Federal Aviation Administration Draft Advisory Circular 150/5360-14A, Access to Airports by Individuals with Disabilities

CHAPTER 2. BASIC REGULATORY REQUIREMENTS OF THE ADA, SECTION 504, AND THE ACAA.

2.1 Overview.

2.1.1 This chapter provides a framework for understanding the basic requirements of the various laws and regulations, indicating where they overlap and where they vary. Because airports have limited obligations under 49 CFR parts 37 and 38 and 14 CFR part 382, this chapter focuses primarily on the DOJ Title II regulation, 28 CFR part 35, and the DOT Section 504 regulation, 49 CFR part 27.

2.1.2 To be in compliance with Section 504, an airport operator must comply with: 
1. All applicable requirements of the ADA, as amended (42 U.S.C. § 12101, Findings and purpose, and 42 U.S.C. § 12213, Severability);
2. DOT’s ADA regulations (49 CFR parts 37 and 38);
3. Regulations of DOJ implementing Title II of the ADA (28 CFR part 35);
4. Regulations of the EEOC implementing Title I of the ADA (29 CFR part 1630 and 49 CFR § 27.19 (a)); and 
5. 49 CFR part 27, which requires airports to ensure that terminal facilities and terminal services are readily accessible to and usable by individuals with disabilities, including individuals using wheelchairs.

2.1.3 Table 2-1 provides the citations for Title I, II, and III of the ADA, Section 504, and the ACAA, the location of the implementing regulations, and specifies the entities to which the legislation and regulations apply.

Table 2-1. Summary of Regulatory Requirements

2.2 Administrative Requirements.

2.2.1 Coordinators.
Airports are required to coordinate efforts to comply with the applicable regulations, including the investigation of complaints alleging its noncompliance with these regulations or alleging any actions that would be prohibited by these regulations under: 

1. Title II of the ADA (28 CFR § 35.107(a)); and 405

2. Section 504 regulations (49 CFR § 27.13(a)).

2.2.2 Complaint Procedures.
Airports with 15 or more employees are required to adopt complaint procedures for the prompt and equitable resolution of complaints alleging violations of Section 504 and Title II of the ADA.

1. Title II of the ADA. 28 CFR § 35.107(b) requires entities that employ 50 or more persons to adopt and publish grievance procedures.

2. Section 504. 49 CFR § 27.13(b) requires airports that employ 15 or more persons to adopt procedures that incorporate appropriate due process standards (prompt and equitable resolution of complaints).

2.2.3 Notice.
Title II of the ADA and Section 504 require notice to various parties of the relevant regulations.

2.2.3.1 Title II of the ADA.
28 CFR § 35.106 requires airports to provide notice to "applicants, participants, beneficiaries, and other interested persons" information regarding the provisions of this part and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part; and

2.2.3.2 Section 504.
49 CFR § 27.15 requires airports to take appropriate initial and continuing steps to notify "participants, beneficiaries, applicants, and employees" including those with hearing and vision impairments, and to unions. The notice must include the following information:

1. The airport operator does not discriminate on the basis of disability in admission to, access to, treatment of, or employment in its programs, services, and activities; and

2. Identification of its designated Coordinator. See Appendix C.

2.2.4 Self-Evaluations.
Airports are required to review their programs, activities, services, policies, and practices, to evaluate their compliance with the applicable regulations, and to take any appropriate remedial action. Both the ADA and Section 504 require that the airport provide for the participation of interested persons, including persons with disabilities, and organizations representing persons with disabilities in the evaluation.

2.2.4.1 ADA.
28 CFR § 35.105 requires all entities to conduct the evaluation. All airports should have completed this process and met all requirements. While this requirement to conduct a self-evaluation is not extended in the revised regulations, and because many Section 504 self-evaluations were conducted as long as four decades ago and programs tend to change, DOJ encourages entities to continue with self-evaluations to determine compliance with the current and future revisions and resulting changes in regulatory requirements. Under Title II of the ADA, if an airport had previously conducted a self-evaluation under Section 504, only those policies and practices that were not included in the initial evaluation needed to be evaluated.

