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

General Issues

This section briefly introduces topics that are noteworthy because they are new to the title III regulation or have been the subject of considerable attention or comment. Each topic is discussed subsequently in the section-by-section analysis.

Safe harbor and other proposed limitations on barrier removal.

One of the most important issues that the Department must address is the effect that supplemental or changed ADA Standards will have on the continuing obligation of public accommodations to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so.  This issue was not addressed in the 2004 ADAAG because it was outside the scope of the Access Board's authority under the ADA.  Responsibility for implementing title III's requirement that public accommodations eliminate existing architectural barriers where it is readily achievable to do so rests solely with the Department.

The Department's current regulation implementing title III of the ADA establishes the requirements for barrier removal by public accommodations. 28 CFR 36.304.  Under this requirement, the Department uses the 1991 Standards as a guide to identify what constitutes an architectural barrier, as well as the specifications that covered entities must follow in making architectural changes to the extent that it is readily achievable.  28 CFR part 36, App. B.  Once adopted, therefore, the 2004 ADAAG will present a new reference point for title III's requirement to remove architectural barriers in existing places of public accommodation. The Department is concerned that the incremental changes in the 2004 ADAAG may place unnecessary cost burdens on businesses that have already removed barriers by complying with the 1991 Standards in their existing facilities.

The Department seeks to strike an appropriate balance between ensuring that people with disabilities are provided access to buildings and facilities and potential financial burdens on existing places of public accommodation under their continuing obligation for barrier removal. Such a balance would not impose unnecessary financial burdens on existing places of public accommodation.

The Department's ANPRM raised several options that might reduce such financial burdens.  One approach, described in the ANPRM as Option I, is to establish a safe harbor with regard to elements in existing facilities that comply with the scoping and technical provisions in the 1991 Standards.  Specifically, the Department would deem that public accommodations have met their obligation for barrier removal with respect to any element in an existing facility if that element complies with the scoping and technical requirements in the 1991 Standards.  Another possible approach--Option II in the ANPRM--is to reduce the scoping requirements for some of the supplemental or changed requirements as they apply to existing facilities (e.g., play areas and recreational facilities).  Option III in the ANPRM proposed the exemption of certain elements in the proposed standards; under this option, the Department would determine that certain supplemental requirements are inappropriate for barrier removal.  After reviewing the public comments on the ANPRM, the Department has decided to propose a combination of Options I and II.  The specific proposals are addressed in the discussion of barrier removal in the section-by-section analysis of § 36.304 below.

The Department is not proposing to adopt Option III.  Instead, in keeping with its obligations under the SBREFA to consider regulatory alternatives, the Department is seeking public comment on an alternative suggested by advocates for small business. Under this alternative, the Department would revamp its approach to barrier removal that is readily achievable as applied to "qualified small business" entities, which are defined in § 36.104.

Small business advocates argued for clearer guidance on when barrier removal is, and is not, readily achievable.  According to the small business advocacy groups, the Department's current approach to readily achievable barrier removal disproportionately affects small businesses for the following reasons:  (1) Small businesses are more likely to operate in older buildings and facilities; (2) the 1991 Standards are too numerous and technical for most small business owners to understand and then to square with the ADA requirements with state and local building or accessibility codes; and (3) small businesses are particularly vulnerable to title III litigation and are often compelled to settle because they cannot afford the litigation costs involved in proving whether an action is readily achievable.  Advocates for small business endorsed many of the proposals in the ANPRM, such as the safe harbor and reduced scoping for some elements.

The proposed standards will go a long way toward meeting the concern of small businesses with regard to harmonizing federal and state requirements; the Access Board harmonized the 2004 ADAAG with the model codes that form the basis of most state and local accessibility codes.  Still, the Department is proposing that a qualified small business is presumed to have done what is readily achievable in a given year if, in the prior tax year, it spent a fixed percentage of its revenues on readily achievable barrier removal.  The Department believes that the efficacy of any such proposal will turn on two determinations:  (1) The definition of a qualified small business, and (2) the formula for calculating what percentage of revenues should be sufficient to satisfy the readily achievable presumption.  The Department discusses its proposal for safe harbor and reduced scoping requirements in the section-by-section analysis of § 36.304.

