 9:  Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?  Are there any circumstances where a service animal providing "minimal protection" would be appropriate or expected?

"Alerting to intruders." (Section-by-Section Analysis)

Some commenters expressed a similar concern regarding the phrase "alerting . . . to intruders" in the current text as the concern expressed by commenters regarding the phrase "providing minimal protection."  Commenters indicated that "alerting to intruders" has been misinterpreted by some individuals to apply to a special line of protection dogs that are trained to be aggressive.  People have asserted, incorrectly, that use of such animals is protected under the ADA.  The Department reiterates that public entities are not required to admit any animal that poses a direct threat to the health or safety of others.  The Department has proposed removing "intruders" and replacing it with "the presence of people."

"Task" emphasis. (Section-by-Section Analysis)

Many commenters followed the lead of an umbrella service dog organization and suggested that the phrase "performing tasks" should form the basis of the service animal definition, that "do work" should be eliminated from the definition, and that "physical" should be added to describe tasks.  Tasks by their nature are physical, so the Department does not believe that such a change is warranted. In contrast, the existing phrase "do work" is slightly broader than "perform tasks," and adds meaning to the definition.  For example, a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.  As one service dog user stated, in some cases, "critical forms of assistance can't be construed as physical tasks," noting that the manifestations of "brain-based disabilities," such as psychiatric disorders and autism, are as varied as their physical counterparts.  One commenter stated that the current definition works for everyone (i.e., those with physical and mental disabilities) and urged the Department to keep it.  The Department has evaluated this issue and believes that the crux of the current definition (individual training to do work or perform tasks) is inclusive of the varied services provided by working animals on behalf of individuals with all types of disabilities and proposes that this portion of the definition remain the same.

Define "task." (Section-by-Section Analysis)

One commenter suggested defining the term "task," presumably so that there would be a better understanding of what type of service performed by an animal would qualify for coverage.  The Department feels that the common definition of task is sufficiently clear and that it is not necessary to add the term to the definitions section; however, the Department has proposed additional examples of work or tasks to help illustrate this requirement in the definition of service animal.

Define "animal" or what qualifies certain species as "service animals." (Section-by-Section Analysis)

When the regulation was promulgated in 1991, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas.  One commenter suggested defining "animal" (in the context of service animals) or the parameters of acceptable species to reduce the confusion over whether a particular service animal is covered.  One service dog organization commented that other species would be acceptable if those animals could meet the behavioral standards of trained service dogs.  Other commenters asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks, so these animals would not be covered.  The Department has followed closely this particular issue (i.e., how many unusual animals are now claimed as service animals) and believes that this aspect of the regulation needs clarification.

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals:  Wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents.  Many commenters asserted that limiting the number of allowable species would help stop erosion of the public's trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards.  The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as libraries or courtrooms.

In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild.  Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation.  The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury, and zoonotic [animal-to-human disease transmission] risks."  See the AVMA 2005 position statement, Nonhuman Primates as Assistance Animals, available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.

Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.

Question 10:  Should the Department eliminate certain species from the definition of "service animal"?  If so, please provide comment on the Department's use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.

Question 11:  Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?

Comfort animals. (Section-by-Section Analysis)

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular.  The increased use of comfort animals is primarily by individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.  Comfort animals are also used by individuals without any type of impairment who claim the need for such an animal in order to bring their pets into facilities of public entities.

The difference between an emotional support animal and a psychiatric service animal is the service that is provided, i.e., the actual work or task performed by the service animal.  Another critical factor rests on the severity of the individual's impairment.  For example, only individuals with conditions that substantially limit them in a major life activity qualify for coverage under the ADA, and only those individuals' use of a service animal will be covered under the ADA.  See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 35.104.  Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires a substantial limitation of a major life activity.  Traditionally, service dogs worked as guides for individuals who were blind or had low vision.  Since the original regulations were promulgated, service animals have been trained to assist individuals with different types of disabilities.  As a result, individuals with minor impair- ments [sic] may mistakenly conclude that any type of impairment qualifies them for ADA coverage.

Change "service animal" to "assistance animal." (Section-by-Section Analysis)

Some commenters asserted that "assistance animal" is a term of art and should replace "service animal."  While some agencies, like the Department of Housing and Urban Development (HUD), use the term "assistance animal," that term is used to denote a broader category of animals than is covered by the ADA.  The Department believes that changing the term used under the ADA would create confusion, particularly in view of the broader parameters for coverage under the Fair Housing Act (FHA)  (cf., HUD Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hudclips.org.) Moreover, the Department's proposal to change the definition of "service animal" under the ADA is not intended to affect the rights of people with disabilities who use assistance animals in their homes under the FHA.

In addition, the term "psychiatric service animal" describes a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability.  This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations, 14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on accommodation of service animals and emotional support animals on air transportation) and qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA. 

"Video Interpreting Services (VIS)"

The Department has added a definition of video interpreting services (VIS), a technology composed of a video phone, video monitors, cameras, a high speed Internet connection, and an interpreter.  The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can see and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking.  The video monitor can display a split screen of two live images, with the interpreter in one image and the individual who is deaf or hard of hearing in the other image.

VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day by allowing people in different locations to engage in live, virtual face-to-face communications.  Moreover, VIS is particularly helpful where qualified interpreters are not readily available (e.g., for quick response during emergency hospital visits, in areas with an insufficient number of qualified interpreters to meet demand, and in rural areas where distances and an interpreter's travel time present obstacles).

In addition to adding the specific definition of VIS, the Department proposes to add VIS to the definition of "auxiliary aids and services" (discussed above in § 35.104) and to set out performance standards for VIS at § 35.160.

"Wheelchair" (Section-by-Section Analysis)

The Department proposes the following definition of "wheelchair" in § 35.104:   "Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas.  A wheelchair may be manually operated or power-driven."

The proposed definition of "wheelchair" is informed by several existing definitions of "wheelchair."  Section 507 of the ADA defines wheelchair in the context of whether to allow wheelchairs in federal wilderness areas:  "the term 'wheelchair' means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area."  42 U.S.C. 12207(c)(2).  The Department believes that while this definition is appropriate in the limited context of federal wilderness areas, it is not specific enough to provide clear guidance in the array of settings covered by title II.

The other existing federal definition of "wheelchair" that the Department reviewed is in the Department of Transportation regulation implementing the transportation provisions under title II and title III of the ADA.  The Department of Transportation's definition of "wheelchair" is "a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility impairments, whether operated manually or powered."  49 CFR 37.3.  The Department has adopted much of the language from this definition. Under the proposed definition, wheelchairs include manually operated and power-driven wheelchairs and mobility scooters.  Mobility devices such as golf cars, bicycles, and electronic personal assistance mobility devices (EPAMDs) are inherently excluded from the proposed definition.  Typically, the devices covered under the proposed definition are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas. However, it could include a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels.  "Typical indoor and outdoor pedestrian areas" refer to locations and surfaces used by and intended for pedestrians, including sidewalks, paved paths, floors of buildings, elevators, and other circulation routes, but would not include such areas as off-road bike paths, roads (except where allowed by law or where a sidewalk is not provided), freeways, or natural surfaces such as beaches where there is not a defined circulation route for pedestrians.

The Department does not propose to define specific dimensions that qualify a device as a wheelchair.  The Department of Transportation's definition includes a subpart defining "common wheelchair" to provide guidance for public transit authorities on which devices must be transported.  A "common wheelchair" is a wheelchair that "does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied."  49 CFR 37.3.  The narrower definition of "common wheelchair" was developed with reference to the requirements for lifts to establish parameters for the size and weight a lift can safely accommodate.  See 49 CFR part 37, App. D (2002).  The Department does not believe it is necessary to adopt stringent size and weight requirements for wheelchairs.

The Department requests public input on the proposed definition for "wheelchair."

Question 12:  As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters).  Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices?  Please cite specific examples if possible.

Question 13:  Should the Department expand its definition of "wheelchair" to include Segways®?

Question 14:  Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of "common wheelchair"?

Question 15:  Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"?  If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included.

Question 16:  Should the Department adopt a definition of the term "manually powered mobility aids"?  If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public.

The proposed regulation regarding mobility devices, including wheelchairs, is discussed below in the section-by-section analysis for § 35.137.

Subpart B--General Requirements (Section-by-Section Analysis)

Section 35.130 General Prohibitions Against Discrimination (Section-by-Section Analysis)

Section 35.133 Maintenance of Accessible Features (Section-by-Section Analysis)

The general rule regarding the maintenance of accessible features, which provides that a public entity must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by qualified individuals with disabilities, is unchanged.  However, the Department wishes to clarify its application and proposes one change to the section.

The Department has noticed that some covered entities do not understand what is required by § 35.133, and it would like to take the opportunity presented by this NPRM to clarify the requirement. Section 35.133(a) broadly covers all features that are required to be accessible under the ADA, from accessible routes and elevators to roll-in showers and signage.  It is not sufficient for a building or other feature to be built in compliance with the ADA, only to be changed or blocked later so that it becomes inaccessible.  A common problem observed by the Department is that covered facilities do not maintain accessible routes.  For example, the accessible routes in offices or hallways are commonly obstructed by boxes, furniture, or other items so that the routes are inaccessible to individuals who use wheelchairs.  Under the ADA, the accessible route must be maintained and therefore these items are required to be removed.  If the items are placed there temporarily--for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room--then § 35.133(b) excuses such "isolated or temporary interruptions."  Other common examples of features that must be maintained, and often are not, are platform lifts and elevators. Public entities must ensure that these features are operable, and to meet this requirement, regular servicing and making repairs quickly will be necessary.