2.2.4.2 Section 504.
49 CFR § 27.11(c)(2) requires that all airports conduct an evaluation and notify ACR of the persons responsible for evaluating its compliance and for the completion of the evaluation.  Airports are specifically required to take the following actions:

1. Evaluate current policies and practices;

2. Identify shortcomings and describe the methods to remedy; and

3. Begin to modify any policies or practices that do not meet the requirements of this part.

2.2.4.3 The airports must then also:

1. Take remedial steps to eliminate the effects of any discrimination caused by the violations; and

2. Establish a system for periodically reviewing and updating the evaluation. All airports must keep the evaluation on file for three years. (49 CFR §§ 27.11(c)(2) and (3)).

2.3 Employment.

Both Title II of the ADA and Section 504 regulations incorporate the prohibition on employment discrimination from Title I of the ADA. (28 CFR § 35.140 and 49 CFR § 27.19). Both rules also incorporate the EEOC requirements found in 29 CFR part 1630, including prohibitions on discrimination in job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment, as well as recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

2.3.1 DOJ ADA Title I employment provisions apply to private employers and state and local government (as well as employment agencies and labor unions) that employ at least 15 employees;

2.3.2 DOJ ADA Title II employment provisions apply to all state and local governments covered, regardless of the number of employees or any receipt of federal funding;

1. EEOC’s standards for compliance can be found in 29 CFR part 1630;

2. If the airport operator is not covered by Title I, the standards for compliance are found at DOJ regulations, 28 CFR part 41, Implementation of Executive Order 12250, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, which empowers the DOT to issue regulations to implement Section 504 with respect to programs and activities to which it provides assistance.

2.3.3 Section 504 employment provisions.

1. 49 CFR § 27.19 covers employment for operators, regardless of the number of employees;

2. 29 CFR part 1630 requires compliance with the EEOC regulation.

2.4 Program Accessibility.

2.4.1 28 CFR § 35.150(a).
An airport operator must ensure that its services, programs, or activities are accessible to persons with disabilities.

2.4.2 28 CFR § 35.130(b)(7).
Airports must make reasonable modifications to their policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the airport can demonstrate that the modifications would fundamentally alter the nature of the service, program, or activity.

2.4.3 28 CFR § 35.150(a)(3).
Airports are not required to take any action that will result in a fundamental alteration in the nature of a service, program, or activity that would result in undue financial and administrative burdens.

2.4.4 28 CFR § 35.150(b).
Existing facilities must be accessible to and usable by individuals with disabilities. Public entities must give priority to those methods that provide services, programs, and activities in the most integrated setting appropriate for persons with disabilities.

2.5 Physical Accessibility.

The design and construction of new buildings and the alterations and the necessary structural modifications to existing buildings must comply with accessibility standards under Title II and Section 504.

2.5.1 Design Standards.
Airports may only use the 2010 ADA Standards for Accessible Design (2010 Standards) when constructing a new building or altering/renovating an existing building. In the past, airports were allowed to use the Uniform Federal Accessibility Standards (UFAS) or the 1991 ADA Standards for Accessible Design (1991 Standards).

2.5.2 Structural Changes.
All airports under Section 504 were required to submit a transition plan to the FAA for approval "where extensive structural changes" were necessary. Chapter 4 provides additional information on transition plans.

2.5.3 Title II Regulations.
Airports subject to Title II regulations that employ 50 or more persons and need any structural modifications were to develop transition plans by July 26, 1992. The plan had specific requirements. The airport was required to provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the plan. If an airport already had developed a transition plan under Section 504, it needed only to review the policies and practices not included in the previous transition plan. (28 CFR § 35.150(d)(4)).

2.5.4 Accessibility Standards.
DOJ published its revised final regulations implementing the ADA for Title II (state and local government services) and Title III (public accommodations and commercial facilities) on September 15, 2010. The revised regulations have updated the general nondiscrimination provisions implementing the ADA. (www.ada.gov/).

