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 36.303 Auxiliary Aids and Services (Section-by-Section Analysis)

Captioning, narrative description, and video interpreting services. (Section-by-Section Analysis)

The Department is proposing changes to § 36.303 in order to codify its longstanding policies in this area, and to propose amendments based on technological advances and breakthroughs in the area of auxiliary aids and services since the original regulation was published more than sixteen years ago.  The Department is proposing to add video interpreting services (VIS) to the regulatory text and is discussing in this preamble options for addressing captioning and narrative description.

Several types of auxiliary aids that have become more readily available have been added to § 36.303.  The Department has added a new technology in § 36.303(b)(1), video interpreting services (VIS), which consists 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, 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 when qualified interpreters are not readily available (e.g., for quick responses 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).

For purposes of clarification, the Department proposes to add to § 36.303(b)(1) the exchange of written notes as an example of an auxiliary aid or service.  This common-sense example is a codification of the Department's longstanding policy with regard to title III entities, and was included in the preamble to the original regulation.  See 56 FR 35544, 35566 (July 26, 1991).  This additional example of an appropriate auxiliary aid or service was inserted because many entities do not realize that this easy and efficient means is available to them.  While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine purchases in a department store or at a sports arena, or as a means of communication while awaiting the arrival of an interpreter.

In § 36.303(b)(2), the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision.  The preamble to the 1991 title III regulation makes clear that the original list was illustrative and that "additional examples such as signage or mapping, audio description services, secondary auditory programs (SAP), telebraillers, and reading machines . . . . may be considered appropriate auxiliary aids and services."  56 FR 35544, 35566.  Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.

The Department proposes replacing the term "telecommunications devices for deaf persons (TDD's)" with "text telephones (TTYs)" in § 36.303(b)(1).  Although "TDD" is the term used in the ADA, "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  Second, the Department has inserted in § 36.303(d)(2) additional types of auxiliary aids and services that can effectively provide telephone communication for individuals who are deaf or hard of hearing.  Two of the auxiliary aids now included--public telephones equipped with volume control mechanisms and hearing aid-compatible telephones--are designed for individuals who are hard of hearing.  The third added auxiliary aid or service is VIS, which is an alternative designed for individuals who are deaf.  A public accommodation need not provide all of these auxiliary aids and services, but should offer those needed to provide effective communication.

Companions. (Section-by-Section Analysis)

The Department's proposed language for § 36.303(c) imposes no new obligations on places of public accommodation.  The first sentence of § 36.303(c)(1) adds the phrase "and their companions," so that the sentence now reads:  "A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities and their companions who are individuals with disabilities."  A new § 36.303(c)(1)(i) defines "companion" as "a family member, friend, or associate of a program participant who, along with the participant, is an appropriate person with whom the public accommodation should communicate."  Section 36.303(c)(1)(ii) advises that public accommodations should be aware that the method of communication used by the individual and the nature, length, and complexity of the communication involved are factors to be considered by the public accommodation in determining what type of auxiliary aid or service is necessary.  See, e.g., Department of Justice, The Americans with Disabilities Act, Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities (Title III TA Manual), III-4.300, available at http://www.ada.gov/taman3.html.  For example, an individual with a disability who is deaf or hard of hearing may need a qualified interpreter to discuss with hospital personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed medication (e.g., dosage, side effects, drug interactions, etc.).  In comparison, an individual who is deaf or hard of hearing who purchases an item in the hospital gift shop may only need an exchange of written notes to achieve effective communication.

The Department is proposing to add companions to the scope of coverage of § 36.303 to emphasize that the ADA applies in some instances in which a public accommodation needs to communicate with a family member, friend, or associate of the program participant in order to provide its services.  Examples of such situations include when a school communicates with the parent of a child during a parent-teacher meeting or in a life-threatening situation, when a hospital needs to communicate with an injured person's companion to obtain necessary information.  In such situations, if the companion is deaf or hard of hearing, blind, has low vision, or has a disability that affects his or her speech, it is the public accommodation's responsibility to provide appropriate auxiliary aid or service to communicate effectively with the companion.  Where communication with a companion is necessary to serve the interests of a person who is participating in a public accommodation's services, programs, or activities, effective communication must be assured.

