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)

Relationship to Other Laws

The Department of Justice regulation implementing title II, 28 CFR 35.103, provides the following:

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.

(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

These provisions remain unchanged by the final rule. The Department recognizes that public entities subject to title II of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504 of the Rehabilitation Act of 1973 and other Federal statutes that prohibit discrimination on the basis of disability in the programs and activities of recipients of Federal financial assistance; and other Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705 et seq., and the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the Department's title II and title III regulations does not necessarily ensure compliance with other Federal statutes.

Public entities that are subject to the ADA as well as other Federal disability discrimination laws must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department's title II regulation may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the ADA prevents a covered entity subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a public airport is a title II facility that houses air carriers subject to the ACAA. The public airport operator is required to comply with the title II requirements, but is not covered by the ACAA. Conversely, the air carrier is required to comply with the ACAA, but is not covered by title II of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA's definition of a service animal to bring that animal into the facility even though under the ADA's definition of service animal the animal could be lawfully excluded.

In addition, public entities (including AMTRAK) that provide public transportation services that are subject to subtitle B of title II should be reminded that the Department's regulation, at 28 CFR 35.102, provides: ‘‘(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public entities. (b) To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141 et seq., they are not subject to the requirements of this part.'' The ADA regulations of DOT at 49 CFR 37.21(c) state that entities subject to DOT's ADA regulations may also be subject to the ADA regulations of the Department of Justice. As stated in the preamble to § 37.21(c) in DOT's 1991 regulation, ‘‘[t]he DOT rules apply only to the entity's transportation facilities, vehicles, or services; the DOJ rules may cover the entity's activities more broadly.'' 56 FR 45584, 45736 (Sept. 6, 1991). Nothing in this final rule alters these provisions.

The Department recognizes that DOT has its own independent regulatory responsibilities under subtitle B of title II of the ADA. To the extent that the public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they are subject to the DOT regulations at 49 CFR parts 37 and 39. Matters covered by subtitle A are covered by this rule. However, this rule should not be read to prohibit DOT from elaborating on the provisions of this rule in its own ADA rules in the specific regulatory contexts for which it is responsible, after appropriate consultation with the Department. For example, DOT may issue such specific provisions with respect to the use of non-traditional mobility devices, e.g., Segways®, on any transportation vehicle subject to subtitle B. While DOT may establish transportation-specific requirements that are more stringent or expansive than those set forth in this rule, any such requirements cannot reduce the protections and requirements set forth in this rule.

In addition, activities not specifically addressed by DOT's ADA regulation may be covered by DOT's regulation implementing section 504 of the Rehabilitation Act for its federally assisted programs and activities at 49 CFR part 27. Like other programs of public entities that are also recipients of Federal financial assistance, those programs would be covered by both the section 504 regulation and this part. Airports operated by public entities are not subject to DOT's ADA regulation, but they are subject to subpart A of title II and to this rule. The Department of Justice regulation implementing title II generally, and the DOT regulations specifically implementing subtitle B of title II, may overlap. If there is overlap in areas covered by subtitle B which DOT regulates, these provisions shall be harmonized in accordance with the DOT regulation at 49 CFR 37.21(c).