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 36.406 Standards for New Construction and Alterations (Section-by-Section Analysis)

Section 36.406(a)(2) Applicable Standards (Section-by-Section Analysis)

Section 306 of the ADA, 42 U.S.C. 12186, directs the Attorney General to issue regulations to implement title III that are consistent with the guidelines published by the Access Board.  Commenters suggested that the Department should not adopt the 2004 ADAAG, but should develop an independent regulation.  The Department is a statutory member of the Access Board and was actively involved in the development of the 2004 ADAAG.  Because of the Department's long involvement in the process to develop the 2004 ADAAG, the Department does not believe that it is necessary or appropriate to begin that lengthy process anew.  Nevertheless, during the process of drafting this NPRM, the Department has reviewed the 2004 ADAAG to determine if additional regulatory provisions are necessary.  As a result of this review, the Department has decided to propose new sections, which are contained in §§ 36.406(b)-(g), to clarify how the Department will apply the proposed standards to social service establishments, housing at places of education, assembly areas, and medical care facilities.  Each of these provisions is discussed below.        

The Department is proposing to adopt the proposed standards and to establish the effective date and triggering event for the new coverage.  Specifically, the Department is proposing to amend § 36.406(a) by dividing it into two sections.  Proposed § 36.406(a)(1) specifies that new construction and alterations subject to this part shall comply with the proposed standards if physical construction of the property commences less than six months after the effective date of the proposed rule.  Proposed § 36.406(a)(2) specifies that new construction and alterations subject to this part shall comply with the proposed standards if physical construction of the property commences six months or more after the effective date.  The Department is also proposing to delete the advisory information now published in a table at § 36.406(b).

The ANPRM gave notice that the Department must determine when the proposed standards will apply to newly constructed facilities following the publication of a final rule by establishing:  (1) The effective date after publication of the final rule; and (2) the triggering event for compliance with the proposed standards (i.e., the event or action that compels compliance with the proposed standards). 

Attachment A to this proposed rule is an analysis of the major changes in the proposed standards and a discussion of the public comments that the Department received on specific sections of the 2004 ADAAG.  In addition to those comments, the Department also received some comments that raised issues concerning the scope of the coverage of the proposed standards, the Department's decision to adopt them, and the established methods of interpretation.  Comments discussing the costs and benefits of the proposed standards will be addressed in the discussion of the Department's regulatory impact analysis.  Comments on the effect of the proposed standards on existing facilities will be discussed in conjunction with the analysis of § 36.304 of this proposed rule.  The remaining comments addressed global issues, such as the Department's proposal to adopt the 2004 ADAAG as the ADA Standards for Accessible Design without significant changes and the application of the proposed standards to employee areas.

Several commenters, including individual business owners and organizations representing business interests, questioned the application of the proposed standards to employee work areas, maintaining that all employment issues should be subject to title I of the ADA, 42 U.S.C. 12111 et seq.  These comments indicate a fundamental misunderstanding of the statutory scope of title III coverage and the scope of the 1991 Standards.

The commenters correctly observed that title I prohibits discrimination against individuals with disabilities employed in a business that has fifteen or more employees. Title III has no direct effect on that employer/employee relationship, but does establish requirements for the design, construction, or alteration of both public accommodations and commercial facilities, 42 U.S.C. 12183.   As the Department explained in the preamble to its 1991 NPRM to implement title III:

Commercial facilities are those facilities that are intended for nonresidential use by a private entity and whose operations affect commerce . . . . [T]he new construction and alteration requirements of subpart D of the [1991] rule apply to all commercial facilities, whether or not they are places of public accommodation.  Those commercial facilities that are not places of public accommodation are not subject to the requirements of subparts B and C (e.g., those requirements concerning auxiliary aids and general nondiscrimination provisions).

Congress recognized that the employees within commercial facilities would generally be protected under title I (employment) of the Act.  However, as the House Committee on Education and Labor pointed out, "[t]o the extent that new facilities are built in a manner that make[s] them accessible to all individuals, including potential employees, there will be less of a need for individual employers to engage in reasonable accommodations for particular employees." H.R. Rep. No. 101-485, Part 2, at 117 (1990) . . . . While employers of fewer than 15 employees are not covered by title I's employment discrimination provisions, there is no such limitation with respect to new construction covered under title III.  Congress chose not to so limit the new construction provisions because of its desire for a uniform requirement of accessibility in new construction, because accessibility can be accomplished easily in the design and construction stage, and because future expansion of a business or sale or lease of the property to a larger employer or to a business that is a place of public accommodation is always a possibility. 