Companions in health care settings. (Section-by-Section Analysis)

Effective communication is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment.  Under the ADA, hospitals must provide effective means of communication for patients and their companions with disabilities. The Department has encountered confusion and reluctance by medical care providers regarding the scope of their obligation with respect to such companions. Effective communication with a companion with a disability is necessary in a variety of circumstances.  For example, a companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel.  In addition, a companion may be the patient's next of kin or health care surrogate with whom hospital personnel communicate concerning the patient's medical condition.  Moreover, a companion could be designated by the patient to communicate with hospital personnel about the patient's symptoms, needs, condition, or medical history.  It has been the Department's longstanding position that public accommodations are required to provide effective communication to companions when they accompany patients to medical care providers for treatment.

Consultation on auxiliary aid or service. (Section-by-Section Analysis)

A public accommodation should consult with the individual with a disability, wherever possible, to determine what auxiliary aid or service would provide effective communication.  In many cases, more than one auxiliary aid or service will provide effective communication, and the individual with a disability can provide invaluable information as to what auxiliary aids are effective.  For example, it could be difficult to provide effective communication using written notes involving someone with a developmental disability or in severe pain, or if a public accommodation were to provide a qualified ASL interpreter, when an individual needs an oral interpreter instead.  Both examples illustrate the importance of consulting with the individual with a disability.

Proposed § 36.303(c)(2) states that a public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.  The Department is adding this language to emphasize that when a public accommodation is interacting with a person with a disability, it is the public accommodation's responsibility to provide an interpreter to ensure that the communication is as effective as its communications with others.  It is not appropriate to require the person with a disability to bring another individual to provide such services or, when an accompanying individual is present, to expect that individual to provide such services.

Limited instances in which an accompanying individual may interpret. (Section-by-Section Analysis)

Section 36.303(c)(3) codifies the Department's policy that there are very limited instances when a public accommodation may rely on an accompanying individual to interpret or facilitate communication:  (1) In an emergency involving a threat to public safety or welfare; or (2) if the individual with a disability specifically requests it, the accompanying individual agrees to provide the assistance, and reliance on that individual for this assistance is appropriate under the circumstances.  In such instances, the public accommodation is still required to offer to provide an interpreter free of charge.  In no circumstances should a child be used to facilitate communication with a parent about a sensitive matter.  The Department has produced a video and several publications that explain this and other ADA obligations in law enforcement settings.  They may be viewed at http://www.ada.gov or ordered from the ADA Information Line (800-514-0301 (voice) or 800-514-0383 (TTY)).

Public accommodations must be aware that considerations of privacy, confidentiality, emotional involvement, and other factors may adversely affect the ability of family members or friends to facilitate communication.  In addition, the Department stresses that privacy and confidentiality must be maintained.  We note that covered entities, such as hospitals, that are subject to the Privacy Rules, 45 CFR parts 160, 162, and 164, of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law. 104-191, are permitted to disclose to a patient's relative, close friend, or any other person identified by the patient (such as an interpreter) relevant patient information if the patient agrees to such disclosures.  The agreement need not be in writing.  Covered entities should consult the HIPAA Privacy Rules regarding other ways disclosures might be able to be made to such persons.

Telecommunications. (Section-by-Section Analysis)

The Department is proposing to reorganize § 36.303(d) and make several substantive changes that reflect changing terminology and technology.

The heading "Telecommunications devices for the deaf (TDD's)" currently at § 36.303(d) is replaced by the broader heading "Telecommunications."  Paragraph (d)(1) is retitled, "Telephones" and altered to address situations in which a public accommodation must provide an effective means to communicate by telephone for individuals with disabilities, including the use of automated attendant systems, which are electronic, automated systems and that are a common method for answering and directing incoming calls to places of public accommodation.  The Department has become aware that individuals with disabilities who use TTYs or telecommunications relay services--primarily those who are deaf or hard of hearing or who have speech-related impairments--have been unable to use automated attendant systems because they are not compatible with TTYs or telecommunications relay services.  Automated attendant systems often disconnect before the individual using one of these calling methods can complete the communication.  The Department, therefore, proposes a new § 36.303(d)(1)(i) that requires that individuals using telecommunications relay services or TTYs must be able to connect to and use effectively any automated attendant system used by a public accommodation.

