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

Section 36.104 Definitions (Section-by-Section Analysis)

"1991 Standards" and "2004 ADAAG" (Section-by-Section Analysis)

The Department is proposing to add to the proposed regulation definitions of both the "1991 Standards" and the "2004 ADAAG."  The term "1991 Standards" refers to the currently enforceable ADA Standards for Accessible Design, codified at 28 CFR part 36, App. A.  The term "2004 ADAAG" refers to Parts I and III of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which were issued by the Architectural and Transportation Barriers Compliance Board on July 23, 2004, at 69 FR 44084 (to be codified at 36 CFR 1191), and which the Department is proposing to adopt in this NPRM.  These terms are included in the definitions section for ease of reference.

"Existing Facility" (Section-by-Section Analysis)

Under the ADA, a facility is initially classified as one of three types:  (1) An existing facility; (2) an altered facility; or (3) a newly designed and constructed facility.  In the current regulation, title III defines new construction at § 36.401(a) and alterations at § 36.402.  In contrast, the term "existing facility" is not defined, although it is used in the statute and the regulations for titles II and III.  42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150.

The Department's enforcement of the ADA is premised on a broad understanding of "existing facility."  The classifications of facilities under the ADA regulation are not static.  Rather, a building that was newly designed and constructed at one time--and therefore subject to the accessibility standards in effect at the time--becomes an "existing facility" after it is completed.  At some point in its life, it may also be considered "altered" and then again become "existing."

The added definition of "existing facility" in the proposed regulation clarifies that the term means exactly what it says:  A facility in existence on any given date is an existing facility under the ADA.  If a facility exists, it is an existing facility whether it was built in 1989, 1999, or 2009.

"Other Power-Driven Mobility Device" (Section-by-Section Analysis)

The proposed regulation defines the term "other power-driven mobility device" as "any of a large range of devices powered by batteries, fuel, or other engines--whether or not designed solely for use by individuals with mobility impairments--that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs)(e.g., Segway®), or any mobility aid designed to operate in areas without defined pedestrian routes."  The definition is designed to be broad and inclusive because the Department recognizes the diverse needs and preferences of individuals with disabilities and does not wish to impede individual choice except when necessary.  Power-driven mobility devices are included in this category.  Mobility aids that are designed for areas or conditions without defined pedestrian areas, such as off-road bike paths, roads (except where allowed by law or where a sidewalk is not provided), freeways, or natural surfaces such as beaches where there is not a defined circulation route for pedestrians, are also included in this category.

Question 8: Please comment on the proposed definition of other power-driven mobility devices.  Is the definition overly inclusive of power-driven mobility devices that may be used by individuals with disabilities?

The Department's proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed below in § 36.311 of the section-by-section analysis.

"Place of Lodging" (Section-by-Section Analysis)

The Department proposes to add a definition of "place of lodging" that will be used in proposed § 36.406(c) to address the coverage of rental accommodations in time-shares, condominium hotels, and mixed-use and corporate hotels.  The proposed definition specifies that a place of lodging is a facility that provides guestrooms for sleeping for stays that are primarily short-term in nature (generally two weeks or less), where the occupant does not have the right or intent to return to a specific room or unit after the conclusion of his or her stay, and which operates under conditions and with amenities similar to a hotel, motel, or inn, such as an on-site proprietor and reservations desk.  The factors to be followed in determining the conditions and amenities of a hotel include rooms available on a walk-up basis, linen service, and accepting reservations for a room type without guaranteeing a particular unit or room until check-in, without a prior lease or security deposit.  It is the Department's intention that facilities that do not meet this definition would not be covered by the proposed § 36.406(c).

"Qualified Interpreter" (Section-by-Section Analysis)

The Department proposes to add to the definition of qualified interpreter to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued speech interpreters. 

Not all interpreters are qualified for all situations.  For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally. Also, someone with just a rudimentary familiarity with sign language or finger spelling is not a qualified sign language interpreter.  Likewise, a qualified sign language interpreter would not include someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words.

The revised definition includes examples of different types of interpreters.  An oral interpreter has special skill and training to mouth a speaker's words silently for individuals who are deaf or hard of hearing, many of whom were raised orally and taught to read lips or were diagnosed with hearing loss later in life and do not know sign language.  An individual who is deaf or hard of hearing may need an oral interpreter if the speaker's voice is unclear, there is a quick-paced exchange of communication (e.g., in a meeting), or when the speaker does not directly face the individual who is deaf or hard of hearing.  A cued speech interpreter functions in the same manner as an oral interpreter except that he or she also uses a hand code or cue to represent each speech sound.