56 FR 7455 (Feb. 22, 1991).  The Department's proposed rule merely continues this long-standing interpretation of title III's application to commercial facilities (and employee areas within public accommodations).  56 FR 35544, 35547 (July 26, 1991).

Several commenters suggested that the proposed standards would establish new requirements applicable to employee-only areas, such as restrooms, locker rooms, cafeterias, and break rooms.  These comments misunderstand the current law.  The 1991 Standards apply to the new construction of, or alteration to, commercial facilities (including employee areas of public accommodations), unless a specific exemption applies.  Employee common-use areas, such as those listed above, have been subject to title III and to subpart D of the implementing regulation, including the provisions in the 1991 Standards.  This coverage means that unless the area is subject to a specific exemption, it must comply with the Standards and it must be on an accessible route.  The proposed standards will not change that coverage.

The major change in the rule is in the treatment of employee work areas.  Under the 1991 Standards, section 4.1.1(3), areas used only as work areas are only required to permit a person using a wheelchair to approach, enter, and exit the area.  Because of public comment suggesting that owners of commercial facilities were not providing accessible routes within the facility, proposed section 206.2.8 contains a requirement to provide accessible common use circulation paths, subject to several exceptions.  Specific comments received on employee work areas are addressed in Appendix A.

Finally, one commenter suggested that the Department should adopt a system for providing formal interpretations of the ADA Standards for Accessible Design, analogous to the code interpretation systems used by the states and the major model codes. Because the ADA is a civil rights statute--rather than a building code--the statute does not contemplate or authorize a formal code interpretation system. The ADA anticipated that there would be a need for close coordination of the ADA building requirements with the state and local requirements.  Therefore, the statute authorized the Attorney General to establish an ADA code certification process, which is addressed in subpart F of this rule.

In addition, the Department operates an extensive technical assistance program. The Department anticipates that once this rule is final, it will revise its existing technical assistance materials to provide guidance about the implementation of this rule.

Effective date: Time period. (Section-by-Section Analysis)

When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for covered entities to become familiar with their new obligations.  Titles II and III of the ADA generally became effective on January 26, 1992, six months after the regulations were published.  New construction under title II and alterations under either title II or title III had to comply with the design standards on that date.  For new construction under title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993--eighteen months after the 1991 Standards were published by the Department.

The ANPRM presented three options for the effective date time period:  Option I, providing that the effective date of the proposed standards would be eighteen months after publication of the final rule; Option II, providing that the effective date of the proposed standards would be six months after publication of the final rule; or Option III, providing that the effective date of the proposed standards would be twelve months after publication of the final rule.

The Department received numerous comments on this issue.  The majority of business, trade, and government organizations advocated eighteen months or more from publication of the final rule.  In contrast, many disability advocacy groups and individuals argued that the revised regulation should be effective upon final publication, or very soon thereafter.  Many commenters asserted that the importance of providing increased accessibility for people with disabilities necessitates that the proposed standards become effective as soon as possible.

The current situation is substantially different from the conditions that prevailed in 1990 when the ADA was first enacted.  Covered entities are no longer dealing with a new statutory obligation.  Rather, the Department is dealing with a transition between two similar editions of the title III regulation.  Therefore, the Department proposes that covered entities must comply with the proposed standards for construction that begins six months after publication of the final rule as an appropriate balancing of stakeholder concerns.

This approach is consistent with the approach of other federal agencies that are in the process of adopting the 2004 ADAAG:  The Department of Transportation (DOT), which is generally responsible for the enforcement of title II of the ADA with respect to public transportation, and the General Services Administration (GSA), which has adopted the Access Board's Architectural Barriers Act (ABA) guidelines to replace the Uniform Federal Accessibility Standards (UFAS).  DOT's final rule adopting the 2004 ADAAG became effective shortly after publication.  See 71 FR 63263 (Oct. 30, 2006) (to be codified at 49 CFR part 37).  Likewise, GSA adopted an effective date of six months following publication of the final rule.  See 70 FR 67786 (Nov. 8, 2005).

