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

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

Section 35.160 Communications (Section-by-Section Analysis)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 35.161 Telecommunications (Section-by-Section Analysis)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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