The Department proposes to amend the rule by adding § 35.133(c) to address the discrete situation in which the scoping requirements provided in the proposed standards may reduce the number of required elements below that are required by the 1991 Standards.  In that discrete event, a public entity may reduce such accessible features in accordance with the requirements in the proposed standards.

Section 35.136 Service Animals (Section-by-Section Analysis)

The Department's title II regulation now states that, "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity."  28 CFR 35.130(b)(7).  In the proposed title II language, the Department intends to provide the broadest feasible access to individuals with disabilities who use service animals, unless a public entity can demonstrate that making the modifications would fundamentally alter the nature of the public entity's service, program, or activity.

The proposed section regarding service animals would incorporate the Department's policy interpretations as outlined in its published technical assistance Commonly Asked Questions about Service Animals (1996) (available at http://www.ada.gov/qasrvc.htm), and ADA Business Brief: Service Animals (2002) (available at http://www.ada.gov/svcanimb.htm), as well as make changes based on public comment.  Proposed § 35.136 would:

1. Expressly incorporate the Department's policy interpretations as outlined in its  published technical assistance and add that a public entity may ask an individual with a disability to remove a service animal from the premises if:  (i) The animal is out of control and the animal's handler does not take effective action to control it; (ii) the animal is not housebroken; (iii) the animal's presence or behavior fundamentally alters the nature of the service the public entity provides (e.g., repeated barking); or (iv) the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications in § 35.136(b);

2. Add in § 35.136(c) that if a public entity properly excludes a service animal, the public entity must give the individual with a disability the opportunity to participate in or benefit from the services, programs, or activities without having the service animal on the premises;

3. Add in § 35.136(d) requirements that the work or tasks performed by a service animal must be directly related to the handler's disability; that a service animal that accompanies an individual with a disability into a public entity's facility must be individually trained to do work or perform a task, be housebroken, and be under the control of its owner; and that a service animal must have a harness, leash, or other tether;

4. Add in § 35.136(e) specific language clarifying that "[a] public entity is not responsible for caring for or supervising a service animal."  This proposed language does not require that the person with a disability care for his or her service animal if care can be provided by a family member, friend, attendant, volunteer, or anyone acting on behalf of the person with a disability.  This provision is a variation on the existing title III language in § 36.302(c)(2), which states, "[n]othing in this part requires a public accommodation to supervise or care for a service animal."  The Department is proposing similar modifications to the title III requirements on service animals in the NPRM for title III, published concurrently with this NPRM.

5. Expressly incorporate the Department's policy interpretations as outlined in its published technical assistance that a public entity must not ask what the person's disability is or about the nature of the person's disability, nor require proof of service animal certification or licensing, but that a public entity may ask (i) if the animal is required because of a disability; and (ii) what work or tasks the animal has been trained to perform in § 35.136(f);

6. Expressly incorporate the Department's policy interpretations as outlined in its published technical assistance and add that a public entity must not require an individual with a disability to pay a fee or surcharge or post a deposit as a condition of permitting a service animal to accompany its handler in a public entity's facility, even if such deposits are required for pets, and that if a public entity normally charges its citizens for damage that they cause, a citizen with a disability may be charged for damage caused by his or her service animal in § 35.136(h).

These changes will respond to the following concerns raised by individuals and organizations that commented in response to the ANPRM.

Proposed behavior or training standards. (Section-by-Section Analysis)

Some commenters proposed behavior or training standards for the Department to adopt in its revised regulation, not only to remain in keeping with the requirement for individual training, but also on the basis that without training standards the public has no way to differentiate between untrained pets and service animals. Because of the variety of individual training that a service animal can receive--from formal licensing at an academy to individual training on how to respond to the onset of medical conditions, such as seizures--the Department is not inclined to establish a standard that all service animals must meet. Some of the behavioral standards that the Department is proposing actually relate to suitability for public access, such as being housebroken and under the control of its handler.

Hospital and healthcare settings. (Section-by-Section Analysis)

Public entities, including public hospitals, must modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.  28 CFR 35.130(b)(7).  The exception to this requirement is if making the modification would fundamentally alter the nature of the service, program, or activity.  The Department generally follows the guidance of the Centers for Disease Control and Prevention (CDC) on the use of service animals in a hospital setting.

As required by the ADA, a healthcare facility must permit a person with a disability to be accompanied by his or her service animal in all areas of the facility in which that person would otherwise be allowed, with some exceptions.  Zoonotic diseases can be transmitted to humans through trauma (e.g., bites or scratches).  Although there is no evidence that most service animals pose a significant risk of transmitting infectious agents to humans, animals can serve as a reservoir for a significant number of diseases that could potentially be transmitted to humans in the healthcare setting.  A service animal may accompany its owner to such areas as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, rest rooms, and all other areas of the facility where visitors are permitted, except those listed below.

Under the ADA, the only circumstances under which a person with a disability may not be entitled to be accompanied by his or her service animal are those rare circumstances in which it has been determined that the animal poses a direct threat to the health or safety of others.  A direct threat is defined as a significant risk to the health or safety of others that cannot be eliminated or mitigated by a modification of polices, practices, or procedures.  Based on CDC guidance, it is generally appropriate to exclude a service animal from areas that require a protected environment, including operating rooms, holding and recovery areas, labor and delivery suites, newborn intensive care nurseries, and sterile processing departments.  See Centers for Disease Control, Guidelines for Environmental Infection Control in Health Care Facilities (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.

Section 35.137 Mobility Devices (Section-by-Section Analysis)

Proposed § 35.137 has been added to provide additional guidance to public entities about the circumstances in which power-driven mobility devices must be accommodated.

As discussed earlier in this NPRM, this proposal is in response to growing confusion about what types of mobility devices must be accommodated.  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized for locomotion purposes riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices that are not designed for use or exclusively used by people with disabilities. Indeed, there has been litigation about whether the ADA requires covered entities to allow people with disabilities to use their EPAMDs like users of traditional wheelchairs.  Individuals with disabilities have sued several shopping malls in which businesses refused to allow a person with a disability to use an EPAMD.  See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/stories/17784.asp; Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674. The Department believes clarification on what the ADA requires is necessary at this juncture.

Section 35.137(a) reiterates the general rule that public entities shall permit individuals using wheelchairs, scooters, and manually powered mobility aids, including walkers, crutches, canes, braces, and similar devices, in any areas open to pedestrians.  The regulation underscores this general proposition because the great majority of mobility scooters and wheelchairs must be accommodated under nearly all circumstances in which title II applies.

Section 35.137(b) adopts the general requirement in the ADA that public entities must make reasonable modifications to their policies, practices, and procedures when necessary to enable an individual with a disability to use a power-driven mobility device to participate in its services, programs, or activities unless doing so would result in a fundamental alteration of their services, programs, or activities.

If a public entity restricts the use of power-driven mobility devices by people without disabilities, then it must develop policies addressing which devices and under what circumstances individuals with disabilities may use power-driven mobility devices for the purpose of mobility.  Under the Department's proposed regulation in § 35.137(c), public entities must adopt policies and procedures regarding the accommodation of power-driven mobility devices other than wheelchairs and scooters that are designed to assess whether allowing an individual with a disability to use a power-driven mobility device is reasonable and does not result in a fundamental alteration to its programs, services, or activities. Public entities may establish policies and procedures that address and distinguish among types of mobility devices.

For example, a city may determine that it is reasonable to allow individuals with disabilities to use EPAMDs in a variety of outdoor programs and activities, but that it would not be reasonable to allow the use of golf cars as mobility devices in similar circumstances.  At the same time, the city may address its concerns about factors such as space limitations by disallowing EPAMDs by members of the general public.

Section 35.137(c) lists permissible factors that a public entity may consider in determining whether the use of different types of power-driven mobility devices by individuals with disabilities may be permitted.  In developing policies, public entities should group power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, wheelchairs designed for outdoor use, and other devices).  A blanket exclusion of all devices that fall under the definition of other power-driven mobility devices in all locations would likely violate the proposed regulation.

The factors listed in § 35.137(c)(1)-(3) may be used in order to develop policies regarding the use of other power-driven mobility devices by people with disabilities.  The dimensions, weight, and other characteristics of the mobility device in relation to a wheelchair or scooter, as well as the device's maneuverability and speed, may be considered. Another permissible factor is the risk of potential harm to others.  The use of gas-powered golf cars by people with disabilities inside a building may be prohibited, for example, because the exhaust may be harmful to others.   A mobility device that is unsafe to others would not be reasonable under the proposed regulation.  Additionally, the risk of harm to the environment or natural or cultural resources or conflicts with federal land management laws and regulations are also to be considered.  The final consideration is the ability of the public entity to stow the mobility device when not in use, if requested by the user.

While a public entity may inquire into whether the individual is using the device due to a disability, the entity may not inquire about the nature and extent of the disability, as provided in § 35.137(d). 

The Department anticipates that, in many circumstances, allowing the use of unique mobility devices by individuals with disabilities will be reasonable to provide access to a public entity's services, programs, and activities, and that in many cases it will not fundamentally alter the public entity's operations and services.  On the other hand, the use of mobility devices that are unsafe to others, or unusually unwieldy or disruptive, is unlikely to be reasonable and may constitute a fundamental alteration.