Effective date: Triggering event. (Section-by-Section Analysis)

In the ANPRM, the Department suggested "first use" as an alternative triggering event for facilities that do not require building permits or that do not receive certificates of occupancy.  The Department received many comments in response to this suggestion, as well as criticisms of the current triggering event for new construction under title III.  Some commenters noted that permitting requirements for construction projects covered by title III vary across both states and localities.  For example, some jurisdictions in Iowa do not have building codes applying to title III entities, while Kentucky and Chicago do not require building permits and certificates of occupancy for construction under certain monetary thresholds. Owners and operators of play areas and recreational facilities commented that the permitting process for such projects, when it exists, is different from those involving typical buildings.  Specifically, the current title III triggering events are ill-suited for application to many elements of golf and miniature golf sites, amusement rides and attractions, playgrounds, park facilities without electricity, and similar entities.

The information provided by commenters indicates that the first-use approach would not provide adequate guidance on when the proposed standards would apply to certain facilities and elements.  Several commenters suggested the start of construction as the triggering event because it would eliminate confusion over facilities that do not require permitting.  Using the start of construction as the triggering event would harmonize title III's requirements for new construction with the requirements for new construction and alterations under title II and alterations under title III.  Several commenters on this issue urged the Department to use the same triggering events for title II and title III.

The Department has been persuaded by these comments to propose a triggering event paralleling that for the alterations provisions (i.e., the date on which construction begins).  This would apply clearly across all types of covered public accommodations, and the Department plans to clarify what constitutes the start of construction based on responses to this NPRM.  This approach poses fewer problems than the first-use approach by measuring only the date on which physical construction commences.

For prefabricated elements such as modular buildings and amusement park rides and attractions, or installed equipment such as ATMs, the Department proposes that the start of construction means the date on which the site preparation begins.  Site preparation includes providing an accessible route to the element.

Question 50:  The Department proposes using the start of construction as the triggering event for applying the proposed standards to new construction under title III.  The Department asks for public comment on how to define the start of construction and the practicality of applying commencement of construction as a triggering event.  Is the proposed definition of the start of construction sufficiently clear and inclusive of different types of facilities?  Please be specific about the situations that are not covered in the proposed definitions, and suggest alternatives or additional language.  In addition, the Department asks that the public identify facilities subject to title III for which commencement of construction would be ambiguous or problematic.

Section 36.406(b) Application of Standards to Fixed Elements (Section-by-Section Analysis)

The Department is proposing a new § 36.406(b) that would clarify that the requirements established by this section, including those contained in the proposed standards (and the 2004 ADAAG) prescribe the requirements necessary to ensure that fixed or built-in elements in new or altered facilities are accessible to people with disabilities.  Once the construction or alteration of a facility has been completed, all other aspects of programs, services, and activities conducted in that facility are subject to the operational requirements established elsewhere in this regulation.  Although the Department often chooses to use the requirements of the 1991 Standards as a guide to determining when and how to make equipment and furnishings accessible, those coverage determinations fall within the discretionary authority of the Department; they do not flow automatically from the Standards.

The Department is also clarifying that the advisory notes, appendix notes, and figures that accompany the 1991 Standards do not establish separately enforceable requirements.  This clarification has been made to address concerns expressed by commenters who mistakenly believed that the advisory notes in the 2004 ADAAG established requirements beyond those established in the text of the guidelines (e.g., Advisory 504.4 suggests, but does not require, that covered entities provide visual contrast on stair tread nosings to make them more visible to people with low vision).

Section 36.406(c) Places of Lodging (Section-by-Section Analysis)

The Department is proposing to add a new § 36.406(c) to clarify the scope of coverage for places of lodging.  For many years the Department has received inquiries from members of the public seeking clarification of ADA coverage of rental accommodations in time-shares, condominium hotels, and mixed-use and corporate hotel facilities that operate as places of lodging (as that term is now defined in § 36.104). This section proposes to address the treatment of these hotel-like facilities that have attributes of both residential dwellings and transient lodging facilities.  These hybrid facilities have become increasingly popular since the ADA's enactment in 1990 and make up the majority of new hotel construction in some vacation destinations.  The hybrid residential and lodging characteristics of these new types of facilities complicate determinations of ADA coverage, prompting questions from both industry and individuals with disabilities. While the Department has interpreted the ADA to encompass these hotel-like facilities when they are used to provide transient lodging, the regulation has not specifically addressed them.  Therefore, the Department is proposing a new § 36.406(c), entitled, "Places of lodging," which clarifies that places of lodging including time-shares, condominium hotels, and mixed-use and corporate hotel facilities shall comply with the provisions of the proposed standards, including but not limited to the requirements for transient lodging in sections 224 and 806 of the 2004 ADAAG.

