Americans with Disabilities Act Title II Regulations

Title II Regulations Supplementary Information

DEPARTMENT OF JUSTICE 28 CFR Part 35 [CRT Docket No. 105; AG Order No. 3180- 2010] RIN 1190-AA46 Nondiscrimination on the Basis of Disability in State and Local Government Services AGENCY: Department of Justice, Civil Rights Division. ACTION: Final rule.

SUMMARY: This final rule revises the regulation of the Department of Justice (Department) that implements title II of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability in State and local government services. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the ADA that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board (Access Board), and to update or amend certain provisions of the title II regulation so that they comport with the Department’s legal and practical experiences in enforcing the ADA since 1991. Concurrently with the publication of this final rule for title II, the Department is publishing a final rule amending its ADA title III regulation, which covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities.

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DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION

CONTACT: Janet L. Blizard, Deputy Chief, or Barbara J. Elkin, Attorney Advisor, Disability Rights Sec­tion, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department’s toll-free ADA Information Line at 800-514-0301 (voice) or 1-833-610-1264 (TTY). This rule is also available in an accessible format on the ADA Home Page. You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above.

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13 members appointed by the President from among the general public, the majority of whom must be individuals with disabilities, and the heads of 12 Federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation (DOT). Originally, the Access Board was established to develop and maintain accessibility guidelines for facilities designed, constructed, altered, or leased with Federal dollars under the Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et seq. The passage of the ADA expanded the Access Board’s responsibilities.

The ADA requires the Access Board to “issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter * * * to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.” 42 U.S.C. 12204. The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the “minimum guidelines” issued by the Access Board, 42 U.S.C. 12134(c); 42 U.S.C. 12186(c), but vests in the Attorney General sole responsibility for the promulgation of those standards that fall within the Department’s jurisdiction and for enforcement of the regulations.

The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (subtitle A) and title III. How and to what extent the Access Board’s guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department.

Enactment of the ADA and Issuance of the 1991 Regulations

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.1 The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 204(a) of the ADA directs the Attorney General to issue regulations implementing part A of title II but exempts matters within the scope of the authority of the Secretary of Transportation under section 223, 229, or 244. See 42 U.S.C. 12134. Section 229(a) and section 244 of the ADA direct the Secretary of Transportation to issue regulations implementing part B of title II, except for section 223. See 42 U.S.C 12149; 42 U.S.C. 12164. Title II, which this rule addresses, applies to State and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131B65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities like factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181B89.

On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the 1991 title III regulation, which is republished as Appendix D to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards), which were based upon the version of the Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. Under the Department’s 1991 title III regulation, places of public accommodation and commercial facilities currently are required to comply with the 1991 Standards with respect to newly constructed or altered facilities. The Department’s 1991 title II regulation gives public entities the option of complying with the Uniform Federal Accessibility Standards (UFAS) or the 1991 Standards with respect to newly constructed or altered facilities.

The Access Board’s publication of the 2004 ADA/ABA Guidelines was the culmination of a long-term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. In support of this effort, the Department is amending its regulation implementing title II and is adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, naming them the 2010 ADA Standards for Accessible Design. The Department is also amending its title III regulation, which prohibits discrimination on the basis of disability by public accommodations and in commercial facilities, concurrently with the publication of this rule in this issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

In 1994, the Access Board began the process of updating the 1991 ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, and State and local government entities, as well as individuals with disabilities. In 1998, the Access Board added specific guidelines on State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and recommendations of the advisory committee, the Access Board issued a Notice of Proposed Rulemaking (NPRM) to update and revise its ADA and ABA Accessibility Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 2000). The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. In September of 2002, the Access Board set forth specific guidelines on recreational facilities. 67 FR 56352 (Sept. 3, 2002).

By the date of its final publication on July 23, 2004, the 2004 ADA/ABA Guidelines had been the subject of extraordinary review and public participation. The Access Board received more than 2,500 comments from individuals with disabilities, affected industries, State and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings.

The Department was involved extensively in the development of the 2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the Attorney General’s representative voted to approve the revised guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provided scoping requirements for facilities subject to the ADA; “scoping” is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces— and, in some cases, how many—must comply with the technical specifications. ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with Federal funds). Chapters 3 through 10 provide uniform technical specifications for facilities subject to either the ADA or ABA. This revised format is designed to eliminate unintended conflicts between the two sets of Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.

These amendments to the 1991 ADAAG have not been adopted previously by the Department as ADA Standards. Through this rule, the Department is adopting revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998. For the purposes of title II, the Department’s revised standards are entitled “The 2010 Standards for Accessible Design” and consist of the 2004 ADAAG and the requirements in § 35.151. Because the Department has adopted the 2004 ADAAG as part of its title II and title III regulations, once the Department’s final rules become effective, the 2004 ADAAG will have legal effect with respect to the Department’s title II and title III regulations and will cease to be mere guidance for those areas regulated by the Department. In 2006, the (DOT) adopted the 2004 ADAAG. With respect to those areas regulated by DOT, these guidelines, as adopted by DOT have had legal effect since 2006.

The Department’s Rulemaking History

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To begin the process of adopting the 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board’s revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in Office of Management and Budget (OMB) Circular AB4, sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 17, 2003), available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010). While underscoring that the Department, as a member of the Access Board, already had reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the program access requirement in title II (as well as with respect to the barrier removal requirement applicable to existing facilities under title III) is within the sole discretion of the Department. The ANPRM dealt with the Department’s responsibilities under both title II and title III.

The public response to the ANPRM was substantial. The Department extended the comment deadline by four months at the public’s request. 70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department’s application of the 2004 ADAAG once adopted by the Department and the Department’s regulatory assessment of the costs and benefits of particular elements. Many other commenters addressed areas of desired regulation or of particular concern.

To enhance accessibility strides made since the enactment of the ADA, commenters asked the Department to focus on previously unregulated areas such as ticketing in assembly areas; reservations for hotel rooms, rental cars, and boat slips; and captioning. They also asked for clarification on some issues in the 1991 regulations, such as the requirements regarding service animals. Other commenters dealt with specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Commenters also provided some information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreation facilities, and play areas. Still other commenters addressed the effective date of the proposed standards, the triggering event by which the effective date is calculated for new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards.

After careful consideration of the public comments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title II (73 FR 4466). The Department also published an NPRM on that day covering title III (73 FR 34508). The NPRMs addressed the issues raised in the public’s comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Department’s adoption of the 2004 ADAAG, the Department’s regulatory assessment of the costs and benefits of the rule, its updates and amendments of certain provisions of the existing title II and III regulations, and areas that were in need of additional clarification or specificity.

A public hearing was held on July 15, 2008, in Washington, D.C. Forty-five individuals testified in person or by phone. The hearing was streamed live over the Internet. By the end of the 60-day comment period, the Department had received 4,435 comments addressing a broad range of issues many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local government agencies, disability advocacy organizations, and private individuals, many of which addressed issues common to both NPRMs.

The Department notes that this rulemaking was unusual in that much of the proposed regulatory text and many of the questions asked across titles II and III were the same. Consequently, many of the commenters did not provide separate sets of documents for the proposed title II and title III rules, and in many instances, the commenters did not specify which title was being commented upon. As a result, where comments could be read to apply to both titles II and III, the Department included them in the comments and responses for each final rule.

Most of the commenters responded to questions posed specifically by the Department, including what were the most appropriate definitions for terms such as “wheelchair,” “mobility device,” and “service animal”; how to quantify various benefits that are difficult to monetize; what requirements to adopt for ticketing and assembly areas; whether to adopt safe harbors for small businesses; and how best to regulate captioning. Some comments addressed specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Other comments responded to questions posed by the Department concerning certain specific requirements in the 2004 ADAAG.

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., 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).

Organization of This Rule

Throughout this rule, the original ADA Standards, which are republished as Appendix D to 28 CFR part 36, will be referred to as the “1991 Standards.” The original title II regulation, 28 CFR part 35, will be referred to as the “1991 title II regulation.” ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, codified at 36 CFR part 1191, app. B and D (2009) will be referred to as the “2004 ADAAG.” The Department’s Notice of Proposed Rulemaking, 73 FR 34466 (June 17, 2008), will be referred to as the “NPRM.” As noted above, the 2004 ADAAG, taken together with the requirements contained in § 35.151 (New Construction and Alterations) of the final rule, will be referred to as the “2010 Standards.” The amendments made to the 1991 title II regulation and the adoption of the 2004 ADAAG, taken together, will be referred to as the “final rule.”

In performing the required periodic review of its existing regulation, the Department has reviewed the title II regulation section by section, and, as a result, has made several clarifications and amendments in this rule. Appendix A of the final rule, “Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services,” codified as Appendix A to 28 CFR part 35, provides the Department’s response to comments and its explanations of the changes to the regulation. The section entitled “Section-by-Section Analysis and Response to Comments” in Appendix A provides a detailed discussion of the changes to the title II regulation. The Section-by-Section Analysis follows the order of the 1991 title II regulation, except that regulatory sections that remain unchanged are not referenced. The discussion within each section explains the changes and the reasoning behind them, as well as the Department’s response to related public comments. Subject areas that deal with more than one section of the regulation include references to the related sections, where appropriate. The Section-by-Section Analysis also discusses many of the questions asked by the Department for specific public response. The section of Appendix A entitled “Other Issues” discusses public comments on several issues of concern to the Department that were the subject of questions that are not specifically addressed in the Section-by-Section Analysis.

The Department’s description of the 2010 Standards, as well as a discussion of the public comments on specific sections of the 2004 ADAAG, is found in Appendix B of the final title III rule, “Analysis and Commentary on the 2010 ADA Standards for Accessible Design,” and codified as Appendix B to 28 CFR part 36.

The provisions of this rule generally take effect six months from its publication in the Federal Register. The Department has determined, however, that compliance with the 2010 Standards shall not be required until 18 months from the publication date of this rule. This exception is set forth in § 35.151(c) and is discussed in greater detail in Appendix A. See Appendix A discussion entitled “Section 35.151(c) New construction and alterations.”

This final rule only addresses issues that were identified in the NPRM as subjects the Department intended to regulate through this rulemaking proceeding. Because the Department indicated in the NPRM that it did not intend to regulate certain areas, including equipment and furniture, accessible golf cars, and movie captioning and video description, as part of this rulemaking proceeding, the Department believes it would be appropriate to solicit more public comment about these areas prior to making them the subject of a rulemaking. The Department intends to engage in additional rulemaking in the near future addressing accessibility in these areas and others, including next generation 9-1-1 and accessibility of Web sites operated by covered public entities and public accommodations.

Additional Information

Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and Executive Orders)

The Department must provide two types of assessments as part of its final rule: an analysis of the costs and benefits of adopting the changes contained in this rule, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.

In the NPRM, the Department kept open the possibility that, if warranted by public comments received on an issue raised by the 2004 ADAAG, or by the results of the Department’s Initial Regulatory Impact Analysis (available at https://archive.ada.gov/archive/NPRM2008/ria.htm) showing that the likely costs of making a particular feature or facility accessible were disproportionate to the benefits (including both monetized and nonmonetized benefits) to persons with disabilities, the Attorney General, as a member of the Access Board, could return the issue to the Access Board for further consideration. After careful consideration, the Department has determined that it is unnecessary to return any issues to the Access Board for additional consideration.

Executive Order 12866 This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The Department has evaluated its existing regulations for title II and title III section by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any negative effects on small entities. A Final Regulatory Impact Analysis (Final RIA or RIA) was prepared by the Department’s contractor, HDR HLB Decision Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and OMB Circular A-4, the Department has reviewed and considered the Final RIA and has accepted the results of this analysis as its assessment of the benefits and costs of the final rules.

Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,” see E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, “[i]t is the purpose of this [Act] (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]” 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second-class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, “difficult to quantify, but nevertheless essential to consider.” E.O. 12866, section 1(a). The Department has considered such benefits here.

Final Regulatory Impact Analysis The Final RIA embodies a comprehensive benefit-cost analysis of the final rules for both title II and title III and assesses the incremental benefits and costs of the 2010 Standards relative to a primary baseline scenario (1991 Standards). In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC/ANSI model code provisions that mirror those in the 2004 ADAAG. The assessments based on this approach assume that covered entities currently implementing codes that mirror the 2004 ADAAG will not need to modify their code requirements once the rules are finalized. They also assume that, even without the final rules, the current level of compliance would be unchanged. The Final RIA contains specific information, including data in chart form, detailing which States have already adopted the accessibility standards for this subset of six requirements. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize.

The Final RIA estimates the benefits and costs for all new (referred to as “supplemental”) requirements and revised requirements across all types of newly constructed and existing facilities. The Final RIA also incorporates a sophisticated risk analysis process that quantifies the inherent uncertainties in estimating costs and benefits and then assesses (through computer simulations) the relative impact of these factors when varied simultaneously. A copy of the Final RIA will be made available online for public review on the Department’s ADA Home Page (http://www.ada.gov).

From an economic perspective (as specified in OMB Circular A-4), the results of the Final RIA demonstrate that the Department’s final rules increase social resources and thus represent a public good because monetized benefits exceed monetized costs—that is, the regulations have a positive net present value (NPV). Indeed, under every scenario assessed in the Final RIA, the final rules have a positive NPV. The Final RIA’s first scenario examines the incremental impact of the final rules using the “main” set of assumptions (i.e., assuming a primary baseline (1991 Standards), that the safe harbor applies, and that for title III entities barrier removal is readily achievable for 50 percent of elements subject to supplemental requirements).

Under this set of assumptions, the final rules have an expected NPV of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent discount rate). See Final RIA, table ES-1 & figure ES- 2.

Expected Impact of the Rules 2 (in billions)

Discount rate Expected NPV Total Expected PV (Benefits) Total Expected PV (Costs) 3% $40.4 $66.2 $25.8 7% $9.3 $22.0 $12.8

Water Closet Clearances

The Department gave careful consideration to the costs and benefits of its adoption of the standards relating to water closet clearances in single-user toilet rooms. The primary effect of the Department’s proposed final rules governing water closet clearances in single-user toilet rooms with in-swinging and out-swinging doors is to allow sufficient room for “side” or “parallel” methods of transferring from a wheelchair to a toilet. Under the current 1991 Standards, the requisite clearance space in single-user toilet rooms between and around the toilet and the lavatory does not permit these methods of transfer. Side or parallel transfers are used by large numbers of persons who use wheelchairs and are regularly taught in rehabilitation and occupational therapy. Currently, persons who use side or parallel transfer methods from their wheelchairs are faced with a stark choice at establishments with single-user toilet rooms—i.e., patronize the establishment but run the risk of needing assistance when using the restroom, travel with someone who would be able to provide assistance in toileting, or forgo the visit entirely. The revised water closet clearance regulations would make single-user toilet rooms accessible to all persons who use wheelchairs, not just those with the physical strength, balance, and dexterity and the training to use a front-transfer method. Single-user toilet rooms are located in a wide variety of public and private facilities, including restaurants, fast-food establishments, schools, retail stores, parks, sports stadiums, and hospitals. Final promulgation of these requirements might thus, for example, enable a person who uses a side or parallel transfer method to use the restroom (or use the restroom independently) at his or her local coffee shop for the first time.

Because of the complex nature of its cost-benefit analysis, the Department is providing “plain language” descriptions of the benefits calculations for the two revised requirements with the highest estimated total costs: Water closet clearance in single-user toilet rooms with out-swinging doors (RIA Req. # 28) (section 604.3 of the 2010 Standards) and water closet clearance in single-user toilet rooms with in-swinging doors (RIA Req. # 32) (sections 604.3 and 603.2.3 Exception 2 of the 2010 Standards). Since many of the concepts and calculations in the Final RIA are highly technical, it is hoped that, by providing “lay” descriptions of how benefits are monetized for an illustrative set of requirements, the Final RIA will be more transparent and afford readers a more complete understanding of the benefits model generally. Because of the widespread adoption of the water closet clearance standards in existing State and local building codes, the following calculations use the IBC/ANSI baseline.

General description of monetized benefits for water closet clearance in single-user toilet rooms—out-swinging doors (Req. # 28). In order to assess monetized benefits for the requirement covering water closet clearances in single-user toilet rooms with out-swinging doors, a determination needed to be made concerning the population of users with disabilities who would likely benefit from this revised standard. Based on input received from a panel of experts jointly convened by HDR and the Department to discuss benefits related estimates and assumptions used in the RIA model, it was assumed that accessibility changes brought about by this requirement would benefit persons with any type of ambulatory (i.e., mobility-related) disability, such as persons who use wheelchairs, walkers, or braces. Recent census figures estimate that about 11.9 percent of Americans ages 15 and older have an ambulatory disability, or about 35 million people. This expert panel also estimated that single-user toilet rooms with out-swinging doors would be used slightly less than once every other visit to a facility with such toilet rooms covered by the final rules (or, viewed another way, about once every two hours spent at a covered facility assumed to have one or more single-user toilet rooms with out-swinging doors) by an individual with an ambulatory disability. The expert panel further estimated that, for such individuals, the revised requirement would result in an average time savings of about five and a half minutes when using the restroom. This time savings is due to the revised water closet clearance standard, which permits, among other things, greater flexibility in terms of access to the toilet by parallel or side transfer, thereby perhaps reducing the wait for another person to assist with toileting and the need to twist or struggle to access the toilet independently. Based on average hourly wage rates compiled by the U.S. Department of Labor, the time savings for Req. # 28 is valued at just under $10 per hour.

For public and private facilities covered by the final rules, it is estimated that there are currently about 11 million single-user toilet rooms with out-swinging doors. The majority of these types of single-user toilet rooms, nearly 7 million, are assumed to be located at “Indoor Service Establishments,” a broad facility group that encompasses various types of indoor retail stores such as bakeries, grocery stores, clothing stores, and hardware stores. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with out-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. # 28, it is further understood that about half of all existing facilities assumed to have single-user toilet rooms with out-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance in the final rules.

With respect to new construction, it is assumed that each single-user toilet room with an out-swinging door will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e., a period of time between 1 and 39 years).

Summing up monetized benefits to users with disabilities across all types of public and private facilities covered by the final rules, and assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ ANSI model code provisions, it is expected that the revised requirement for water closet clearance in single-user toilet rooms with out-swinging doors will result in net benefits of approximately $900 million over the life of these regulations.

General description of monetized benefits for water closet clearance in single-user toilet rooms—in-swinging doors (Req. # 32). For the water closet clearance in single-user toilet rooms with the in-swinging door requirement (Req. #32), the expert panel determined that the primary beneficiaries would be persons who use wheelchairs. As compared to single-user toilet rooms with out-swinging doors, those with in-swinging doors tend to be larger terms of square footage) in order to accommodate clearance for the in-swinging door and, thus, are already likely to have adequate clear floor space for persons with disabilities who use other types of mobility aids such as walkers and crutches.

The expert benefits panel estimated that single-user toilet rooms with in-swinging doors are used less frequently on average—about once every 20 visits to a facility with such a toilet room by a person who uses a wheelchair—than their counterpart toilet rooms with out-swinging doors. This panel also determined that, on average, each user would realize a time savings of about 9 minutes as a result of the enhanced clearances required by this revised standard.

The RIA estimates that there are about 4 million single-user toilet rooms with in-swinging doors in existing facilities. About half of the single-user toilet rooms with in-swinging doors are assumed to be located in single-level stores, and about a quarter of them are assumed to be located in restaurants. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with in-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #32, it is further understood that slightly more than 70 percent of all existing facilities assumed to have single-user toilet rooms with in-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules.

Similar to the assumptions for Req. #28, it is assumed that newly constructed single-user toilet rooms with in-swinging doors will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e., a period of time between 1 and 39 years). Over this time period, the total estimated value of benefits to users of water closets with in-swinging doors from the time they will save and decreased discomfort they will experience is nearly $12 million.

