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 36.302(e) Hotel Reservations (Section-by-Section Analysis)

Each year, the Department receives many complaints about failed reservations.  Most of these complaints involve individuals who have reserved an accessible hotel room only to discover upon arrival that the room they reserved is either not available or not accessible.  Although reservations services were not addressed in the ANPRM, commenters noted the ongoing problem with hotel reservations and urged the Department to provide regulatory guidance on the issue.

The reservations policies, practices, and procedures of public accommodations are subject to title III's general and specific nondiscrimination provisions.  See 42 U.S.C. 12182; 28 CFR 36.302.  With this NPRM, the Department proposes to address hotel reservations within its regulation on modifications to policies, practices, and procedures.  See 28 CFR 36.302.

The proposed rule is based on straightforward nondiscrimination principles:  individuals with disabilities should be able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms. Currently, this simple premise appears more often to be the exception than the rule.

General rule on reservations. (Section-by-Section Analysis)

The Department's proposed § 36.302(e)(1) states the general rule that a public accommodation that owns, leases (or leases to), or operates a place of lodging shall modify its policies, practices, and procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms in the same way as others (i.e., during the same hours and in the same manner as individuals who do not need accessible rooms).

Reservations can be made in many different ways--in person, on the phone, directly with the hotel, with a parent company, or through a travel agency.  The proposed rule is meant to reach any public accommodation that owns, leases (or leases to), or operates a place of lodging, and is not limited to a hotel's operation of its own reservations service.  Thus, the rule would apply equally to corporations that own one or more hotel chains and provide a system by which prospective customers can reserve guest rooms, as well as to franchisors that provide reservation services.  All covered entities must modify their policies and practices to ensure parity in reservations policies between those who need accessible rooms and those who do not.

Identification of accessible guest rooms. (Section-by-Section Analysis)

Proposed § 36.302(e)(2) states that hotel reservations services must identify and describe the accessible features in the hotels and guest rooms.  This requirement is integral to ensuring that individuals with disabilities receive the information they need to benefit from the services offered by the place of lodging.  As a practical matter, a public accommodation's designation of a guest room as "accessible" will not necessarily ensure that the room complies with all of the 1991 Standards.  In older facilities subject to barrier removal, strict compliance with the 1991 Standards is not required.  Public accommodations must remove barriers to the extent that it is readily achievable to do so.  Individuals with disabilities must be able to ascertain which features--in new and existing buildings--are included in the hotel's accessible guest rooms.  The presence or absence of particular accessible features may be the difference between a room that is usable by a person with a disability and one that is not.  Information about the availability and nature of accessible features will minimize the risk that individuals with disabilities will reserve a room that is not what was expected or needed.

Guarantees of accessible guest room reservations. (Section-by-Section Analysis)

Section 36.302(e)(3) provides that a public accommodation that owns, operates, leases (or leases to) a place of lodging shall guarantee accessible guest rooms that are reserved through a reservations service to the same extent that it guarantees rooms that are not accessible.  The Department recognizes that not all reservations are guaranteed and the proposed rule does not impose an affirmative duty to do so.  When a public accommodation typically guarantees hotel reservations (absent unforeseen circumstances), it must provide the same guarantee for accessible guest rooms. Because the Department is aware that reservation guarantees take many different forms (e.g., an upgrade within the same hotel or a comparable room in another hotel), the Department seeks comment on the current practices of hotels and third party reservations services with respect to "guaranteed" hotel reservations and the impact of requiring a public accommodation to guarantee accessible rooms to the extent it guarantees other rooms.

Question 17:  What are the current practices of hotels and third party reservations services with respect to "guaranteed" hotel reservations?  What are the practical effects of requiring a public accommodation to guarantee accessible guest rooms to the same extent that it guarantees other rooms?

Finally, although not included in the proposed regulation as currently drafted, the Department is seeking comment on whether additional regulatory guidance is needed on the policies, practices, and procedures by which public accommodations hold and release accessible hotel guest rooms, and whether third party travel agents should be subject to the requirements set out in § 36.302(e)(2) and § 36.302(e)(3).

Hold and release of accessible guest rooms and third-party reservations. (Section-by-Section Analysis)

With respect to the hold and release of accessible guest rooms, the Department has addressed this issue in settlement agreements and recognizes that current practices vary widely.  As in the ticketing context, regulating in the area of hotel reservations involves complicated issues, such as guest room dispersion and variable pricing.  The Department is concerned about current practices by which accessible guest rooms are released to the general public even though the hotel is not sold out.  In such instances, individuals with disabilities may be denied an equal opportunity to benefit from the services offered by the public accommodation, i.e., a hotel guest room.

The Department also recognizes that the proposed rule does not reach all public accommodations that are engaged in the business of providing hotel reservations.  As discussed above, the rule reaches public accommodations that own, lease (or lease to), or operate a place of lodging.  It does not reach an entity that, for example, owns or operates a travel agency, while the agency or service is independent of any place of lodging.  Public accommodations that own, lease (or lease to), or operate places of lodging are required to provide the information prescribed by the proposed rule to third parties like travel agencies, but the third parties are not, independently, liable.  At this juncture, the Department seeks comment from individuals, businesses, and advocacy groups as to whether such entities should be required to identify and describe accessible features in hotel rooms available through their services, and whether such entities should be subject to the guarantee obligations set out in proposed § 36.302(e)(2) and § 36.302(e)(3).

Question 18:  What are the current practices of hotels and third-party reservations services with respect to (1) holding accessible rooms for individuals with disabilities and (2) releasing accessible rooms to individuals without disabilities?  What factors are considered in making these determinations?  Should public accommodations be required to hold one or more accessible rooms until all other rooms are rented, so that the accessible rooms would be the last rooms rented?

Question 19:  Should a public accommodation that does not itself own, lease (or lease to), or operate a place of lodging but nevertheless provides reservations services, including reservations for places of lodging, be subject to the requirements of proposed § 36.302(e)(2) and (e)(3)?