The Department declined to address this issue in the 1991 regulations because it believed that it was more appropriate for the Federal Communications Commission (FCC) to address this in its rulemaking under title IV of the ADA.  See 56 FR 35544, 35567 (July 26, 1991).  Because the FCC has since raised this concern with the Department and requested that the Department address it, it is now appropriate to raise this issue in the title III regulation.

As mentioned above in the discussion of § 36.303(b), the Department is replacing the term "telecommunications devices for the deaf (TDD's)" wherever it occurs throughout the proposed regulation with the term "text telephones (TTYs)."  Thus, § 36.303(d)(2) is entitled, "Text telephones (TTY)," and where "TDD" is used in this portion, it is replaced by "TTY."  Aside from these updates to terminology and adjustments to the section numbering, proposed § 36.303(d)(2) is unchanged substantively from current § 36.303(d).

Video interpreting services. (Section-by-Section Analysis)

Section 36.303(f) has been added to establish performance standards for video interpreting services (VIS), a system the Department recognizes as a means to provide qualified interpreters quickly and easily. VIS also has economic advantages, is readily available, and because of advances in video technology, can provide a high quality interpreting experience. Circumventing the difficulty of providing live interpreters quickly, more public accommodations are providing qualified interpreters via VIS.

There are downsides to VIS, such as frozen images on the screen, or when an individual is in a medical care facility and is limited in moving his or her head, hands, or arms. Another downside is that the camera may mistakenly focus on an individual's head, which makes communication difficult or impossible.  In addition, the accompanying audio transmission might be choppy or garbled, making spoken communication unintelligible.  Lastly, the Department is aware of complaints that some public accommodations have difficulty setting up and operating VIS, because staff have not been appropriately trained. 

To address these potential problems, the Department is proposing the inclusion of four performance standards for VIS to ensure effective communication:  (1) High quality, clear, real-time, full-motion video and audio over a dedicated high-speed Internet connection; (2) a clear, sufficiently large, and sharply delineated picture of the participant's heads, arms, hands, and fingers, regardless of his or her body position; (3) clear transmission of voices; and (4) nontechnicians who are trained to set up and operate VIS quickly.

Finally, the changes enumerated above result in the current § 36.303(f), "Alternatives," being moved to § 36.303(h).

Captioning at movie theaters. (Section-by-Section Analysis)

The Department is considering options under which it might require that movie theater owners and operators exhibit movies that are captioned for patrons who are deaf or hard of hearing.  Both open and closed captioning are examples of auxiliary aids and services under the Department's regulation.  28 CFR 36.303(b)(1).  Open captions are similar to subtitles in that the text is visible to everyone in the theater, while closed captioning displays the written text of the audio only to those individuals who request it.  The ADA itself contains no explicit language regarding captioning in movie theaters, but the legislative history of title III states that, "[o]pen-captioning . . . of feature films playing in movie theaters, is not required by this legislation.  Film makers, are, however, encouraged to produce and distribute open-captioned versions of films and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films."  H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 389-91; S. Rep. No. 101-116 at 64 (1989). Congress was silent, however, on the question of closed captioning in movie theaters, a technology not yet developed at that time for first run movies, while acknowledging that closed captions may be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. See H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. at 303, 391.  In addition, Congress stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.  Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities."  Id.

Similarly, in 1991, the Department stated that "[m]ovie theaters are not required . . . to present open-captioned films," but was silent as to closed captioning.  56 FR 35544, 35567 (July 26, 1991).  The Department also noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments.  Captioning is one means to make the information accessible to individuals with disabilities."  Id.  The Department cited in its regulation "open and closed captioning," as examples of auxiliary aids and services.  28 CFR 36.303(b)(1).