Additional benefits of water closet clearance standards. The standards requiring sufficient space in single-user toilet rooms for a wheelchair user to effect a side or parallel transfer are among the most costly (in monetary terms) of the new provisions in the Access Board’s guidelines that the Department adopts in this rule—but also, the Department believes, one of the most beneficial in non-monetary terms. Although the monetized costs of these requirements substantially exceed the monetized benefits, the additional benefits that persons with disabilities will derive from greater safety, enhanced independence, and the avoidance of stigma and humiliation— benefits that the Department’s economic model could not put in monetary terms—are, in the Department’s experience and considered judgment, likely to be quite high. Wheelchair users, including veterans returning from our Nation’s wars with disabilities, are taught to transfer onto toilets from the side. Side transfers are the safest, most efficient, and most independence-promoting way for wheelchair users to get onto the toilet. The opportunity to effect a side transfer will often obviate the need for a wheelchair user or individual with another type of mobility impairment to obtain the assistance of another person to engage in what is, for most people, among the most private of activities. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,” see E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. These water closet clearance provisions will have non-monetized benefits that promote equal access and equal opportunity for individuals with disabilities, and will further the ADA’s purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1).

The Department’s calculations indicated that, in fact, people with the relevant disabilities would have to place only a very small monetary value on these quite substantial benefits for the costs and benefits of these water closet clearance standards to break even. To make these calculations, the Department separated out toilet rooms with out-swinging doors from those with in-swinging doors, because the costs and benefits of the respective water closet clearance requirements are significantly different. The Department estimates that, assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of the requirement as applied to toilet rooms with out-swinging doors will exceed the monetized benefits by $454 million, an annualized net cost of approximately $32.6 million. But a large number of people with disabilities will realize benefits of independence, safety, and avoided stigma and humiliation as a result of the requirement’s application in this context. Based on the estimates of its expert panel and its own experience, the Department believes that both wheelchair users and people with a variety of other mobility disabilities will benefit. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an out-swinging door approximately 677 million times per year. Dividing the $32.6 million annual cost by the 677 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per visit. The Department believes, based on its experience and informed judgment, that 5 cents substantially understates the value people with the relevant disabilities would place on these benefits in this context.

There are substantially fewer single-user toilet rooms with in-swinging doors, and substantially fewer people with disabilities will benefit from making those rooms accessible. While both wheelchair users and individuals with other ambulatory disabilities will benefit from the additional space in a room with an out-swinging door, the Department believes, based on the estimates of its expert panel and its own experience, that wheelchair users likely will be the primary beneficiaries of the in-swinging door requirement. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an in-swinging door approximately 8.7 million times per year. Moreover, the alteration costs to make a single-user toilet room with an in-swinging door accessible are substantially higher (because of the space taken up by the door) than the equivalent costs of making a room with an out-swinging door accessible. Thus, the Department calculates that, assuming 72 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of applying the toilet room accessibility standard to rooms with in-swinging doors will exceed the monetized benefits of doing so by $266.3 million over the life of the regulations, or approximately $19.14 million per year. Dividing the $19.14 million annual cost by the 8.7 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at approximately $2.20 per visit. The Department believes, based on its experience and informed judgment, that this figure approximates, and probably understates, the value wheelchair users place on safety, independence, and the avoidance of stigma and humiliation in this context.

Alternate Scenarios

Another scenario in the Final RIA explores the incremental impact of varying the assumptions concerning the percentage of existing elements subject to supplemental requirements for which barrier removal would be readily achievable. Readily achievable barrier removal rates are modeled at 0 percent, 50 percent, and 100 percent levels. The results of this scenario show that the expected NPV is positive for each readily achievable barrier removal rate and that varying this assumed rate has little impact on expected NPV. See Final RIA, figure ES-3.

A third set of analyses in the Final RIA demonstrates the impact of using alternate baselines based on model codes instead of the primary baseline. The IBC model codes, which have been widely adopted by State and local jurisdictions around the country, are significant because many of the requirements in the final rules mirror accessibility provisions in the IBC model codes (or standards incorporated therein by reference, such as ANSI A117.1). The actual economic impact of the Department’s final rules is, therefore, tempered by the fact that many jurisdictions nationwide have already adopted and are enforcing portions of the final rules—indeed, this was one of the goals underlying the Access Board’s efforts to harmonize the 2004 ADAAG Standards with the model codes. However, capturing the economic impact of this reality poses a difficult modeling challenge due to the variety of methods by which States and localities have adopted the IBC/ANSI model codes (e.g., in whole, in part, and with or without amendments), as well as the lack of a national “facility census” establishing the location, type, and age of existing ADA-covered facilities.

As a result, in the first set of alternate IBC baseline analyses, the Final RIA assumes that all of the three IBC model codes—IBC 2000, IBC 2003, and IBC 2006—have been fully adopted by all jurisdictions and apply to all facilities nationwide. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC baselines results in positive expected NPVs in all cases. See Final RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 2006 respectively have the highest and lowest expected NPVs. These results are due to changes in the make-up of the set of requirements that is included in each alternative baseline.

Additionally, a second, more limited alternate baseline analysis in the Final RIA uses a State-specific and requirement-specific alternate IBC/ANSI baseline in order to demonstrate the likely actual incremental impact of an illustrative subset of 20 requirements under current conditions nationwide. For this analysis, research was conducted on a subset of 20 requirements in the final rules that have negative net present values under the primary baseline and readily identifiable IBC/ANSI counterparts to determine the extent to which they each respectively have been adopted at the State or local level. With respect to facilities, the population of adopting jurisdictions was used as a proxy for facility location. In other words, it was assumed that the number of ADA-covered facilities respectively compliant with these 20 requirements was equal to the percentage of the United States population (based on statistics from the Census Bureau) currently residing in those States or local jurisdictions that have adopted the IBC/ANSI counterparts to these requirements. The results of this more limited analysis, using State-specific and requirement-specific alternate IBC/ANSI baselines for these 20 requirements, demonstrate that the widespread adoption of IBC model codes by States and localities significantly lessens the financial impact of these specific requirements. Indeed, the Final RIA estimates that, if the NPVs for these 20 requirements resulting from the requirement-specific alternate IBC/ANSI baseline are substituted for their respective results under the primary baseline, the overall NPV for the final rules increases from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & table 10.

Benefits Not Monetized in the Formal Analysis

Finally, the RIA recognizes that additional benefits are likely to result from the new standards. Many of these benefits are more difficult to quantify. Among the potential benefits that have been discussed by researchers and advocates are reduced administrative costs due to harmonized guidelines, increased business opportunities, increased social development, and improved health benefits. For example, the final rules will substantially increase accessibility at newly scoped facilities such as recreation facilities and judicial facilities, which previously have been very difficult for persons with disabilities to access. Areas where the Department believes entities may incur benefits that are not monetized in the formal analysis include, but may not be limited to, the following:

Use benefits accruing to persons with disabilities. The final rules should improve the overall sense of well-being of persons with disabilities, who will know that public entities and places of public accommodation are generally accessible, and who will have improved individual experiences. Some of the most frequently cited qualitative benefits of increased access are the increase in one’s personal sense of dignity that arises from increased access and the decrease in possibly humiliating incidents due to accessibility barriers. Struggling to join classmates on a stage, to use a bathroom with too little clearance, or to enter a swimming pool all negatively affect a person’s sense of independence and can lead to humiliating accidents, derisive comments, or embarrassment. These humiliations, together with feelings of being stigmatized as different or inferior from being relegated to use other, less comfortable or pleasant elements of a facility (such as a bathroom instead of a kitchen sink for rinsing a coffee mug at work), all have a negative effect on persons with disabilities.

Use benefits accruing to persons without disabilities. Improved accessibility can affect more than just the rule’s target population; persons without disabilities may also benefit from many of the requirements. Even though the requirements were not designed to benefit persons without disabilities, any time savings or easier access to a facility experienced by persons without disabilities are also benefits that should properly be attributed to that change in accessibility. Curb cuts in sidewalks make life easier for those using wheeled suitcases or pushing a baby stroller. For people with a lot of luggage or a need to change clothes, the larger bathroom stalls can be highly valued. A ramp into a pool can allow a child (or adult) with a fear of water to ease into that pool. All are examples of “unintended” benefits of the rule. And ideally, all should be part of the calculus of the benefits to society of the rule.

Social benefits. Evidence supports the notion that children with and without disabilities benefit in their social development from interaction with one another. Therefore, there will likely be social development benefits generated by an increase in accessible play areas. However, these benefits are nearly impossible to quantify for several reasons. First, there is no guarantee that accessibility will generate play opportunities between children with and without disabilities. Second, there may be substantial overlap between interactions at accessible play areas and interactions at other facilities, such as schools and religious facilities. Third, it is not certain what the unit of measurement for social development should be.

Non-use benefits. There are additional, indirect benefits to society that arise from improved accessibility. For instance, resource savings may arise from reduced social service agency outlays when people are able to access centralized points of service delivery rather than receiving home-based care. Home-based and other social services may include home health care visits and welfare benefits. Third-party employment effects can arise when enhanced accessibility results in increasing rates of consumption by disabled and non-disabled populations, which in turn results in reduced unemployment.

Two additional forms of benefits are discussed less often, let alone quantified: Option value and existence value. Option value is the value that people with and without disabilities derive from the option of using accessible facilities at some point in the future. As with insurance, people derive benefit from the knowledge that the option to use the accessible facility exists, even if it ultimately goes unused. Simply because an individual is a nonuser of accessible elements today does not mean that he or she will remain so tomorrow. In any given year, there is some probability that an individual will develop a disability (either temporary or permanent) that will necessitate use of these features. For example, the 2000 Census found that 41.9 percent of adults 65 years and older identified themselves as having a disability. Census Bureau figures, moreover, project that the number of people 65 years and older will more than double between 2000 and 2030—from 35 million to 71.5 million. Therefore, even individuals who have no direct use for accessibility features today get a direct benefit from the knowledge of their existence should such individuals need them in the future.

Existence value is the benefit that individuals get from the plain existence of a good, service or resource—in this case, accessibility. It can also be described as the value that people both with and without disabilities derive from the guarantees of equal treatment and non-discrimination that are accorded through the provision of accessible facilities. In other words, people value living in a country that affords protections to individuals with disabilities, whether or not they themselves are directly or indirectly affected. Unlike use benefits and option value, existence value does not require an individual ever to use the resource or plan on using the resource in the future. There are numerous reasons why individuals might value accessibility even if they do not require it now and do not anticipate needing it in the future.

Costs Not Monetized in the Formal Analysis

The Department also recognizes that in addition to benefits that cannot reasonably be quantified or monetized, there may be negative consequences and costs that fall into this category as well. The absence of a quantitative assessment of such costs in the formal regulatory analysis is not meant to minimize their importance to affected entities; rather, it reflects the inherent difficulty in estimating those costs. Areas where the Department believes entities may incur costs that are not monetized in the formal analysis include, but may not be limited to, the following:

Costs from deferring or forgoing alterations. Entities covered by the final rules may choose to delay otherwise desired alterations to their facilities due to the increased incremental costs imposed by compliance with the new requirements. This may lead to facility deterioration and decrease in the value of such facilities. In extreme cases, the costs of complying with the new requirements may lead some entities to opt to not build certain facilities at all. For example, the Department estimates that the incremental costs of building a new wading pool associated with the final rules will increase by about $142,500 on average. Some facilities may opt to not build such pools to avoid incurring this increased cost.

Loss of productive space while modifying an existing facility. During complex alterations, such as where moving walls or plumbing systems will be necessary to comply with the final rules, productive space may be unavailable until the alterations are complete. For example, a hotel altering its bathrooms to comply with the final rules will be unable to allow guests to occupy these rooms while construction activities are underway, and thus the hotel may forgo revenue from these rooms during this time. While the amount of time necessary to perform alterations varies significantly, the costs associated with unproductive space could be high in certain cases, especially if space is already limited or if an entity or facility is located in an area where real estate values are particularly high (e.g., New York or San Francisco).

Expert fees. Another type of cost to entities that is not monetized in the formal analysis is legal fees to determine what, if anything, a facility needs to do in order to comply with the new rules or to respond to lawsuits. Several commenters indicated that entities will incur increased legal costs because the requirements are changing for the first time since 1991. Since litigation risk could increase, entities could spend more on legal fees than in the past. Likewise, covered entities may face incremental costs when undertaking alterations because their engineers, architects, or other consultants may also need to consider what modifications are necessary to comply with the new requirements. The Department has not quantified the incremental costs of the services of these kinds of experts.

Reduction in facility value and losses to individuals without disabilities due to the new accessibility requirements. It is possible that some changes made by entities to their facilities in order to comply with the new requirements may result in fewer individuals without disabilities using such facilities (because of decreased enjoyment) and may create a disadvantage for individuals without disabilities, even though the change might increase accessibility for individuals with disabilities. For example, the new requirements for wading pools might decrease the value of the pool to the entity that owns it due to fewer individuals using it (because the new requirements for a sloped entry might make the pool too shallow). Similarly, several commenters from the miniature golf industry expressed concern that it would be difficult to comply with the regulations for accessible holes without significantly degrading the experience for other users. Finally, with respect to costs to individuals who do not have disabilities, a very tall person, for example, may be inconvenienced by having to reach further for a lowered light switch.

Section 610 Review

The Department is also required to conduct a periodic regulatory review pursuant to section 610 of the RFA. The review requires agencies to consider five factors: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. See 5 U.S.C. 610(b). Based on these factors, the agency is required to determine whether to continue the rule without change or to amend or rescind the rule, to minimize any significant economic impact of the rule on a substantial number of small entities. See id. 610(a).

In developing the 2010 Standards, the Department reviewed the 1991 Standards section by section and, as a result, has made several clarifications and amendments in both the title II and title III implementing regulations. The changes reflect the Department’s analysis and review of complaints or comments from the public, as well as changes in technology. Many of the amendments aim to clarify and simplify the obligations of covered entities. As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in Federal accessibility guidelines, as well as to harmonize the Federal guidelines with model codes. The Department has also worked to create harmony where appropriate between the requirements of titles II and III. Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.

The Department has consulted with the Small Business Administration’s Office of Advocacy about this process. The Office of Advocacy has advised that although the process followed by the Department was ancillary to the proposed adoption of revised ADA Standards, the steps taken to solicit public input and to respond to public concerns are functionally equivalent to the process required to complete a section 610 review. Therefore, this rulemaking fulfills the Department’s obligations under section 610 of the RFA.

Final Regulatory Flexibility Analysis

The final rule also has been reviewed by the Small Business Administration’s Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates that the final rule will not have a significant economic impact on a substantial number of small governmental jurisdictions or facilities. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards, include all of the elements of a FRFA required by the Regulatory Flexibility Act (RFA). See 5 U.S.C. 604(a)(1)-(5).

Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following:

1. Succinct summaries of the need for, and objectives of, the final rules. The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title II regulations so that they are consistent with the title III regulations and accord with the Department’s legal and practical experiences in enforcing the ADA.

The ADA requires the Department to adopt enforceable accessibility standards under the ADA that are consistent with the Access Board’s minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department’s title II and title III regulations.

Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action. See preamble sections of the final rules for titles II and III entitled, “Summary” and “The Department’s Rulemaking History”; Department of Justice ANPRM, 69 FR 58768, 58768-70 (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying DOJ’s proposal to revise its regulations implementing titles II and III of the ADA); Department of Justice NPRM, 73 FR 34508, 34508- 14 (June 17, 2008) (outlining the regulatory history and rationale underlying DOJ’s proposal to revise its regulations implementing titles II and III of the ADA).

2. Summaries of significant issues raised by public comments in response to the Department’s initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments. The Department received no comments addressing specific substantive issues regarding the IRFA for the title II NPRM. However, the Office of Advocacy (Advocacy) of the U.S. Small Business Administration did provide specific comments on the title III NPRM, which may be relevant to the title II IRFA. Accordingly, the Department has included those comments here.

Advocacy acknowledged how the Department took into account the comments and concerns of small entities. However, Advocacy remained concerned about certain items in the Department’s NPRM and requested clarification or additional guidance on certain items.

General Safe Harbor. Advocacy expressed support for the Department’s proposal to allow an element-by-element safe harbor for elements that now comply with the 1991 ADA Standards and encouraged the Department to include specific technical assistance in the Small Business Compliance Guide that the Department is required to publish pursuant to section 212 of the SBREFA. Advocacy requested that technical assistance outlining which standards are subject to the safe harbor be included in the Department’s guidance. The Department has provided a list of the new requirements in the 2010 Standards that are not eligible for the safe harbor in § 35.150(b)(2)(ii)(A) through § 35.150(b)(2)(ii)(L) of the final rule and plans to include additional information about the application of the safe harbor in the Department’s Small Business Compliance Guide. Advocacy also requested that guidance regarding the two effective dates for regulations also be provided and the Department plans to include such guidance in its Small Business Compliance Guide.

Indirect Costs. Advocacy expressed concern that small entities would incur substantial indirect costs under the final rules for accessibility consultants, legal counsel, training, and the development of new policies and procedures. The Department believes that such “indirect costs,” even assuming they would occur as described by Advocacy, are not properly attributed to the Department’s final rules implementing the ADA.

The vast majority of the new requirements are incremental changes subject to a safe harbor. All small entities currently in compliance with the 1991 Standards will neither need to undertake further retrofits nor require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are not currently in compliance with the 1991 Standards, then the cost of making such a determination and bringing these elements into compliance are not properly attributed to the final rules, but to lack of compliance with the 1991 Standards.

For the limited number of requirements in the final rule that are supplemental (i.e., relating to accessibility at courthouses, play areas, and recreation facilities), the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (e.g., a swimming pool) and then conduct any work necessary to provide program access either in-house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, Chapter 5.3 of the Final RIA has a high-end estimate of the additional management costs of such evaluation (from 1 to 8 hours of staff time).

The Department also anticipates that small entities will incur minimal costs for accessibility consultants to ensure compliance with the new requirements for New Construction and Alterations in the final rules. Both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into design plans by architects and builders. Further, in adopting the final rules, the Department has sought to harmonize, to the greatest extent possible, the ADA Standards with model codes that have been adopted on a widespread basis by State and local jurisdictions across the country. Accordingly, many of the requirements in the final rules are already incorporated into building codes nationwide. Additionally, it is assumed to be part of the regular course of business—and thereby incorporated into standard professional services or construction contracts—for architects and contractors to keep abreast of changes in applicable Federal, State, and local laws and building codes. Given these considerations, the Department has determined that the additional costs, if any, for architectural or contractor services that arise out of the final rules are expected to be minimal.

Some business commenters stated that the final rules would require them to develop new policies or manuals to retrain employees on the revised ADA standards. However, it is the Department’s view that because the revised and supplemental requirements address architectural issues and features, the final rules would require minimal, if any, changes to the overall policies and procedures of covered entities.

Finally, commenters representing business interests expressed the view that the final rules would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law. See Final RIA, Ch. 3, section 3.1.4, id., at Ch. 5, id. at table 15.

3. Estimates of the number and type of small entities to which the final rules will apply. The Department estimates that the final rules will apply to approximately 89,000 facilities operated by small governmental jurisdictions covered by title II. See Final RIA, Ch. 7, “Small Business Impact Analysis,” table 17, and app. 5, “Small Business Data of the RIA” (available for review at http://www.ada.gov); see also 73 FR 36964 (June 30, 2008), app. B: Initial Regulatory Assessment, sections entitled, “Regulatory Alternatives,” “Regulatory Proposals with Cost Implications,” and “Measurement of Incremental Benefits” (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of these rules on small facilities or entities versus “typical” (i.e., average-sized) facilities or entities).

4. A description of the projected reporting, record-keeping, and other compliance requirements of the final rules, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. The final rules impose no new recordkeeping or reporting requirements. See preamble sections of the final rule for titles II and III entitled, “Paperwork Reduction Act.” Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, “Small Business Impact Analysis” and accompanying Appendix 5, “Small Business Data” (available for review at http://www.ada.gov.

5. Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rules and for rejecting other significant alternatives. From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small governmental jurisdictions. Several of these steps are summarized below.