Consider the following examples: 

Example 1: Although people who do not have mobility impairments are prohibited from operating EPAMDs at the fairgrounds, the county has developed a policy allowing people with disabilities to use EPAMDs as their mobility device on the fairgrounds.  The county's policy states that EPAMDs are allowed in all areas of the fairgrounds that are open to pedestrians as a reasonable modification to its general policy on EPAMDs.  The county determined that the venue provides adequate space for a larger device such as an EPAMD and that it does not fundamentally alter the nature of the fair's activities and services.  The county's policies do, however, require that EPAMDs be operated at a safe speed limit.  A county employee may inquire at the ticket gate whether the device is needed due to the user's disability and also inform an individual with a disability using an EPAMD that the county policy requires that it be operated at or below the designated speed limit.

Example 2: The city has developed a policy specific to city hall regarding the use of EPAMDs (i.e., users who do not need the devices due to disability are required to leave the devices outside the building).  While most of city hall is spacious, the city has determined that it is not reasonable to allow people with disabilities to bring their EPAMDs into the recorder of deeds office, which is quite small, and the device's dimensions make it unsafe and unwieldy in this situation.  If it is not possible for the individual with a disability to park the mobility device and walk into the recorder of deeds office, the city government would still be required to provide services to the person through program access by meeting the individual in an adjacent, more spacious office, allowing him or her to obtain services over the phone, sending an employee to the individual's home, or through other means.

The Department is seeking public comment on the proposed definitions and policy concerning wheelchairs and other mobility devices.

Question 17:  Are there types of personal mobility devices that must be accommodated under nearly all circumstances? Conversely, are there types of mobility devices that almost always will require an assessment to determine whether they should be accommodated?  Please provide examples of devices and circumstances in your responses.

Question 18:  Should motorized devices that use fuel or internal-combustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA?  Are there specific circumstances in which accommodating these devices would result in a fundamental alteration?

Question 19:  Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor?  Why or why not?

Section 35.138 Ticketing (Section-by-Section Analysis)

The ticketing policies and practices of public entities are subject to title II's nondiscrimination provisions.  See 42 U.S.C. 12132.  Through the investigation of complaints, its enforcement actions, and public comments related to ticketing, the Department is aware of the need to provide regulatory guidance to entities involved in the sale or distribution of tickets.  With this NPRM, the Department proposes to include a section on ticketing within the general requirements of subpart B.          

In response to the ANPRM, individuals with disabilities and related advocacy groups commented that the reduced requirements for accessible seating in assembly areas underscored the need for clarification from the Department on ticketing related issues.  One disability advocacy group asserted that in order to guarantee equal access to assembly areas for people with disabilities, it is necessary to provide complementary design standards, sales policies, and operational procedures.

The Department agrees that more explicit regulation is needed to ensure that individuals with disabilities are not improperly denied access to events because of discriminatory procedures for the sale of wheelchair spaces. The Department's enforcement actions have demonstrated that some venue operators, ticket sellers, and distributors are not properly implementing title II's general nondiscrimination provisions.

The Department has entered into agreements addressing problems with ticketing sales and distribution by requiring specific modifications to ticketing policies.  While these negotiated settlement agreements and consent decrees rest on fundamental nondiscrimination principles, they represent solutions tailored to specific facilities.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.

The proposed rule clarifies the application of title II with respect to ticketing issues in certain contexts, and is intended to strike a balance between a covered entity's desire to maximize ticket sales and the rights of individuals with disabilities to attend events in assembly areas in a manner that is equal to that afforded to individuals without disabilities.  The proposed rule does not, however, purport to cover or clarify all aspects or applications of title II to ticketing issues.  Moreover, the rule applies only to the sale or distribution of tickets that are sold or distributed on a preassigned basis.

Because this rule addresses ticketing policies and practices for stadiums, arenas, theaters, and other facilities in which entertainment and sporting events are held, its provisions are related to and informed by those in proposed § 35.151(g), which establishes design requirements for seating in assembly areas.  (Section 35.151(g) is discussed below in the section-by-section analysis.)  After the proposed standards are finalized, the scoping reduction will apply to all public entities.  See proposed 28 CFR 35.133(c) (discussed earlier in the section-by-section analysis). 

Ticket distribution methods. (Section-by-Section Analysis)

Section 35.138(a) states the general rule that a public entity shall modify its policies, practices, and procedures to ensure that individuals with disabilities can purchase single or multi-event tickets for accessible seating in the same way as others (i.e., during the same hours and through the same distribution methods as other seating is sold) unless doing so would fundamentally alter the nature of its ticketing service, program, or activity. The proposed rule makes clear that it is meant to reach all public entities that provide a service or system by which individuals can purchase event tickets, and is not limited to a venue's operation of its own ticketing systems.

The Department has received numerous complaints from individuals who were denied the opportunity to acquire tickets for accessible seats through avenues such as ticketing pre-sales, promotions, lotteries, or wait lists.  The proposed rule, at § 35.138(b), makes clear that public entities must include accessible seating in all stages of the ticketing process, including pre-sales, promotions, lotteries, or wait lists.

Identification of available accessible seating. (Section-by-Section Analysis)

Section 35.138(c) of the proposed rule requires a facility to identify available accessible seating if seating maps, brochures, or other information is provided to the general public.  In the Department's investigations of theaters and stadiums, it has discovered that many facilities lack an accurate inventory of the accessible seating in their venues, and that this information gap results in lost opportunities for patrons who need accessible seating.  For some public entities, multiple inventories may be required to account for different uses of the facilities because the locations of accessible seating may change in an arena depending on whether it is used for a hockey game, a basketball game, or a concert.  The proposed rule further provides that the facility identify the accessible seating on publicly available seating charts.  This transparency will facilitate the accurate sale of accessible seating.

Section 35.138(d) requires public entities to provide individuals with disabilities with accurate information about the location of accessible seating.  The proposed rule specifically prohibits the practice of "steering" individuals with disabilities to certain wheelchair spaces so that the facility can maximize potential ticket sales for other unsold wheelchair spaces.   

Season tickets and multiple event tickets. (Section-by-Section Analysis)

Section 35.138(e) addresses the sale of season tickets and other tickets for multiple events.  The proposed rule provides that public entities must sell season tickets or tickets for multiple events for accessible seating in the same manner that such tickets are sold to those purchasing general seating.  The rule also states that spectators purchasing tickets for accessible seating on a multi-event basis shall be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent other spectators holding tickets for the same type of ticketing plan are permitted to do.  A facility must provide a portable seat for the transferee to use if necessary.

Secondary market ticket sales. (Section-by-Section Analysis)

The Department is aware that the proposed rule may represent a significant change in practice for many public entities with respect to "secondary market" ticket sales.  Because the secondary market is a recognized--and often integral--part of the ticketing distribution system for many venues and activities, individuals with disabilities will be denied an equal opportunity to benefit from the goods offered--attendance at an event--if public entities have no obligations with respect to accessible seating bought or sold in this way.  In conjunction with the proposed rule, the Department seeks comment about public entities' current practices with respect to the secondary market for tickets, and the anticipated impact of the proposed rule on different types of facilities or events. Specifically, the Department would like to know:

Question 20:  If an individual resells a ticket for accessible seating to someone who does not need accessible seating, should the secondary purchaser be required to move if the space is needed for someone with a disability?

Question 21:  Are there particular concerns about the obligation imposed by the proposed rule in which a public entity must provide accessible seating, including a wheelchair space where needed, to an individual with a disability who purchases an "inaccessible" seat through the secondary market?

Release of unsold accessible seats. (Section-by-Section Analysis)

Section 35.138(f) provides regulatory guidance regarding the release of unsold accessible seats.  Through its investigations, the Department has become familiar with the problem of designated accessible seating being sold to the general public before people who need accessible seating can buy tickets.  As a result, individuals who need to use the accessible seating cannot attend an event.

The Department has entered into agreements addressing this problem by requiring specific modifications to ticketing policies.  While these negotiated settlement agreements and consent decrees rest on fundamental nondiscrimination principles, they represent solutions tailored to specific facilities.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.  These options provide flexibility so that ticketing policies can be adjusted according to the venue size and event type.

Facility sell-out. (Section-by-Section Analysis)

The approach in §35.138(f)(1) allows for the release of unsold accessible seating once standard seats in the facility have been sold.  (Luxury boxes, club boxes, or suites are not required to be sold out before the remaining accessible seats are released.)  To implement this option, the release of unsold accessible seating should be done according to an established, written schedule.  Blocks of seats should be released in stages, and should include tickets in a range of price categories and locations that is representative of the range of seating that remains available to other patrons.

Sell-outs in specific seating areas. (Section-by-Section Analysis)

Under the second option, § 35.138(f)(2), a facility could release unsold accessible seating in a specific seating area once all of the standard seats in that location were sold out.  For example, if all standard seats in the orchestra level are sold, the unsold accessible seats in the orchestra level could be released for sale to the general public. 

Sell-outs of specific price ranges. (Section-by-Section Analysis)

The third approach described at § 35.138(f)(3) would permit a public entity to release unsold accessible seats in a specific price range if all other standard seats in that price range were sold out.  For example, if all $50 seats were sold, regardless of their location, the unsold $50 accessible seats would be released for sale to the general public.

