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)

Program requirements. In a unanimous decision, the Supreme Court, in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), stated explicitly that the ADA covers the operations of State prisons; accordingly, title II's program accessibility requirements apply to State and local correctional and detention facilities. In the NPRM, in addressing the accessibility of existing correctional and detention facilities, the Department considered the challenges of applying the title II program access requirement for existing facilities under § 31.150(a) [sic] in light of the realities of many inaccessible correctional facilities and strained budgets.

Correctional and detention facilities commonly provide a variety of different programs for education, training, counseling, or other purposes related to rehabilitation. Some examples of programs generally available to inmates include programs to obtain GEDs, computer training, job skill training and on-the-job training, religious instruction and guidance, alcohol and substance abuse groups, anger management, work assignments, work release, halfway houses, and other programs. Historically, individuals with disabilities have been excluded from such programs because they are not located in accessible locations, or inmates with disabilities have been segregated in units without equivalent programs. In light of the Supreme Court's decision in Yeskey and the requirements of title II, however, it is critical that public entities provide these opportunities to inmates with disabilities. In proposed § 35.152, the Department sought to clarify that title II required equal access for inmates with disabilities to participate in programs offered to inmates without disabilities.

The Department wishes to emphasize that detention and correctional facilities are unique facilities under title II. Inmates cannot leave the facilities and must have their needs met by the corrections system, including needs relating to a disability. If the detention and correctional facilities fail to accommodate prisoners with disabilities, these individuals have little recourse, particularly when the need is great (e.g., an accessible toilet; adequate catheters; or a shower chair). It is essential that corrections systems fulfill their nondiscrimination and program access obligations by adequately addressing the needs of prisoners with disabilities, which include, but are not limited to, proper medication and medical treatment, accessible toilet and shower facilities, devices such as a bed transfer or a shower chair, and assistance with hygiene methods for prisoners with physical disabilities.

In the NPRM, the Department also sought input on whether it should establish a program accessibility requirement that public entities modify additional cells at a detention or correctional facility to incorporate the accessibility features needed by specific inmates with mobility disabilities when the number of cells required by sections 232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of their inmate population.

Commenters supported a program accessibility requirement, viewing it as a flexible and practical means of allowing facilities to meet the needs of inmates in a cost effective and expedient manner. One organization supported a requirement to modify additional cells when the existing number of accessible cells is inadequate. It cited the example of a detainee who was held in a hospital because the local jail had no accessible cells. Similarly, a State agency recommended that the number of accessible cells should be sufficient to accommodate the population in need. One group of commenters voiced concern about accessibility being provided in a timely manner and recommended that the rule specify that the program accessibility requirement applies while waiting for the accessibility modifications. A group with experience addressing inmate needs recommended the inmate's input should be required to prevent inappropriate segregation or placement in an inaccessible or inappropriate area.

The Department is persuaded by these comments. Accordingly, § 35.152(b)(3) requires public entities to ‘‘implement reasonable policies, including physical modifications to additional cells in accordance with the 2010 Standards, so as to ensure that each inmate with a disability is housed in a cell with the accessible elements necessary to afford the inmate access to safe, appropriate housing.''