As an initial matter, the Department— as a voting member of the Access Board—was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small entities in several respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small entities. Second, the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of private and public entities, including groups representing government entities, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board’s Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest. See, e.g., “ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and Outdoor Developed Areas,” Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses or small governmental jurisdictions, expressed significant concern that such requirements would be prohibitively expensive, require additional space, and might fundamentally alter the nature of their courses. See, e.g., “ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities,” Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns, and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space See,e.g., “ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities Final Rule,” 67 FR 56352, 56375B76 (Sept. 3, 2002) (codified at 36 CFR parts 1190 and 1191).

The Department also published an ANPRM to solicit public input on the adoption of the 2004 ADAAG as the revised Federal accessibility standards implementing titles II and III of the ADA. Among other things, the ANPRM specifically invited comment from small entities regarding the proposed rules’ potential economic impact and suggested regulatory alternatives to ameliorate any such impact. See ANPRM, 69 FR 58768, 58778-79 (Sept. 30, 2004). The Department received over 900 comments and small entities’ interests figured prominently. See NPRM, 73 FR 34466, 34468, 34468, 34501 (June 17, 2008).

Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by small businesses and small local governmental jurisdictions in ANPRM comments. First, to mitigate costs to existing facilities, the Department proposed an element-by-element safe harbor that would exempt elements in compliance with applicable technical and scoping requirements in the 1991 Standards from any program accessibility retrofit obligations under the revised title II rules. Id. at 34485. While this proposed safe harbor applied to title-II covered entities irrespective of size, it was small governmental jurisdictions that especially stood to benefit since, according to comments from small entities, such jurisdictions are more likely to operate in older buildings and facilities. Additionally, the NPRM sought public input on the inclusion of reduced scoping provisions for certain types of small existing recreational facilities (i.e., swimming pools, play areas, and saunas). Id. at 34485-88.

During the NPRM comment period, the Department engaged in considerable public outreach to small entities. A public hearing was held in Washington, D.C, during which nearly 50 persons testified in person or by phone, including several small business owners. See Transcript of the Public Hearing on Notices of Proposed Rulemaking (July 15, 2008), available at https://archive.ada.gov/archive/NPRM2008/public_hearing_transcript.htm. This hearing was also streamed live over the Internet. By the end of the 60-day comment period, the Department had also received nearly 4,500 public comments on the NPRMs, including a significant number of comments reflecting the perspectives of small governmental jurisdictions on a wide range of regulatory issues.

In addition to soliciting input from small entities through the formal process for public comment, the Department also targeted small entities with less formal regulatory discussions, including a Small Business Roundtable convened by the Office of Advocacy and held at the offices of the Small Business Administration in Washington, DC, and an informational question-and-answer session concerning the title II and III NPRMs at the Department of Justice in which business representatives attended in-person and by telephone. These outreach efforts provided the small business community with information on the NPRM proposals being considered by the Department and gave small entities the opportunity to ask questions of the Department and provide feedback.

As a result of the feedback provided by representatives of small business interests on the title II NPRM, the Department was able to assess the impact of various alternatives on small governmental jurisdictions before adopting its final rule and took steps to minimize any significant impact on small entities. Most notably, the final rule retains the element-by-element safe harbor, for which the community of small businesses and small governmental jurisdictions voiced strong support. See Appendix A discussion of safe harbor (§ 35.150(b)(2)). The Department believes that this element-by-element safe harbor provision will go a long way toward mitigating the economic impact of the final rule on existing facilities owned or operated by small governmental jurisdictions.

Additional regulatory measures mitigating the economic impact of the final rule on entities covered by title II (including small governmental jurisdictions) include deletion of the proposed requirement for captioning of safety and emergency information on scoreboards at sporting venues, retention of the proposed path of travel safe harbor, and extension of the compliance date of the 2010 Standards as applied to new construction and alterations from 6 months to 18 months after publication of the final rule. See Appendix A discussions of captioning at sporting venues (§ 35.160), path of travel safe harbor (§ 35.151(b)(4)(ii)(C)), and accessibility standards compliance dates for new construction and alterations (§ 35.151(c)).

One set of proposed alternative measures that would have potentially provided some cost savings to small public entities—the reduced scoping for certain existing recreational facilities— was not adopted by the Department in the final rule. While these proposals were not specific to small entities, they nonetheless might have mitigated the impact of the final rule for some small governmental jurisdictions that owned or operated existing facilities at which these recreational elements were located. See Appendix A discussion of existing facilities. The Department gave careful consideration to how best to insulate small entities from overly burdensome costs under the 2010 Standards for existing small play areas, swimming pools, and saunas, while still ensuring accessible and integrated recreational facilities that are of great importance to persons with disabilities. The Department concluded that the existing program accessibility standard (coupled with the new general element-by-element safe harbor), rather than specific exemptions for these types of existing facilities, is the most efficacious method by which to protect small governmental jurisdictions.

Once the final rule is promulgated, small entities will also have a wealth of documents to assist them in complying with the 2010 Standards. For example, accompanying the title III final rule in the Federal Register is the Department’s “Analysis and Commentary on the 2010 ADA Standards for Accessible Design” (codified as Appendix B to 28 CFR part 36), which provides a plain language description of the revised scoping and technical requirements in these Standards and provides illustrative figures. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. Additionally, the Access Board has published a number of guides that discuss and illustrate application of the 2010 Standards to play areas and various types of recreational facilities.

Executive Order 13132

Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, requires executive branch agencies to consider whether a rule will have federalism implications. That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on State and local governments, a substantial direct effect on the relationship between the Federal Government and the States and localities, or a substantial direct effect on the distribution of power and responsibilities among the different levels of government. If an agency believes that a rule is likely to have federalism implications, it must consult with State and local elected officials about how to minimize or eliminate the effects.

Title II of the ADA covers State and local government programs, services, and activities and, therefore, clearly has some federalism implications. State and local governments have been subject to the ADA since 1991, and the majority have also been required to comply with the requirements of section 504. Hence, the ADA and the title II regulation are not novel for State and local governments. In its adoption of the 2010 Standards, the Department was mindful of its obligation to meet the objectives of the ADA while also minimizing conflicts between State law and Federal interests.

The 2010 Standards address and minimize federalism concerns. As a member of the Access Board, the Department was privy to substantial feedback from State and local governments throughout the development of the Board’s 2004 guidelines. Before those guidelines were finalized as the 2004 ADA/ABA Guidelines, they addressed and minimized federalism concerns expressed by State and local governments during the development process. Because the Department adopted ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, the steps taken in the 2004 ADA/ABA Guidelines to address federalism concerns are reflected in the 2010 Standards.

The Department also solicited and received input from public entities in the September 2004 ANPRM and the June 2008 NPRM. Through the ANPRM and NPRM processes, the Department solicited comments from elected State and local officials and their representative national organizations about the potential federalism implications. The Department received comments addressing whether the ANPRM and NPRM directly affected State and local governments, the relationship between the Federal Government and the States, and the distribution of power and responsibilities among the various levels of government. This rule preempts State laws affecting entities subject to the ADA only to the extent that those laws conflict with the requirements of the ADA, as set forth in the rule.

Title III of the ADA covers public accommodations and commercial facilities. These facilities are generally subject to regulation by different levels of government, including Federal, State, and local governments. The ADA and the Department’s implementing regulations set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of State and local laws, particularly building codes. The Department’s implementing regulations address federalism concerns and mitigate federalism implications, particularly the provisions that streamline the administrative process for State and local governments seeking ADA code certification under title III.

National Technology Transfer and Advance­ment Act of 1995

The National Technology Transfer and Advancement Act of 1995 (NTTAA) directs that as a general matter, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private, generally non-profit organizations that develop technical standards or specifications using well-defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities. Public Law 104- 113, section 12(d)(1) (15 U.S.C. 272 note). In addition, the NTTAA directs agencies to consult with voluntary, private sector, consensus standards bodies and requires that agencies participate with such bodies in the development of technical standards when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources. Id. at section 12(d)(1). The Department, as a member of the Access Board, was an active participant in the lengthy process of developing the 2004 ADAAG, on which the 2010 Standards are based. As part of this update, the Board has made its guidelines more consistent with model building codes, such as the IBC, and industry standards. It coordinated extensively with model code groups and standard-setting bodies throughout the process so that differences could be reconciled. As a result, a historic level of harmonization has been achieved that has brought about improvements to the guidelines, as well as to counterpart provisions in the IBC and key industry standards, including those for accessible facilities issued through the American National Standards Institute.

Plain Language Instructions

The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department operates a toll-free ADA Information Line (voice); 1-833-610-1264 (TTY) that the public is welcome to call at any time to obtain assistance in understanding anything in this rule. If any commenter has suggestions for how the regulation could be written more clearly, please contact Janet L. Blizard, Deputy Chief or Barbara J. Elkin, Attorney Advisor, Disability Rights Section, whose contact information is provided in the introductory section of this rule, entitled,“FOR FURTHER INFORMATION CONTACT.”

Paperwork Reduction Act

The Paperwork Reduction Act of 1980 (PRA) requires agencies to clear forms and record keeping requirements with OMB before they can be introduced. 44 U.S.C. 3501 et seq. This rule does not contain any paperwork or record keeping requirements and does not require clearance under the PRA.

Unfunded Mandates Reform Act

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.

List of Subjects for 28 CFR Part 35

Administrative practice and procedure, Buildings and facilities, Civil rights, Communications, Individuals with disabilities, Reporting and recordkeeping requirements, State and local governments.

• By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 204 of the Americans with Disabilities Act of 1990, Pub. L. 101- 336, 42 U.S.C. 12134, and for the reasons set forth in Appendix A to 28 CFR part 35, chapter I of title 28 of the Code of Federal Regulations shall be amended as follows—

Title II Regulations Revised Final Title II Regulation with Integrated Text

Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (as amended by the final rule published on April 24, 2024)

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.

Subpart A-General

§ 35.101 Purpose and broad coverage.

(a) Purpose. The purpose of this part is to implement subtitle A of title II of the Americans with Disabilities Act of 1990 (42 U.S. C. 12131-12134),as amended by the ADA Amendments Act of 2008 (ADA Amendments Act) (Public Law 110-325, 122 Stat. 3553 (2008)), which prohibits discrimination on the basis of disability by public entities.

(b) Broad coverage. The primary purpose of the ADA Amendments Act is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the ADA Amendments Act’s purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.

§ 35.102 Application.

(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, they are not subject to the requirements of this part.

§ 35.103 Relationship to other laws.

(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 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 laws, or 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.

Section 35.104 Definitions.

For purposes of this part, the term—

1991 Standards means the requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to 28 CFR part 36.

2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009).

2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in § 35.151.

Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).

Archived web content means web content that—

(1) Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H;

(2) Is retained exclusively for reference, research, or recordkeeping;

(3) Is not altered or updated after the date of archiving; and

(4) Is organized and stored in a dedicated area or areas clearly identified as being archived.

Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.

Auxiliary aids and services includes—

(1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;

(2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

Complete complaint means a written statement that contains the complainant’s name and address and describes the public entity’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of this part. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.

Conventional electronic documents means web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats.

Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.

Designated agency means the Federal agency designated under subpart G of this part to oversee compliance activities under this part for particular components of State and local governments.

Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided in § 35.139.

Disability. The definition of disability can be found at § 35.108.

Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.

Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.

Historic preservation programs means programs conducted by a public entity that have preservation of historic properties as a primary purpose.

Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under State or local law.

Housing at a place of education means housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence.

Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

Individual with a disability means a person who has a disability. The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use.

Mobile applications (“apps”) means software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.

Other power-driven mobility device means any mobility device powered by batteries, fuel, or other engines-whether or not designed primarily for use by individuals with mobility disabilities-that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Public entity means—

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).

Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Qualified interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended.

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

Special district government means a public entity—other than a county, municipality, township, or independent school district—authorized by State law to provide one function or a limited number of designated functions with sufficient administrative and fiscal autonomy to qualify as a separate government and whose population is not calculated by the United States Census Bureau in the most recent decennial Census or Small Area Income and Poverty Estimates.

State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.

Total population means-

(1) If a public entity has a population calculated by the United States Census Bureau in the most recent decennial Census, the population estimate for that public entity as calculated by the United States Census Bureau in the most recent decennial Census; or

(2) If a public entity is an independent school district, or an instrumentality of an independent school district, the population estimate for the independent school district as calculated by the United States Census Bureau in the most recent Small Area Income and Poverty Estimates; or

(3) If a public entity, other than a special district government or an independent school district, does not have a population estimate calculated by the United States Census Bureau in the most recent decennial Census, but is an instrumentality or a commuter authority of one or more State or local governments that do have such a population estimate, the combined decennial Census population estimates for any State or local governments of which the public entity is an instrumentality or commuter authority; or

(4) For the National Railroad Passenger Corporation, the population estimate for the United States as calculated by the United States Census Bureau in the most recent decennial Census.

User agent means any software that retrieves and presents web content for users.

Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in § 35.160(d).

WCAG 2.1 means the Web Content Accessibility Guidelines (“WCAG”) 2.1, W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is incorporated by reference elsewhere in this part (see §§ 35.200 and 35.202).

Web content means the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.

Wheelchair means a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207 (c)(2).

§ 35.105 Self-evaluation.

(a) A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.

(b) A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments.

(c) A public entity that employs 50 or more persons shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:

(1) A list of the interested persons consulted;

(2) A description of areas examined and any problems identified; and

(3) A description of any modifications made.

(d) If a public entity has already complied with the self-evaluation requirement of a regulation implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this section shall apply only to those policies and practices that were not included in the previous self- evaluation.

§ 35.106 Notice

A public entity shall make available 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.

§ 35.107 Designation of responsible employee and adoption of grievance procedures

(a) Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by this part. The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.

(b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part.

§ 35.108 Definition of disability

(a)

(1) Disability means, with respect to an individual:

(i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(ii) A record of such an impairment; or

(iii) Being regarded as having such an impairment as described in paragraph (f) of this section.

(2) Rules of construction.

(i) The definition of “disability” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.

(ii) An individual may establish coverage under any one or more of the three prongs of the definition of “disability” in paragraph (a)(1) of this section, the “actual disability” prong in paragraph (a)(1)(i) of this section, the “record of” prong in paragraph (a)(1)(ii) of this section, or the “regarded as” prong in paragraph (a)(1)(iii) of this section.

(iii) Where an individual is not challenging a public entity’s failure to provide reasonable modifications under § 35.130(b)(7), it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the “actual disability” or “record of” prong regardless of whether the individual is challenging a public entity’s failure to provide reasonable modifications.

(b)

(1) Physical or mental impairment means:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.

(2) Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases and conditions such as the following: orthopedic, visual, speech and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

(3) Physical or mental impairment does not include homosexuality or bisexuality.

(c)

(1) Major life activities include, but are not limited to:

(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and

(ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system.

(2) Rules of construction.

(i) In determining whether an impairment substantially limits a major life activity, the term major shall not be interpreted strictly to create a demanding standard.

(ii) Whether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life.

(d) Substantially limits.

(1) Rules of construction. The following rules of construction apply when determining whether an impairment substantially limits an individual in a major life activity.

(i) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.

(ii) The primary object of attention in cases brought under title II of the ADA should be whether public entities have complied with their obligations and whether discrimination has occurred, not the extent to which an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.

(iii) An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a substantially limiting impairment.

(iv) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(v) An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

(vi) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADA Amendments Act.

(vii) The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate.

(viii) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.

(ix) The six-month “transitory” part of the “transitory and minor” exception in paragraph (f)(2) of this section does not apply to the “actual disability” or “record of” prongs of the definition of “disability.” The effects of an impairment lasting or expected to last less than six months can be substantially limiting within the meaning of this section for establishing an actual disability or a record of a disability.

(2) Predictable assessments.

(i) The principles set forth in the rules of construction in this section are intended to provide for more generous coverage and application of the ADA’s prohibition on discrimination through a framework that is predictable, consistent, and workable for all individuals and entities with rights and responsibilities under the ADA.

(ii) Applying these principles, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraph (a)(1)(i) of this section (the “actual disability” prong) or paragraph (a)(1)(ii) of this section (the “record of” prong). Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.

(iii) For example, applying these principles it should easily be concluded that the types of impairments set forth in paragraphs (d)(2)(iii)(A) through (K) of this section will, at a minimum, substantially limit the major life activities indicated. The types of impairments described in this paragraph may substantially limit additional major life activities (including major bodily functions) not explicitly listed in paragraphs (d)(2)(iii)(A) through (K).

(A) Deafness substantially limits hearing;

(B) Blindness substantially limits seeing;

(C) Intellectual disability substantially limits brain function;

(D) Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;

(E) Autism substantially limits brain function;

(F) Cancer substantially limits normal cell growth;

(G) Cerebral palsy substantially limits brain function;

(H) Diabetes substantially limits endocrine function;

(I) Epilepsy, muscular dystrophy, and multiple sclerosis each substantially limits neurological function;

(J) Human Immunodeficiency Virus (HIV) infection substantially limits immune function; and

(K) Major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia each substantially limits brain function.

(3) Condition, manner, or duration.

(i) At all times taking into account the principles set forth in the rules of construction, in determining whether an individual is substantially limited in a major life activity, it may be useful in appropriate cases to consider, as compared to most people in the general population, the conditions under which the individual performs the major life activity; the manner in which the individual performs the major life activity; or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity.

(ii) Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.

(iii) In determining whether an individual has a disability under the “actual disability” or “record of” prongs of the definition of “disability,” the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more major life activities, including, but not limited to, reading, writing, speaking, or learning because of the additional time or effort he or she must spend to read, write, speak, or learn compared to most people in the general population.

(iv) Given the rules of construction set forth in this section, it may often be unnecessary to conduct an analysis involving most or all of the facts related to condition, manner, or duration. This is particularly true with respect to impairments such as those described in paragraph (d)(2)(iii) of this section, which by their inherent nature should be easily found to impose a substantial limitation on a major life activity, and for which the individualized assessment should be particularly simple and straightforward.

(4) Mitigating measures include, but are not limited to:

(i) Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;

(ii) Use of assistive technology;

(iii) Reasonable modifications or auxiliary aids or services as defined in this regulation;

(iv) Learned behavioral or adaptive neurological modifications; or

(v) Psychotherapy, behavioral therapy, or physical therapy.

(e) Has a record of such an impairment.

(1) An individual has a record of such an impairment if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

(2) Broad construction. Whether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by the ADA and should not demand extensive analysis. An individual will be considered to fall within this prong of the definition of “disability” if the individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment. In determining whether an impairment substantially limited a major life activity, the principles articulated in paragraph (d)(1) of this section apply.

(3)Reasonable modification. An individual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability.

(f) Is regarded as having such an impairment. The following principles apply under the “regarded” as prong of the definition of “disability” (paragraph (a)(1)(iii) of this section):

(1) Except as set forth in paragraph (f)(2) of this section, an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public entity asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA.

(2) An individual is not “regarded as having such an impairment” if the public entity demonstrates that the impairment is, objectively, both “transitory” and “minor.” A public entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the public entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment), objectively, both “transitory” and “minor.” For purposes of this section, “transitory” is defined as lasting or expected to last six months or less.

(3) Establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability. Liability is established under title II of the ADA only when an individual proves that a public entity discriminated on the basis of disability within the meaning of title II of the ADA, 42 U.S.C. 12131-12134.

(g) Exclusions. The term “disability” does not include—

(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) Compulsive gambling, kleptomania, or pyromania; or

(3) Psychoactive substance use disorders resulting from current illegal use of drugs.

§§ 35.109 – 35.129 [Reserved]

Subpart B—General Requirements

§ 35.130 General prohibitions against discrimination

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;

(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards; – (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration—

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

(4) A public entity may not, in determining the site or location of a facility, make selections—

(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.

(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.

(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.

(7)

(i)A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(ii) A public entity is not required to provide a reasonable modification to an individual who meets the definition of “disability” solely under the “regarded as” prong of the definition of disability at § 35.108(a)(1)(iii).

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

(c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part.

(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

(e)

(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

(i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.

§ 35.131 Illegal use of drugs

(a) General.

(1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual’s current illegal use of drugs. (2) A public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who—

(i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program; or

(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services.