Captioning makes films accessible to individuals whose hearing is too limited to benefit from assistive listening devices.  Technological advances since the early 1990s have made open and closed captioning for movies more readily available and effective.  Movie theater owners generally do not pay for open movie captions; rather, the cost generally is absorbed by the movie studios.  Originally, the captions had to be burned onto select film prints, which would be distributed to theaters around the country.  These prints usually were not captioned and distributed at the same time the movie was released to the general public, but only after a film had experienced some commercial success.  This technology has evolved, however, and burning captions onto individual film prints is no longer necessary.  Due to advances in digital technology, captions can be turned on or off in digital format without having to use a separate film print with the hard captions burned on.  As a result, captions can be superimposed onto the film at theaters.  In addition, digital projection systems send all captions and audio to the theaters on a hard disk or via satellite, and a digital projector is used to display the movie.  While movie theater owners need to purchase expensive projectors in order to display digital movies, the Department understands that movie theater operators are moving to digital film and are entering into creative agreements to help finance the projectors.  Open captioning can now be done before a movie is released to the public.

Closed captioning displays the written text of the audio only to those individuals who request captioning.  With some closed captioning systems, the captions are displayed on the back wall of the theater as the movie is shown on the movie screen and reflected onto portable devices at the seats of patrons who are deaf or hard of hearing.  Another system involves captioning that the patron receives through electronic devices, such as personal digital assistants (PDAs), using mobile wireless technology.  The individual wears a pair of glasses or a head band that plugs into the PDA (i.e., a wireless transmitter sends the captions to each moviegoer using the device),  and that produces "floating" captions that appear as if they are several meters in front of the viewer's eyes. Significantly, more than half of the feature films produced by the major movie studios now provide some form of captioning. 

While the Department has not required that the movie theater industry caption its presentations, during the mid-1990s, as closed captioning became available, the Department began requiring in certain settlement agreements that presentations be closed captioned.  See Agreement Between Walt Disney World Co. and the United States (Jan. 17, 1997), available at http://www.ada.gov/disney-sa.htm (requiring captioning for film, video, and video monitors that are part of an attraction or that provide information).

The Department is aware that the courts have split on the question of whether captioning should be provided at movie theaters.  See Ball v. AMC Entm't, 246 F. Supp. 2d 17 (D.D.C. 2003) (denying defendant movie operators' motion for summary judgment and noting that a closed captioned system is an auxiliary aid or service that could be required under the ADA); Cornilles v. Regal Cinema, No. Civ. 00-173-AS, 2001 WL 34041789 (D. Or. Dec. 11, 2001) (unpub. op.) (rejecting plaintiff's request that all films at a movie theater be captioned, noting that defendants already provide some captioning); Todd v. American Multi-Cinema, Inc., No. Civ. A. H-02-1944, 2004 WL 1764686 (S.D. Tex. Aug. 5, 2004) (unpub. op.) (granting summary judgment for defendant because of plaintiffs' inability to rebut defendants' claims that providing a specific type of closed captioning constituted an undue burden).  The judge in the Ball case cited legislative history for the proposition that captioning may be required, noting that technological advances may "require public accommodations to provide auxiliary aids and services in the future which today would not be required" and that the type of accommodation and services provided . . . [under the ADA] should "keep pace with the rapidly changing technology of the times."  246 F. Supp. 2d at 22 (citing H.R. Rep. No. 101-485(II) at 108). 

Several state Attorney General Offices around the country have begun negotiating agreements and, in some instances, initiating lawsuits to ensure that movie theater owners and operators provide captioning at certain movie screenings.

Although captioning was not mentioned in the ANPRM, two commenters requested that captioning be provided and a movie theater owner urged the Department not to require movie theaters to provide captioning or narrative description services.