Question 22:  Although not included in the proposed regulation as currently drafted, the Department is soliciting comment on whether additional regulatory guidance is required or appropriate in terms of a more detailed or set schedule for the release of tickets in conjunction with the three approaches discussed above.  For example, does the proposed regulation address the variable needs of assembly areas covered by the ADA?  Is additional regulatory guidance required to eliminate discriminatory policies, practices, and procedures related to the sale, holding, and release of accessible seating?  What considerations should appropriately inform the determination of when unsold accessible seating can be released to the general public?

Ticket pricing. (Section-by-Section Analysis)

Section 35.138(g) of the proposed rule addresses ticket pricing.  The proposed rule codifies the Department's longstanding policy that public entities cannot impose a surcharge for wheelchair spaces. Accessible seating must be made available at all price levels for an event.  If an existing facility has barriers to accessible seating at a particular price level for an event, then a percentage (determined by the ratio of the total number of seats at that price level to the total number of seats in the assembly area) of the number of accessible seats must be provided at that price level in an accessible location.  For example, many theaters built prior to the passage of the ADA have balconies that are inaccessible to individuals who use wheelchairs, and the only wheelchair spaces are located in the orchestra level where tickets are more expensive.  If a comparably sized balcony in a theater built under the ADA's new construction standards would have two wheelchair spaces, the older theater must sell two orchestra wheelchair spaces at the balcony price on a first come, first served basis.

Fraudulent purchase of designated accessible seating. (Section-by-Section Analysis)

The Department has received numerous comments regarding fraudulent attempts to purchase wheelchair spaces for patrons other than those who use wheelchairs.  Moreover, the Department recognizes that implementation of some of its proposals, such as public identification of accessible seating, increases the potential for the fraudulent purchase of accessible seats by those who do not need them.  The Department continues to believe that requiring an individual to provide proof that he or she is a person with a disability is an unnecessary and burdensome invasion of privacy and may unfairly deter individuals with disabilities from purchasing tickets to an event. 

Notwithstanding this position, the proposed rule at § 35.138(h) would permit public entities to take certain steps to address potential ticket fraud.  Under proposed § 35.138(h)(1), a covered entity may inquire at the time of the ticket purchase for single-event tickets whether the wheelchair space is for someone who uses a wheelchair.  Section 35.138(h)(2) addresses potential ticket fraud for season or subscription tickets.  Under this provision, a facility may require the purchaser to attest in writing that a wheelchair space is for someone who uses a wheelchair.  However, the regulation preserves the right of an individual with a disability to transfer his or her ticket for individual events and clarifies that the intermittent use of the wheelchair space by a person who does not use a wheelchair does not constitute fraud.

Purchase of multiple tickets. (Section-by-Section Analysis)

The Department has received numerous complaints stating that assembly operators are unfairly restricting the number of tickets that can be purchased by individuals with disabilities.  Many venues limit an individual requiring wheelchair seating to purchase no more than two tickets (for him or herself and a companion), while other patrons have significantly higher purchase limits (if any).  This is particularly difficult for families, friends, or other groups larger than two that include a person who requires accessible seating.  If the ticket number is limited, the result for wheelchair users is that parents and children, friends, classmates, and others are separated.  Section 35.138(i) clarifies application of title II to ameliorate such a situation.

There are various ways that covered entities can accommodate groups that require at least one wheelchair space.  The proposed regulation at § 35.138(i)(1) would require a public entity to permit up to three companions to sit in a designated wheelchair area, platform, or cross-over aisle that is designated as a wheelchair area, even if the number of companions outnumber the individuals requiring a wheelchair space.  For example, a parent who uses a wheelchair could attend a concert with his or her spouse and their two children, and all four could sit together in the wheelchair area.  The Department recognizes that some advocates may object to this use of designated wheelchair areas because it will reduce the amount of accessible seating available for those who need it.  On balance, however, the Department believes that the opportunity to sit with family and friends, as other patrons do, is an integral element of the experience of attending a ticketed event, and it is an element that is often denied to individuals with disabilities.

By limiting the number of tickets that can be purchased under this provision to four, the Department seeks a balance by which groups and families can be accommodated while still leaving ample space for other individuals who use wheelchairs.  The Department seeks comments from individuals, business entities, and advocacy organizations on whether the proposed rule will appropriately effectuate the integration and nondiscrimination principles underlying the rule.

Question 23:  Is the proposed rule regarding the number of tickets that a public entity must permit individuals who use wheelchairs to purchase sufficient to effectuate the integration of wheelchair users with others?  If not, please provide suggestions for achieving the same result with regard to individual and group ticket sales.

Group ticket sales. (Section-by-Section Analysis)

Group ticket sales present another area in which the Department believes additional regulatory guidance is appropriate.  The purpose of the proposed rule at § 35.138(i)(2) is to prevent the current practice of separating groups in a way that isolates or segregates those in the group who require wheelchair seating.  If a group includes one or more individuals who use a wheelchair, the proposed rule requires the facility to place that group in a seating area that includes wheelchair spaces so that, if possible, the group can sit together.  If it is necessary to divide the group, it should be divided so that the individuals in the group who use a wheelchair are not isolated from the group.  In existing facilities that lack accessible seating in certain areas, e.g., a theater with an inaccessible balcony, the proposed regulation would require covered entities to seat at least three companions with the individuals using a wheelchair in the accessible seating area of the orchestra.

Subpart D--Program Accessibility (Section-by-Section Analysis)

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.

Section 35.150(b)(4) and (5) Existing Play Areas and Recreation Facilities (Section-by-Section Analysis)

Play areas. (Section-by-Section Analysis)

Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG provide a detailed set of requirements for newly constructed and altered play areas.  Section 240.2.1.1 of the 2004 ADAAG requires that at least one ground level play component of each type provided (e.g., for different experiences such as rocking, swinging, climbing, spinning, and sliding) must be accessible and connected to an accessible route.  In addition, if elevated play components are provided, entities must make at least fifty percent (50%) of the elevated play components accessible and connect them to an accessible route, and may have to make an additional number of ground level play components (representing different types) accessible as well.  There are a number of exceptions to the technical specifications for accessible routes, and there are special rules (incorporated by reference from nationally recognized standards for accessibility and safety in play areas) for accessible ground surfaces.  Accessible ground surfaces must be inspected and maintained regularly and frequently to ensure continued compliance.

The Department is concerned about the potential impact of these supplemental requirements on existing play areas that are not otherwise being altered.  The program accessibility requirement does not require public entities to make structural modifications to existing facilities except where such modifications may be necessary to make the program or service, when considered as a whole, accessible to individuals with disabilities.  Although play areas may be more likely than other types of facilities to require structural modifications, this does not mean that every existing playground operated by a city or county must be made accessible. Compliance with the program accessibility requirement turns on the accessibility of the program--i.e., the program of providing and maintaining public playgrounds--rather than the accessibility of each particular facility used to provide that program.  Where a public entity provides and maintains multiple play areas as part of its program of providing public playgrounds, for purposes of the program accessibility requirement, only a reasonable number but at least one of such play areas would be required to undertake structural modifications to provide access for individuals with disabilities.  The same reasoning would apply where an existing site (e.g., a state park) provides multiple play areas designed for the same age group.

The Department notes that the requirement to provide a reasonable number of accessible play areas is consistent with the longstanding program accessibility rules, which provide that it is not necessary for every facility to be accessible, provided that the program, when viewed in its entirety, is readily accessible to individuals with disabilities.  In situations where a public entity provides the services of one program at multiple sites (e.g., a town with ten parks), the public entity would focus on whether the number and location of the accessible parks offer comparable convenience to persons with disabilities and whether the range of programs and services offered at the accessible parks are equivalent to the range offered at the inaccessible parks.  At a minimum, a public entity must provide at least one accessible facility unless the public entity can demonstrate that providing the accessible facility would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens.  However, determining how many more than one would be "reasonable" requires a careful analysis of factors in order to determine how many accessible facilities are necessary to ensure that the covered program is accessible.  Factors to be considered include, but are not limited to, the size of the public entity,  geographical distance between sites, travel times to the sites, the number of sites, and availability of public transportation to the sites.

The Department is proposing several specific provisions and posing additional questions in an effort to both mitigate and gather information about the potential burden of the supplemental requirements on existing public facilities.

Question 24:  Is a  "reasonable number, but at least one" a workable standard for determining the appropriate number of existing play areas that a public entity must make accessible for its program to be accessible?  Should the Department provide a more specific scoping standard?  Please suggest a more specific standard if appropriate.  In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing play areas to make accessible, e.g., number of play areas, travel times, or geographic distances between play areas, and the size of the public entity?
State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines.

State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines. [sic]

Question 25:  The Department would welcome comment on whether there are state and local standards specifically regarding play and recreation area accessibility.  To the extent that there are such standards, we would welcome comment on whether facilities currently governed by, and in compliance with, such state and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG.  We would also welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations.

Question 26:  The Department requests public comment with respect to the application of these requirements to existing play areas.  What is the "tipping point" at which the costs of compliance with the new requirements for existing play areas would be so burdensome that the entity would simply shut down the playground?