(1) A public entity shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.

(2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program.

(c) Drug testing.

(1) This part does not prohibit a public entity from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.

(2) Nothing in paragraph (c) of this section shall be construed to encourage, prohibit, restrict, or authorize the conduct of testing for the illegal use of drugs.

§ 35.132 Smoking

This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in transportation covered by this part.

§ 35.133 Maintenance of accessible features

(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.

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(b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.

(c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.

§ 35.134 Retaliation or coercion

(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part.

§ 35.135 Personal devices and services

This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.

§ 35.136 Service animals

(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(b)Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if—

(1) The animal is out of control and the animal’s handler does not take effective action to control it; or

(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136 (b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.

(d) Animal under handler’s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal.

(f) Inquiries. A public entity shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).

(g) Access to areas of a public entity. Individuals with disabilities shall 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.

(h) Surcharges. A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

(i) Miniature horses.

(1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.

(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider—

(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;

(ii) Whether the handler has sufficient control of the miniature horse;

(iii) Whether the miniature horse is housebroken; and

(iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

(3) Other requirements. Paragraphs 35.136 (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses.

§ 35.137 Mobility devices.

(a) Use of wheelchairs and manually-powered mobility aids. A public entity shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.

(b)

(1) Use of other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public entity has adopted pursuant to § 35.130(h).

(2)Assessment factors. In determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under paragraph (b)(1) of this section, a public entity shall consider—

(i) The type, size, weight, dimensions, and speed of the device;

(ii) The facility’s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);

(iii) The facility’s design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);

(iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and

(v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

(c)

(1) Inquiry about disability. A public entity shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability.

(2) Inquiry into use of other power-driven mobility device. A public entity may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person’s disability. A public entity that permits the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation of a valid, State-issued, disability parking placard or card, or other State-issued proof of disability as a credible assurance that the use of the other power-driven mobility device is for the individual’s mobility disability. In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public entity shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability. A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards.

§ 35.138 Ticketing

(a)

(1) For the purposes of this section, “accessible seating” is defined as wheelchair spaces and companion seats that comply with sections 221 and 802 of the 2010 Standards along with any other seats required to be offered for sale to the individual with a disability pursuant to paragraph (d) of this section.

(2) Ticket sales. A public entity that sells tickets for a single event or series of events shall modify its policies, practices, or procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating—

(i) During the same hours;

(ii) During the same stages of ticket sales, including, but not limited to, pre-sales, promotions, lotteries, wait-lists, and general sales;

(iii) Through the same methods of distribution;

(iv) In the same types and numbers of ticketing sales outlets, including telephone service, in-person ticket sales at the facility, or third-party ticketing services, as other patrons; and

(v) Under the same terms and conditions as other tickets sold for the same event or series of events.

(b) Identification of available accessible seating. A public entity that sells or distributes tickets for a single event or series of events shall, upon inquiry—

(1) Inform individuals with disabilities, their companions, and third parties purchasing tickets for accessible seating on behalf of individuals with disabilities of the locations of all unsold or otherwise available accessible seating for any ticketed event or events at the facility;

(2) Identify and describe the features of available accessible seating in enough detail to reasonably permit an individual with a disability to assess independently whether a given accessible seating location meets his or her accessibility needs; and

(3) Provide materials, such as seating maps, plans, brochures, pricing charts, or other information, that identify accessible seating and information relevant thereto with the same text or visual representations as other seats, if such materials are provided to the general public.

(c) Ticket prices. The price of tickets for accessible seating for a single event or series of events shall not be set higher than the price for other tickets in the same seating section for the same event or series of events. Tickets for accessible seating must be made available at all price levels for every event or series of events. If tickets for accessible seating at a particular price level are not available because of inaccessible features, then the percentage of tickets for accessible seating that should have been available at that price level (determined by the ratio of the total number of tickets at that price level to the total number of tickets in the assembly area) shall be offered for purchase, at that price level, in a nearby or similar accessible location.

(d) Purchasing multiple tickets.

(1) General. For each ticket for a wheelchair space purchased by an individual with a disability or a third-party purchasing such a ticket at his or her request, a public entity shall make available for purchase three additional tickets for seats in the same row that are contiguous with the wheelchair space, provided that at the time of purchase there are three such seats available. A public entity is not required to provide more than three contiguous seats for each wheelchair space. Such seats may include wheelchair spaces.

(2) Insufficient additional contiguous seats available. If patrons are allowed to purchase at least four tickets, and there are fewer than three such additional contiguous seat tickets available for purchase, a public entity shall offer the next highest number of such seat tickets available for purchase and shall make up the difference by offering tickets for sale for seats that are as close as possible to the accessible seats.

(3) Sales limited to less than four tickets. If a public entity limits sales of tickets to fewer than four seats per patron, then the public entity is only obligated to offer as many seats to patrons with disabilities, including the ticket for the wheelchair space, as it would offer to patrons without disabilities.

(4) Maximum number of tickets patrons may purchase exceeds four. If patrons are allowed to purchase more than four tickets, a public entity shall allow patrons with disabilities to purchase up to the same number of tickets, including the ticket for the wheelchair space.

(5) Group sales. If a group includes one or more individuals who need to use accessible seating because of a mobility disability or because their disability requires the use of the accessible features that are provided in accessible seating, the group shall be placed in a seating area with accessible seating so that, if possible, the group can sit together. If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.

(e) Hold-and-release of tickets for accessible seating.

(1) Tickets for accessible seating may be released for sale in certain limited circumstances. A public entity may release unsold tickets for accessible seating for sale to individuals without disabilities for their own use for a single event or series of events only under the following circumstances—

(i) When all non-accessible tickets (excluding luxury boxes, club boxes, or suites) have been sold;

(ii) When all non-accessible tickets in a designated seating area have been sold and the tickets for accessible seating are being released in the same designated area; or

(iii) When all non-accessible tickets in a designated price category have been sold and the tickets for accessible seating are being released within the same designated price category.

(2) No requirement to release accessible tickets. Nothing in this paragraph requires a facility to release tickets for accessible seating to individuals without disabilities for their own use.

(3) Release of series-of-events tickets on a series-of-events basis.

(i) Series-of-events tickets sell-out when no ownership rights are attached. When series-of-events tickets are sold out and a public entity releases and sells accessible seating to individuals without disabilities for a series of events, the public entity shall establish a process that prevents the automatic reassignment of the accessible seating to such ticket holders for future seasons, future years, or future series so that individuals with disabilities who require the features of accessible seating and who become newly eligible to purchase tickets when these series-of-events tickets are available for purchase have an opportunity to do so.

(ii) Series-of-events tickets when ownership rights are attached. When series-of-events tickets with an ownership right in accessible seating areas are forfeited or otherwise returned to a public entity, the public entity shall make reasonable modifications in its policies, practices, or procedures to afford individuals with mobility disabilities or individuals with disabilities that require the features of accessible seating an opportunity to purchase such tickets in accessible seating areas.

(f) Ticket transfer. Individuals with disabilities who hold tickets for accessible seating shall be permitted to transfer tickets to third parties under the same terms and conditions and to the same extent as other spectators holding the same type of tickets, whether they are for a single event or series of events.

(g) Secondary ticket market.

(1) A public entity shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events.

(2) If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public entity shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public entity.

(h) Prevention of fraud in purchase of tickets for accessible seating. A public entity may not require proof of disability, including, for example, a doctor’s note, before selling tickets for accessible seating.

(1) Single-event tickets. For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the tickets for accessible seating has a mobility disability or a disability that requires the use of the accessible features that are provided in accessible seating, or is purchasing the tickets for an individual who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating.

(2) Series-of-events tickets. For series-of-events tickets, it is permissible to ask the individual purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating.

(3) Investigation of fraud. A public entity may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.

Section 35.139 Direct threat.

(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.

(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.

Subpart C—Employment

§ 35.140 Employment discrimination prohibited

(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity.

(b)

(1) For purposes of this part, the requirements of title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I.

(2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I.

§§ 35.141—35.148 [Reserved]

Subpart D—Program Accessibility

§ 35.149 Discrimination prohibited.

Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

§ 35.150 Existing facilities

(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not—

(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;

(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or

(3) Require a public entity 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. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

(b) Methods.

(1) General. A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

(2)

(i) Safe harbor. Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101-19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.

(ii) The safe harbor provided in § 35.150(b)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows-

(A) Residential facilities dwelling units, sections 233 and 809.

(B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.

(C) Recreational boating facilities, sections 235 and 1003; 206.2.10.

(D) Exercise machines and equipment, sections 236 and 1004; 206.2.13.

(E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.

(F) Golf facilities, sections 238 and 1006; 206.2.15.

(G) Miniature golf facilities, sections 239 and 1007; 206.2.16.

(H) Play areas, sections 240 and 1008; 206.2.17.

(I) Saunas and steam rooms, sections 241 and 612.

(J) Swimming pools, wading pools, and spas, sections 242 and 1009.

(K) Shooting facilities with firing positions, sections 243 and 1010.

(L) Miscellaneous. – (1) Team or player seating, section 221.2.1.4. – (2) Accessible route to bowling lanes, section. 206.2.11. – (3) Accessible route in court sports facilities, section 206.2.12.

(3) Historic preservation programs. In meeting the requirements of § 35.150(a) in historic preservation programs, a public entity shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required because of paragraph (a)(2) or (a)(3) of this section, alternative methods of achieving program accessibility include—

(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;

(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or

(iii) Adopting other innovative methods.

(4) Swimming pools, wading pools, and spas. The requirements setforth in sections 242 and 1009 of the 2010 Standards shall not applyuntil January 31, 2013, if a public entity chooses to make structural changesto existing swimming pools, wading pools, or spas built before March 15,2012, for the sole purpose of complying with the program accessibilityrequirements set forth in this section.

(c) Time period for compliance. Where structural changes in facilities are undertaken to comply with the obligations established under this section, such changes shall be made within three years of January 26, 1992, but in any event as expeditiously as possible.

(d) Transition plan.

(1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be made available for public inspection.

(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

(3) The plan shall, at a minimum—

(i) Identify physical obstacles in the public entity’s facilities that limit the accessibility of its programs or activities to individuals with disabilities;

(ii) Describe in detail the methods that will be used to make the facilities accessible;

(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and

(iv) Indicate the official responsible for implementation of the plan.

(4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this paragraph (d) shall apply only to those policies and practices that were not included in the previous transition plan.

§ 35.151 New construction and alterations

(a) Design and construction.

(1) Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.

(2) Exception for structural impracticability.

(i) Full compliance with the requirements of this section is not required where a public entity can demonstrate that it is structurally impracticable to meet the requirements. Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.

(ii) If full compliance with this section would be structurally impracticable, compliance with this section is required to the extent that it is not structurally impracticable. In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is not structurally impracticable.

(iii) If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would be structurally impracticable, accessibility shall nonetheless be ensured to persons with other types of disabilities, (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with this section.

(b) Alterations.

(1) Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

(2) The path of travel requirements of § 35.151(b)(4) shall apply only to alterations undertaken solely for purposes other than to meet the program accessibility requirements of § 35.150.

(3)

(i) Alterations to historic properties shall comply, to the maximum extent feasible, with the provisions applicable to historic properties in the design standards specified in § 35.151(c).

(ii) If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be provided pursuant to the requirements of § 35.150.

(4) Path of travel. An alteration that affects or could affect the usability of or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration.

(i) Primary function. A “primary function” is a major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public entity using the facility are carried out.

(A) Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, and corridors are not areas containing a primary function. Restrooms are not areas containing a primary function unless the provision of restrooms is a primary purpose of the area, e.g., in highway rest stops.

(B) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.

(ii) A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.

(A) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

(B) For the purposes of this section, the term “path of travel” also includes the restrooms, telephones, and drinking fountains serving the altered area.

(C) Safe harbor. If a public entity has constructed or altered required elements of a path of travel in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standards before March 15, 2012, the public entity is not required to retrofit such elements to reflect incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel.

(iii) Disproportionality.

(A) Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20 % of the cost of the alteration to the primary function area.

(B) Costs that may be counted as expenditures required to provide an accessible path of travel may include:

(1) Costs associated with providing an accessible entrance and an accessible route to the altered area, for example, the cost of widening doorways or installing ramps;

(2) Costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet controls;

(3) Costs associated with providing accessible telephones, such as relocating the telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY); and

(4) Costs associated with relocating an inaccessible drinking fountain.

(iv) Duty to provide accessible features in the event of disproportionality.

(A) When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.

(B) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order—

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as parking, storage, and alarms.

(v) Series of smaller alterations.

(A) The obligation to provide an accessible path of travel may not be evaded by performing a series of small alterations to the area served by a single path of travel if those alterations could have been performed as a single undertaking.

(B)

(1) If an area containing a primary function has been altered without providing an accessible path of travel to that area, and subsequent alterations of that area, or a different area on the same path of travel, are undertaken within three years of the original alteration, the total cost of alterations to the primary function areas on that path of travel during the preceding three-year period shall be considered in determining whether the cost of making that path of travel accessible is disproportionate.

(2) Only alterations undertaken on or after March 15, 2011, shall be considered in determining if the cost of providing an accessible path of travel is disproportionate to the overall cost of the alterations.

(c) Accessibility standards and compliance date.

(1) If physical construction or alterations commence after July 26, 1992, but prior to September 15, 2010, then new construction and alterations subject to this section must comply with either the UFAS or the 1991 Standards except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of the 1991 Standards shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

(2) If physical construction or alterations commence on or after September 15, 2010, and before March 15, 2012, then new construction and alterations subject to this section may comply with one of the following: the 2010 Standards, UFAS, or the 1991 Standards except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of the 1991 Standards shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

(3) If physical construction or alterations commence on or after March 15, 2012, then new construction and alterations subject to this section shall comply with the 2010 Standards.

(4) For the purposes of this section, ceremonial groundbreaking or razing of structures prior to site preparation do not commence physical construction or alterations.

(5) Noncomplying new construction and alterations.

(i) Newly constructed or altered facilities or elements covered by §§ 35.151(a) or (b) that were constructed or altered before March 15, 2012, and that do not comply with the 1991 Standards or with UFAS shall before March 15, 2012, be made accessible in accordance with either the 1991 Standards, UFAS, or the 2010 Standards.

(ii) Newly constructed or altered facilities or elements covered by §§ 35.151(a) or (b) that were constructed or altered before March 15, 2012 and that do not comply with the 1991 Standards or with UFAS shall, on or after March 15, 2012, be made accessible in accordance with the 2010 Standards.

Appendix to § 35.151(c)

Compliance Date for New Construction or Alterations Applicable Standards Before September 15, 2010 1991 Standards or UFAS On or after September 15, 2010, and before March 15, 2012 1991 Standards, UFAS, or 2010 Standards On or after March 15, 2012 2010 Standards

(d) Scope of coverage. The 1991 Standards and the 2010 Standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site. Unless specifically stated otherwise, the advisory notes, appendix notes, and figures contained in the 1991 Standards and the 2010 Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements.

(e) Social service center establishments. Group homes, halfway houses, shelters, or similar social service center establishments that provide either temporary sleeping accommodations or residential dwelling units that are subject to this section shall comply with the provisions of the 2010 Standards applicable to residential facilities, including, but not limited to, the provisions in sections 233 and 809.

(1) In sleeping rooms with more than 25 beds covered by this section, a minimum of 5% of the beds shall have clear floor space complying with section 806.2.3 of the 2010 Standards.

(2) Facilities with more than 50 beds covered by this section that provide common use bathing facilities, shall provide at least one roll-in shower with a seat that complies with the relevant provisions of section 608 of the 2010 Standards. Transfer-type showers are not permitted in lieu of a roll-in shower with a seat, and the exceptions in sections 608.3 and 608.4 for residential dwelling units are not permitted. When separate shower facilities are provided for men and for women, at least one roll-in shower shall be provided for each group.

(f) Housing at a place of education. Housing at a place of education that is subject to this section shall comply with the provisions of the 2010 Standards applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806 subject to the following exceptions. For the purposes of the application of this section, the term “sleeping room” is intended to be used interchangeably with the term “guest room” as it is used in the transient lodging standards.

(1) Kitchens within housing units containing accessible sleeping rooms with mobility features (including suites and clustered sleeping rooms) or on floors containing accessible sleeping rooms with mobility features shall provide turning spaces that comply with section 809.2.2 of the 2010 Standards and kitchen work surfaces that comply with section 804.3 of the 2010 Standards.

(2) Multi-bedroom housing units containing accessible sleeping rooms with mobility features shall have an accessible route throughout the unit in accordance with section 809.2 of the 2010 Standards.

(3) Apartments or townhouse facilities that are provided by or on behalf of a place of education, which are leased on a year-round basis exclusively to graduate students or faculty, and do not contain any public use or common use areas available for educational programming, are not subject to the transient lodging standards and shall comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards.

(g) Assembly areas. Assembly areas subject to this section shall comply with the provisions of the 2010 Standards applicable to assembly areas, including, but not limited to, sections 221 and 802. In addition, assembly areas shall ensure that—

(1) In stadiums, arenas, and grandstands, wheelchair spaces and companion seats are dispersed to all levels that include seating served by an accessible route;

(2) Assembly areas that are required to horizontally disperse wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 Standards and have seating encircling, in whole or in part, a field of play or performance area shall disperse wheelchair spaces and companion seats around that field of play or performance area;

(3) Wheelchair spaces and companion seats are not located on (or obstructed by) temporary platforms or other movable structures, except that when an entire seating section is placed on temporary platforms or other movable structures in an area where fixed seating is not provided, in order to increase seating for an event, wheelchair spaces and companion seats may be placed in that section. When wheelchair spaces and companion seats are not required to accommodate persons eligible for those spaces and seats, individual, removable seats may be placed in those spaces and seats;

(4) Stadium-style movie theaters shall locate wheelchair spaces and companion seats 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 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).

(h) Medical care facilities. Medical care facilities that are subject to this section shall comply with the provisions of the 2010 Standards applicable to medical care facilities, including, but not limited to, sections 223 and 805. In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 of the 2010 Standards in a manner that is proportionate by type of medical specialty.

(i) Curb ramps.

(1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.

(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.

(j) Facilities with residential dwelling units for sale to individual owners.

(1) Residential dwelling units designed and constructed or altered by public entities that will be offered for sale to individuals shall comply with the requirements for residential facilities in the 2010 Standards including sections 233 and 809.

(2) The requirements of paragraph (1) also apply to housing programs that are operated by public entities where design and construction of particular residential dwelling units take place only after a specific buyer has been identified. In such programs, the covered entity must provide the units that comply with the requirements for accessible features to those pre-identified buyers with disabilities who have requested such a unit.

(k) Detention and correctional facilities.

(1) New construction of jails, prisons, and other detention and correctional facilities shall comply with the 2010 Standards except that public entities shall provide accessible mobility features complying with section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer than one, of the total number of cells in a facility. Cells with mobility features shall be provided in each classification level.

(2) Alterations to detention and correctional facilities. Alterations to jails, prisons, and other detention and correctional facilities shall comply with the 2010 Standards except that public entities shall provide accessible mobility features complying with section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer than one, of the total number of cells being altered until at least 3%, but no fewer than one, of the total number of cells in a facility shall provide mobility features complying with section 807.2. Altered cells with mobility features shall be provided in each classification level. However, when alterations are made to specific cells, detention and correctional facility operators may satisfy their obligation to provide the required number of cells with mobility features by providing the required mobility features in substitute cells (cells other than those where alterations are originally planned), provided that each substitute cell—

(i) Is located within the same prison site;

(ii) Is integrated with other cells to the maximum extent feasible;

(iii) Has, at a minimum, equal physical access as the altered cells to areas used by inmates or detainees for visitation, dining, recreation, educational programs, medical services, work programs, religious services, and participation in other programs that the facility offers to inmates or detainees; and,

(iv) If it is technically infeasible to locate a substitute cell within the same prison site, a substitute cell must be provided at another prison site within the corrections system.