"Qualified Reader" (Section-by-Section Analysis)

The current title III regulation identifies a qualified reader as an auxiliary aid, but it does not define the term.  See 28 CFR 36.303(b)(2).  Based upon the Department's investigation of complaints alleging that some entities have provided ineffective readers, the Department proposes to define "qualified reader" similarly to "qualified interpreter" to ensure that entities select qualified individuals to read an examination or other written information in an effective, accurate, and impartial manner.  Failing to provide a qualified reader to a person with a disability may constitute a violation of the requirement to provide appropriate auxiliary aids and services.

"Qualified Small Business" (Section-by-Section Analysis)

A qualified small business is a business entity defined as a small business concern under the regulations promulgated by the Small Business Administration (SBA) pursuant to the Small Business Act.  See 15 U.S.C. 632; 13 CFR part 121.  Under section 3(a)(2)(C) of the Small Business Act, federal departments and agencies are prohibited from prescribing a size standard for categorizing a business concern as a small business unless they have been specifically authorized to do so or have proposed a size standard in compliance with the criteria set forth in the SBA regulations, have provided an opportunity for public notice and comment on the proposed standard, and have received approval from the Administrator of the SBA to use the standard.  See id.  Federal agencies or departments promulgating regulations relating to small businesses usually use SBA size criteria.  If they decide otherwise, they must be prepared to justify how they arrived at a different standard and why the SBA's regulations do not satisfy the agency's program requirements.  See 13 CFR 121.903.

The ADA does not define "small business" or specifically authorize the Department to prescribe size standards.  The Department believes that the size standards SBA has developed are appropriate for determining which businesses subject to the ADA should be subject to the proposed safe harbor provisions.  Therefore, the Department proposes to adopt the SBA's size standards to define small businesses under the ADA.

The SBA's small business size standards define the maximum size that a concern, together with all of its affiliates, may be if it is to be eligible for federal small business programs or to be considered a small business for the purpose of other federal agency programs.  Concerns primarily engaged in the same kind of economic activity are classified in the same industry regardless of their types of ownership (such as sole proprietorship, partnership or corporation). Approximately 1200 industries are described in detail in the North American Industry Classification System United States, 2007.  For most places of public accommodation, the SBA has established a size standard based on average annual receipts.  The majority of places of public accommodation will be classified as small businesses if their average annual receipts are less than $ 6.5 million.  However, some will qualify with higher annual receipts.  The SBA's small business size standards should be familiar to most small businesses.  Current standards, which can only be changed after notice and comment rulemaking, are available at http://www.census.gov/epcd/naics07/naics07fr3.htm.

"Service Animal" (Section-by-Section Analysis)

The Department is proposing to amend the definition of "service animal" in § 36.104 of the current regulation, which is defined as, "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items."  Proposed § 36.104 would:

1. Remove "guide" or "signal" as descriptions of types of service dogs and add "other common domestic" animal to the Department's current definition;

2. Remove "individuals with impaired vision" and replace it with "individuals who are blind or have low vision";

3. Change "individuals with hearing impairments" to "individuals who are deaf or hard of hearing";

4. Replace the term "intruders" with the phrase "the presence of people" in the section on alerting individuals who are deaf or hard of hearing;

5. Add the following to the list of work and task examples:  Assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation;

6. Add that "service animal" includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, or mental disabilities;

7. Add that "service animal" does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents; and                  

8. Add that animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not "service animals."

The Department is proposing these changes in response to concerns expressed by commenters who responded to the Department's ANPRM.  Issues raised by the commenters include:

"Minimal protection." (Section-by-Section Analysis)

There were many comments by service dog users urging the Department to remove from the definition "providing minimal protection."  The commenters set forth the following reasons:  (1) The current phrase can be interpreted to allow "protection dogs" that are trained to be aggressive and to provide protection to be covered under the ADA, so long as they are paired with a person with a disability; and (2) since some view the minimal protection language to mean that a dog's very presence can act as a crime deterrent, the language allows any untrained pet dog to provide this minimal protection by its mere presence.  These interpretations were not contemplated by the ADA or the title III regulation.

