28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Auxiliary aids and services: captioning and video interpreting services.

Section 36.303 of the title III regulation requires a public accommodation to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, facilities, advantages, or accommodations being offered or would result in an undue burden.  Implicit in this duty to provide auxiliary aids and services is the underlying obligation of a public accommodation to communicate effectively with its customers, clients, patients, or participants who have disabilities affecting hearing, vision, or speech, and their companions.

The Department has investigated hundreds of complaints alleging that public accommodations have failed to provide effective communication, many of which have resulted in settlement agreements and consent decrees.  During the course of its investigations, the Department has determined that public accommodations sometimes misunderstand the scope of their obligations under the statute and the regulation.  Moreover, the number of individuals with hearing loss continues to grow in this country as a large segment of the population ages and as people live longer. 

The Department is proposing several changes to § 36.303 to update the regulatory language in response to numerous technological advances and breakthroughs in the area of auxiliary aids and services since the regulation was promulgated sixteen years ago.  The most significant changes are in the language regarding video interpreting services and the provision of effective communication for companions.  In addition, the Department is discussing in its preamble to § 36.303 options for adding captioning and narrative description that may eventually result in proposed textual changes.  The specific amendments are described below in § 36.303 of the section-by-section analysis.