(3) With respect to medical and long-term care facilities in jails, prisons, and other detention and correctional facilities, public entities shall apply the 2010 Standards technical and scoping requirements for those facilities irrespective of whether those facilities are licensed.

§ 35.152 Jails, detention and correctional facilities, and community correctional facilities.

(a) General. This section applies to public entities that are responsible for the operation or management of adult and juvenile justice jails, detention and correctional facilities, and community correctional facilities, either directly or through contractual, licensing, or other arrangements with public or private entities, in whole or in part, including private correctional facilities.

(b) Discrimination prohibited.

(1) Public entities shall ensure that qualified inmates or detainees with disabilities shall not, because a facility is inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of, the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a public entity-

(i) Shall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available;

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

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

(iv) Shall not deprive inmates or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed.

(3) Public entities shall 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.

§§ 35.153—35.159 [Reserved]

Subpart E—Communications

§ 35.160 General.

(a)

(1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.

(2) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate.

(b)

(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.

(2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

(c)

(1) A public entity shall not require an individual with a disability to bring another individual to interpret for him or her.

(2) A public entity shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except—

(i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or

(ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.

(3) A public entity shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

(d) Video remote interpreting (VRI) services. A public entity that chooses to provide qualified interpreters via VRI services shall ensure that it provides—

(1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;

(2) A sharply delineated image that is large enough to display the interpreter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.

§ 35.161 Telecommunications.

(a) Where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments.

(b) When a public entity uses an automated-attendant system,including, but not limited to, voice mail and messaging, or aninteractive voice response system, for receiving and directing incomingtelephone calls, that system must provide effective real-timecommunication with individuals using auxiliary aids and services,including TTYs and all forms of FCC-approved telecommunications relaysystem, including Internet-based relay systems.

(c) A public entity shall respond to telephone calls from atelecommunications relay service established under title IV of the ADAin the same manner that it responds to other telephone calls.

§ 35.162 Telephone emergency services

Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDD’s and computer modems.

§ 35.163 Information and signage

(a) A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities. (b) A public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance of a facility.

§ 35.164 Duties

This subpart does not require a public entity 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. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.

§§ 35.165—35.169 [Reserved]

Subpart F—Compliance Procedures

§ 35.170 Complaints

(a) Who may file. An individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity may, by himself or herself or by an authorized representative, file a complaint under this part.

(b) Time for filing. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the designated agency for good cause shown. A complaint is deemed to be filed under this section on the date it is first filed with any Federal agency.

(c) Where to file. An individual may file a complaint with any agency that he or she believes to be the appropriate agency designated under subpart G of this part, or with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice for referral as provided in §35.171(a)(2).

§ 35.171 Acceptance of complaints

(a) Receipt of complaints.

(1)

(i) Any Federal agency that receives a complaint of discrimination on the basis of disability by a public entity shall promptly review the complaint to determine whether it has jurisdiction over the complaint under section 504.

(ii) If the agency does not have section 504 jurisdiction, it shall promptly determine whether it is the designated agency under subpart G of this part responsible for complaints filed against that public entity.

(2)

(i) If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it shall promptly refer the complaint to the appropriate designated agency, the agency that has section 504 jurisdiction, or the Department of Justice, and so notify the complainant.

(ii) When the Department of Justice receives a complaint for which it does not have jurisdiction under section 504 and is not the designated agency, it may exercise jurisdiction pursuant to § 35.190(e) or refer the complaint to an agency that does have jurisdiction under section 504 or to the appropriate agency designated in subpart G of this part or, in the case of an employment complaint that is also subject to title I of the Act, to the Equal Employment Opportunity Commission.

(3)

(i) If the agency that receives a complaint has section 504 jurisdiction, it shall process the complaint according to its procedures for enforcing section 504.

(ii) If the agency that receives a complaint does not have section 504 jurisdiction, but is the designated agency, it shall process the complaint according to the procedures established by this subpart.

(b) Employment complaints.

(1) If a complaint alleges employment discrimination subject to title I of the Act, and the agency has section 504 jurisdiction, the agency shall follow the procedures issued by the Department of Justice and the Equal Employment Opportunity Commission under section 107(b) of the Act.

(2) If a complaint alleges employment discrimination subject to title I of the Act, and the designated agency does not have section 504 jurisdiction, the agency shall refer the complaint to the Equal Employment Opportunity Commission for processing under title I of the Act.

(3) Complaints alleging employment discrimination subject to this part, but not to title I of the Act shall be processed in accordance with the procedures established by this subpart.

(c) Complete complaints.

(1) A designated agency shall accept all complete complaints under this section and shall promptly notify the complainant and the public entity of the receipt and acceptance of the complaint.

(2) If the designated agency receives a complaint that is not complete, it shall notify the complainant and specify the additional information that is needed to make the complaint a complete complaint. If the complainant fails to complete the complaint, the designated agency shall close the complaint without prejudice.

§ 35.172 Investigations and compliance reviews.

(a) The designated agency shall investigate complaints for which it is responsible under § 35.171.

(b) The designated agency may conduct compliance reviews of public entities in order to ascertain whether there has been a failure to comply with the nondiscrimination requirements of this part.

(c) Where appropriate, the designated agency shall attempt informal resolution of any matter being investigated under this section, and, if resolution is not achieved and a violation is found, issue to the public entity and the complainant, if any, a Letter of Findings that shall include—

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found (including compensatory damages where appropriate); and

(3) Notice of the rights and procedures available under paragraph (d) of this section and §§ 35.173 and 35.174.

(d) At any time, the complainant may file a private suit pursuant to section 203 of the Act, 42 U.S.C. 12133, whether or not the designated agency finds a violation.

§ 35.173 Voluntary compliance agreements

(a) When the designated agency issues a noncompliance Letter of Findings, the designated agency shall—

(1) Notify the Assistant Attorney General by forwarding a copy of the Letter of Findings to the Assistant Attorney General; and

(2) Initiate negotiations with the public entity to secure compliance by voluntary means.

(b) Where the designated agency is able to secure voluntary compliance, the voluntary compliance agreement shall—

(1) Be in writing and signed by the parties;

(2) Address each cited violation;

(3) Specify the corrective or remedial action to be taken, within a stated period of time, to come into compliance;

(4) Provide assurance that discrimination will not recur; and

(5) Provide for enforcement by the Attorney General.

§ 35.174 Referral.

If the public entity declines to enter into voluntary compliance negotiations or if negotiations are unsuccessful, the designated agency shall refer the matter to the Attorney General with a recommendation for appropriate action.

§ 35.175 Attorney’s fees.

In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.

§ 35.176 Alternative means of dispute resolution.

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Act and this part.

§ 35.177 Effect of unavailability of technical assistance.

A public entity shall not be excused from compliance with the requirements of this part because of any failure to receive technical assistance, including any failure in the development or dissemination of any technical assistance manual authorized by the Act.

§ 35.178 State immunity.

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.

§§ 35.179—35.189 [Reserved]

Subpart G—Designated Agencies

§ 35.190 Designated Agencies.

(a) The Assistant Attorney General shall coordinate the compliance activities of Federal agencies with respect to State and local government components, and shall provide policy guidance and interpretations to designated agencies to ensure the consistent and effective implementation of the requirements of this part.

(b) The Federal agencies listed in paragraph (b)(1)-(8) of this section shall have responsibility for the implementation of subpart F of this part for components of State and local governments that exercise responsibilities, regulate, or administer services, programs, or activities in the following functional areas.

(1) Department of Agriculture: All programs, services, and regulatory activities relating to farming and the raising of livestock, including extension services.

(2) Department of Education: All programs, services, and regulatory activities relating to the operation of elementary and secondary education systems and institutions, institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and libraries.

(3) Department of Health and Human Services: All programs, services, and regulatory activities relating to the provision of health care and social services, including schools of medicine, dentistry, nursing, and other health-related schools, the operation of health care and social service providers and institutions, including “grass-roots” and community services organizations and programs, and preschool and daycare programs.

(4) Department of Housing and Urban Development: All programs, services, and regulatory activities relating to state and local public housing, and housing assistance and referral.

(5) Department of Interior: All programs, services, and regulatory activities relating to lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums.

(6) Department of Justice: All programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions; commerce and industry, including general economic development, banking and finance, consumer protection, insurance, and small business; planning, development, and regulation (unless assigned to other designated agencies); state and local government support services (e.g., audit, personnel, comptroller, administrative services); all other government functions not assigned to other designated agencies.

(7) Department of Labor: All programs, services, and regulatory activities relating to labor and the work force.

(8) Department of Transportation: All programs, services, and regulatory activities relating to transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing.

(c) Responsibility for the implementation of subpart F of this part for components of State or local governments that exercise responsibilities, regulate, or administer services, programs, or activities relating to functions not assigned to specific designated agencies by paragraph (b) of this section may be assigned to other specific agencies by the Department of Justice.

(d) If two or more agencies have apparent responsibility over a complaint, the Assistant Attorney General shall determine which one of the agencies shall be the designated agency for purposes of that complaint.

(e) When the Department receives a complaint directed to the Attorney General alleging a violation of this part that may fall within the jurisdiction of a designated agency or another Federal agency that may have jurisdiction under section 504, the Department may exercise its discretion to retain the complaint for investigation under this part.

§§ 35.191—35.999 [Reserved]

Subpart H—Web and Mobile Accessibility

§ 35.200 Requirements for web and mobile accessibility.

(a) General. A public entity shall ensure that the following are readily accessible to and usable by individuals with disabilities:

(1) Web content that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements; and

(2) Mobile apps that a public entity provides or makes available, directly or through contractual, licensing, or other arrangements.

(b) Requirements.

(1) Beginning April 24, 2026, a public entity, other than a special district government, with a total population of 50,000 or more shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(2) Beginning April 26, 2027, a public entity with a total population of less than 50,000 or any public entity that is a special district government shall ensure that the web content and mobile apps that the public entity provides or makes available, directly or through contractual, licensing, or other arrangements, comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1, unless the public entity can demonstrate that compliance with this section would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(3) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference is available for inspection at the U.S. Department of Justice and at the National Archives and Records Administration (“NARA”). Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. N.E., 9th Floor, Washington, D.C. 20002; ADA Information Line: (800) 514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The material may be obtained from the World Wide Web Consortium (“W3C”) Web Accessibility Initiative (“WAI”), 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.

§ 35.201 Exceptions.

The requirements of § 35.200 do not apply to the following:

(a) Archived web content. Archived web content as defined in § 35.104.

(b) Preexisting conventional electronic documents. Conventional electronic documents that are available as part of a public entity’s web content or mobile apps before the date the public entity is required to comply with this subpart, unless such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities.

(c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.

(d) Individualized, password-protected or otherwise secured conventional electronic documents. Conventional electronic documents that are:

(1) About a specific individual, their property, or their account; and

(2) Password-protected or otherwise secured.

(e) Preexisting social media posts. A public entity’s social media posts that were posted before the date the public entity is required to comply with this subpart.

§ 35.202 Conforming alternate versions.

(a) A public entity may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 35.200 only where it is not possible to make web content directly accessible due to technical or legal limitations.

(b) WCAG 2.1 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference is available for inspection at the U.S. Department of Justice and at NARA. Contact the U.S. Department of Justice at: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. N.E., 9th Floor, Washington, D.C. 20002; ADA Information Line: (800) 514-0301 (voice) or 1-833-610-1264 (TTY); website: www.ada.gov [https://perma.cc/U2V5-78KW]. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html [https://perma.cc/9SJ7-D7XZ] or email [email protected]. The material may be obtained from W3C WAI, 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; email: [email protected]; website: https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.

§ 35.203 Equivalent facilitation.

Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in substantially equivalent or greater accessibility and usability of the web content or mobile app.

§ 35.204 Duties.

Where a public entity can demonstrate that compliance with the requirements of § 35.200 would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens, compliance with § 35.200 is required to the extent that it does not result in a fundamental alteration or undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.200 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

§ 35.205 Effect of noncompliance that has a minimal impact on access.

A public entity that is not in full compliance with the requirements of § 35.200(b) will be deemed to have met the requirements of § 35.200 in the limited circumstance in which the public entity can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the public entity’s web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use:

(a) Access the same information as individuals without disabilities;

(b) Engage in the same interactions as individuals without disabilities;

(c) Conduct the same transactions as individuals without disabilities; and

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(d) Otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities.

§§ 35.206-209 [Reserved]

Title II Regulations: 2010 Guidance and Section-by-Section Analysis

Appendix A to Part 35—Guidance to Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services Note: This Appendix contains guidance providing a section-by-section analysis of the revisions to 28 CFR part 35 published on September 15, 2010.

Section-By-Section Analysis and Response to Public Comments This section provides a detailed description of the Department’s changes to the title II regulation, the reasoning behind those changes, and responses to public comments received on these topics. The Section-by-Section Analysis follows the order of the title II regulation itself, except that, if the Department has not changed a regulatory section, the unchanged section has not been mentioned.

Subpart A-General

35.104 Definitions.

“1991 Standards” and “2004 ADAAG”

The Department has included in the final rule new definitions of both the “1991 Standards” and the “2004 ADAAG.” The term “1991 Standards” refers to the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to part 36. The term “2004 ADAAG” refers to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which were issued by the Access Board on July 23, 2004, 36 CFR 1191, app. B and D (2009), and which the Department has adopted in this final rule. These terms are included in the definitions section for ease of reference.

“2010 Standards”

The Department has added to the final rule a definition of the term “2010 Standards.” The term “2010 Standards” refers to the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in § 35.151.

“Auxiliary Aids and Services”

In the NPRM, the Department proposed revisions to the definition of auxiliary aids and services under § 35.104 to include several additional types of auxiliary aids that have become more readily available since the promulgation of the 1991 title II regulation, and in recognition of new technology and devices available in some places that may provide effective communication in some situations.

The NPRM proposed adding an explicit reference to written notes in the definition of “auxiliary aids.” Although this policy was already enunciated in the Department’s 1993 Title II Technical Assistance Manual at II- 7.1000, the Department proposed inclusion in the regulation itself because some Title II entities do not understand that exchange of written notes using paper and pencil is an available option in some circumstances. See Department of Justice, The Americans with Disabilities Act, Title II Technical Assistance Manual Covering State and Local Government Programs and Services (1993), available at http://archive.ada.gov/taman2.html. Comments from several disability advocacy organizations and individuals discouraged the Department from including the exchange of written notes in the list of available auxiliary aids in § 35.104. Advocates and persons with disabilities requested explicit limits on the use of written notes as a form of auxiliary aid because, they argue, most exchanges are not simple and are not communicated effectively using handwritten notes. One major advocacy organization, for example, noted that the speed at which individuals communicate orally or use sign language averages about 200 words per minute or more while exchange of notes often leads to truncated or incomplete communication. For persons whose primary language is American Sign Language (ASL), some commenters pointed out, using written English in exchange of notes often is ineffective because ASL syntax and vocabulary is dissimilar from English. By contrast, some commenters from professional medical associations sought more specific guidance on when notes are allowed, especially in the context of medical offices and health care situations.

Exchange of notes likely will be effective in situations that do not involve substantial conversation, for example, blood work for routine lab tests or regular allergy shots. Video Interpreting Services (hereinafter referred to as “video remote interpreting services” or VRI) or an interpreter should be used when the matter involves greater complexity, such as in situations requiring communication of medical history or diagnoses, in conversations about medical procedures and treatment decisions, or when giving instructions for care at home or elsewhere. In the Section-By-Section Analysis of § 35.160 (Communications) below, the Department discusses in greater detail the kinds of situations in which interpreters or captioning would be necessary. Additional guidance on this issue can be found in a number of agreements entered into with health-care providers and hospitals that are available on the Department’s Web site at http:// www.ada.gov.

In the NPRM, in paragraph (1) of the definition in § 35.104, the Department proposed replacing the term “telecommunications devices for deaf persons (TDD)” with the term “text telephones (TTYs).” TTY has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG. Commenters representing advocates and persons with disabilities expressed approval of the substitution of TTY for TDD in the proposed regulation.

Commenters also expressed the view that the Department should expand paragraph (1) of the definition of auxiliary aids to include “TTY’s and other voice, text, and video-based telecommunications products and systems such as videophones and captioned telephones.” The Department has considered these comments and has revised the definition of “auxiliary aids” to include references to voice, text, and video-based telecommunications products and systems, as well as accessible electronic and information technology.

In the NPRM, the Department also proposed including a reference in paragraph (1) to a new technology, Video Interpreting Services (VIS). The reference remains in the final rule. VIS is discussed in the Section-By- Section Analysis below in reference to § 35.160 (Communications), but is referred to as VRI in both the final rule and Appendix A to more accurately reflect the terminology used in other regulations and among users of the technology. In the NPRM, the Department noted that technological advances in the 18 years since the ADA’s enactment had increased the range of auxiliary aids and services for those who are blind or have low vision. As a result the Department proposed additional examples to paragraph (2) of the definition, including Brailled materials and displays, screen reader software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology. Some commenters asked for more detailed requirements for auxiliary aids for persons with vision disabilities. The Department has decided it will not make additional changes to that provision at this time.

Several comments suggested expanding the auxiliary aids provision for persons who are both deaf and blind, and in particular, to include in the list of auxiliary aids a new category, “support service providers (SSP),” which was described in comments as a navigator and communication facilitator. The Department believes that services provided by communication facilitators are already encompassed in the requirement to provide qualified interpreters. Moreover, the Department is concerned that as described by the commenters, the category of support service providers would include some services that would be considered personal services and that do not qualify as auxiliary aids. Accordingly, the Department declines to add this new category to the list at this time.

Some commenters representing advocacy organizations and individuals asked the Department to explicitly require title II entities to make any or all of the devices or technology available in all situations upon the request of the person with a disability. The Department recognizes that such devices or technology may provide effective communication and in some circumstances may be effective for some persons, but the Department does not intend to require that every entity covered by title II provide every device or all new technology at all times as long as the communication that is provided is as effective as communication with others. The Department recognized in the preamble to the 1991 title II regulation that the list of auxiliary aids was “not an all-inclusive or exhaustive catalogue of possible or available auxiliary aids or services. It is not possible to provide an exhaustive list, and an attempt to do so would omit the new devices that will become available with emerging technology.” 28 CFR part 35, app. A at 560 (2009). The Department continues to endorse that view; thus, the inclusion of a list of examples of possible auxiliary aids in the definition of “auxiliary aids” should not be read as a mandate for a title II entity to offer every possible auxiliary aid listed in the definition in every situation.

“Direct Threat”

In Appendix A of the Department’s 1991 title II regulation, the Department included a detailed discussion of “direct threat” that, among other things, explained that principles established in § 36.208 of the Department’s [title III] regulation” were “applicable” as well to title II, insofar as “questions of safety are involved.” 28 CFR part 35, app. A at 565 (2009). In the final rule, the Department has included an explicit definition of “direct threat” that is parallel to the definition in the title III rule and placed it in the definitions section at § 35.104.

“Existing Facility”

The 1991 title II regulation provided definitions for “new construction” at § 35.151(a) and “alterations” at § 35.151(b). In contrast, the term “existing facility” was not explicitly defined, although it is used in the statute and regulations for title II. See 42 U.S.C. 12134(b); 28 CFR 35.150. It has been the Department’s view that newly constructed or altered facilities are also existing facilities with continuing program access obligations, and that view is made explicit in this rule.

The classification of facilities under the ADA is neither static nor mutually exclusive. Newly constructed or altered facilities are also existing facilities. A newly constructed facility remains subject to the accessibility standards in effect at the time of design and construction, with respect to those elements for which, at that time, there were applicable ADA Standards. And at some point, the facility may undergo alterations, which are subject to the alterations requirements in effect at the time. See § 35.151(b)-(c). The fact that the facility is also an existing facility does not relieve the public entity of its obligations under the new construction and alterations requirements in this part.