2.5.4.1 The ADA Standards for Accessible Design (Standards), applicable to airport facilities, is the standard for accessibility that applies to airports. (49 CFR § 27.71 (e)). The applicability of the Standards is based on the construction date of the specific structure. If the structure was built and not renovated or altered before the 1991 Standards were in effect, then the entity will not be required to meet the 1991 Standards. Under the 1991 Standards, airports are expected to meet requirements under Section 10.4, but for new construction and alterations, airports must follow 2010 standards. However, if the facility was built, altered or renovated after the 1991 Standards came into effect, requirements under the 1991 Standards had to be met. With the establishment of the ADA Standards for Acceptable Design, airports need to address requirements under these Standards when a facility is newly constructed, altered, or renovated after March 15, 2012. These Standards apply to facilities in the private sector (places of public accommodation and commercial facilities) and to state and local government facilities, such as the airports, operated by such entities.

2.5.4.2 UFAS.
UFAS Standards are found in 41 CFR part 101-19.6, Appendix A.

2.5.5 Historic Preservation.
The DOJ Title II regulation makes allowances for accessibility to historic properties. (28 CFR §§ 35.150(a)(2), 35.150(b)(2), and 35.151(d)).

2.5.6 Specific Airport Provisions.
Airports must ensure that terminal facilities and services are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. An airport is considered to comply with this obligation if it meets the requirements applying to state and local government programs or activities and facilities under DOT’s Title II rule. (49 CFR § 27.71(b)).

2.5.6.1 Airports must ensure that there is an accessible path between the gate and the area from which aircraft are boarded. (49 CFR § 27.71(c)).

2.5.6.2 Systems of inter-terminal transportation, including, but not limited to, shuttle vehicles and people movers, must comply with applicable requirements of the DOT Section 504 rules. (49 CFR § 27.71(d)).

2.5.6.3 The 1991 Standard, including Section 10.4 concerning airport facilities, is the standard for accessibility that applies to airports. (49 CFR § 27.71(e)). For any new construction or alteration, airports must use the 2010 Standards. (28 CFR § 35.151(c)).

2.5.6.4 Contracts or leases between carriers and airports concerning the use of airport facilities must set forth the respective responsibilities of the parties for the provision of accessible facilities and services to individuals with disabilities as required by 49 CFR § 27.71(f)) and provisions of 14 CFR part 382, as amended, implementing the ACAA.

2.5.6.5 28 CFR § 35.136 defines Service Animals and requires public entities to permit the use of a service animal by an individual with a disability. Individuals with disabilities must be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go. In addition, a public entity must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse that has been individually trained to do work or perform tasks for the benefit of the individual with a disability; and

2.5.6.6 49 CFR Part 27 (h) Airport facilities. Each airport with 10,000 or more annual enplanements shall cooperate with airlines that own, lease, or control terminal facilities at that airport to provide wheelchair accessible animal relief areas for service animals that accompany passengers departing, connecting, or arriving at the airport subject to the following requirements: (1) Airports must consult with one or more service animal training organizations regarding the design, dimensions, materials and maintenance of service animal relief areas; (2) Airports must establish at least one relief area in each airport terminal; (3) Airports must establish the relief area required by section 27.71 (h)(2) in the sterile area of each airport terminal unless: (i) The Transportation Security Administration prohibits the airport from locating a relief area in the sterile area, or (ii) A service animal training organization, the airport, and the carriers in the terminal in which the relief area will be located agree that a relief area would be better placed outside the terminal’s sterile area. In that event, the airport must retain documentation evidencing the recommendation that the relief area be located outside of the sterile area; and (4) To the extent airports have established service animal relief areas prior to the effective date of this paragraph: (i) Airports that have not consulted with a service animal training organization shall consult with one or more such organizations regarding the sufficiency of all existing service animal relief areas.

