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

Subpart D--Program Accessibility

8. Amend § 35.150 as follows:

a.  Redesignate paragraph (b)(2) as paragraph (b)(3);

b.  Add the words "or acquisition" after the word "redesign" in the first sentence of paragraph (b)(1) and add paragraphs (b)(2), (b)(4), and (b)(5) to read as follows: 

§ 35.150 Existing facilities.

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(b) * * *

(2) Safe harbor.  If a public entity has constructed or altered elements in an existing facility in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standard, such public entity is not, solely because of the Department's adoption of the proposed standards, required to retrofit such elements to reflect incremental changes in the proposed standards.

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(4) Reduced scoping for existing facilities. For measures taken to comply with the program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:

(i) In addition to the provisions of section 240.2.1 of the proposed standards, where an existing play area provides elevated play components, an additional number of ground level play components may be substituted for the number of elevated play components that would have been required to comply with the provisions of section 240.2.2 of the proposed standards; and

(ii) Where an existing swimming pool has at least 300 linear feet of swimming pool wall, it shall comply with the applicable requirements for swimming pools, except that it shall provide at least one accessible means of entry that complies with section 1009.2 or section 1009.3 of the proposed standards.

(5) Exemption for small facilities.  For measures taken to comply with the program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:

(i) Where an existing play area has less than 1000 square feet, it shall be exempt from the provisions of section 240 of the proposed standards;

(ii) Where an existing swimming pool has less than 300 linear feet of swimming pool wall, it shall be exempt from the provisions of section 242.2 of the proposed standards; and

(iii) Where an existing sauna or steam room was designed and constructed to seat only two people, it shall be exempt from the provisions of § 241 of the proposed standards.

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9. Revise § 35.151 to read as follows:

§ 35.151 New construction and alterations.

(a) Design and construction.

(1) Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.

(2) Exception for structural impracticability.

(i) Full compliance with the requirements of this section is not required where a public 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.

(ii) If full compliance with this section would be structurally impracticable, compliance with this section is required to the extent that it is not structurally impracticable.  In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.

(b) Alteration.

(1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

(2) The path of travel requirements of § 35.151(b)(4) shall not apply to measures taken solely to comply with the program accessibility requirements of this section.

(3) 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).  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, alternative methods of access shall be provided pursuant to the requirements of § 35.150.

(4) Path of travel.  An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost and scope of the overall alterations.

(i) Primary function.  A primary function is a major activity for which the facility is intended.  Areas that contain a primary function include, but are not limited to, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public entity using the facility are carried out.

(A) Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, and corridors are not areas containing a primary function.  Restrooms are not areas containing a primary function unless the provision of restrooms is the principal purpose of the area, e.g., in highway rest stops.

(B) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.

(ii) A path of travel includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.

(A) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

(B) For the purposes of this section, the term path of travel also includes the restrooms, telephones, and drinking fountains serving the altered area.

(C)  Safe harbor.  If a public entity has constructed or altered required elements of a path of travel in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standards, the public entity is not required to retrofit such elements to reflect incremental changes in the proposed standards solely because of an alteration to a primary function area served by that path of travel.

(iii) Disproportionality.

(A) Alterations made to provide an accessible path of travel to the altered area will 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.

(B) Costs that may be counted as expenditures required to provide an accessible path of travel may include:

(1) Costs associated with providing an accessible entrance and an accessible route to the altered area, e.g., the cost of widening doorways or installing ramps;

(2) Costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet controls;

(3) Costs associated with providing accessible telephones, such as relocating a telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY); and

(4) Costs associated with relocating an inaccessible drinking fountain.

(iv) Duty to provide accessible features in the event of disproportionality.

(A) When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.

(B) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order:

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as parking, storage, and alarms.

(v) Series of smaller alterations. 

(A) The obligation to provide an accessible path of travel may not be evaded by performing a series of small alterations to the area served by a single path of travel if those alterations could have been performed as a single undertaking.

(B)

(1) If an area containing a primary function has been altered without providing an accessible path of travel to that area, and subsequent alterations of that area, or a different area on the same path of travel, are undertaken within three years of the original alteration, the total cost of alterations to the primary function areas on that path of travel during the preceding three-year period shall be considered in determining whether the cost of making that path of travel accessible is disproportionate.

(2) Only alterations undertaken after the effective date of this part shall be considered in determining if the cost of providing an accessible path of travel is disproportionate to the overall cost of the alterations.

(c) Accessibility standards.

(1) For facilities on which construction commences before [date six months after the effective date of the final rule], design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR part 101-19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (Appendix A to the Department of Justice's final rule implementing title III of the ADA, 56 FR 35544) shall be deemed to comply with the requirements of this section with respect to those facilities, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(j) of the 1991 Standards shall not apply.  Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

(2) Facilities on which construction commences on or after [date six months after the effective date of the final rule], shall comply with the proposed standards.

(d) Scope of coverage.  The proposed standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site. Unless specifically stated otherwise in the text, advisory notes, appendix notes, and figures contained in the ADA Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements.

(e) Social service establishments.  Group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units subject to the proposed standards shall comply with the provisions of the proposed standards that apply to residential facilities, including, but not limited to, the provisions in sections 233 and 809.

(1) In sleeping rooms covered by this section with more than twenty-five beds, five percent (5%) minimum of the beds shall have clear floor space complying with section 806.2.3.

(f) Housing at a place of education. Dormitories or residence halls operated by or on behalf of places of education that are subject to the proposed standards shall comply with the provisions applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806.

(g) Assembly areas.  Assembly areas subject to the proposed standards shall comply with the provisions applicable to assembly areas, including, but not limited to, sections 221 and 804.  In addition, assembly areas shall ensure that -

(1) Wheelchair and companion seating locations are dispersed among all levels of the facility that are served by an accessible route;

(2) Wheelchair and companion seating locations are not located on (or obstructed by) temporary platforms or other movable structures.  When wheelchair seating locations are not required to accommodate people who use wheelchairs, individual, readily removable seats may be placed in those spaces;

(3) Facilities that have more than 5,000 seats shall provide at least five wheelchair locations that are configured to provide at least three companion seats for each wheelchair space; and

(4) Stadium-style movie theaters 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).

(h) Medical care facilities.  Medical care facilities subject to the proposed standards shall comply with the provisions applicable to medical care facilities, including, but not limited to, sections 223 and 805.  In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient rooms required by section 223.2.1 in a manner that enables patients with disabilities to have access to appropriate specialty services.

(i) Curb ramps.

(1) Newly constructed or altered streets, roads, and highways must contain curb ramps at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.

(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps at intersections to streets, roads, or highways.

10. Amend 28 CFR part 35 by adding § 35.152 to read as follows:

§ 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.