For example, a facility constructed or altered after the effective date of the original title II regulations but prior to the effective date of the revised title II regulation and Standards, must have been built or altered in compliance with the Standards (or UFAS) in effect at that time, in order to be in compliance with the ADA. In addition, a “newly constructed” facility or “altered” facility is also an “existing facility” for purposes of application of the title II program accessibility requirements. Once the 2010 Standards take effect, they will become the new reference point for determining the program accessibility obligations of all existing facilities. This is because the ADA contemplates that as our knowledge and understanding of accessibility advances and evolves, this knowledge will be incorporated into and result in increased accessibility in the built environment. Under title II, this goal is accomplished through the statute’s program access framework. While newly constructed or altered facilities must meet the accessibility standards in effect at the time, the fact that these facilities are also existing facilities ensures that the determination of whether a program is accessible is not frozen at the time of construction or alteration. Program access may require consideration of potential barriers to access that were not recognized as such at the time of construction or alteration, including, but not limited to, the elements that are first covered in the 2010 Standards, as that term is defined in § 35.104. Adoption of the 2010 Standards establishes a new reference point for title II entities that choose to make structural changes to existing facilities to meet their program access requirements.

The NPRM included the following proposed definition of “existing facility.” “A facility that has been constructed and remains in existence on any given date.” 73 FR 34466, 34504 (June 17, 2008). The Department received a number of comments on this issue. The commenters urged the Department to clarify that all buildings remain subject to the standards in effect at the time of their construction, that is, that a facility designed and constructed for first occupancy between January 26, 1992, and the effective date of the final rule is still considered “new construction” and that alterations occurring between January 26, 1992, and the effective date of the final rule are still considered “alterations.”

The final rule includes clarifying language to ensure that the Department’s interpretation is accurately reflected. As established by this rule, existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part. Thus, this definition reflects the Department’s interpretation that public entities have program access requirements that are independent of, but may coexist with, requirements imposed by new construction or alteration requirements in those same facilities.

“Housing at a Place of Education”

The Department has added a new definition to § 35.104, “housing at a place of education,” to clarify the types of educational housing programs that are covered by this title. This section defines “housing at a place of education” as “housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence.” This definition does not apply to social service programs that combine residential housing with social services, such as a residential job training program.

“Other Power-Driven Mobility Device” and “Wheelchair”

Because relatively few individuals with disabilities were using nontraditional mobility devices in 1991, there was no pressing need for the 1991 title II regulation to define the terms “wheelchair” or “other power-driven mobility device,” to expound on what would constitute a reasonable modification in policies, practices, or procedures under § 35.130(b)(7), or to set forth within that section specific requirements for the accommodation of mobility devices. Since the issuance of the 1991 title II regulation, however, the choices of mobility devices available to individuals with disabilities have increased dramatically. The Department has received complaints about and has become aware of situations where individuals with mobility disabilities have utilized devices that are not designed primarily for use by an individual with a mobility disability, including the Segway® Personal Transporter (Segway® PT), golf cars, all-terrain vehicles (ATVs), and other locomotion devices.

The Department also has received questions from public entities and individuals with mobility disabilities concerning which mobility devices must be accommodated and under what circumstances. Indeed, there has been litigation concerning the legal obligations of covered entities to accommodate individuals with mobility disabilities who wish to use an electronic personal assistance mobility device (EPAMD), such as the Segway® PT, as a mobility device. The Department has participated in such litigation as amicus curiae. See Ault v. Walt Disney World Co., No. 6:07-cv-1785-Orl-31KRS, 2009 WL 3242028 (M.D. Fla. Oct. 6, 2009). Much of the litigation has involved shopping malls where businesses have refused to allow persons with disabilities to use EPAMDs. See , e.g., McElroy v. Simon Property Group, No. 08- 404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway ® PT as a mobility device where an individual agrees to all of a mall’s policies for use of the device, except indemnification); Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010).

In response to questions and complaints from individuals with disabilities and covered entities concerning which mobility devices must be accommodated and under what circumstances, the Department began developing a framework to address the use of unique mobility devices, concerns about their safety, and the parameters for the circumstances under which these devices must be accommodated. As a result, the Department’s NPRM proposed two new approaches to mobility devices. First, the Department proposed a two-tiered mobility device definition that defined the term “wheelchair” separately from “other power-driven mobility device.” Second, the Department proposed requirements to allow the use of devices in each definitional category. In § 35.137(a), the NPRM proposed that wheelchairs and manually-powered mobility aids used by individuals with mobility disabilities shall be permitted in any areas open to pedestrian use. Section 35.137(b) of the NPRM provided that a public entity “shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity’s service, program, or activity.” 73 FR 34466, 34504 (June 17, 2008).

The Department sought public comment with regard to whether these steps would, in fact, achieve clarity on these issues. Toward this end, the Department’s NPRM asked several questions relating to the definitions of “wheelchair,” “other power-driven mobility device,” and “manually-powered mobility aids”; the best way to categorize different classes of mobility devices; the types of devices that should be included in each category; and the circumstances under which certain mobility devices must be accommodated or may be excluded pursuant to the policy adopted by the public entity.

Because the questions in the NPRM that concerned mobility devices and their accommodation were interrelated, many of the commenters’ responses did not identify the specific question to which they were responding. Instead, the commenters grouped the questions together and provided comments accordingly. Most commenters spoke to the issues addressed in the Department’s questions in broad terms and general concepts. As a result, the responses to the questions posed are discussed below in broadly grouped issue categories rather than on a question-by-question basis.

Two-tiered definitional approach. Commenters supported the Department’s proposal to use a two-tiered definition of mobility device. Commenters nearly universally said that wheelchairs always should be accommodated and that they should never be subject to an assessment with regard to their admission to a particular public facility. In contrast, the vast majority of commenters indicated they were in favor of allowing public entities to conduct an assessment as to whether, and under which circumstances, other power-driven mobility devices would be allowed on-site.

Many commenters indicated their support for the two-tiered approach in responding to questions concerning the definition of “wheelchair” and “other-powered mobility device.” Nearly every disability advocacy group said that the Department’s two-tiered approach strikes the proper balance between ensuring access for individuals with disabilities and addressing fundamental alteration and safety concerns held by public entities; however, a minority of disability advocacy groups wanted other power-driven mobility devices to be included in the definition of “wheelchair.” Most advocacy, nonprofit, and individual commenters supported the concept of a separate definition for “other power-driven mobility device” because it maintains existing legal protections for wheelchairs while recognizing that some devices that are not designed primarily for individuals with mobility disabilities have beneficial uses for individuals with mobility disabilities. They also favored this concept because it recognizes technological developments and that the innovative uses of varying devices may provide increased access to individuals with mobility disabilities.

Many environmental, transit system, and government commenters indicated they opposed in its entirety the concept of “other power-driven mobility devices” as a separate category. They believe that the creation of a second category of mobility devices will mean that other power-driven mobility devices, specifically ATVs and off-highway vehicles, must be allowed to go anywhere on national park lands, trails, recreational areas, etc.; will conflict with other Federal land management laws and regulations; will harm the environment and natural and cultural resources; will pose safety risks to users of these devices, as well as to pedestrians not expecting to encounter motorized devices in these settings; will interfere with the recreational enjoyment of these areas; and will require too much administrative work to regulate which devices are allowed and under which circumstances. These commenters all advocated a single category of mobility devices that excludes all fuel-powered devices.

Whether or not they were opposed to the two-tier approach in its entirety, virtually every environmental commenter and most government commenters associated with providing public transportation services or protecting land, natural resources, fish and game, etc., said that the definition of “other power-driven mobility device” is too broad. They suggested that they might be able to support the dual category approach if the definition of “other power-driven mobility device” were narrowed. They expressed general and program-specific concerns about permitting the use of other power-driven mobility devices. They noted the same concerns as those who opposed the two-tiered concept—that these devices create a host of environmental, safety, cost, administrative and conflict of law issues. Virtually all of these commenters indicated that their support for the dual approach and the concept of other power-driven mobility devices is, in large measure, due to the other power-driven mobility device assessment factors in § 35.137(c) of the NPRM.

By maintaining the two-tiered approach to mobility devices and defining “wheelchair” separately from “other power-driven mobility device,” the Department is able to preserve the protection users of traditional wheelchairs and other manually powered mobility aids have had since the ADA was enacted, while also recognizing that human ingenuity, personal choice, and new technologies have led to the use of devices that may be more beneficial for individuals with certain mobility disabilities.

Moreover, the Department believes the two-tiered approach gives public entities guidance to follow in assessing whether reasonable modifications can be made to permit the use of other power-driven mobility devices on-site and to aid in the development of policies describing the circumstances under which persons with disabilities may use such devices. The two-tiered approach neither mandates that all other power-driven mobility devices be accommodated in every circumstance, nor excludes these devices. This approach, in conjunction with the factor assessment provisions in § 35.137(b)(2), will serve as a mechanism by which public entities can evaluate their ability to accommodate other power-driven mobility devices. As will be discussed in more detail below, the assessment factors in § 35.137(b)(2) are designed to provide guidance to public entities regarding whether it is appropriate to bar the use of a specific “other power-driven mobility device in a specific facility. In making such a determination, a public entity must consider the device’s type, size, weight, dimensions, and speed; the facility’s volume of pedestrian traffic; the facility’s design and operational characteristics; whether the device conflicts with legitimate safety requirements; and whether the device poses a substantial risk of serious harm to the immediate environment or natural or cultural resources, or conflicts with Federal land management laws or regulations. In addition, if under § 35.130(b)(7), the public entity claims that it cannot make reasonable modifications to its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with disabilities, the burden of proof to demonstrate that such devices cannot be operated in accordance with legitimate safety requirements rests upon the public entity.

Categorization of wheelchair versus other power-driven mobility devices. Implicit in the creation of the two-tiered mobility device concept is the question of how to categorize which devices are wheelchairs and which are other power-driven mobility devices. Finding weight and size to be too restrictive, the vast majority of advocacy, nonprofit, and individual commenters opposed using the Department of Transportation’s definition of “common wheelchair” to designate the mobility device’s appropriate category. Commenters who generally supported using weight and size as the method of categorization did so because of their concerns about potentially detrimental impacts on the environment and cultural and natural resources; on the enjoyment of the facility by other recreational users, as well as their safety; on the administrative components of government agencies required to assess which devices are appropriate on narrow, steeply sloped, or foot-and-hoof only trails; and about the impracticality of accommodating such devices in public transportation settings.

Many environmental, transit system, and government commenters also favored using the device’s intended-use to categorize which devices constitute wheelchairs and which are other power-driven mobility devices. Furthermore, the intended-use determinant received a fair amount of support from advocacy, nonprofit, and individual commenters, either because they sought to preserve the broad accommodation of wheelchairs or because they sympathized with concerns about individuals without mobility disabilities fraudulently bringing other power-driven mobility devices into public facilities.

Commenters seeking to have the Segway® PT included in the definition of “wheelchair” objected to classifying mobility devices on the basis of their intended use because they felt that such a classification would be unfair and prejudicial to Segway® PT users and would stifle personal choice, creativity, and innovation. Other advocacy and nonprofit commenters objected to employing an intended-use approach because of concerns that the focus would shift to an assessment of the device, rather than the needs or benefits to the individual with the mobility disability. They were of the view that the mobility-device classification should be based on its function—whether it is used for a mobility disability. A few commenters raised the concern that an intended-use approach might embolden public entities to assess whether an individual with a mobility disability really needs to use the other power-driven mobility device at issue or to question why a wheelchair would not provide sufficient mobility. Those citing objections to the intended use determinant indicated it would be more appropriate to make the categorization determination based on whether the device is being used for a mobility disability in the context of the impact of its use in a specific environment. Some of these commenters preferred this approach because it would allow the Segway® PT to be included in the definition of “wheelchair.”

Many environmental and government commenters were inclined to categorize mobility devices by the way in which they are powered, such as battery-powered engines versus fuel or combustion engines. One commenter suggested using exhaust level as the determinant. Although there were only a few commenters who would make the determination based on indoor or outdoor use, there was nearly universal support for banning the indoor use of devices that are powered by fuel or combustion engines.

A few commenters thought it would be appropriate to categorize the devices based on their maximum speed. Others objected to this approach, stating that circumstances should dictate the appropriate speed at which mobility devices should be operated— for example, a faster speed may be safer when crossing streets than it would be for sidewalk use—and merely because a device can go a certain speed does not mean it will be operated at that speed. The Department has decided to maintain the device’s intended use as the appropriate determinant for which devices are categorized as “wheelchairs.” However, because wheelchairs may be intended for use by individuals who have temporary conditions affecting mobility, the Department has decided that it is more appropriate to use the phrase “primarily designed” rather than “solely designed” in making such categorizations. The Department will not foreclose any future technological developments by identifying or banning specific devices or setting restrictions on size, weight, or dimensions. Moreover, devices designed primarily for use by individuals with mobility disabilities often are considered to be medical devices and are generally eligible for insurance reimbursement on this basis. Finally, devices designed primarily for use by individuals with mobility disabilities are less subject to fraud concerns because they were not designed to have a recreational component. Consequently, rarely, if ever, is any inquiry or assessment as to their appropriateness for use in a public entity necessary.

Definition of “wheelchair.” In seeking public feedback on the NPRM’s definition of “wheelchair,” the Department explained its concern that the definition of “wheelchair” in section 508(c)(2) of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to Federal wilderness areas, is not specific enough to provide clear guidance in the array of settings covered by title II and that the stringent size and weight requirements for the Department of Transportation’s definition of “common wheelchair” are not a good fit in the context of most public entities. The Department noted in the NPRM that it sought a definition of “wheelchair” that would include manually-operated and power-driven wheelchairs and mobility scooters (i.e., those that typically are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas), as well as a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels. The NPRM defined a wheelchair as “a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually-operated or power-driven.” 73 FR 34466, 34479 (June 17, 2008). Although the NPRM’s definition of “wheelchair” excluded mobility devices that are not designed solely for use by individuals with mobility disabilities, the Department, noting that the use of the Segway® PT by individuals with mobility disabilities is on the upswing, inquired as to whether this device should be included in the definition of “wheelchair.” Many environment and Federal government employee commenters objected to the Department’s proposed definition of “wheelchair” because it differed from the definition of “wheelchair” found in section 508(c)(2) of the ADA—a definition used in the statute only in connection with a provision relating to the use of a wheelchair in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other government commenters associated with environmental issues wanted the phrase “outdoor pedestrian use” eliminated from the definition of “wheelchair.” Some transit system commenters wanted size, weight, and dimensions to be part of the definition because of concerns about costs associated with having to accommodate devices that exceed the dimensions of the “common wheelchair” upon which the 2004 ADAAG was based.

Many advocacy, nonprofit, and individual commenters indicated that as long as the Department intends the scope of the term “mobility impairments” to include other disabilities that cause mobility impairments (e.g., respiratory, circulatory, stamina, etc.), they were in support of the language. Several commenters indicated a preference for the definition of “wheelchair” in section 508(c)(2) of the ADA. One commenter indicated a preference for the term “assistive device,” as it is defined in the Rehabilitation Act of 1973, over the term “wheelchair.” A few commenters indicated that strollers should be added to the preamble’s list of examples of wheelchairs because parents of children with disabilities frequently use strollers as mobility devices until their children get older.

In the final rule, the Department has rearranged some wording and has made some changes in the terminology used in the definition of “wheelchair,” but essentially has retained the definition, and therefore the rationale, that was set forth in the NPRM. Again, the text of the ADA makes the definition of “wheelchair” contained in section 508(c)(2) applicable only to the specific context of uses in designated wilderness areas, and therefore does not compel the use of that definition for any other purpose. Moreover, the Department maintains that limiting the definition to devices suitable for use in an “indoor pedestrian area” as provided for in section 508(c)(2) of the ADA, would ignore the technological advances in wheelchair design that have occurred since the ADA went into effect and that the inclusion of the phrase “indoor pedestrian area” in the definition of “wheelchair” would set back progress made by individuals with mobility disabilities who, for many years now, have been using devices designed for locomotion in indoor and outdoor settings. The Department has concluded that same rationale applies to placing limits on the size, weight, and dimensions of wheelchairs.

With regard to the term “mobility impairments,” the Department intended a broad reading so that a wide range of disabilities, including circulatory and respiratory disabilities, that make walking difficult or impossible, would be included. In response to comments on this issue, the Department has revisited the issue and has concluded that the most apt term to achieve this intent is “mobility disability.” In addition, the Department has decided that it is more appropriate to use the phrase “primarily” designed for use by individuals with disabilities in the final rule, rather than “solely” designed for use by individuals with disabilities—the phrase proposed in the NPRM. The Department believes that this phrase more accurately covers the range of devices the Department intends to fall within the definition of “wheelchair.”

After receiving comments that the word “typical” is vague and the phrase “pedestrian areas” is confusing to apply, particularly in the context of similar, but not identical, terms used in the proposed Standards, the Department decided to delete the term “typical indoor and outdoor pedestrian areas” from the final rule. Instead, the final rule references “indoor or of both indoor and outdoor locomotion,” to make clear that the devices that fall within the definition of “wheelchair” are those that are used for locomotion on indoor and outdoor pedestrian paths or routes and not those that are intended exclusively for traversing undefined, unprepared, or unimproved paths or routes. Thus, the final rule defines the term “wheelchair” to mean “a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion.”

Whether the definition of “wheelchair” includes the Segway® PT. As discussed above, because individuals with mobility disabilities are using the Segway® PT as a mobility device, the Department asked whether it should be included in the definition of “wheelchair.” The basic Segway® PT model is a two-wheeled, gyroscopically-stabilized, battery-powered personal transportation device. The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle. Most Segway® PTs can travel up to 121⁄2 miles per hour, compared to the average pedestrian walking speed of three to four miles per hour and the approximate maximum speed for power-operated wheelchairs of six miles per hour. In a study of trail and other non-motorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of individuals using EPAMDs ranged from approximately 69 to 80 inches. See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 14, 2004), available at http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus, the Segway® PT can operate at much greater speeds than wheelchairs, and the average user stands much taller than most wheelchair users.

The Segway® PT has been the subject of debate among users, pedestrians, disability advocates, State and local governments, businesses, and bicyclists. The fact that the Segway® PT is not designed primarily for use by individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of to what extent individuals with disabilities should be allowed to operate them in areas and facilities where other power-driven mobility devices are not allowed. Those who question the use of the Segway® PT in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.

Comments regarding whether to include the Segway® PT in the definition of “wheelchair” were, by far, the most numerous received in the category of comments regarding wheelchairs and other power-driven mobility devices. Significant numbers of veterans with disabilities, individuals with multiple sclerosis, and those advocating on their behalf made concise statements of general support for the inclusion of the Segway® PT in the definition of “wheelchair.” Two veterans offered extensive comments on the topic, along with a few advocacy and nonprofit groups and individuals with disabilities for whom sitting is uncomfortable or impossible.

While there may be legitimate safety issues for EPAMD users and bystanders in some circumstances, EPAMDs and other nontraditional mobility devices can deliver real benefits to individuals with disabilities. Among the reasons given by commenters to include the Segway® PT in the definition of “wheelchair” were that the Segway® PT is well-suited for individuals with particular conditions that affect mobility including multiple sclerosis, Parkinson’s disease, chronic obstructive pulmonary disease, amputations, spinal cord injuries, and other neurological disabilities, as well as functional limitations, such as gait limitation, inability to sit or discomfort in sitting, and diminished stamina issues. Such individuals often find that EPAMDs are more comfortable and easier to use than more traditional mobility devices and assist with balance, circulation, and digestion in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically cited pressure relief, reduced spasticity, increased stamina, and improved respiratory, neurologic, and muscular health as secondary medical benefits from being able to stand. Other arguments for including the Segway® PT in the definition of “wheelchair” were based on commenters’ views that the Segway® PT offers benefits not provided by wheelchairs and mobility scooters, including its intuitive response to body movement, ability to operate with less coordination and dexterity than is required for many wheelchairs and mobility scooters, and smaller footprint and turning radius as compared to most wheelchairs and mobility scooters. Several commenters mentioned improved visibility, either due to the Segway® PT’s raised platform or simply by virtue of being in a standing position. And finally, some commenters advocated for the inclusion of the Segway® PT simply based on civil rights arguments and the empowerment and self-esteem obtained from having the power to select the mobility device of choice. Many commenters, regardless of their position on whether to include the Segway® PT in the definition of “wheelchair,” noted that the Segway® PT’s safety record is as good as, if not better, than the record for wheelchairs and mobility scooters.