The Department is proposing two specific provisions to reduce the impact on existing facilities that undertake structural modifications pursuant to the program accessibility requirement. First, the Department proposes to add § 35.150(b)(5)(i) to provide that existing play areas that are less than 1,000 square feet in size and are not otherwise being altered need not comply with the scoping and technical requirements for play areas in section 240 of the 2004 ADAAG.  The Department selected this size based on the provision in section 1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting play areas less than 1,000 square feet in size to provide accessible routes with a reduced clear width (44 inches instead of 60 inches).  In its 2000 regulatory assessment for the play area guidelines, the Access Board assumed that such "small" play areas represented only about twenty percent (20%) of the play areas located in public schools, and none of the play areas located in city and state parks (which the Board assumed were typically larger than 1,000 square feet).  If these assumptions are correct, the proposed exemption would have relatively little impact on most existing play areas operated by public entities, while still mitigating the burden on those smaller public entities to which it did apply.

Question 27:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing play areas less than 1,000 square feet be exempt from the requirements applicable to play areas?

Secondly, the Department proposes to add § 35.150(b)(4)(i) to provide that existing play areas that are not being altered will be permitted to meet a reduced scoping requirement with respect to their elevated play components.  Elevated play components, which are found on most playgrounds, are the individual components that are linked together to form large-scale composite playground equipment (e.g., the monkey bars attached to the suspension bridge attached to the tube slide, etc.).  The proposed standards provide that a play area that includes both ground level and elevated play components must ensure that a specified number of the ground level play components and at least fifty percent (50%) of the elevated play components are accessible.

Many commenters advised the Department that making elevated play components accessible in existing play areas that are not otherwise being altered would impose an undue burden on most facilities.  Given the nature of the element at issue, retrofitting existing elevated play components in play areas to meet the scoping and technical specifications in the alteration standard would be difficult and costly, and in some instances, infeasible.  In response to expressed concerns, the Department proposes to reduce the scoping for existing play areas that are not being altered by permitting entities to substitute ground level play components for elevated play components.  Entities that provide elevated play components that do not comply with section 240.2.2 of the 2004 ADAAG would be deemed in compliance for purposes of the program accessibility requirement as long as the number of accessible ground level play components is equal to the sum of (a) the number of ground level play components required to comply with section 240.2.1 of the 2004 ADAAG (as provided by Table 240.2.1.2, but at least one of each type) and (b) the number of elevated play components required to comply with 2004 ADAAG section 240.2.2 (namely, fifty percent (50%) of all elevated play components).  In existing play areas that provide a limited number of ground level play components, qualifying for this exception may require providing additional ground level play components.

While this provision may result in less accessibility than the application of the alteration standard, public entities will likely be more willing to voluntarily undertake structural modifications in play areas if they anticipate that compliance will be straightforward and relatively inexpensive.  In addition, for existing play areas with limited resources, it will often be more efficient to devote resources to making the ground surface of the play area accessible, which is necessary to provide an accessible route to any play components.  Reduced scoping for elevated play components could also minimize the risk that covered entities will delay compliance, remove elevated play components, or simply close the play area.  It also provides a bright-line rule for which compliance can be easily evaluated.       

Question 28:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing play areas be permitted to substitute additional ground level play components for the elevated play components it would otherwise have been required to make accessible?  Are there other select requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping?

Question 29:  The Department would welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines for play and recreational facilities undertaking alterations that would permit reduced scoping of requirements or substitution of ground level play components in lieu of elevated play components, as the Department is proposing with respect to barrier removal obligations for certain play or recreational facilities.

Swimming pools. (Section-by-Section Analysis)

As noted earlier, the program accessibility requirement does not require public entities to make structural modifications to existing facilities except where such modifications may be necessary to make the program or service, when considered as a whole, accessible to individuals with disabilities.  Although swimming pools, like play areas, may be more likely than other types of facilities to require structural modifications, this does not mean that every existing swimming pool operated by a city or county must be made accessible.  Compliance with the program accessibility requirement turns on the accessibility of the program--i.e., the program of providing and maintaining public swimming pools--rather than the accessibility of each particular facility used to provide that program.  Where a public entity provides and maintains multiple swimming pools as part of its program of providing public swimming pools, for purposes of the program accessibility requirement, only a reasonable number but at least one of such swimming pools would be required to undertake structural modifications to provide access for individuals with disabilities.  The same reasoning would apply where an existing site (e.g., a city recreation center) provides multiple swimming pools serving the same purpose.

Question 30:  Is a "reasonable number, but at least one" a workable standard for determining the appropriate number of existing swimming pools that a public entity must make accessible for its program to be accessible?  Should the Department provide a more specific scoping standard?  Please suggest a more specific standard if appropriate.  In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing swimming pools to make accessible, e.g., number of swimming pools, travel times or geographic distances between swimming pools, and the size of the public entity?

The Department is proposing two specific provisions to minimize the potential impact of the new requirements on existing swimming pools that undertake structural modifications pursuant to the program accessibility requirement.  First, the Department is proposing to add § 35.150(b)(5)(ii) to provide that swimming pools that have over 300 linear feet of swimming pool wall and are not being altered will be required to provide only one (rather than two) accessible means of entry, at least one of which must be a sloped entry or a pool lift.  This provision represents a less stringent requirement than the requirement in 2004 ADAAG section 242.2, which requires such pools, when newly constructed or altered, to provide two accessible means of entry.  Under this proposal, for purposes of the program accessibility requirement, swimming pools operated by public entities would be required to have at least one accessible entry.

Commenters responding to the ANPRM noted that the two-means-of-entry-standard, if applied to existing swimming pools, will disproportionately affect small public entities, both in terms of the cost of implementing the standard and anticipated litigation costs.  Larger public entities benefit from economies of scale, which are not available to small entities.  Although complying with the alteration standard would impose an undue burden on many small public entities, the litigation-related costs of proving that such compliance is not necessary to provide program access may be significant.  Moreover, these commenters argue, the immediacy of perceived noncompliance with the standard--it will usually be readily apparent whether a public entity has the required accessible entry or entries--makes this element particularly vulnerable to serial ADA litigation.  The reduced scoping would apply to all public entities, regardless of size.

The Department recognizes that this approach could reduce the accessibility of larger swimming pools compared to the requirements in the 2004 ADAAG.  Individuals with disabilities and advocates were particularly concerned about the accessibility of pools, and noted that for many people with disabilities, swimming is one of the few types of exercise that is generally accessible and, for some people, can be an important part of maintaining health.  Other commenters noted that having two accessible means of egress from a pool can be a significant safety feature in the event of an emergency.  It may be, however, that as a practical matter the reduction in scoping may not be significant, as the measures required to meet the alteration standards for accessible entries would often impose an undue burden even if considered on a case-by-case basis.

Question 31:  The Department would like to hear from public entities and individuals with disabilities about this exemption.  Should the Department allow existing public entities to provide only one accessible means of access to swimming pools more than 300 linear feet long?

Secondly, the Department proposes to add § 35.150(b)(5)(ii) to provide that existing swimming pools that have less than 300 linear feet of swimming pool wall and are not being altered need not undertake structural modifications to comply with the scoping and technical requirements for swimming pools in section 242.2 of the 2004 ADAAG.  In its 2002 regulatory assessment for the recreation guidelines, the Access Board assumed that pools with less than 300 feet of linear pool wall would represent ninety percent (90%) of the pools in public high schools; forty percent (40%) of the pools in public parks and community centers; and thirty percent (30%) of the pools in public colleges and universities.  If these assumptions are correct, the proposed exemption would have the greatest impact on the accessibility of swimming pools in public high schools.

Question 32:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing swimming pools with less than 300 linear feet of pool wall be exempt from the requirements applicable to swimming pools?

Wading pools. (Section-by-Section Analysis)

Section 242.3 of the 2004 ADAAG provides that newly constructed or altered wading pools must provide at least one sloped means of entry to the deepest part of the pool.  The Department is concerned that installing a sloped entry in existing wading pools may not be feasible for a significant proportion of public entities and is considering creating an exemption for existing wading pools that are not being altered.

Question 33:  What site constraints exist in existing facilities that could make it difficult or infeasible to install a sloped entry in an existing wading pool?  Should existing wading pools that are not being altered be exempt from the requirement to provide a sloped entry?

Saunas and steam rooms. (Section-by-Section Analysis)

The Department is proposing one specific provision to minimize the potential impact of the new requirements on existing saunas and steam rooms.  Section 241 of the 2004 ADAAG requires newly constructed or altered saunas and steam rooms to meet accessibility requirements, including accessible turning space and an accessible bench.  Where saunas or steam rooms are provided in clusters, five percent (5%), but at least one sauna or steam room in each cluster, will have to be accessible.  The Department understands that many saunas are manufactured (pre-fabricated) and come in standard sizes (e.g., two-person or four-person), and that the two-person size may not be large enough to meet the turning space requirement.  Therefore, the Department proposes in § 35.150(b)(5)(iii) to specify that existing saunas or steam rooms that have a capacity of only two persons and are not being altered need not undertake structural modifications to comply with the scoping and technical requirements for saunas and steam rooms in section 241 of the 2004 ADAAG.  While this exception may limit the accessibility of small existing saunas or steam rooms in public facilities, such facilities would remain subject to the ADA's general requirement to ensure that individuals with disabilities have an equal opportunity to enjoy the services and amenities of their facilities.