2.5.6.6.1 To assist airports in providing SARA and complying with regulations, this AC includes a set of standards that may be used as guidelines/recommendations where compliance with this AC is not mandatory. See 501. b(3) and Appendix A for SARA.

2.6 Communications.

Airports are required to take appropriate steps to ensure that their communications with individuals with disabilities are as effective as communications with other individuals, beneficiaries, and members of the public. In addition, under the 2010 ADA Standards for Accessible Design, there are signage requirements that address the need for directional and informational signs that communicate information about the location and availability of accessible services including areas of refuge and means of egress. Airports are also required to enable or ensure that closed captioning is functioning at all times on all audio visual displays that are capable of displaying captions. (49 CFR§ 27.71(i)).

2.6.1 28 CFR part 35 requires the following for persons with impaired hearing, vision, or speech:

1. CFR § 35.161 requires where an airport communicates by telephone with applicants and beneficiaries, that equally effective telecommunications systems are used to communicate with individuals who are deaf, hard of hearing, or have speech impairments;

2. 28 CFR § 35.162 requires telephone emergency services, including 911 services, to provide direct access to individuals who use TDD’s and computer modems;

3. 28 CFR §35.163(a) requires access to information about the existence and location of accessible services, activities, and facilities;

4. 28 CFR § 35.163(b) requires signage at all inaccessible entrances directing users to an accessible entrance or to a location to obtain the information about accessible facilities; and

5. 28 CFR § 35.163(b) also requires the use of the international symbol for accessibility at each accessible entrance of the facility.

2.6.2 Section 217 of the 2010 ADA Standards provides standards for public pay telephones.

2.6.3 Section 810.8 of the 2010 ADA Standards provides standards for clocks.

2.7 Vehicle and Transportation Systems Accessibility.

Under DOT ADA Title II, Subpart B, and Title III regulations in 49 CFR parts 37 and 38, public entities that provide designated or specified public transportation or intercity or commuter rail transportation must provide access for persons with disabilities. Since transportation by aircraft is excluded from the definition of designated or specified transportation, these regulations have limited applicability to airports. The areas of the regulation that apply are summarized below.

2.7.1 49 CFR § 37.33.
This section specifically addresses an airport’s responsibilities in reference to airport-operated transportation systems. If an airport is operating a transportation system that provides designated public transportation (and connects parking lots and terminals or provides transportation among terminals) it is subject to the requirements in 49 CFR part 37 for fixed-route and demand-responsive systems. Airports that operate fixed-route transportation systems are subject to the requirements in 49 CFR part 37 for commuter bus service operated by public entities. The provision by an airport of additional accommodations (e.g., parking spaces in a close-in lot) is not a substitute for meeting the requirements in 49 CFR § 37.33(a); and

2.7.2 Fixed-route transportation systems.
Fixed-route transportation systems operated by airports between the airport and a limited number of destinations in the area that it serves are subject to the requirements in 49 CFR part 37 for commuter bus systems operated by public entities. (49 CFR Section 37.33(b)).

2.7.2.1 Private Entity Transportation Systems.
Private jitneys (small buses or vans that carry passengers over a regular route on a flexible schedule) or shuttle services that provide transportation between the airport and destinations in the area it serves, either in a route-deviation or another variable mode in a demand-responsive service, must provide accessible services in accordance with 49 CFR § 37.33(c) implementing Title III. It is the airport’s responsibility to be aware of these requirements.

2.7.2.2 Taxis.
Private taxi providers are not required to purchase or lease accessible automobiles. However, if they purchase a vehicle other than an automobile, that vehicle must be accessible unless the provider can demonstrate equivalency as provided in § 37.105. Taxi providers using only automobiles may not discriminate against persons with disabilities who are able to use the automobile, in accordance with 49 CFR § 37.29 implementing Title III. It is the airport’s responsibility to be aware of these requirements.