The Department invites comment on whether public accommodations that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG.  Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in:  (1) The Access Board's supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002).  Under that scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements.  Public accommodations that operate existing facilities with play or recreation areas, pursuant to the ADA's requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.

Question 7: Should the Department exempt owners and operators of public accommodations from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law?  Please provide information on the effect of such a proposal on people with disabilities and places of public accommodation.

Service animals.

The Department wishes to clarify the obligations of public accommodations to accommodate individuals with disabilities who use service animals.  The Department continues to receive a large number of complaints from individuals with service animals.  It appears that many covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals.  At the same time, some individuals with impairments--who would not be covered as individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation.  Another trend is the use of wild, exotic, or unusual species, many of which are untrained, as service animals.  The Department is proposing amendments to its regulation on service animals in the hope of mitigating the apparent confusion.

Minimal protection.

In the Department's ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).  Although the Department received comments urging it to eliminate the minimal protection language, the Department continues to believe that it should retain the "providing minimal protection" language and interpret the language to exclude so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

In the original regulation implementing title III, "service animal" was defined as "any guide dog, signal dog, or other animal," and the Department believed, at the time, that leaving the species selection up to the discretion of the person with a disability was the best course of action.  Due to the proliferation of animals used by individuals, including wild animals, the Department believes that this area needs some parameters.  Therefore, the Department is proposing to eliminate certain species from coverage even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals.

Under the Department's present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or perform tasks excluded all individuals with mental disabilities from having service animals. Others have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA.  The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for individuals whose disability is covered by the ADA are protected by the Department's present regulatory approach.

Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects.  Tasks performed by psychiatric service animals may include reminding the handler to take medicine; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger.

The Department is proposing new regulatory text in § 36.104 to formalize its position on emotional support/comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals."  The Department wishes to state, however, that the exclusion of emotional support animals from ADA coverage does not mean that individuals with psychiatric, cognitive, or mental disabilities cannot use service animals.  The Department proposes specific regulatory text in § 36.104 to make this clear:  "The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities."  This language simply clarifies the Department's longstanding position and is not a new position.

The Department's rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals.  The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment, where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.  Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.

Modification in policies, practices, or procedures.

The preamble to § 36.302 of the current title III regulation states that the regulatory language was intended to provide the "broadest feasible access" to individuals with service animals while acknowledging that, in rare circumstances, accommodating service animals may not be required if it would result in a fundamental alteration of the nature of the goods or services the public accommodation provides or the safe operation of the public accommodation.  56 FR 35544, 35565 (July 26, 1991).  In order to clarify this provision, the Department is incorporating into the proposed regulation guidance that it has provided previously through technical assistance.

Proposed training standards.

The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.  While some groups have urged the Department to modify this position, the Department does not believe such a modification would serve the array of individuals with disabilities who use service animals.

Detailed regulatory text changes and the Department's response to public comments on these issues and others are discussed below in the definition section, § 36.104, and the section on modifications in policies, practices, and procedures, § 36.302(c).

Equipment and furniture.

In question seven of the ANPRM, the Department asked for comment on whether regulatory guidance is needed with respect to the acquisition and use of free-standing equipment or furnishings used by covered entities to provide services, and asked for specific examples of the circumstances in which such equipment should be addressed.  The ANPRM explained that free-standing equipment was already addressed in the regulation in several different contexts, but because covered entities continue to raise questions about their obligations to provide accessible free-standing equipment, the Department was considering adding specific language on equipment.  The Department received comments both in favor and against new guidance on accessible equipment and furniture, but has decided not to add any specific regulation governing equipment at this time.