Most environmental, transit system, and government commenters were opposed to including the Segway® PT in the definition of “wheelchair” but were supportive of its inclusion as an “other power-driven mobility device.” Their concerns about including the Segway® PT in the definition of “wheelchair” had to do with the safety of the operators of these devices (e.g., height clearances on trains and sloping trails in parks) and of pedestrians, particularly in confined and crowded facilities or in settings where motorized devices might be unexpected; the potential harm to the environment; the additional administrative, insurance, liability, and defensive litigation costs; potentially detrimental impacts on the environment and cultural and natural resources; and the impracticality of accommodating such devices in public transportation settings. Other environmental, transit system, and government commenters would have banned all fuel-powered devices as mobility devices. In addition, these commenters would have classified non-motorized devices as “wheelchairs” and would have categorized motorized devices, such as the Segway® PT, battery-operated wheelchairs, and mobility scooters as “other power-driven mobility devices.” In support of this position, some of these commenters argued that because their equipment and facilities have been designed to comply with the dimensions of the “common wheelchair” upon which the ADAAG is based, any device that is larger than the prototype wheelchair would be misplaced in the definition of “wheelchair.” Still others in this group of commenters wished for only a single category of mobility devices and would have included wheelchairs, mobility scooters, and the Segway® PT as “mobility devices” and excluded fuel-powered devices from that definition.

Many disability advocacy and nonprofit commenters did not support the inclusion of the Segway® PT in the definition of “wheelchair.” Paramount to these commenters was the maintenance of existing protections for wheelchair users. Because there was unanimous agreement that wheelchair use rarely, if ever, may be restricted, these commenters strongly favored categorizing wheelchairs separately from the Segway® PT and other power-driven mobility devices and applying the intended-use determinant to assign the devices to either category. They indicated that while they support the greatest degree of access in public entities for all persons with disabilities who require the use of mobility devices, they recognize that under certain circumstances, allowing the use of other power-driven mobility devices would result in a fundamental alteration of programs, services, or activities, or run counter to legitimate safety requirements necessary for the safe operation of a public entity. While these groups supported categorizing the Segway® PT as an “other power-driven mobility device,” they universally noted that in their view, because the Segway® PT does not present environmental concerns and is as safe to use as, if not safer than, a wheelchair, it should be accommodated in most circumstances.

The Department has considered all the comments and has concluded that it should not include the Segway® PT in the definition of “wheelchair.” The final rule provides that the test for categorizing a device as a wheelchair or an other power-driven mobility device is whether the device is designed primarily for use by individuals with mobility disabilities. Mobility scooters are included in the definition of “wheelchair” because they are designed primarily for users with mobility disabilities. However, because the current generation of EPAMDs, including the Segway® PT, was designed for recreational users and not primarily for use by individuals with mobility disabilities, the Department has decided to continue its approach of excluding EPAMDs from the definition of “wheelchair” and including them in the definition of “other power-driven mobility device.” Although EPAMDs, such as the Segway® PT, are not included in the definition of a “wheelchair,” public entities must assess whether they can make reasonable modifications to permit individuals with mobility disabilities to use such devices on their premises. The Department recognizes that the Segway® PT provides many benefits to those who use them as mobility devices, including a measure of privacy with regard to the nature of one’s particular disability, and believes that in the vast majority of circumstances, the application of the factors described in § 35.137 for providing access to other-powered mobility devices will result in the admission of the Segway® PT.

Treatment of “manually-powered mobility aids.” The Department’s NPRM did not define the term “manually-powered mobility aids.” Instead, the NPRM included a non- exhaustive list of examples in § 35.137(a). The NPRM queried whether the Department should maintain this approach to manually powered mobility aids or whether it should adopt a more formal definition.

Only a few commenters addressed “manually-powered mobility aids.” Virtually all commenters were in favor of maintaining a non-exhaustive list of examples of “manually-powered mobility aids” rather than adopting a definition of the term. Of those who commented, a few sought clarification of the term “manually-powered.” One commenter suggested that the term be changed to “human-powered.” Other commenters requested that the Department include ordinary strollers in the non-exhaustive list of “manually-powered mobility aids.” Since strollers are not devices designed primarily for individuals with mobility disabilities, the Department does not consider them to be manually-powered mobility aids; however, strollers used in the context of transporting individuals with disabilities are subject to the same assessment required by the ADA’s title II reasonable modification standards at § 35.130(b)(7). The Department believes that because the existing approach is clear and understood easily by the public, no formal definition of the term “manually-powered mobility aids” is required.

Definition of “other power-driven mobility device.” The Department’s NPRM defined the term “other power-driven mobility device” in § 35.104 as “any of a large range of devices powered by batteries, fuel, or other engines— whether or not designed solely for use by individuals with mobility impairments—that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs), or any mobility aid designed to operate in areas without defined pedestrian routes.” 73 FR 34466, 34504 (June 17, 2008).

Nearly all environmental, transit systems, and government commenters who supported the two-tiered concept of mobility devices said that the Department’s definition of “other power-driven mobility device” is overbroad because it includes fuel-powered devices. These commenters sought a ban on fuel-powered devices in their entirety because they believe they are inherently dangerous and pose environmental and safety concerns. They also argued that permitting the use of many of the contemplated other power-driven mobility devices, fuel-powered ones especially, would fundamentally alter the programs, services, or activities of public entities.

Advocacy, nonprofit, and several individual commenters supported the definition of “other power-driven mobility device” because it allows new technologies to be added in the future, maintains the existing legal protections for wheelchairs, and recognizes that some devices, particularly the Segway® PT, which are not designed primarily for individuals with mobility disabilities, have beneficial uses for individuals with mobility disabilities. Despite support for the definition of “other power-driven mobility device,” however, most advocacy and nonprofit commenters expressed at least some hesitation about the inclusion of fuel-powered mobility devices in the definition. While virtually all of these commenters noted that a blanket exclusion of any device that falls under the definition of “other power-driven mobility device” would violate basic civil rights concepts, they also specifically stated that certain devices, particularly, off-highway vehicles, cannot be permitted in certain circumstances. They also made a distinction between the Segway® PT and other power-driven mobility devices, noting that the Segway® PT should be accommodated in most circumstances because it satisfies the safety and environmental elements of the policy analysis. These commenters indicated that they agree that other power-driven mobility devices must be assessed, particularly as to their environmental impact, before they are accommodated.

Although many commenters had reservations about the inclusion of fuel-powered devices in the definition of other power-driven mobility devices, the Department does not want the definition to be so narrow that it would foreclose the inclusion of new technological developments (whether powered by fuel or by some other means). It is for this reason that the Department has maintained the phrase “any mobility device designed to operate in areas without defined pedestrian routes” in the final rule’s definition of other power-driven mobility devices. The Department believes that the limitations provided by “fundamental alteration” and the ability to impose legitimate safety requirements will likely prevent the use of fuel and combustion engine-driven devices indoors, as well as in outdoor areas with heavy pedestrian traffic. The Department notes, however, that in the future, technological developments may result in the production of safe fuel-powered mobility devices that do not pose environmental and safety concerns. The final rule allows consideration to be given as to whether the use of a fuel-powered device would create a substantial risk of serious harm to the environment or natural or cultural resources, and to whether the use of such a device conflicts with Federal land management laws or regulations; this aspect of the final rule will further limit the inclusion of fuel-powered devices where they are not appropriate. Consequently, the Department has maintained fuel-powered devices in the definition of “other power-driven mobility device.” The Department has also added language to the definition of “other power-driven mobility device” to reiterate that the definition does not apply to Federal wilderness areas, which are not covered by title II of the ADA; the use of wheelchairs in such areas is governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). ‘

“Qualified Interpreter”

In the NPRM, the Department proposed adding language to the definition of “qualified interpreter” to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued-speech interpreters. As the Department explained, not all interpreters are qualified for all situations. For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally. In addition, someone with only a rudimentary familiarity with sign language or finger spelling is not qualified, nor is someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words.

As further explained, different situations will require different types of interpreters. For example, an oral interpreter who has special skill and training to mouth a speaker’s words silently for individuals who are deaf or hard of hearing may be necessary for an individual who was raised orally and taught to read lips or was diagnosed with hearing loss later in life and does not know sign language. An individual who is deaf or hard of hearing may need an oral interpreter if the speaker’s voice is unclear, if there is a quick-paced exchange of communication (e.g., in a meeting), or when the speaker does not directly face the individual who is deaf or hard of hearing. A cued-speech interpreter functions in the same manner as an oral interpreter except that he or she also uses a hand code or cue to represent each speech sound.

The Department received many comments regarding the proposed modifications to the definition of “interpreter.” Many commenters requested that the Department include within the definition a requirement that interpreters be certified, particularly if they reside in a State that licenses or certifies interpreters. Other commenters opposed a certification requirement as unduly limiting, noting that an interpreter may well be qualified even if that same interpreter is not certified. These commenters noted the absence of nationwide standards or universally accepted criteria for certification.

On review of this issue, the Department has decided against imposing a certification requirement under the ADA. It is sufficient under the ADA that the interpreter be qualified. However, as the Department stated in the original preamble, this rule does not invalidate or limit State or local laws that impose standards for interpreters that are equal to or more stringent than those imposed by this definition. See 28 CFR part 35, app. A at 566 (2009). For instance, the definition would not supersede any requirement of State law for use of a certified interpreter in court proceedings.

With respect to the proposed additions to the rule, most commenters supported the expansion of the list of qualified interpreters, and some advocated for the inclusion of other types of interpreters on the list as well, such as deaf-blind interpreters, certified deaf interpreters, and speech-to-speech interpreters. As these commenters explained, deaf-blind interpreters are interpreters who have specialized skills and training to interpret for individuals who are deaf and blind; certified deaf interpreters are deaf or hard of hearing interpreters who work with hearing sign language interpreters to meet the specific communication needs of deaf individuals; and speech-to-speech interpreters have special skill and training to interpret for individuals who have speech disabilities.

The list of interpreters in the definition of qualified interpreter is illustrative, and the Department does not believe it necessary or appropriate to attempt to provide an exhaustive list of qualified interpreters. Accordingly, the Department has decided not to expand the proposed list. However, if a deaf and blind individual needs interpreter services, an interpreter who is qualified to handle the needs of that individual may be required. The guiding criterion is that the public entity must provide appropriate auxiliary aids and services to ensure effective communication with the individual. Commenters also suggested various definitions for the term “cued-speech interpreters,” and different descriptions of the tasks they performed. After reviewing the various comments, the Department has determined that it is more accurate and appropriate to refer to such individuals as “cued-language transliterators.” Likewise, the Department has changed the term “oral interpreters” to “oral transliterators.” These two changes have been made to distinguish between sign language interpreters, who translate one language into another language (e.g., ASL to English and English to ASL), from transliterators who interpret within the same language between deaf and hearing individuals. A cued-language transliterator is an interpreter who has special skill and training in the use of the Cued Speech system of handshapes and placements, along with non-manual information, such as facial expression and body language, to show auditory information visually, including speech and environmental sounds. An oral transliterator is an interpreter who has special skill and training to mouth a speaker’s words silently for individuals who are deaf or hard of hearing. While the Department included definitions for “cued speech interpreter” and “oral interpreter” in the regulatory text proposed in the NPRM, the Department has decided that it is unnecessary to include such definitions in the text of the final rule.

Many commenters questioned the proposed deletion of the requirement that a qualified interpreter be able to interpret both receptively and expressively, noting the importance of both these skills. Commenters stated that this phrase was carefully crafted in the original regulation to make certain that interpreters both (1) are capable of understanding what a person with a disability is saying and (2) have the skills needed to convey information back to that individual. These are two very different skill sets and both are equally important to achieve effective communication. For example, in a medical setting, a sign language interpreter must have the necessary skills to understand the grammar and syntax used by an ASL user (receptive skills) and the ability to interpret complicated medical information—presented by medical staff in English—back to that individual in ASL (expressive skills). The Department agrees and has put the phrase “both receptively and expressively” back in the definition.

Several advocacy groups suggested that the Department make clear in the definition of qualified interpreter that the interpreter may appear either on-site or remotely using a video remote interpreting (VRI) service. Given that the Department has included in this rule both a definition of VRI services and standards that such services must satisfy, such an addition to the definition of qualified interpreter is appropriate.

After consideration of all relevant information submitted during the public comment period, the Department has modified the definition from that initially proposed in the NPRM. The final definition now states that “[q]ualified interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.”

“Qualified Reader”

The 1991 title II regulation identifies a qualified reader as an auxiliary aid, but did not define the term. See 28 CFR 35.104(2). Based upon the Department’s investigation of complaints alleging that some entities have provided ineffective readers, the Department proposed in the NPRM to define “qualified reader” similarly to “qualified interpreter” to ensure that entities select qualified individuals to read an examination or other written information in an effective, accurate, and impartial manner. This proposal was suggested in order to make clear to public entities that a failure to provide a qualified reader to a person with a disability may constitute a violation of the requirement to provide appropriate auxiliary aids and services. The Department received comments supporting inclusion in the regulation of a definition of a “qualified reader.” Some commenters suggested the Department add to the definition a requirement prohibiting the use of a reader whose accent, diction, or pronunciation makes full comprehension of material being read difficult. Another commenter requested that the Department include a requirement that the reader “will follow the directions of the person for whom he or she is reading.” Commenters also requested that the Department define “accurately” and “effectively” as used in this definition.

While the Department believes that its proposed regulatory definition adequately addresses these concerns, the Department emphasizes that a reader, in order to be “qualified,” must be skilled in reading the language and subject matter and must be able to be easily understood by the individual with the disability. For example, if a reader is reading aloud the questions for a college microbiology examination, that reader, in order to be qualified, must know the proper pronunciation of scientific terminology used in the text, and must be sufficiently articulate to be easily understood by the individual with a disability for whom he or she is reading. In addition, the terms “effectively” and “accurately” have been successfully used and understood in the Department’s existing definition of “qualified interpreter” since 1991 without specific regulatory definitions. Instead, the Department has relied upon the common use and understanding of those terms from standard English dictionaries. Thus, the definition of “qualified reader” has not been changed from that contained in the NPRM. The final rule defines “qualified reader” to mean “a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.”

“Service Animal”

Although there is no specific language in the 1991 title II regulation concerning service animals, title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary in order to avoid discrimination on the basis of disability, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. See 28 CFR 35.130(b)(7). The 1991 title III regulation, 28 CFR 36.104, defines a “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Section 36.302(c)(1) of the 1991 title III regulation requires that “[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” Section 36.302(c)(2) of the 1991 title III regulation states that “a public accommodation [is not required] to supervise or care for a service animal.”

The Department has issued guidance and provided technical assistance and publications concerning service animals since the 1991 regulations became effective. In the NPRM, the Department proposed to modify the definition of service animal, added the definition to title II, and asked for public input on several issues related to the service animal provisions of the title II regulation: whether the Department should clarify the phrase “providing minimal protection” in the definition or remove it; whether there are any circumstances where a service animal “providing minimal protection” would be appropriate or expected; whether certain species should be eliminated from the definition of “service animal,” and, if so, which types of animals should be excluded; whether “common domestic animal” should be part of the definition; and whether a size or weight limitation should be imposed for common domestic animals even if the animal satisfies the “common domestic animal” part of the NPRM definition.

The Department received extensive comments on these issues, as well as requests to clarify the obligations of State and local government entities to accommodate individuals with disabilities who use service animals, and has modified the final rule in response. In the interests of avoiding unnecessary repetition, the Department has elected to discuss the issues raised in the NPRM questions about service animals and the corresponding public comments in the following discussion of the definition of “service animal.”

The Department’s final rule defines “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

This definition has been designed to clarify a key provision of the ADA. Many covered entities indicated that they are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals. Individuals with disabilities who use trained guide or service dogs are concerned that if untrained or unusual animals are termed “service animals,” their own right to use guide or service dogs may become unnecessarily restricted or questioned. Some individuals who are not individuals with disabilities have claimed, whether fraudulently or sincerely (albeit mistakenly), that their animals are service animals covered by the ADA, in order to gain access to courthouses, city or county administrative offices, and other title II facilities. The increasing use of wild, exotic, or unusual species, many of which are untrained, as service animals has also added to the confusion.

Finally, individuals with disabilities who have the legal right under the Fair Housing Act (FHAct) to use certain animals in their homes as a reasonable accommodation to their disabilities have assumed that their animals also qualify under the ADA. This is not necessarily the case, as discussed below.

The Department recognizes the diverse needs and preferences of individuals with disabilities protected under the ADA, and does not wish to unnecessarily impede individual choice. Service animals play an integral role in the lives of many individuals with disabilities and, with the clarification provided by the final rule, individuals with disabilities will continue to be able to use their service animals as they go about their daily activities and civic interactions. The clarification will also help to ensure that the fraudulent or mistaken use of other animals not qualified as service animals under the ADA will be deterred. A more detailed analysis of the elements of the definition and the comments responsive to the service animal provisions of the NPRM follows.

Providing minimal protection. As previously noted, the 1991 title II regulation does not contain specific language concerning service animals. The 1991 title III regulation included language stating that “minimal protection” was a task that could be performed by an individually trained service animal for the benefit of an individual with a disability. In the Department’s “ADA Business Brief on Service Animals” (2002), the Department interpreted the “minimal protection” language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure). The Department received many comments in response to the question of whether the “minimal protection” language should be clarified. Many commenters urged the removal of the “minimal protection” language from the service animal definition for two reasons: (1) The phrase can be interpreted to allow any dog that is trained to be aggressive to qualify as a service animal simply by pairing the animal with a person with a disability; and (2) the phrase can be interpreted to allow any untrained pet dog to qualify as a service animal, since many consider the mere presence of a dog to be a crime deterrent, and thus sufficient to meet the minimal protection standard. These commenters argued, and the Department agrees, that these interpretations were not contemplated under the original title III regulation, and, for the purposes of the final title II regulations, the meaning of “minimal protection” must be made clear.

While many commenters stated that they believe that the “minimal protection” language should be eliminated, other commenters recommended that the language be clarified, but retained. Commenters favoring clarification of the term suggested that the Department explicitly exclude the function of attack or exclude those animals that are trained solely to be aggressive or protective. Other commenters identified nonviolent behavioral tasks that could be construed as minimally protective, such as interrupting self-mutilation, providing safety checks and room searches, reminding the individual to take medications, and protecting the individual from injury resulting from seizures or unconsciousness.

Several commenters noted that the existing direct threat defense, which allows the exclusion of a service animal if the animal exhibits unwarranted or unprovoked violent behavior or poses a direct threat, prevents the use of “attack dogs” as service animals. One commenter noted that the use of a service animal trained to provide “minimal protection” may impede access to care in an emergency, for example, where the first responder, usually a title II entity, is unable or reluctant to approach a person with a disability because the individual’s service animal is in a protective posture suggestive of aggression.

Many organizations and individuals stated that in the general dog training community, “protection” is code for attack or aggression training and should be removed from the definition. Commenters stated that there appears to be a broadly held misconception that aggression-trained animals are appropriate service animals for persons with post traumatic stress disorder (PTSD). While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression but could include actively cuing the individual by nudging or pawing the individual to alert to the onset of an episode and removing the individual from the anxiety-provoking environment.

The Department recognizes that despite its best efforts to provide clarification, the “minimal protection” language appears to have been misinterpreted. While the Department maintains that protection from danger is one of the key functions that service animals perform for the benefit of persons with disabilities, the Department recognizes that an animal individually trained to provide aggressive protection, such as an attack dog, is not appropriately considered a service animal. Therefore, the Department has decided to modify the “minimal protection” language to read “nonviolent protection,” thereby excluding so-called “attack dogs” or dogs with traditional “protection training” as service animals. The Department believes that this modification to the service animal definition will eliminate confusion, without restricting unnecessarily the type of work or tasks that service animals may perform. The Department’s modification also clarifies that the crime-deterrent effect of a dog’s presence, by itself, does not qualify as work or tasks for purposes of the service animal definition.

