28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (2010 ADA Title II Regulations with amendments issued through Aug. 2016)

Integration of inmates and detainees with disabilities. In the NPRM, the Department proposed language in § 35.152(b)(2) specifically applying the ADA's general integration mandate to detention and correctional facilities. The proposed language would have required public entities to ensure that individuals with disabilities are housed in the most integrated setting appropriate to the needs of the individual. It further stated that unless the public entity can demonstrate that it is appropriate to make an exception for a specific individual, a public entity:

(1) Should not place inmates or detainees with disabilities in locations that exceed their security classification because there are no accessible cells or beds in the appropriate classification;

(2) should not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment;

(3) should not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would ordinarily be housed; and

(4) should not place inmates or detainees with disabilities in facilities farther away from their families in order to provide accessible cells or beds, thus diminishing their opportunity for visitation based on their disability. 73 FR 34466, 34507 (June 17, 2008).

In the NPRM, the Department recognized that there are a wide range of considerations that affect decisions to house inmates or detainees and that in specific cases there may be compelling reasons why a placement that does not meet the general requirements of § 35.152(b)(2) may, nevertheless, comply with the ADA. However, the Department noted that it is essential that the planning process initially assume that inmates or detainees with disabilities will be assigned within the system under the same criteria that would be applied to inmates who do not have disabilities. Exceptions may be made on a case-by-case basis if the specific situation warrants different treatment. For example, if an inmate is deaf and communicates only using sign language, a prison may consider whether it is more appropriate to give priority to housing the prisoner in a facility close to his family that houses no other deaf inmates, or if it would be preferable to house the prisoner in a setting where there are sign language interpreters and other sign language users with whom he can communicate.

In general, commenters strongly supported the NPRM's clarification that the title II integration mandate applies to State and local corrections agencies and the facilities in which they house inmates. Commenters pointed out that inmates with disabilities continue to be segregated based on their disabilities and also excluded from participation in programs. An organization actively involved in addressing the needs of prisoners cited a number of recent lawsuits in which prisoners allege such discrimination.

The majority of commenters objected to the language in proposed § 35.152(b)(2) that creates an exception to the integration mandate when the ‘‘public entity can demonstrate that it is appropriate to make an exception for a specific individual.'' 73 FR 34466, 34507 (June 17, 2008). The vast majority of commenters asserted that, given the practice of many public entities to segregate and cluster inmates with disabilities, the exception will be used to justify the status quo. The commenters acknowledged that the intent of the section is to ensure that an individual with a disability who can be better served in a less integrated setting can legally be placed in that setting. They were concerned, however, that the proposed language would allow certain objectionable practices to continue, e.g., automatically placing persons with disabilities in administrative segregation. An advocacy organization with extensive experience working with inmates recommended that the inmate have ‘‘input'' in the placement decision.

Others commented that the exception does not provide sufficient guidance on when a government entity may make an exception, citing the need for objective standards. Some commenters posited that a prison administration may want to house a deaf inmate at a facility designated and equipped for deaf inmates that is several hundred miles from the inmate's home. Although under the exception language, such a placement may be appropriate, these commenters argued that this outcome appears to contradict the regulation's intent to eliminate or reduce the segregation of inmates with disabilities and prevent them from being placed far from their families. The Department notes that in some jurisdictions, the likelihood of such outcomes is diminished because corrections facilities with different programs and levels of accessibility are clustered in close proximity to one another, so that being far from family is not an issue. The Department also takes note of advancements in technology that will ease the visitation dilemma, such as family visitation through the use of videoconferencing.

Only one commenter, a large State department of corrections, objected to the integration requirement. This commenter stated it houses all maximum security inmates in maximum security facilities. Inmates with lower security levels may or may not be housed in lower security facilities depending on a number of factors, such as availability of a bed, staffing, program availability, medical and mental health needs, and enemy separation. The commenter also objected to the proposal to prohibit housing inmates with disabilities in medical areas unless they are receiving medical care. This commenter stated that such housing may be necessary for several days, for example, at a stopover facility for an inmate with a disability who is being transferred from one facility to another. Also, this commenter stated that inmates with disabilities in disciplinary status may be housed in the infirmary because not every facility has accessible cells in disciplinary housing. Similarly the commenter objected to the prohibition on placing inmates in facilities without the same programs as facilities where they normally would be housed. Finally, the commenter objected to the prohibition on placing an inmate at a facility distant from where the inmate would normally be housed. The commenter stressed that in its system, there are few facilities near most inmates' homes. The commenter noted that most inmates are housed at facilities far from their homes, a fact shared by all inmates, not just inmates with disabilities. Another commenter noted that in some jurisdictions, inmates who need assistance in activities of daily living cannot obtain that assistance in the general population, but only in medical facilities where they must be housed.

The Department has considered the concerns raised by the commenters with respect to this section and recognizes that corrections systems may move inmates routinely and for a variety of reasons, such as crowding, safety, security, classification change, need for specialized programs, or to provide medical care. Sometimes these moves are within the same facility or prison system. On other occasions, inmates may be transferred to facilities in other cities, counties, and States. Given the nature of the prison environment, inmates have little say in their placement and administrators must have flexibility to meet the needs of the inmates and the system. The Department has revised the language of the exception contained in renumbered § 35.152(b)(2) to better accommodate corrections administrators' need for flexibility in making placement decisions based on legitimate, specific reasons. Moreover, the Department believes that temporary, short-term moves that are necessary for security or administrative purposes (e.g., placing an inmate with a disability in a medical area at a stopover facility during a transfer from one facility to another) do not violate the requirements of § 35.152(b)(2).

The Department notes that § 35.150(a)(3) states that a public entity is not required to take ‘‘any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.'' Thus, corrections systems would not have to comply with the requirements of § 35.152(b)(1) in any specific circumstance where these defenses are met.

Several commenters recommended that the word ‘‘should'' be changed to ‘‘shall'' in the subparts to § 35.152(b)(2). The Department agrees that because the rule contains a specific exception and because the integration requirement is subject to the defenses provided in paragraph (a) of that section, it is more appropriate to use the word ‘‘shall'' and the Department accordingly is making that change in the final rule.