Many businesses were opposed to additional requirements for free-standing equipment, although they favored a move toward clarity and specificity.  Some businesses were concerned that they lack control of the design or manufacturing of such equipment.

Most organizations and individuals representing individuals with disabilities were in favor of adding or clarifying requirements for accessible equipment.  Disability organizations pointed out that from the user's perspective, it is not relevant whether the equipment (e.g., ATMs, vending machines) is free-standing or fixed, because the equipment must be accessible in order for individuals with disabilities to use it.

A specific point of concern to several commenters was inaccessible aisles between movable display racks in stores.  The Department's current regulation addresses this issue under barrier removal, requiring that stores rearrange display racks when readily achievable but adding the following exception to § 36.304(f):  "The rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space."  If the rearrangement of display racks is not readily achievable, stores still have an obligation to provide alternatives to barrier removal, such as retrieving merchandise from inaccessible shelves or racks.  28 CFR 36.305(b)(2).

When the title III regulation was initially proposed in 1991, it contained a provision concerning accessible equipment, which required that newly purchased furniture or equipment that was made available for use at a place of public accommodation be accessible, unless complying with this requirement would fundamentally alter the goods, services, facilities, privileges, advantages, or accommodations offered, or would not be readily achievable.  See 56 FR 7452, 7470-71 (Feb. 22, 1991).  In the final title III regulation promulgated in 1991, the Department decided not to include this provision, explaining in the preamble to the regulation that "its requirements are more properly addressed under other sections, and . . . there are currently no appropriate accessibility standards addressing many types of furniture and equipment."  56 FR 35544, 35572 (July 26, 1991). 

Equipment has been covered under the Department's ADA regulation, including under the provision requiring modifications in policies, practices, and procedures and the provision requiring barrier removal, even though there is no provision specifically addressing equipment.  See 28 CFR 36.302, 36.304.  If a person with a disability does not have full and equal access to a covered entity's services because of the lack of accessible equipment, the entity must provide that equipment, unless doing so would be a fundamental alteration or would not be readily achievable.   

The Department has decided to continue with this approach, and not to add any specific regulatory guidance addressing equipment at this time.  It intends to analyze the economic impact of future regulations governing specific types of free-standing equipment.  The 2004 ADAAG includes revised requirements for some types of fixed equipment that are specifically addressed in the 1991 Standards, such as ATMs and vending machines, as well as detailed requirements for fixed equipment that is not addressed by name in the current Standards, such as depositories, change machines, and fuel dispensers.  Because the 2004 ADAAG provides detailed requirements for many types of fixed equipment, covered entities may apply those requirements to analogous free-standing equipment to ensure that they are accessible, and to avoid potential liability for discrimination.  The Department also believes that when federal guidance for accessibility exists for equipment required to be accessible to individuals who are blind or have low vision, entities should consult such guidance (e.g., federal standards implementing section 508 of the Rehabilitation Act, 36 CFR part 1194, or the guidelines that specify communication accessibility for ATMs and fare card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). With regard to the specific issue of display racks in stores, the Department does not propose to change the approach in the current regulation.  The tension between access for individuals with disabilities and loss of selling space caused by the arrangement of the racks within the store is the same whether the store is newly constructed or an existing facility.  The existing approach appropriately balances the needs of businesses and individuals with disabilities.

Accessible golf cars.

Question six of the ANPRM asked whether golf courses should be required to make at least one, and possibly two, specialized golf cars available for the use of individuals with disabilities with no greater advance notice than that required of other golfers.  The ANPRM also asked about the safety of such cars and their potential for damaging golf course greens. Accessible golf cars are designed for use by individuals with mobility disabilities and are operated using hand controls.  An individual with a disability can hit a golf ball while remaining in the seat of an accessible golf car.  Some accessible golf cars have a swivel, elevated seat that allows the golfer to play from a semi-standing position.  Accessible golf cars can be used by individuals without disabilities as well.  The Department received many comments on the subject of accessible golf cars (approximately one quarter of all comments received), the majority of which favored a requirement for accessible golf cars.  However, the Department has decided not to add a regulation specifically addressing accessible golf cars at this time.

