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

§ 35.152 Detention and correctional facilities.

(a) General.  Public entities that are responsible for the operation or management of detention and correctional facilities, either directly or through contracts or other arrangements, shall comply with this section.

(b) Discrimination prohibited.

(1) Public entities shall ensure that qualified inmates or detainees with disabilities shall not, because that facility is inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity unless the public entity can demonstrate that the required actions would result in a fundamental alteration or undue burden.

(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless the public entity can demonstrate that it is appropriate to make an exception for a specific individual, a public entity -

(i) Should not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available;

(ii) Should not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment;

(iii) 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; and

(iv) Should not deprive inmates or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed.

(c) Alterations to detention and correctional facilities.  Alterations to jails, prisons, and other detention and correctional facilities will comply with the requirements of § 35.151(b). However, when alterations are made to specific cells, detention and correctional facility operators may satisfy their 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-

(1) Is located within the same facility;

(2) Is integrated with other cells to the maximum extent feasible; and 

(3) Has, at a minimum, equal physical access as the altered 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.