The proposed rule, in the definitions section, clarifies that a covered "place of lodging" is a facility that provides guest rooms for sleeping for stays that are primarily short-term in nature (generally two weeks or less), to which 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, particularly including factors such as:  (1) An on-site proprietor and reservations desk; (2) rooms available on a walk-up basis; (3) linen service; and (4) a policy of accepting reservations for a room type without guaranteeing a particular unit or room until check-in, without a prior lease or security deposit.  Time-shares and condominiums or corporate hotels that do not meet this definition will not be covered by § 36.406(c) of the proposed regulation, but will likely be covered by the requirements of the Fair Housing Act, 42 U.S.C. 3601 et seq.  The Department is seeking public input on this proposal.

Question 51:  The Department requests comments on determining the appropriate basis for scoping for a time-share or condominium-hotel.  Is it the total number of units in the facility, or some smaller number, such as the number of units participating in the rental program, or the number of units expected to be available for rent on an average night the most appropriate measure?

Question 52:  The Department's proposed definition of "place of lodging" includes facilities that are primarily short-term in nature, i.e., two weeks or less in duration.  Is "two weeks or less" the appropriate dividing line between transient and residential use?  Is thirty days a more appropriate dividing line?

Question 53:  The Department believes that the scoping and technical requirements for transient lodging, rather than those for residential dwelling units, should apply to these places of lodging.  Is this the most appropriate choice?

Question 54:  How should the Department's regulation provide for a situation in which a new or converted facility constructs the required number of accessible units, but the owners of those units choose not to participate in the rental program? Does the facility have an obligation to encourage or require owners of accessible units to participate in the rental program?  Does the facility developer, the condominium association, or the hotel operator have an obligation to retain ownership or control over a certain number of accessible units to avoid this problem?

Question 55:  How should the Department's regulation establish the scoping for a time-share or condominium-rental facility that decides, after the sale of units to individual owners, to begin a rental program that qualifies the facility as a place of lodging?  How should the condominium association, operator, or developer determine which units to make accessible?

Section 36.406(d) Social Service Establishments (Section-by-Section Analysis)

The Department is proposing a new § 36.406(d) that provides that group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units shall comply with the provisions of the proposed standards applicable to residential facilities, including, but not limited to, the provisions in sections 233 and 809 of the 2004 ADAAG.

The reasons for this proposal are based on two important changes in the 2004 ADAAG.  For the first time, residential dwellings are explicitly covered in section 233 of the 2004 ADAAG. Second, the language addressing scoping and technical requirements for homeless shelters, group homes, and similar social service establishments is eliminated.  Currently, such establishments are covered in the transient lodging section (section 9.5) of the 1991 Standards.  The deletion of section 9.5 creates ambiguity of coverage that must be addressed.

The Department proposed in the ANPRM that the establishments currently covered by section 9.5 be covered as residential dwelling units, which are covered in section 233 of the 2004 ADAAG, rather than as transient lodging guest rooms in section 224 of the 2004 ADAAG.  The Department considers this is a prudent action based on its effect on social service providers.  Transferring coverage of social service establishments from transient lodging to residential dwellings will alleviate conflicting requirements for social service providers.  The Department believes that a substantial percentage of social service providers are recipients of federal financial assistance from HUD.  The Department of Health and Human Services (HHS) also provides financial assistance for the operation of shelters through the Administration for Children and Families programs.  As such, they are covered both by the ADA (including section 9.5 of the 1991 Standards) and section 504.  The two design standards for accessibility (i.e., the 1991 Standards and UFAS) have confronted many social service providers with separate, sometimes conflicting requirements for the design and construction of facilities.  To resolve the conflicts, the residential dwelling standards in the 2004 ADAAG have been coordinated with the section 504 requirements.  The transient lodging standards, however, are not similarly coordinated.  The deletion of section 9.5 of the 1991 Standards from the proposed standards presents two options:  (1) Require coverage under the transient lodging standards, and subject such facilities to separate, conflicting requirements for design and construction; or (2) require coverage under the residential dwelling section, which harmonizes the regulatory requirements under the ADA and section 504. The Department chose the option that harmonizes the regulatory requirements.

