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

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.