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

Subpart B--General Requirements

4. Amend § 35.133 by adding paragraph (c) to read as follows:

§ 35.133 Maintenance of accessible features.

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(c) If the proposed standards reduce the number of required accessible elements below the number required by the 1991 Standards, the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the proposed standards.

5. Amend 28 CFR part 35 by adding § 35.136 to read as follows:

(a) General.  Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability, unless the public entity can demonstrate that the use of a service animal would fundamentally alter the public entity's service, program, or activity.

(b) Exceptions.  A public entity may ask an individual with a disability to remove a service animal from the premises if:

(1) The animal is out of control and the animal's handler does not take effective action to control it;

(2) The animal is not housebroken or the animal's presence or behavior fundamentally alters the nature of the service the public entity provides; or

(3) The animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.

(c) If an animal is properly excluded. If a public entity properly excludes a service animal, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

(d) General requirements.  The work or tasks performed by a service animal shall be directly related to the handler's disability.  A service animal that accompanies an individual with a disability into a facility of a public entity shall be individually trained to do work or perform a task, housebroken, and under the control of its handler.  A service animal shall have a harness, leash, or other tether.

(e) Care or supervision of service animals. A public entity is not responsible for caring for or supervising a service animal.

(f) Inquiries.  A public entity shall not ask about the nature or extent of a person's disability, but can determine whether an animal qualifies as a service animal.  For example, a public entity may ask: if the animal is required because of a disability; and what work or task the animal has been trained to perform.  A public entity shall not require documentation, such as proof that the animal has been certified or licensed as a service animal.

(g) Access to areas open to the public, program participants, and invitees.  Individuals with disabilities who are accompanied by service animals may access all areas of a public entity's facility where members of the public, program participants and invitees are allowed to go, unless the public entity can demonstrate that individuals accompanied by service animals would fundamentally alter the public entity's service, program, or activity.

(h) Fees or surcharges.  A public entity shall not ask or require an individual with a disability to post a deposit, pay a fee or surcharge, or comply with other requirements not generally applicable to other citizens as a condition of permitting a service animal to accompany its handler in a public entity's facility, even if people accompanied by pets are required to do so.  If a public entity normally charges its citizens for damage that they cause, a citizen with a disability may be charged for damage caused by his or her service animal.

6. Amend 28 CFR part 35 by adding § 35.137 to read as follows:

§ 35.137 Mobility devices.

(a) Use of wheelchairs, scooters, and manually powered mobility aids.  A public entity shall permit individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility impairments in any areas open to pedestrian use.

(b) Other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity's service, program, or activity.

(c) Development of policies permitting the use of other power-driven mobility devices.  A public entity shall establish policies to permit the use of other power-driven mobility devices by individuals with disabilities when it is reasonable to allow an individual with a disability to participate in a service, program, or activity.  Whether a modification is reasonable to allow the use of a class of power-driven mobility device by an individual with a disability in specific venues (e.g., parks, courthouses, office buildings, etc.) shall be determined based on:

(1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair;

(2) The risk of potential harm to others by the operation of the mobility device;

(3) The risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and

(4) The ability of the public entity to stow the mobility device when not in use, if requested by the user.

(d) Inquiry into use of power-driven mobility device.  A public entity may ask a person using a power-driven mobility device if the mobility device is needed due to the person's disability.  A public entity shall not ask a person using a mobility device questions about the nature and extent of the person's disability.

7. Amend 28 CFR part 35 by adding § 35.138 to read as follows:

§ 35.138 Ticketing.

(a) General.  A public entity that sells tickets on a preassigned basis shall modify its policies, practices, or procedures to ensure that individuals with disabilities can purchase tickets for accessible seating during the same hours, through the same methods of distribution, and in the same types and numbers of ticketing sales outlets as other patrons, unless the modification would fundamentally alter the nature of the ticketing service, program, or activity.

(b) Availability. Tickets for accessible seating shall be made available during all stages of ticket sales, including, but not limited to, presales, promotions, lotteries, wait-lists, and general sales.

(c) Identification of accessible seating. If seating maps, plans, brochures, or other information is provided to the general public, wheelchair seating and companion seats shall be identified.

(d) Notification of accessible seating locations.  A public entity that sells or distributes tickets for seating at assembly areas shall, upon inquiry, inform spectators with disabilities and their companions of the locations of all unsold or otherwise available accessible seating for any ticketed event at the facility. 

(e) Sale of season tickets or other tickets for multiple events. Season tickets or other tickets sold on a multi-event basis to individuals with disabilities and their companions shall be sold under the same terms and conditions as other tickets sold for the same series of events.  Spectators purchasing tickets for accessible seating on a multi-event basis shall also be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent as permitted other spectators holding tickets for the same type of ticketing plan.

(f) Hold and release of accessible seating. A public entity may release unsold accessible seating to any person with or without a disability following any of the circumstances described below:

(1) When all seating (excluding luxury boxes, club boxes, or suites) for an event has been sold;

(2) When all seating in a designated area in the facility has been sold and the accessible seating being released is in the same designated area; or

(3) When all seating in a designated price range has been sold and the accessible seating being sold is within the same designated price range.  Nothing in this provision requires a facility to release wheelchair seats for general sale.

(g) Ticket prices.  The price of tickets for accessible seating shall not be set higher than for tickets to seating located in the same seating section for the same event.  Accessible seating must be made available at all price levels for an event.  If an existing facility has barriers to accessible seating at a particular price level for an event, then a percentage (determined by the ratio of the total number of seats at that price level to the total number of seats in the assembly area) of the number of accessible seats must be provided at that price level in an accessible location.

(h) Prevention of fraudulent purchase of accessible seating.  A public entity may not require proof of disability before selling a wheelchair space.

(1) For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the wheelchair space uses a wheelchair.

(2) For season tickets, subscriptions, or other multi-events, it is permissible to ask the individual to attest in writing that the wheelchair space is for an individual who utilizes a wheelchair.  A public entity may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.

(i) Purchasing multiple tickets.

(1) Individuals with disabilities and their companions shall be permitted to purchase the same maximum number of tickets for an event per sales transaction as other spectators seeking to purchase seats for the same event.  If there is an insufficient number of seats for all members of a party to sit together, seats shall be provided that are as close as possible to the wheelchair spaces.  For accessible seating in a designated wheelchair area, a public entity shall provide up to three companion seats for each person with a disability who requires a wheelchair space, provided that at the time of purchase there are sufficient available wheelchair spaces.

(2) For group sales, if a group includes one or more individuals who use a wheelchair, the group shall be placed in a seating area that includes wheelchair spaces so that, if possible, the group can sit together.  If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.