The Department is considering options under which it might require captioning for movies exhibited by public accommodations, while recognizing that the movie industry is in transition as more movies are made in digital format and movie theater owners and operators begin to purchase digital projectors.  Movie theater owners and operators with digital projectors have available to them different options for providing captioning than those without digital projectors.  The Department is aware of the flux in the technology used to exhibit movies and seeks comments regarding how to require captioning while the film industry transitions to a digital format.  Also, the Department is concerned about the potential cost to exhibit captioned movies, although that cost may vary depending upon whether open or closed captioning is used and whether or not digital projectors are used.  The Department is cognizant that the cost of captioning must stay within the parameters of the undue burden requirement in 28 CFR 36.303(a).

The Department is considering the possibility of requiring that, after the effective date of the revised regulation, a public accommodation will exhibit all new movies in captioned format at every showing.  The Department would not specify which types of captioning to provide, but would instead leave that to the discretion of the movie theater owners and operators.

Question 24:  Should the Department require that, one year after the effective date of this regulation, public accommodations exhibit all new movies in captioned format at every showing? Is it more appropriate to require captioning less frequently? Should the requirement for captioning be tied to the conversion of movies from film to the use of a digital format?  Please include specifics regarding how frequently captioning should be provided. 

Narrative description. (Section-by-Section Analysis)

The Department is also considering options under which it might require that movie theater owners and operators exhibit movies with narrative descriptions, which enable individuals who are blind or have low vision to enjoy movies by providing a spoken interpretation of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes.  The descriptions are narrated and recorded onto an audiotape or disk that can be synchronized with the film as it is projected. For example, a special reader head attached to the film projector can read a timecode track printed on the film, which then sends a signal using an infrared or FM transmitter to the theater where the narration can be heard on headsets equipped with receivers and worn by the movie patron.

As with captioning, the same two issues arise with this technology:  the cost and the change to digital movies and projectors.  The Department understands that the cost of narrative description equipment is less than that for closed captioning.  Generally, movie studios contract with entities to provide the narrative description, and it can be done at the same time captioning is created.  The Department understands that when theaters move to digital technology, both the caption data and the narrative descriptions can be embedded into the digital signal that is projected.

Question 25:  Should the Department require that, one year after the effective date of this revised regulation, a public accommodation will exhibit all new movies with narrative description?  Would it be more appropriate to require narrative description less frequently?  Should the requirement for narrative description of movies be tied to the use of a digital format?  If so, why?  Please include specifics regarding how frequently narrative description should be provided.

Captioning at sporting venues. (Section-by-Section Analysis)

The Department is aware that individuals who are deaf or hard of hearing have expressed concerns that they are unaware of information that is provided over the public address systems.  Therefore, in § 36.303(g), the Department is proposing that sports stadiums with a capacity of 25,000 or more provide captioning for patrons who are deaf or hard of hearing for safety and emergency information announcements made over the public address system. There are various options that could be used for providing captioning, such as on a scoreboard, on a line board, on a handheld device, or other methods.

Question 26:  The Department believes that requiring captioning of safety and emergency information made over the public address system in stadiums seating fewer than 25,000 has the potential of creating an undue burden for smaller entities. However, the Department requests public comment about the effect of requiring captioning of emergency announcements in all stadiums, regardless of size. Would such a requirement be feasible for small stadiums?

Question 27:  The Department is considering requiring captioning of safety and emergency information in sports stadiums with a capacity of 25,000 or more within a year of the effective date of the regulation.  Would a larger threshold, such as sports stadiums with a capacity of 50,000 or more, be more appropriate or would a lower threshold, such as stadiums with a capacity of 15,000 or more, be more appropriate?

Question 28:  If the Department adopted a requirement for captioning at sports stadiums, should there be a specific means required?  That is, should it be provided through any effective means (scoreboards, line boards, handheld devices, or other means), or are there problems with some means, such as handheld devices, that should eliminate them as options?

Question 29:  The Department is aware that several major stadiums that host sporting events, including National Football League football games at Fed Ex Field in Prince Georges County, Maryland, currently provide open captioning of all public address announcements, and do not limit captioning to safety and emergency information.  What would be the effect of a requirement to provide captioning for patrons who are deaf or hard of hearing for game-related information (e.g., play-by-play information), safety and emergency information, and any other relevant announcements?