Exercise machines. (Section-by-Section Analysis)

Sections 236 and 206.2.13 of the 2004 ADAAG require one of each type of fixed exercise machine to meet clear floor space specifications and to be on an accessible route. Types of machines are generally defined according to the muscular groups exercised or the kind of cardiovascular exercise provided.

Question 34:  Will existing facilities have to reduce the number of available exercise equipment and machines in order to comply?  What types of space limitations would affect compliance?

Team or player seating areas. (Section-by-Section Analysis)

Section 221.2.1.4 of the 2004 ADAAG requires one or more wheelchair spaces to be provided in each team or player seating area with fixed seats, depending upon the number of seats provided for spectators.  For bowling lanes, the requirement would be limited to lanes required to be accessible.

Question 35:  Are team or player seating areas in certain types of existing facilities (e.g., ice hockey rinks) more difficult to make accessible due to existing designs?  What types of existing facilities typically have design constraints that would make compliance with this requirement infeasible?

Areas of sport activity. (Section-by-Section Analysis)

Sections 206.2.2 and 206.2.12 of the 2004 ADAAG require each area of sport activity (e.g., courts and playing fields, whether indoor or outdoor) to be served by an accessible route.  In court sports, the accessible route would also have to directly connect both sides of the court.  For purposes of the program accessibility requirement, as with play areas and swimming pools, where an existing facility provides multiple areas of sport activity that serve the same purpose (e.g., multiple soccer fields), only a reasonable number but at least one (rather than all) would need to meet accessibility requirements.

Question 36:  Should the Department create an exception to this requirement for existing courts (e.g., tennis courts) that have been constructed back-to-back without any space in between them?

Boating facilities. (Section-by-Section Analysis)

Sections 206.2.10, 235.2 and 235.3 of the 2004 ADAAG require a specified number of boat slips and boarding piers at boat launch ramps to be accessible and connected to an accessible route.  In existing boarding piers, the required clear pier space may be perpendicular to and extend the width of the boat slip if the facility has at least one accessible boat slip, providing that more accessible slips would reduce the total number (or widths) of existing boat slips.  Accessible boarding piers at boat launch ramps must comply with the requirements for accessible boat slips for the entire length of the pier.  If gangways (only one end of route is attached to land) and floating piers (neither end is attached to land) are involved, a number of exceptions are provided from the general standards for accessible routes in order to take into account the difficulty of meeting accessibility slope requirements due to fluctuations in water level. In existing facilities, moreover, gangways need not be lengthened to meet the requirement (except in an alteration, as may be required by the path of travel requirement).

Question 37:  The Department is interested in collecting data regarding the impact of these requirements in existing boating facilities.  Are there issues (e.g., space limitations) that would make it difficult to provide an accessible route to existing boat slips and boarding piers at boat launch ramps?  To what extent do the exceptions for existing facilities (i.e., with respect to boat slips and gangways) mitigate the burden on existing facilities?

Fishing piers and platforms. (Section-by-Section Analysis)

Sections 206.2.14 and 237 of the 2004 ADAAG require at least twenty-five percent (25%) of railings at fishing piers and platforms to be no higher than 34 inches high, so that a person seated in a wheelchair can fish over the railing, to be dispersed along the pier or platform, and to be on an accessible route.  (An exception permits railings to comply, instead, with the model codes, which permit railings to be 42 inches high.)  If gangways (where only one end of route is attached to land) and floating piers (where neither end is attached to land) are involved, a number of exceptions are provided from the general standards for accessible routes in order to take into account the difficulty of meeting accessibility slope requirements due to fluctuations in water level. In existing facilities, moreover, gangways need not be lengthened to meet the requirement (except, in an alteration, as may be required by the path of travel requirement).

Question 38:  The Department is interested in collecting data regarding the impact of this requirement on existing facilities.  Are there issues (e.g., space limitations) that would make it difficult to provide an accessible route to existing fishing piers and platforms?

Miniature golf courses. (Section-by-Section Analysis)

Sections 206.2.16, 239.2, and 239.3 of the 2004 ADAAG require at least fifty percent (50%) of the holes on miniature golf courses to be accessible and connected to an accessible route (which must connect the last accessible hole directly to the course entrance or exit); generally, the accessible holes would have to be consecutive ones.  Specified exceptions apply to accessible routes located on the playing surfaces of holes.

Question 39:  The Department is considering creating an exception for existing miniature golf facilities that are of a limited total square footage, have a limited amount of available space within the course, or were designed with extreme elevation changes.  If the Department were to create such an exception, what parameters should the Department use to determine whether a miniature golf course should be exempt?

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.

Miniature Golf Courses (Section-by-Section Analysis)

The Department proposes to adopt the requirements for miniature golf courses in the 2004 ADAAG.  However, it requests public comment on a suggested change to the requirement for holes to be consecutive.  A commenter association argued that the "miniature golf experience" includes not only putting but also enjoyment of "beautiful landscaping, water elements that include ponds, fountain displays, and lazy rivers that matriculate throughout the course and themed structures that allow players to be taken into a 'fantasy-like' area."  Thus, requiring a series of consecutive accessible holes would limit the experience of guests with disabilities to one area of the course.  To remedy this situation, the association suggests allowing multiple breaks in the sequence of accessible holes while maintaining the requirement that the accessible holes are connected by an accessible route. 

The suggested change would need to be made by the Access Board and then adopted by the Department, and if adopted, it would apply to all miniature golf courses, not only existing miniature golf facilities. 

Question 44:  The Department would like to hear from the public about the suggestion of allowing multiple breaks in the sequence of accessible holes, provided that the accessible holes are connected by an accessible route.  Should the Department ask the Access Board to change the current requirement in the 2004 ADAAG?

Accessible Cells in Detention and Correctional Facilities (Section-by-Section Analysis)

Through complaints received, investigations, and compliance reviews of jails, prisons, and other detention and correctional facilities, the Department has found that many detention and correctional facilities have too few or no accessible cells and shower facilities to meet the needs of their inmates with mobility disabilities.  The insufficient numbers of accessible cells are, in part, due to the fact that most jails and prisons were built long before the ADA became law and, since then, have undergone few alterations.  However, the Department believes that the unmet demand for accessible cells is also due to the changing demographics of the inmate population.  With thousands of prisoners serving life sentences without eligibility for parole, prisoners are aging, and the prison population of individuals with disabilities and elderly individuals is growing.  A recent article illustrates this change.  Since 1990, the number of Oklahoma inmates age 45 or older has quadrupled, and, in 2006, ten percent (10%) of the Oklahoma state prison population was elderly.  Angel Riggs, Now in Business: Handicapped Accessible Prison:  State Opens First Prison for Disabled, in Tulsa World (Feb. 20, 2007).  Reflecting this trend of aging inmate populations, corrections conferences now routinely include workshops on strategies to address the needs of elderly prisoners, including the increased health care needs.  In addition, the Federal Bureau of Prisons requires that three percent (3%) of inmate housing at BOP facilities is accessible.  Bureau of Prisons, Design Construction Branch, Design Guidelines, Attachment A: Accessibility Guidelines for Design, Construction, and Alteration of Federal Bureau of Prisons (Oct. 31, 2006).

The lack of sufficient accessible cells is further demonstrated by complaints received by the Department.  The Department receives dozens of complaints per year alleging that detention and correctional facilities have too few accessible cells, toilets, and showers for inmates with mobility disabilities.  Other complaints allege that inmates with mobility disabilities are housed in medical units or infirmaries separate from the general population simply because there are no accessible cells.  Another common complaint to the Department is from inmates alleging that they are housed at a more restrictive classification level simply because no accessible housing exists at the appropriate classification level.

Further, the Department's onsite reviews and investigations of detention and correctional facilities confirm the complaints that there are too few accessible cells.  The need for accessible cells can vary widely from facility to facility, depending on the population housed. While the requirement that two percent (2%) of the cells have mobility features would be adequate to meet current needs in some facilities the Department has reviewed, it would not begin to meet current needs at other facilities.  For example, at one facility with a population of almost 300 inmates, ten percent (10%) of the inmates use wheelchairs.  The requirement that two percent (2%) of cells at this facility must be accessible would not meet the needs of inmates with mobility disabilities, since it would not be adequate to meet the needs of wheelchair users alone.  Another facility has a geriatric unit for 60 inmates. A two percent (2%) standard would fall far short of meeting the needs of this largely bedridden population.  Another building at this same facility has 600 cells and houses more than 18 inmates who need accessible cells.  Under the two percent (2%) standard, only twelve accessible cells would be required.

According to the Bureau of Justice Statistics (BJS) 2002 survey of jail inmates, "two percent of jail inmates said they had a mobility impairment, requiring the use of a cane, walker, wheelchair, or other aids to do daily activities."  Laura M. Maruschak, Bureau of Justice Statistics (BJS), Medical Problems of Jail Inmates (2006), available at http://www.ojp.usdoj.gov/bjs/abstract/mpji.htm. In a 1997 survey, BJS reported that among state prison inmates age 45 or older, twenty-five percent (25%) said they had a "physical condition."  Laura M. Maruschak and Allen J. Beck, Ph.D., Bureau of Justice Statistics, Medical Problems of Inmates, 1997 (2001), available at http://www.ojp.usdoj.gov/bjs/abstract/mpi97.htm.

