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

The ADA and Department of Justice Regulations

The ADA broadly protects the rights of individuals with disabilities in employment, access to state and local government services, places of public accommodation, transportation, and other important areas of American life and, in addition, requires newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.  42 U.S.C. 12101 et seq.  Under the ADA, the Department is responsible for issuing regulations to implement title II and title III of the Act, except to the extent that transportation providers subject to title II or title III are regulated by the Department of Transportation.  Id. at 12134.

The Department is also proposing amendments to its title III regulation, which prohibits discrimination on the basis of disability in public accommodations and commercial facilities, published concurrently with the publication of this NPRM, in this issue of the Federal Register.

Title II applies to state and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities.  Title II extends the prohibition of discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of state and local governments regardless of whether these entities receive federal financial assistance.  42 U.S.C. 12131-65.       

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III).  Appendix A of the title III regulation, at 28 CFR part 36, contains the current 1991 Standards, which were based upon the version of ADAAG published by the Access Board on the same date.  Under the current regulation, title II entities are required to comply either with the 1991 Standards or with the Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A--which many public entities were accustomed to following under section 504--with respect to newly constructed or altered facilities.