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

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.