Number of accessible cells. (Section-by-Section Analysis)

Section 232.2.1 of the 2004 ADAAG requires at least two percent (2%), but no fewer than one, of the cells in newly constructed detention and correctional facilities to have accessibility features for individuals with mobility disabilities. Section 232.3 provides that, where special holding cells or special housing cells are provided, at least one cell serving each purpose shall have mobility features.  While the 2004 ADAAG establishes these requirements for cells in newly constructed detention and correctional facilities, it does not establish requirements for accessible cells in alterations to existing facilities, deferring that decision to the Attorney General. 

The Department seeks input on how best to meet the needs of inmates with mobility disabilities in the design, construction, and alteration of detention and correctional facilities. The Department seeks comments on the following issues:

Question 45:  Are the requirements for accessible cells in sections 232.2 and 232.3 of the 2004 ADAAG adequate to meet the needs of the aging inmate population in prisons?  If not, should the percentage of cells required to have accessible features for individuals with mobility disabilities be greater and, if so, what is the appropriate percentage?  Should the requirement be different for prisons than for other detention and correctional facilities?

Question 46:  Should the Department establish a program accessibility requirement that public entities modify additional cells at a detention or correctional facility to incorporate the accessibility features needed by specific inmates with mobility disabilities when the number of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of their inmate population?  Under this option, additional cells provided for inmates with mobility disabilities would not necessarily be required to comply with all requirements of section 807.2 of the 2004 ADAAG, so long as a cell had the mobility features needed by the inmate it housed.

Dispersion of cells. (Section-by-Section Analysis)

In the 2004 ADAAG, Advisory 232.2 recommends that "[a]ccessible cells or rooms should be dispersed among different levels of security, housing categories, and holding classifications (e.g., male/female and adult/juvenile) to facilitate access."  In explaining the basis for recommending, but not requiring, this type of dispersal, the Access Board stated that "[m]any detention and correctional facilities are designed so that certain areas (e.g., 'shift' areas) can be adapted to serve as different types of housing according to need" and that "[p]lacement of accessible cells or rooms in shift areas may allow additional flexibility in meeting requirements for dispersion of accessible cells or rooms."  During its onsite reviews of detention and correctional facilities, the Department has observed that male and female inmates, adult and juvenile inmates, and inmates at different security classifications are typically housed in separate areas of detention and correctional facilities.  In many instances, detention and correctional facilities have housed inmates in inaccessible cells, even though accessible cells were available elsewhere in the facility, because there were no cells in the areas where they needed to be housed, such as the women's section of the facility, the juvenile section of the facility, or in a particular security classification area. 

Question 47:  Please comment on whether the dispersal of accessible cells recommended in Advisory 232.2 of the 2004 ADAAG should be required.

Alterations to cells. (Section-by-Section Analysis)

In section 232.2 of the 2004 ADAAG, the Access Board deferred one decision to the Attorney General, specifically:  "Alterations to cells shall not be required to comply except to the extent determined by the Attorney General."  The security concerns of detention and correctional facilities present challenges that do not exist in other government buildings, so the Department must strike a balance that accommodates the accessibility needs of inmates with disabilities while addressing security concerns.  Therefore, in the ANPRM, the Department sought public comment on three options for the most effective means of ensuring that existing detention and correctional facilities are made accessible to inmates with disabilities.  The proposed options and submitted comments are discussed below in the section-by-section analysis for a new proposed section on detention and correctional facilities.

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.

Contractual arrangements with private entities. (Section-by-Section Analysis)

Prisons that are built or run by private entities have caused some confusion with regard to requirements under the ADA.  The Department believes that title II obligations extend to the public entity as soon as the building is used by or on behalf of a state or local government entity, irrespective of whether the public entity contracts with a private entity to run the correctional facility.  The power to incarcerate citizens rests with the state, not a private entity.  As the Department stated in the preamble to the current title II regulation, "[a]ll governmental activities of public entities are covered, even if they are carried out by contractors."  56 FR 35694, 35696 (July 26, 1991).  If a prison is occupied by state prisoners and is inaccessible, the state is responsible under title II of the ADA.  In essence, the private builder or contractor that operates the correctional facility does so at the direction of the state government, unless the private entity elects to use the facility for something other than incarceration, in which case title III may apply.  For that reason, the proposed § 35.152(a) makes it clear that this section's requirements will apply to prisons operated by public entities directly or through contractual or other relationships.

Alterations to cells and program access. (Section-by-Section Analysis)

When addressing the issue of alterations of prison cells, the Department must consider the realities of many inaccessible state prisons and strained budgets against the title II program access requirement for existing facilities under § 35.150(a), which states:  "A public entity shall operate each service, program, or activity, so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities."  The Supreme Court, in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), unanimously held that the ADA unmistakably covers state prisons and prisoners, so program access does apply to state correctional facilities; the question remains how best to achieve that within the unique confines of a prison system.

Correctional and detention facilities commonly provide a variety of different programs for education, training, counseling, or other purposes related to rehabilitation.  Some examples of programs generally available to inmates include:  Programs to obtain G.E.Ds; English as a second language; computer training; job skill training and on-the-job training; religious instruction and guidance; alcohol and substance abuse groups; anger management; and other programs.  Historically, individuals with disabilities have been excluded from such programs because they are not located in accessible locations, or inmates with disabilities have been segregated to units without equivalent programs.  In light of the Supreme Court's decision in Yeskey and the requirements of title II, however, it is critical that public entities provide these opportunities.  The Department's proposed rule aims to specifically require equivalent opportunities to such programs.

The Department wishes to emphasize that detention and correctional facilities are unique facilities under title II. Inmates cannot leave the facilities and must have their needs met--including those relating to a disability--by the state corrections system.  If the state fails to accommodate prisoners with disabilities, these individuals have little recourse, particularly when the need is urgent (e.g., an accessible toilet or clean needles for insulin injections for prisoners with diabetes). 

In light of a public entity's obligation to provide program access to prisoners with disabilities, coupled with the Department's proposal for a more flexible alterations standard, the Department believes that the state has a higher responsibility to provide accommodations based on disability.  Therefore, it is essential that state corrections systems fulfill their program access requirements by adequately addressing the needs of prisoners with disabilities, which include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities.  Therefore, the Department is proposing a new § 35.152 that will require public entities to ensure that inmates with disabilities do not experience discrimination because the prison facilities or programs are not accessible to them.

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?

Alterations to cells. (Section-by-Section Analysis)

In the ANPRM, the Department proposed three options for altering cells.  The vast majority of commenters (numbering three to one) supported Option II, which would allow substitute cells to be made accessible within the same facility, over Option III.  Only one commenter expressed support for Option I, and a handful of commenters supported Option III.  The comments on each option are discussed below.

Option I:  Require all altered elements to be accessible.

Only one commenter supported this option, stating that providing alternative approaches could allow those running the prison to provide a lower level of accessibility, and that any deviation from the 1991 Standards on alterations should be addressed through a barrier removal plan, transition plan, or a claim of technical infeasibility.  A few commenters argued that this option would result in piecemeal accessibility, which would be inadequate.  As one commenter stated, "providing an accessible lavatory or water closet (often a single unit) in an inaccessible cell makes no sense."

Option II:  Permit substitute cells to be made accessible within the same facility.

Commenters supporting Option II favored the more flexible plan to achieve accessibility within a prison context.  Many expressed support for this option because it would allow individuals with disabilities to remain close to their families.  One commenter requested accessible cells by type (e.g., women's, men's, juvenile, different security levels, etc.).  Another commenter offered that the unique safety concerns of a correctional facility require a balance between staff and inmate safety and accessibility.  One advocacy group reasoned that Option II was best because it would allow prison operators to determine the most appropriate location for the accessible cells.  One group commented that this option would allow the prison officials more flexibility, which is necessary in a correctional environment.  Equally important, keeping inmates in the same facility may allow them to remain closer to their homes; the third option could create segregated facilities.  In the end, this group asserted that each facility--rather than each system--should be looked at "in its entirety."

One large advocacy group stated that Option II was acceptable, stressing that program access requires the same training and work opportunities that other prisoners have.  An architectural association asserted that this option should only apply to existing correctional cells, but that any other part of a correctional facility should be made accessible when it is altered.  The Department, however, is only addressing the alterations of prison cells in this rulemaking.  While expressing support for Option II, a few commenters stressed that cells made accessible in a different location in the facility must provide equal access to dining, recreational, educational, medical, and visitor areas as the former location.  Another commenter stated that the alternate cell location should not require longer travel distances.

The Department has evaluated all of the comments and proposes regulatory language reflecting Option II, which provides an appropriate balance between the needs of prisoners with disabilities and the unique requirements of detention and correctional facilities.

Option III:  Permit substitute cells to be made accessible within a prison system.

The biggest problem that commenters had with Option III was that it would be more likely to separate prisoners from their families and communities.  One advocacy group asserted that this option could lead to the illegal segregation of inmates with disabilities; moreover, some of the accessible facilities may not have the same programs or services (e.g., Alcoholics Anonymous, etc.).  One group argued that this option would give preference to the needs of the prison system over the needs of individuals with disabilities, while another group found this option unacceptable because it had seen its own state correctional system "funneling" its wheelchair-using inmates into a few facilities, which sometimes exceeded the prisoners' security level requirements.  Moreover, some prisoners with disabilities are sent to "special housing" units in a facility because they are the only areas with accessible cells.