In response to its request for public comments on this issue, the Department received a total of eleven responses from industry and disability rights groups and advocates. Some commenters representing disability rights groups expressed concern that the residential dwelling requirements in the 2004 ADAAG are less stringent than the revised transient lodging requirements and would result in diminished access for people with disabilities.

The commenters are correct that in some circumstances, the residential requirements are less stringent, particularly with respect to accessibility for people with communication-related disabilities.  Other differences are that the residential guidelines do not require elevator access to upper floors if the required accessible features can be provided on a single, accessible level, and the residential guidelines do not expressly require roll-in showers.  Despite this, the Department still believes that applying the residential dwelling unit requirements to homeless shelters and similar social service establishments is appropriate to the nature of the services being offered at those facilities, and because it will harmonize the ADA and section 504 requirements applicable to those facilities.  In addition, the Department believes that the proposal is consistent with its obligations under the Regulatory Flexibility Act to provide some regulatory relief to small entities that operate on limited budgets.

Nevertheless, the Department is requesting information from providers who operate homeless shelters, transient group homes, halfway houses, and other social service establishments, and from the clients of these facilities who would be affected by this proposed change.

Question 56:  To what extent have conflicts between the ADA and section 504 affected these facilities?  What would be the effect of applying the residential dwelling unit requirements to these facilities, rather than the requirements for transient lodging guest rooms?

Another commenter expressed concern about how the Department would address dormitory-style settings in homeless shelters, transient group homes, halfway houses, and other social service establishments if they are scoped as residential dwelling units.  The commenter noted that the transient lodging requirements include a specific provision, § 224.3, that in guest rooms with more than twenty-five beds, at least five percent (5%) of the beds must have parallel clear floor space enabling a person using a wheelchair to access and transfer to the bed. The residential dwelling unit section does not explicitly include a similar provision.

In response to this concern, the Department has added § 36.406(d)(1), which states that in settings in which the sleeping areas include more than twenty-five beds, and in which the residential dwelling unit requirements apply, five percent (5%) of the beds must comply with section 806.2.3 of the 2004 ADAAG (i.e., at least five percent (5%) must have parallel clear floor space on both sides of the bed enabling a person using a wheelchair to access and transfer to the bed).

Definitions of residential facilities and transient lodging. (Section-by-Section Analysis)

The 2004 ADAAG adds a definition of "residential dwelling unit" and modifies the current definition of "transient lodging" in the 1991 Standards.  Under section 106.5 of the 2004 ADAAG, a "residential dwelling unit" is defined as "a unit intended to be used as a residence, that is primarily long-term in nature" and does not include transient lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities.  Additionally, section 106.5 of the 2004 ADAAG, changes the definition of "transient lodging" to a building or facility "containing one or more guest room[s] for sleeping that provides accommodations that are primarily short-term in nature" and does not include residential dwelling units intended to be used as a residence.  The references to "dwelling units" and "dormitories" in the 1991 Standards definition are omitted in the 2004 ADAAG definition of transient lodging.

The Department said in the ANPRM that by applying the 2004 ADAAG residential facility guidelines to transient group homes, homeless shelters, halfway houses, and other social service establishments, these facilities would be more appropriately classified according to the nature of the services they provide, rather than the duration of those services.  Participants in these programs may be housed on either a short-term or long-term basis in such facilities, and variation occurs even within the same programs and same facility.  Therefore, duration can be an inconsistent way of classifying facilities.

Several commenters stated that the definitions of residential dwellings and transient lodging are not clear and will confuse social service providers.  They noted that including "primarily long-term" and "primarily short-term" in the respective definitions creates confusion when applied to the listed facilities because they serve people for widely varying lengths of time.

The Department is aware of the wide range of services and duration of services provided by social service establishments.  Therefore, rather than focus on the length of a person's stay at a facility, it makes more sense to look at a facility according to the type of services provided.  For that reason, rather than saying that social service establishments are residential facilities, the Department has drafted the proposed § 36.406(d) to provide that group homes and other listed facilities shall comply with the provisions in the 2004 ADAAG that would apply to residential facilities. 