2.7.2.3 Private Entities Not Primarily Engaged in Transportation.
Shuttle systems and other transportation services operated by privately owned hotels, car rental companies, or other public accommodations are subject to the applicable sections of 49 CFR § 37.37. It is the airport’s responsibility to be aware of these requirements.

2.8 Aircraft and Air Carrier Facility Accessibility.

Aircraft accessibility is generally addressed by the ACAA, which applies to U.S. and foreign air carriers. However, Section 504 of the RA does place some responsibility for access to aircraft (U.S. and foreign air carriers) on the airport operator. (49 CFR § 27.72).

2.8.1 Airport Facilities.
Airport terminal facilities include parking and ground transportation facilities, owned, leased, or operated by commercial service airports that are recipients of DOT financial assistance. (49 CFR § 27.71(a)). Under 14 part 382, an air carrier is responsible for accessible facilities to the extent that it controls the selection, design, construction, or alteration of the property. (14 CFR § 382.51). It is the airport’s responsibility to ensure that leases or contracts between airports and air carriers concerning the use of airport facilities define the respective responsibilities for providing accessible facilities and services to individuals with disabilities. (49 CFR § 27.71(f)). Carriers have a reciprocal responsibility regarding such leases and contracts. (14 CFR § C.382.51(a)(4)).

2.8.1.1 Accessible Path.

It is the airport’s responsibility to ensure that a passenger with a disability can move through the airport to the aircraft boarding area. (49 CFR § 27.71(c)).

2.8.1.2 Shared-use automated airport kiosks. 

This paragraph applies to U.S. airports with 10,000 or more annual enplanements. (49 CFR § 27.71(j)).

2.8.1.2.1 Airports that jointly own, lease, or control automated airport kiosks with carriers at U.S. airports must ensure that all shared-use automated kiosks installed on or after December 12, 2016, meet the technical accessibility standards with respect to their physical design and the functions they perform as detailed in 49 CFR § 27.71(k) until at least 25 percent of kiosks provided in each location at the airport (i.e., each cluster of kiosks and all stand-alone kiosks at the airport) meet this specification.

2.8.1.2.2 Airports must ensure that at least 25 percent of shared-use automated airport kiosks they jointly own, lease, or control with carriers in each location at the airport conform to the technical accessibility standards with respect to their physical design and the functions they perform as detailed in 49 CFR § 27.71(k) by December 12, 2022.

2.8.2 Boarding Assistance for Small Aircraft.
Lifts, ramps, or other suitable devices not normally used for the movement of freight must be available, if the terminals at such airports are not equipped with passenger loading bridges or passenger lounges for boarding and deplaning. (See AC 150/5220-21C, Aircraft Boarding Equipment). Each airport operator must negotiate in good faith with each U.S. and foreign air carrier serving the airport concerning the acquisition and use of assistance devices. The airport operator and the U.S. and foreign carrier(s) must sign a written agreement allocating responsibility for meeting the boarding assistance requirements of this section between or among parties. The agreement must be made available, on request, to representatives of the DOT. All U.S. carriers and airports involved are jointly responsible for the timely and complete implementation of the agreement. (49 CFR § 27.72(c)(1) and (2)). The airport operator has the responsibility to train personnel to be proficient in using airport owned or operated boarding assistance equipment for small aircraft and be knowledgeable of boarding assistance procedures that safeguard the safety and dignity of passengers. (49 CFR § 27.72(d) and (e)). Carriers also have responsibilities concerning their written agreements with airports to provide the boarding and deplaning assistance required by 14 CFR § 382.95 where level entry loading bridges are not available (also see 14 CFR § 382.99). 

2.9 Conditions Not Considered Disabilities.

Examples of such conditions include:
 
1.    28 CFR § 35.104. Sexual behavior disorders;

2.    28 CFR § 35.104. Compulsive gambling, kleptomania, and pyromania;

3.    28 CFR § 35.104. Psychoactive substance use disorders resulting from current illegal use of drugs; and

4.    28 CFR § 35.132. Appendix A to 28 CFR part 35: Sensitivity to Tobacco Smoke.³