In support of Option III, one state building code commissioner stressed that this plan would maximize the flexibility of corrections officials to place individuals with disabilities in facilities best suited to their needs; prison accessibility extends far beyond cells; and barrier removal in a very old prison could be cost prohibitive.  Another commenter, a state department of labor representative, argued that Option III is the most reasonable for state-run facilities (but that Option I should extend to private correctional facilities) due to tremendous budget constraints.  As the Department expressed initially, the same title II accessibility requirements apply to a facility, irrespective of whether it is run directly by the state or a private entity with which the state contracts.

While expressing some support for Option II, one public interest law firm representing individuals with disabilities stated that Option III is the best, because many older prisons are inaccessible.  "Simply having one accessible cell in an otherwise inaccessible facility does little good."  Therefore, requiring an entire prison system to have at least one fully accessible facility is the better approach.

The Department appreciates that Option III affords state corrections systems the maximum amount of flexibility with regard to placement of individuals with disabilities.  Unfortunately, many commenters expressed legitimate concerns, most significantly that prisoners will, more likely, be separated from family, friends, and community, which is critical to their rehabilitation and successful release, and many programs at the new facility will not be the same.  Lastly, the fact that certain facilities could become exclusively, or largely, designated for prisoners with disabilities would result in segregation, even if it is not intended. 

Proposed requirement for cell alterations. (Section-by-Section Analysis)

The Department has concluded that Option II provides the best balance. Therefore, the Department is proposing § 35.152(c) that would provide that when cells are being altered, a covered entity may satisfy its obligation to provide the required number of cells with mobility features by providing the required mobility features in substitute cells (i.e., cells other than those where alterations are originally planned), provided that:  Each substitute cell is located within the same facility; is integrated with other cells to the maximum extent feasible; and has, at a minimum, equal physical access as the original cells to areas used by inmates or detainees for visitation, dining, recreation, educational programs, medical services, work programs, religious services, and participation in other programs that the facility offers to inmates or detainees.

Subpart E--Communications (Section-by-Section Analysis)

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?

Section 35.161 Telecommunications (Section-by-Section Analysis)

The Department proposes to retitle this section "Telecommunications" to reflect situations in which a public entity must provide an effective means to communicate by telephone for individuals with disabilities, and proposes several other changes. 

The Department proposes to redesignate current § 35.161 as § 35.161(a), and to replace the term "Telecommunication devices for the deaf (TDD's)" with "text telephones (TTYs)."  Although "TDD" is the term used in the ADA, "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  In addition, the proposed regulation updates the terminology in light of modern usage from "individuals with impaired hearing or speech" to "individuals with hearing or speech disabilities."

In § 35.161(b), the Department addresses automated attendant systems that handle telephone calls electronically.  These automated systems are a common method for answering and directing incoming calls to public entities.  The Department has become aware that individuals with disabilities who use TTYs or the telecommunications relay services--primarily those who are deaf or hard of hearing or who have speech-related disabilities--have been unable to use automated telephone trees systems, because they are not compatible with TTYs or a telecommunications relay service.  Automated attendant systems often disconnect before the individual using one of these calling methods can complete the communication. 

In addition, the Department proposes a new § 35.161(c) that would require that individuals using telecommunications relay services or TTYs be able to connect to and use effectively any automated attendant system used by a public entity.  The Department declined to address this issue in the 1991 regulation because it believed that it was more appropriate for the Federal Communications Commission (FCC) to address this in its rulemaking under title IV, 56 FR 35694, 35712 (July 26, 1991).  Because the FCC has since raised this concern with the Department and requested that the Department address it, it is now appropriate to raise this issue in the title III regulation.

The Department has proposed § 35.161(c), which requires that a public entity must respond to telephone calls from a telecommunications relay service established under title IV of the Americans with Disabilities Act in the same manner that it responds to other telephone calls.  The Department proposes adding this provision to address a series of complaints from those who use TTYs or the telecommunications relay systems that many public entities refuse to accept those calls.

Section 35.170 Complaints--Prison Litigation Reform Act (Section-by-Section Analysis)

In the ANPRM, the Department proposed addressing the effect of the Prison Litigation Reform Act (PLRA) on complaints by prisoners alleging unlawful discrimination on the basis of disability under title II of the ADA.  The PLRA provides, in relevant part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."  42 U.S.C. 1997e(a).  As a result of this language, the Department proposed requiring those prisoners alleging title II violations to file an administrative complaint with the Department prior to filing a lawsuit, and that a complainant would satisfy this requirement if no action was taken by the Department within sixty days.  The Department has considered the comments that it received by a variety of groups and has decided not to propose an exhaustion requirement exclusively for prisoners in the regulation.

Sections 35.171, 35.172, and 35.190--Streamlining Complaint Investigations and Designated Agency Authority (Section-by-Section Analysis)

The Department is proposing modifications to its current procedures with respect to the investigation of complaints alleging discrimination on the basis of disability by public entities under title II of the ADA.  Specifically, the Department is proposing several amendments to its enforcement procedures in order to streamline both its internal procedures for investigating complaints and its procedures with regard to the other designated agencies with enforcement responsibilities under title II.  These proposals will reduce the administrative burdens associated with implementing the statute and ensure that the Department retains the flexibility to allocate its limited enforcement resources effectively and productively.

Subtitle A of title II of the ADA defines the remedies, procedures, and rights provided for qualified individuals with disabilities who are discriminated against on the basis of disability in the services, programs, or activities of state and local governments.  42 U.S.C. 12131-12134. Subpart F of the current regulation establishes administrative procedures for the enforcement of title II of the ADA.  Subpart G identifies eight "designated agencies," including the Department, that have responsibility for investigating complaints under title II.

The Department's current title II regulation is based on the enforcement procedures established in regulations implementing section 504.  Thus, the Department's current regulation provides that the designated agency "shall investigate each complete complaint" alleging a violation of title II and shall "attempt informal resolution" of such complaint.  28 CFR 35.172(a).

In the years since the current regulation went into effect, the Department has received many more complaints alleging violations of title II than its resources permit it to resolve.  The Department has reviewed each complaint that it has received and directed its resources to resolving the most critical matters.  The Department proposes to clarify in its revised regulation that designated agencies may exercise discretion in selecting title II complaints for resolution by deleting the term "each" as it appears before "complaint" in § 35.172(a).  The proposed rule at § 35.172(a) would read that, "[t]he designated agency shall investigate complaints" rather than "investigate each complaint."

The Department also proposes to change the language in § 35.171(a)(2)(i) regarding misdirected complaints to make it clear that, if an agency receives a complaint for which it lacks jurisdiction either under section 504 or as a designated agency under the ADA, the agency may refer the complaint to the appropriate agency.  The current language requires the agency to refer the complaint to the Department, which, in turn, refers the complaint.  The proposed revisions to § 35.171 make it clear that an agency can refer a misdirected complaint either directly to the appropriate agency or to the Department.  This amendment is intended to protect against the unnecessary backlogging of complaints and to prevent undue delay in an agency taking action on a complaint.

The Department is also proposing to make clear that the same procedures that apply to complaint investigations also apply to compliance reviews that are not initiated by receipt of a complaint, but rather are based on other information indicating that discrimination exists in a service, program, or activity covered by this part.  This provision is consistent with the Department's procedures for enforcing title III of the ADA as well as title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and section 504.  Section 203 of the ADA provides that those same rights, remedies, and procedures shall apply to title II of the ADA, 42 U.S.C. 12133.  The Department's proposed rule renames § 35.172(a), "Investigations and Compliance Reviews," and provides in new paragraph (b) that "[t]he designated agency may conduct compliance reviews of public entities based on information indicating a possible failure to comply with the nondiscrimination requirements of this part."

Finally, the Department is proposing to streamline the requirements for letters of findings.  Section 35.172 of the Department's current regulation requires designated agencies to investigate all complete complaints for which they are responsible as determined under § 35.171.  Specifically, a designated agency must issue a letter of findings at the conclusion of the investigation if the complaint was not resolved informally and attempt to negotiate a voluntary compliance agreement if a violation was found.  The Department's proposal will clarify that letters of finding are only required when a violation is found.  The discussion of letters of finding is moved to a new paragraph (c) in the proposed rule, and provides the same language as in the current regulation with the exception that the phrase "and a violation is found" is added following the phrase "if resolution is not achieved."

Subpart G of the existing regulation deals with the various agency designations that the Department proposed in promulgating the regulation for title II of the ADA.  Current § 35.190 lays out all of the agency designations.  Paragraphs 35.190(c) and (d), respectively, leave to the discretion of the Attorney General decisions where delegations are not specifically assigned or where there are apparent conflicts of jurisdiction. The Department's proposed rule would add a new § 35.190(e) in order to deal with the situation in which a complainant has sought the assistance of the Department of Justice.  The proposed rule at § 35.190(e) provides that when the Department receives a complaint alleging a violation of title II that is directed to the Attorney General that may fall within the jurisdiction of a designated agency or another federal agency that has jurisdiction under section 504, the Department may exercise its discretion to retain the complaint for investigation under this part.  The Department would, of course, consult with the designated agency regarding its intention to review when it plans to retain the complaint.  In appropriate circumstances, the Department and the designated agency may conduct a joint investigation.  Finally, the Department also proposes to amend § 35.171(a)(2)(ii) to be consistent with the changes in the proposed rule at § 35.190(e).