Finally, the Department received comments from code developers and architects commending the decision to coordinate the 2004 ADAAG with the requirements of section 504, and asking it to coordinate the 2004 ADAAG with the Fair Housing Act's accessibility requirements.  The Department believes that the coordination of the Fair Housing Act with other applicable disability rights statutes is within the jurisdiction of HUD, which is the agency charged with the responsibility to develop regulations to implement the Fair Housing Act, the Architectural Barriers Act, and the provisions of section 504 applicable to federally funded housing programs.

Section 36.406(e) Housing at a Place of Education (Section-by-Section Analysis)

The Department of Justice and the Department of Education share responsibility for regulation and enforcement of the ADA in postsecondary educational settings, including architectural features.  Housing types in educational settings range from traditional residence halls and dormitories to apartment or townhouse-style residences.  In addition to the ADA and section 504, other federal laws, including the Fair Housing Act of 1968, may apply.  Covered entities subject to the ADA must always be aware of, and comply with, any other federal statutes or regulations that govern the operation of residential properties.

Since the enactment of the ADA, the Department has received many questions about how the ADA applies to educational settings, including school dormitories.  Neither the 1991 Standards nor the 2004 ADAAG specifically addresses how it applies to housing in educational settings.  Therefore, the Department is proposing a new § 36.406(e) that provides that residence halls or dormitories operated by or on behalf of places of education shall comply with the provisions of  the proposed standards for transient lodging, including, but not limited to, the provisions in sections 224 and 806 of the 2004 ADAAG.  Housing provided via individual apartments or townhouses will be subject to the requirements for residential dwelling units.

Public and private school dormitories have varied characteristics.  Like social service establishments, schools are generally recipients of federal financial assistance and are subject to both the ADA and section 504.  College and university dormitories typically provide housing for up to one academic year, but may be closed during school vacation periods.  In the summer, they are often used for short-term stays of one to three days, a week, or several months.  They also are diverse in their layout.  Some have double-occupancy rooms and a toilet and bathing room shared with a hallway of others, while others may have cluster, suite, or group arrangements where several rooms are located inside a secure area with bathing, kitchen, and similar common facilities.

Private schools are subject to title III and are required to make their programs and activities accessible to individuals with disabilities.  Throughout the school year and the summer, school dormitories can become program areas in which small groups meet, receptions and educational sessions are held, and social activities occur.  The ability to move between rooms--both accessible rooms and standard rooms--in order to socialize, to study, and to use all public and common use areas is an essential part of having access to these educational programs and activities.

Applying the requirements for residential facilities to school dormitories could hinder access to educational programs for students with disabilities.  The prior discussion about social service establishments with sleeping accommodations explains that the requirements for dispersing accessible units would not necessarily require an elevator or access to different levels of a facility. Conversely, applying the transient lodging requirements to school dormitories would necessitate greater access throughout the facility for students with disabilities.  Therefore, the Department requests public comment on how to scope school dormitories.

Question 57:  Would the residential facility requirements or the transient lodging requirements in the 2004 ADAAG be more appropriate for housing at places of education?  How would the different requirements affect the cost when building new dormitories and other student housing?

Section 36.406(f) Assembly Areas (Section-by-Section Analysis)

The Department is proposing a new § 36.406(f) to supplement the assembly areas requirements in the proposed standards.  This provision would impose four additional requirements.

Proposed § 36.406(f)(1) requires wheelchair and companion seating locations to be  dispersed so that some seating is available on each level served by an accessible route.  This should have the effect of ensuring a choice of ticket prices, services, and amenities offered in the facility.  Factors distinguishing specialty seating areas are generally dictated by the type of facility or event, but may include such distinct services and amenities as:  Reserved seating (when other seats are sold on a first-come-first-served basis only); reserved seating in sections or rows located in premium locations (e.g., behind home plate or near the home team's end zone) that are not otherwise available for purchase by other spectators; access to wait staff for in-seat food or beverage service; availability of catered food or beverages for pre-game, intermission, or post-game meals; restricted access to lounges with special amenities (such as couches or flat-screen televisions); or access to team personnel or facilities for team-sponsored events (e.g., autograph sessions, sideline passes, or facility tours) not otherwise available to other spectators.