Comments in support of requiring courses to provide accessible golf cars came from individuals both with and without disabilities.  These commenters generally supported having one, two, or multiple cars per course.  A number of comments stressed the social aspect of golf, generally, and its specific importance in many business transactions.  Most commenters believed that no advance notice should be required to reserve an accessible golf car.  Some golf course owners argued that a requirement for advance reservation of an accessible golf car might allow them to develop pooling arrangements with other courses.

In response to the Department's questions regarding the safety of accessible golf cars, most commenters stated that the accessible cars are safe, do not damage the greens, and speed up the pace of play.  Some commenters expressed concern about the safety of accessible golf cars, arguing either that the cars should pass the American National Standards Institute (ANSI) standards for traditional golf cars,^[2] or that accessible cars should not be required until there are applicable safety standards.  Comments from golf courses with experience in providing accessible golf cars were generally positive in terms of the cars' safety and the impact on maintenance of the greens and the course.

As the Department requested, the public also addressed the issue of whether a golf course that does not provide standard golf cars should offer accessible cars.  One commenter explained that the courses that do not provide golf cars are often shorter length courses, such as "executive" or nine-hole courses, and that individuals with disabilities who are learning to play golf, or who might not have the stamina to play eighteen holes, would be more likely to use these courses.  Thus, accessible golf cars should be available at these courses. This commenter pointed out that one executive course that had no traditional--but two accessible--cars made money on the single-user cars because individuals with and without disabilities wanted to use them. 

The Department also received comments opposing a requirement to provide accessible golf cars from some golf course owners, associations, and individuals.  Those opposing such a requirement argued that there was little demand for accessible golf cars, or that the problem could be solved by putting "medical flags" on traditional golf cars.  Such flags might identify cars that were permitted to have wider use of the course.  Other commenters stated that accessible golf cars were too expensive or were specialized equipment that individuals with disabilities should purchase for themselves.

Like some individuals with disabilities, some commenters who opposed a requirement for accessible golf cars also expressed concern about the lack of safety standards.  There were also concerns that repair costs for greens or for accessible golf cars would be more significant than with traditional golf cars.  One commenter suggested that courses exceeding certain slope and degree standards be exempted from having single-user cars.  Others argued that, in practice, the safety issue and the issue of damage to courses are negligible.

The Department has decided not to add a regulation specifically addressing accessible golf cars at this time.  As with free-standing equipment, the Department believes that the existing regulation is adequate to address this issue.  The Department may gain additional guidance in the future from the experience of the Department of Defense, which is planning to provide two accessible golf cars at each of the 174 golf courses that the Department of Defense operates, except those at which it would be unsafe to operate such golf cars because of the terrain of the course.  See U.S. Department of Defense, Report to Congress:  Access of Disabled Persons to Morale, Recreation, and Welfare (MRW) Facilities and Activities (Sept. 25, 2007).

Wheelchairs and other power-driven mobility devices.

Since the passage of the ADA, choices of mobility aids available to individuals with disabilities have vastly increased.  In addition to devices such as wheelchairs and mobility scooters, individuals with disabilities may use devices that are not designed primarily for use by individuals with disabilities, such as electronic personal assistive mobility devices (EPAMDs).  (The only available model known to the Department is the Segway®.)  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices for locomotion in pedestrian areas. These new or adapted mobility aids benefit individuals with disabilities, but also present new challenges for public accommodations and commercial facilities.