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).  Despite the Department's best efforts, the minimal protection language appears to have been misinterpreted.  Nonetheless, 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.

Question 9:  Should the Department clarify the phrase "providing minimal protection" in the definition or remove it?

"Alerting to intruders." (Section-by-Section Analysis)

Some commenters argued that the phrase "alerting to intruders" in the current text has been misinterpreted by some people to apply to a special line of protection dogs that are trained to be aggressive.  People have asserted, incorrectly, that use of such animals is protected under the ADA. The Department reiterates that public accommodations are not required to admit any animal that poses a direct threat to the health or safety of others.  The Department has proposed removing "intruders" and replacing it with "the presence of people."

"Task" emphasis. (Section-by-Section Analysis)

Many commenters followed the lead of an umbrella service dog organization in suggesting that "performing tasks" should form the basis of the service animal definition, that "do work" should be eliminated from the definition, and that "physical" should be added to describe tasks.  Tasks by their nature are physical, so the Department does not believe that such a change is warranted. In contrast, the phrase "do work" is slightly broader than "perform tasks," and adds meaning to the definition.  For example, a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.  As one service dog user stated, in some cases "critical forms of assistance can't be construed as physical tasks," noting that the manifestations of "brain-based disabilities," such as psychiatric disorders and autism, are as varied as their physical counterparts.  One commenter stated that the current definition works for everyone (i.e., those with physical and mental disabilities) and urged the Department to keep it.  The Department has evaluated this issue and believes that the crux of the current definition (individual training to do work or perform tasks) is inclusive of the varied services provided by working animals on behalf of individuals with all types of disabilities and proposes that this portion of the definition remain the same.

Define "task." (Section-by-Section Analysis)

One commenter suggested defining the term "task," presumably so that there would be a better understanding of what type of service performed by an animal would qualify for coverage.  The Department feels that the common definition of task is sufficiently clear and that it is not necessary to add to the definitions section.  However, the Department has proposed additional examples of work or tasks to help illustrate this requirement in the definition.

Define "animal" or what qualifies certain species as "service animals." (Section-by-Section Analysis)

When the regulations were promulgated in the early 1990s, the Department did not define the parameters of acceptable animal species, and few anticipated the variety of animals that would be used in the future, ranging from pigs and miniature horses to snakes and iguanas.  One commenter suggested defining "animal" (in the context of service animals) or the parameters of species to reduce the confusion over whether a particular service animal is covered.  One service dog organization commented that other species would be acceptable if those animals could meet the behavioral standards of trained service dogs.  Other commenters asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks, so these animals would not be covered. The Department has followed closely this particular issue (i.e., how many unusual animals are now claimed as service animals) and believes that this aspect of the regulation needs clarification.

To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals:  Reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, or goats), ferrets, amphibians, and rodents.  Many commenters asserted that limiting the number of allowable species would help stop erosion of the public's trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards.  The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as restaurants, grocery stores, and performing arts venues.

In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild.  Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation.  The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury and zoonotic (animal to human disease transmission) risks."  See AVMA position statement, Nonhuman Primates as Assistance Animals (2005), available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.

Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.

Question 10:  Should the Department eliminate certain species from the definition of "service animal"? If so, please provide comment on the Department's use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.

Question 11:  Should the Department impose a size or weight limitation for common domestic animals, even if the animal satisfies the "common domestic animal" prong of the proposed definition?

Comfort animals. (Section-by-Section Analysis)

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular, primarily with individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.  Comfort animals are also used by individuals without any type of impairment who claim the need for such animals in order to bring their pets into places of public accommodation.

The difference between an emotional support animal and a legitimate psychiatric service animal is the service that is provided (i.e., the actual work or task performed by the service animal).  Another critical factor rests on the severity of the individual's impairment.  For example, only individuals with conditions that substantially limit them in a major life activity currently qualify for coverage under the ADA, and only those individuals will qualify to use a service animal.  See 42 U.S.C. 12102(2) (defining disability); 28 CFR 36.104 (same).  Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires there to be a substantial limitation of a major life activity.  Traditionally, service dogs worked as guides for individuals who were blind or had low vision.  Since the original regulations were promulgated, service animals have been trained to assist individuals with many different types of disabilities. In some cases, individuals with minor impairments who are not individuals with disabilities under the Act have mistakenly concluded that any type of impairment qualified them for the ADA's protection of the right of individuals with disabilities to use service animals.