Proposed § 36.406(f)(2) reiterates the longstanding requirement that wheelchair and companion seating must be integrated in the seating area, and adds a new prohibition:  that the seating may not be placed on temporary platforms or other movable structures. The Department has become aware that a growing trend in the design of large sports facilities is to provide wheelchair seating on removable platforms that seat four or more wheelchair users and their companions.  These platforms cover one or more rows of standard seating.  The platforms are designed to be removed so that the part of the seating bowl they cover can be used to seat additional ambulatory spectators.  The sale of any seats in the covered area requires removal of the platform, thereby eliminating some of the required wheelchair seating locations.  In another design that produces a similar result, removable platforms configured to provide multiple, non-wheelchair seats are installed over some or all of the required wheelchair seating locations.  In this configuration, selling a ticket for one wheelchair location requires the removal of multiple standard seats.

The Department believes that both of these designs violate both the letter and the intent of this regulation.  Both designs have the potential to reduce the number of available wheelchair seating spaces below the level required.  Reducing the number of available spaces is likely to result in reducing the opportunity for people who use wheelchairs to have the same choice of ticket prices and access to amenities that are available to other patrons in the facility.  In addition, placing wheelchair seating on removable platforms may have a disproportionate effect on the availability of seating for individuals who use wheelchairs and their companions attempting to buy tickets on the day of the event.  Use of removable platforms may result in instances where last minute requests for wheelchair and companion seating cannot be met because entire sections of wheelchair seating will be lost when a platform is removed.  The use of movable seats, on the other hand, could meet such a demand without eliminating blocks of wheelchair seating at a time, converting only those seats that are needed for ambulatory spectators and are not wanted by individuals who use wheelchairs and their companions.

For these reasons, the Department believes that it is necessary and appropriate to prohibit the use of temporary platforms in fixed seating areas.  Nothing in this section is intended to prohibit the use of temporary platforms to increase the available seating, e.g., platforms that cover a basketball court or hockey rink when the arena is being used for a concert.  These areas of temporary seating do not remove required wheelchair locations and, therefore, would not violate the requirements of this regulation.  In addition, covered entities would still be permitted to use individual movable seats to infill any wheelchair locations that are not sold to wheelchair users.  

Proposed § 36.406(f)(3) requires facilities that have more than 5,000 seats to provide at least five wheelchair locations with at least three companion seats for each wheelchair space.  The Department is proposing this requirement to address complaints from many wheelchair users that the practice of providing a strict one-to-one relationship between wheelchair locations and companion seating often prevents family members from attending events together.

Proposed § 36.406(f)(4) provides more precise guidance for designers of stadium-style movie theaters by requiring such facilities to locate wheelchair seating spaces and companion seating on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria:

(i) It is located within the rear sixty percent (60%) of the seats provided in an auditorium;    

or

(ii) It is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).

Section 36.406(g) Medical Care Facilities (Section-by-Section Analysis)

The Department is aware that the Access Board sought comment on how dispersion of accessible sleeping rooms can effectively be achieved and maintained in medical care facilities such as hospitals.  In response, commenters representing people with disabilities supported a requirement for dispersion of accessible sleeping rooms among all types of medical specialty areas, such as obstetrics, orthopedics, pediatrics, and cardiac care.  Conversely, commenters representing the health care industry pointed out that treatment areas in health care facilities can be very fluid due to fluctuation in the population and other demographic and medical funding trends.  The Access Board decided not to add a dispersion requirement because compliance over the lifetime of the facility could prove difficult given the need for flexibility of spaces within such facilities.  The Department recognizes that it may be difficult to ensure a perfect distribution of rooms throughout all specialty areas in a hospital, but the Department is concerned that the absence of any dispersion requirement may result in inappropriate concentrations of accessible rooms.

Question 58:  Is there a way to ensure that accessible hospital rooms are dispersed throughout the facility in a way that will not unduly restrain the ability of hospital administrators to allocate space as needed?  The 1991 Standards require that ten percent (10%) of the patient bedrooms be accessible.  If it is not feasible to distribute these rooms among each of the specialty areas, would it be appropriate that required accessible rooms be dispersed so that there are accessible patient rooms on each floor?  Are there other methods of dispersal that would be more effective?