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

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).