Change "service animal" to "assistance animal." (Section-by-Section Analysis)

Some commenters asserted that "assistance animal" is a term of art and should replace "service animal."  While some agencies, like the Department of Housing and Urban Development (HUD), use the term "assistance animal," that term is used to denote a broader category of animals than is covered by the ADA.  The Department believes that changing the term used under the ADA would create confusion, particularly in view of the broader parameters for coverage under the Fair Housing Act (FHA) cf., HUD Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hudclips.org. Moreover, the Department's proposal to change the definition of "service animal" under the ADA is not intended to affect the rights of people with disabilities who use assistance animals in their homes under the FHA.  In addition, the Department wishes to use the term "psychiatric service animal" to describe a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability.  This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations. 14 CFR 382.7 et seq.; see also 68 FR 24874, 24877 (May 9, 2003) (discussing accommodation of service animals and emotional support animals on air transportation), and that qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA.

"Video Interpreting Services" (VIS) (Section-by-Section Analysis)

The Department has added a definition of "video interpreting services (VIS)," a technology composed of a video phone, video monitors, cameras, a high-speed Internet connection, and an interpreter.  The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can see and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking.  The video monitor can display a split screen of two live images, with the interpreter in one image and the individual who is deaf or hard of hearing in the other image. 

VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day by allowing people in different locations to engage in live, face-to-face communications.  Moreover, VIS is particularly helpful where qualified interpreters are not readily available (e.g., for quick response to emergency hospital visits, in areas with an insufficient number of qualified interpreters to meet demand, and in rural areas where distances and an interpreter's travel time present obstacles).

Along with the addition of the definition of VIS, other amendments to the communications section are discussed below in § 36.303. 

"Wheelchair" (Section-by-Section Analysis)

The Department proposes the following definition of "wheelchair" in § 36.104:   "Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas.  A wheelchair may be manually operated or power-driven."

The proposed definition of "wheelchair" is informed by several existing definitions of "wheelchair." Section 507 of the ADA defines wheelchair in the context of whether to allow wheelchairs in federal wilderness areas:  "the term ‘wheelchair' means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area."  42 U.S.C. 12207(c)(2).  The Department believes that while this definition is appropriate in the limited context of federal wilderness areas, it is not specific enough to provide clear guidance in the array of settings covered by title III.

The other existing federal definition of wheelchair that the Department reviewed is in the Department of Transportation regulation implementing the transportation provisions under title II and title III of the ADA.  The Department of Transportation's definition of wheelchair is "a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility disabilities, whether operated manually or powered."  49 CFR 37.3.  The Department has adopted much of the language from this definition.  Under the proposed definition, wheelchairs include manually operated and power-driven wheelchairs and mobility scooters.  Mobility devices such as golf cars, bicycles, and electronic personal assistance mobility devices (EPAMDs) are inherently excluded from the proposed definition. Typically, the devices covered under the proposed definition are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas.  However, it could include a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels.  "Typical indoor and outdoor pedestrian areas" refer to locations and surfaces used by and intended for pedestrians, including sidewalks, paved paths, floors of buildings, elevators, and other circulation routes, but would not include such areas as off-road bike paths, roads (except where allowed by law or where a sidewalk is not provided), freeways, or natural surfaces such as beaches where there is not a defined circulation route for pedestrians.

The Department does not propose to define specific dimensions that qualify a device as a wheelchair.  The Department of Transportation's definition includes a subpart defining "common wheelchair" to provide guidance for public transit authorities on which devices must be transported.  A "common wheelchair" is a wheelchair that "does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied."  49 CFR 37.3. The narrower definition of "common wheelchair" was developed with reference to the requirements for lifts to establish parameters for the size and weight a lift can safely accommodate.  See 49 CFR part 37, App. D (2002).  The Department does not believe it is necessary to adopt stringent size and weight requirements for wheelchairs.

The Department requests public input on the proposed definition for "wheelchair."

Question 12:  As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters).  Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices?  Please cite specific examples if possible.

Question 13:  Should the Department expand its definition of "wheelchair" to include Segways®?

Question 14:  Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of "common wheelchair"?

Question 15:  Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"?  If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included.

Question 16:  Should the Department adopt a definition of the term "manually powered mobility aids"?  If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public.

The proposed regulation regarding mobility devices, including wheelchairs, is discussed below in the section-by-section analysis for § 36.311.