EPAMDs illustrate some of the challenges posed by new mobility devices.  The basic Segway® model is a two-wheeled, gyroscopically stabilized, battery-powered personal transportation device.  The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle.  The EPAMD can travel up to 12½ miles per hour, compared to the average pedestrian walking speed of 3 to 4 miles per hour and the approximate maximum speed for power-operated wheelchairs of 6 miles per hour.  In a study of trail and other nonmotorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of people using EPAMDs ranged from 68¼ inches to 79½ inches.  See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than wheelchairs, and the average user is much taller than most wheelchair users.

EPAMDs have been the subject of debate among users, pedestrians, disability advocates, state and local governments, businesses, and bicyclists.  The fact that the device is not designed primarily for use by or marketed primarily to individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of whether individuals with disabilities should be allowed to operate them in areas and facilities where other powered devices are not allowed. Those who question the use of EPAMDs in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.  Although the question of their safety has not been resolved, many states have passed legislation addressing EPAMD operation on sidewalks, bicycle paths, and roads.  In addition, some states, such as Iowa and Oregon, have minimum age requirements, or mandatory helmet laws.  New Jersey requires helmets for all EPAMD users, while Hawaii and Pennsylvania require helmets for users under a certain age.

While there may be legitimate safety issues for EPAMD users and bystanders, EPAMDs and other non-traditional mobility devices can deliver real benefits to individuals with disabilities.  For example, individuals with severe respiratory conditions who can walk limited distances and individuals with multiple sclerosis have reported benefitting significantly from EPAMDs.  Such individuals often find that EPAMDs are more comfortable and easier to use than more traditional mobility devices and assist with balance, circulation, and digestion in ways that wheelchairs do not.  See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004.

The Department has received questions and complaints from individuals with disabilities and covered entities about which mobility aids must be accommodated and under what circumstances.  While some individuals with disabilities support the use of unique mobility devices, other individuals with disabilities are concerned about their personal safety when others are using such devices.  There is also concern about the impact of such mobility devices on facilities, such as the weight of the device on fragile floor surfaces.

The Department intends to address these issues and proposes to adopt a policy that sets the parameters for when these devices must be accommodated.  Toward that end, the Department proposes new definitions of the terms "wheelchair"--which includes manually and power-driven wheelchairs and mobility scooters--and "other power-driven mobility device" and accompanying regulatory text.  The proposed definitions are discussed in the section-by-section analysis of § 36.104, and the proposed regulatory text is discussed in the section-by-section analysis of § 36.311.

Much of the debate surrounding mobility aids has centered on appropriate definitions for the terms "wheelchair" and "other power-driven mobility devices."  The Department has not defined the term "manually powered mobility aids."  Instead, the proposed rule provides a list including wheelchairs, walkers, crutches, canes, braces, or similar devices.  The inclusion of the term "similar devices" indicates that the list is not intended to be exhaustive.  The Department would like input as to whether  addressing "manually powered mobility aids" in this manner (i.e., via examples of such devices) is appropriate.  The Department also would like information as to whether there are any other non-powered or manually powered mobility aids that should be added to the list and an explanation of the reasons they should be included.  If an actual definition is preferred, the Department would welcome input with regard to the language that might be used to define "manually powered mobility aids," and an explanation of the reasons this language would better serve the public.

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.

Certification.

The current title III regulation provides that state or local governments may apply to the Department for certification that state laws or local building codes comply with or exceed the minimum accessibility requirements of the ADA.  The current submission requirements and certification process, however, have proved onerous for state and local governments and for the Department.  Many have urged the Department to streamline the certification process and make it less cumbersome for state and local jurisdictions.

In keeping with the Department's efforts to clarify legal obligations under the ADA and harmonize requirements with other federal laws and model codes, the proposed rule includes amendments to subpart F (§§ 36.601-36.608) to streamline the certification process.  The proposed changes are intended to provide more flexibility in the certification process and shorten the overall time involved.  The Department believes that the adoption of the 2004 ADAAG will help achieve these goals because it has been further harmonized with model codes.  The specific changes to subpart F are described below in the section-by-section analysis.