Alerting to intruders. The phrase “alerting to intruders” is related to the issues of minimal protection and the work or tasks an animal may perform to meet the definition of a service animal. In the original 1991 regulatory text, this phrase was intended to identify service animals that alert individuals who are deaf or hard of hearing to the presence of others. This language has been misinterpreted by some to apply to dogs that are trained specifically to provide aggressive protection, resulting in the assertion that such training qualifies a dog as a service animal under the ADA. The Department reiterates that title II entities are not required to admit any animal whose use poses a direct threat under § 35.139. In addition, the Department has decided to remove the word “intruders” from the service animal definition and replace it with the phrase “the presence of people or sounds.” The Department believes this clarifies that so-called “attack training” or other aggressive response types of training that cause a dog to provide an aggressive response do not qualify a dog as a service animal under the ADA.

Conversely, if an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the title II entity cannot exclude the individual or the animal from a State or local government program, service, or facility. The animal can only be removed if it engages in the behaviors mentioned in § 35.136(b) (as revised in the final rule) or if the presence of the animal constitutes a fundamental alteration to the nature of the service, program, or activity of the title II entity.

Doing “work” or “performing tasks.” The NPRM proposed that the Department maintain the requirement, first articulated in the 1991 title III regulation, that in order to qualify as a service animal, the animal must “perform tasks” or “do work” for the individual with a disability. The phrases “perform tasks” and “do work” describe what an animal must do for the benefit of an individual with a disability in order to qualify as a service animal. The Department received a number of comments in response to the NPRM proposal urging the removal of the term “do work” from the definition of a service animal. These commenters argued that the Department should emphasize the performance of tasks instead. The Department disagrees. Although the common definition of work includes the performance of tasks, the definition of work is somewhat broader, encompassing activities that do not appear to involve physical action.

One service dog user stated that in some cases, “critical forms of assistance can’t be construed as physical tasks,” noting that the manifestations of “brain-based disabilities,” such as psychiatric disorders and autism, are as varied as their physical counterparts. The Department agrees with this statement but cautions that unless the animal is individually trained to do something that qualifies as work or a task, the animal is a pet or support animal and does not qualify for coverage as a service animal. A pet or support animal may be able to discern that the individual is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.

The NPRM contained an example of “doing work” that stated “a psychiatric service dog can help some individuals with dissociative identity disorder to remain grounded in time or place.” 73 FR 34466, 34504 (June 17, 2008). Several commenters objected to the use of this example, arguing that grounding was not a “task” and therefore, the example inherently contradicted the basic premise that a service animal must perform a task in order to mitigate a disability. Other commenters stated that “grounding” should not be included as an example of “work” because it could lead to some individuals claiming that they should be able to use emotional support animals in public because the dog makes them feel calm or safe. By contrast, one commenter with experience in training service animals explained that grounding is a trained task based upon very specific behavioral indicators that can be observed and measured. These tasks are based upon input from mental health practitioners, dog trainers, and individuals with a history of working with psychiatric service dogs. It is the Department’s view that an animal that is trained to “ground” a person with a psychiatric disorder does work or performs a task that would qualify it as a service animal as compared to an untrained emotional support animal whose presence affects a person’s disability. It is the fact that the animal is trained to respond to the individual’s needs that distinguishes an animal as a service animal. The process must have two steps: Recognition and response. For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond for example, by nudging, barking, or removing the individual to a safe location until the episode subsides, then the animal has indeed performed a task or done work on behalf of the individual with the disability, as opposed to merely sensing an event.

One commenter suggested defining the term “task,” presumably to improve the understanding of the types of services performed by an animal that would be sufficient to qualify the animal for coverage. The Department believes that the common definition of the word “task” is sufficiently clear and that it is not necessary to add to the definitions section. However, the Department has added examples of other kinds of work or tasks to help illustrate and provide clarity to the definition. After careful evaluation of this issue, the Department has concluded that the phrases “do work” and “perform tasks” have been effective during the past two decades to illustrate the varied services provided by service animals for the benefit of individuals with all types of disabilities. Thus, the Department declines to depart from its longstanding approach at this time.

Species limitations. When the Department originally issued its title III regulation in the early 1990s, the Department did not define the parameters of acceptable animal species. At that time, few anticipated the variety of animals that would be promoted as service animals in the years to come, which ranged from pigs and miniature horses to snakes, iguanas, and parrots. The Department has followed this particular issue closely, keeping current with the many unusual species of animals represented to be service animals. Thus, the Department has decided to refine further this aspect of the service animal definition in the final rule.

The Department received many comments from individuals and organizations recommending species limitations. Several of these commenters asserted that limiting the number of allowable species would help stop erosion of the public’s trust, which has resulted in reduced access for many individuals with disabilities who use trained service animals that adhere to high behavioral standards. Several commenters suggested that other species would be acceptable if those animals could meet nationally recognized behavioral standards for trained service dogs. Other commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered.

In the NPRM, the Department used the term “common domestic animal” in the service animal definition and excluded reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents from the service animal definition. 73 FR 34466, 34478 (June 17, 2008). However, the term “common domestic animal” is difficult to define with precision due to the increase in the number of domesticated species. Also, several State and local laws define a “domestic” animal as an animal that is not wild. The Department agrees with commenters’ views that limiting the number and types of species recognized as service animals will provide greater predictability for State and local government entities as well as added assurance of access for individuals with disabilities who use dogs as service animals. As a consequence, the Department has decided to limit this rule’s coverage of service animals to dogs, which are the most common service animals used by individuals with disabilities.

Wild animals, monkeys, and other nonhuman primates. Numerous business entities endorsed a narrow definition of acceptable service animal species, and asserted that there are certain animals (e.g., reptiles) that cannot be trained to do work or perform tasks. Other commenters suggested that the Department should identify excluded animals, such as birds and llamas, in the final rule. Although one commenter noted that wild animals bred in captivity should be permitted to be service animals, the Department has decided to make clear that all wild animals, whether born or bred in captivity or in the wild, are eliminated from coverage as service animals. The Department believes that this approach reduces risks to health or safety attendant with wild animals. Some animals, such as certain nonhuman primates including certain monkeys, pose a direct threat; their behavior can be unpredictably aggressive and violent without notice or provocation. The American Veterinary Medical Association (AVMA) issued a position statement advising against the use of monkeys as service animals, stating that “[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, and the potential for serious injury and zoonotic [animal to human disease transmission] risks.” AVMA Position Statement, Nonhuman Primates as Assistance Animals, (2005) available at http://www.avma.org/issues/policy/nonhuman_primates.asp (last visited June 24, 2010).

An organization that trains capuchin monkeys to provide in-home services to individuals with paraplegia and quadriplegia was in substantial agreement with the AVMA’s views but requested a limited recognition in the service animal definition for the capuchin monkeys it trains to provide assistance for persons with disabilities. The organization commented that its trained capuchin monkeys undergo scrupulous veterinary examinations to ensure that the animals pose no health risks, and are used by individuals with disabilities exclusively in their homes. The organization acknowledged that the capuchin monkeys it trains are not necessarily suitable for use in State or local government facilities. The organization noted that several State and local government entities have local zoning, licensing, health, and safety laws that prohibit nonhuman primates, and that these prohibitions would prevent individuals with disabilities from using these animals even in their homes.

The organization argued that including capuchin monkeys under the service animal umbrella would make it easier for individuals with disabilities to obtain reasonable modifications of State and local licensing, health, and safety laws that would permit the use of these monkeys. The organization argued that this limited modification to the service animal definition was warranted in view of the services these monkeys perform, which enable many individuals with paraplegia and quadriplegia to live and function with increased independence.

The Department has carefully considered the potential risks associated with the use of nonhuman primates as service animals in State and local government facilities, as well as the information provided to the Department about the significant benefits that trained capuchin monkeys provide to certain individuals with disabilities in residential settings. The Department has determined, however, that nonhuman primates, including capuchin monkeys, will not be recognized as service animals for purposes of this rule because of their potential for disease transmission and unpredictable aggressive behavior. The Department believes that these characteristics make nonhuman primates unsuitable for use as service animals in the context of the wide variety of public settings subject to this rule. As the organization advocating the inclusion of capuchin monkeys acknowledges, capuchin monkeys are not suitable for use in public facilities.

The Department emphasizes that it has decided only that capuchin monkeys will not be included in the definition of service animals for purposes of its regulation implementing the ADA. This decision does not have any effect on the extent to which public entities are required to allow the use of such monkeys under other Federal statutes. For example, under the FHAct, an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a “reasonable accommodation” that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the use of the animal does not pose a direct threat. In some cases, the right of an individual to have an animal under the FHAct may conflict with State or local laws that prohibit all individuals, with or without disabilities, from owning a particular species. However, in this circumstance, an individual who wishes to request a reasonable modification of the State or local law must do so under the FHAct, not the ADA. Having considered all of the comments about which species should qualify as service animals under the ADA, the Department has determined the most reasonable approach is to limit acceptable species to dogs.

Size or weight limitations. The vast majority of commenters did not support a size or weight limitation. Commenters were typically opposed to a size or weight limit because many tasks performed by service animals require large, strong dogs. For instance, service animals may perform tasks such as providing balance and support or pulling a wheelchair. Small animals may not be suitable for large adults. The weight of the service animal user is often correlated with the size and weight of the service animal. Others were concerned that adding a size and weight limit would further complicate the difficult process of finding an appropriate service animal. One commenter noted that there is no need for a limit because “if, as a practical matter, the size or weight of an individual’s service animal creates a direct threat or fundamental alteration to a particular public entity or accommodation, there are provisions that allow for the animal’s exclusion or removal.” Some common concerns among commenters in support of a size and weight limit were that a larger animal may be less able to fit in various areas with its handler, such as toilet rooms and public seating areas, and that larger animals are more difficult to control.

Balancing concerns expressed in favor of and against size and weight limitations, the Department has determined that such limitations would not be appropriate. Many individuals of larger stature require larger dogs. The Department believes it would be inappropriate to deprive these individuals of the option of using a service dog of the size required to provide the physical support and stability these individuals may need to function independently. Since large dogs have always served as service animals, continuing their use should not constitute fundamental alterations or impose undue burdens on title II entities.

Breed limitations. A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual’s home jurisdiction but is nonetheless banned by other jurisdictions. State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal’s actual behavior or history—not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.

Recognition of psychiatric service animals but not “emotional support animals.” The definition of “service animal” in the NPRM stated the Department’s longstanding position that emotional support animals are not included in the definition of “service animal.” The proposed text in § 35.104 provided that “[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or to promote emotional well-being are not service animals.” 73 FR 34466, 34504 (June 17, 2008).

Many advocacy organizations expressed concern and disagreed with the exclusion of comfort and emotional support animals. Others have been more specific, stating that individuals with disabilities may need their emotional support animals in order to have equal access. Some commenters noted that individuals with disabilities use animals that have not been trained to perform tasks directly related to their disability. These animals do not qualify as service animals under the ADA. These are emotional support or comfort animals.

Commenters asserted that excluding categories such as “comfort” and “emotional support” animals recognized by laws such as the FHAct or the Air Carrier Access Act (ACAA) is confusing and burdensome. Other commenters noted that emotional support and comfort animals perform an important function, asserting that animal companionship helps individuals who experience depression resulting from multiple sclerosis.

Some commenters explained the benefits emotional support animals provide, including emotional support, comfort, therapy, companionship, therapeutic benefits, and the promotion of emotional well-being. They contended that without the presence of an emotional support animal in their lives they would be disadvantaged and unable to participate in society. These commenters were concerned that excluding this category of animals will lead to discrimination against, and the excessive questioning of, individuals with non-visible or non-apparent disabilities. Other commenters expressing opposition to the exclusion of individually trained “comfort” or “emotional support” animals asserted that the ability to soothe or de-escalate and control emotion is “work” that benefits the individual with the disability.

Many commenters requested that the Department carve out an exception that permits current or former members of the military to use emotional support animals. They asserted that a significant number of service members returning from active combat duty have adjustment difficulties due to combat, sexual assault, or other traumatic experiences while on active duty. Commenters noted that some current or former members of the military service have been prescribed animals for conditions such as PTSD. One commenter stated that service women who were sexually assaulted while in the military use emotional support animals to help them feel safe enough to step outside their homes. The Department recognizes that many current and former members of the military have disabilities as a result of service-related injuries that may require emotional support and that such individuals can benefit from the use of an emotional support animal and could use such animal in their home under the FHAct. However, having carefully weighed the issues, the Department believes that its final rule appropriately addresses the balance of issues and concerns of both the individual with a disability and the public entity. The Department also notes that nothing in this part prohibits a public entity from allowing current or former military members or anyone else with disabilities to utilize emotional support animals if it wants to do so.

Commenters asserted the view that if an animal’s “mere presence” legitimately provides such benefits to an individual with a disability and if those benefits are necessary to provide equal opportunity given the facts of the particular disability, then such an animal should qualify as a “service animal.” Commenters noted that the focus should be on the nature of a person’s disability, the difficulties the disability may impose and whether the requested accommodation would legitimately address those difficulties, not on evaluating the animal involved. The Department understands this approach has benefitted many individuals under the FHAct and analogous State law provisions, where the presence of animals poses fewer health and safety issues, and where emotional support animals provide assistance that is unique to residential settings. The Department believes, however, that the presence of such animals is not required in the context of title II entities such as courthouses, State and local government administrative buildings, and similar title II facilities. Under the Department’s previous regulatory framework, some individuals and entities assumed that the requirement that service animals must be individually trained to do work or perform tasks excluded all individuals with mental disabilities from having service animals. Others assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the 1991 title II regulation. The Department reiterates that psychiatric service animals that are trained to do work or perform a task for individuals whose disability is covered by the ADA are protected by the Department’s present regulatory approach. Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects. Tasks performed by psychiatric service animals may include reminding the individual to take medicine, providing safety checks or room searches for persons with PTSD, interrupting self-mutilation, and removing disoriented individuals from dangerous situations. The difference between an emotional support animal and a psychiatric service animal is the work or tasks that the animal performs. Traditionally, service dogs worked as guides for individuals who were blind or had low vision. Since the original regulation was promulgated, service animals have been trained to assist individuals with many different types of disabilities.

In the final rule, the Department has retained its position on the exclusion of emotional support animals from the definition of “service animal.” The definition states that “[t]he provision of emotional support, well-being, comfort, or companionship, * * * do[es] not constitute work or tasks for the purposes of this definition.” The Department notes, however, that the exclusion of emotional support animals from coverage in the final rule does not mean that individuals with psychiatric or mental disabilities cannot use service animals that meet the regulatory definition. The final rule defines service animal as follows: “[s]ervice animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” This language simply clarifies the Department’s longstanding position.

The Department’s position is based on the fact that the title II and title III regulations govern a wider range of public settings than the housing and transportation settings for which the Department of Housing and Urban Development (HUD) and DOT regulations allow emotional support animals or comfort animals. The Department recognizes that there are situations not governed by the title II and title III regulations, particularly in the context of residential settings and transportation, where there may be a legal obligation to permit the use of animals that do not qualify as service animals under the ADA, but whose presence nonetheless provides necessary emotional support to persons with disabilities. Accordingly, other Federal agency regulations, case law, and possibly State or local laws governing those situations may provide appropriately for increased access for animals other than service animals as defined under the ADA. Public officials, housing providers, and others who make decisions relating to animals in residential and transportation settings should consult the Federal, State, and local laws that apply in those areas (e.g., the FHAct regulations of HUD and the ACAA) and not rely on the ADA as a basis for reducing those obligations.

Retain term “service animal.” Some commenters asserted that the term “assistance animal” is a term of art and should replace the term “service animal.” However, the majority of commenters preferred the term “service animal” because it is more specific. The Department has decided to retain the term “service animal” in the final rule. While some agencies, like HUD, use the term “assistance animal,” “assistive animal,” or “support animal,” these terms are used to denote a broader category of animals than is covered by the ADA. The Department has decided that changing the term used in the final rule would create confusion, particularly in view of the broader parameters for coverage under the FHAct, cf., preamble to HUD’s Final Rule for Pet Ownership for the Elderly and Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 2008); HUD Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements of Subsidized Multifamily Housing Programs (June 2007), available at http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last visited June 24, 2010). Moreover, as discussed above, the Department’s definition of “service animal” in the title II final rule does not affect the rights of individuals with disabilities who use assistance animals in their homes under the FHAct or who use “emotional support animals” that are covered under the ACAA and its implementing regulations. See 14 CFR 382.7 et seq.; see also Department of Transportation, Guidance Concerning Service Animals in Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing accommodation of service animals and emotional support animals on aircraft).

“Video Remote Interpreting” (VRI) Services

In the NPRM, the Department proposed adding Video Interpreting Services (VIS) to the list of auxiliary aids available to provide effective communication described in § 35.104. In the preamble to the NPRM, VIS was defined as “a technology composed of a video phone, video monitors, cameras, a high-speed Internet connection, and an interpreter. The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can See and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking. The video monitor can display a split screen of two live images, with the interpreter in one image and the individual who is deaf or hard of hearing in the other image.” 73 FR 34446, 34479 (June 17, 2008). Comments from advocacy organizations and individuals unanimously requested that the Department use the term “video remote interpreting (VRI),” instead of VIS, for consistency with Federal Communications Commission (FCC) regulations. See FCC Public Notice, DA- 0502417 (Sept. 7, 2005), and with common usage by consumers. The Department has made that change throughout the regulation to avoid confusion and to make the regulation more consistent with existing regulations. Many commenters also requested that the Department distinguish between VRI and “video relay service (VRS).” Both VRI and VRS use a remote interpreter who is able to See and communicate with a deaf person and a hearing person, and all three individuals may be connected by a video link. VRI is a fee-based interpreting service conveyed via videoconferencing where at least one person, typically the interpreter, is at a separate location. VRI can be provided as an on-demand service or by appointment. VRI normally involves a contract in advance for the interpreter who is usually paid by the covered entity.

VRS is a telephone service that enables persons with disabilities to use the telephone to communicate using video connections and is a more advanced form of relay service than the traditional voice to text telephones (TTY) relay systems that were recognized in the 1991 title II regulation. More specifically, VRS is a video relay service using interpreters connected to callers by video hook-up and is designed to provide telephone services to persons who are deaf and use American Sign Language that are functionally equivalent to those provided to users who are hearing. VRS is funded through the Interstate Telecommunications Relay Services Fund and overseen by the FCC. See 47 CFR 64.601(a)(26). There are no fees for callers to use the VRS interpreters and the video connection, although there may be relatively inexpensive initial costs to the title II entities to purchase the videophone or camera for on-line video connection, or other equipment to connect to the VRS service. The FCC has made clear that VRS functions as a telephone service and is not intended to be used for interpreting services where both parties are in the same room; the latter is reserved for VRI. The Department agrees that VRS cannot be used as a substitute for in-person interpreters or for VRI in situations that would not, absent one party’s disability, entail use of the telephone.

Many commenters strongly recommended limiting the use of VRI to circumstances where it will provide effective communication. Commenters from advocacy groups and persons with disabilities expressed concern that VRI may not always be appropriate to provide effective communication, especially in hospitals and emergency rooms. Examples were provided of patients who are unable to See the video monitor because they are semi-conscious or unable to focus on the video screen; other examples were given of cases where the video monitor is out of the sightline of the patient or the image is out of focus; still other examples were given of patients who could not See the image because the signal was interrupted, causing unnatural pauses in the communication, or the image was grainy or otherwise unclear. Many commenters requested more explicit guidelines on the use of VRI, and some recommended requirements for equipment maintenance, high-speed, wide-bandwidth video links using dedicated lines or wireless systems, and training of staff using VRI, especially in hospital and health care situations. Several major organizations requested a requirement to include the interpreter’s face, head, arms, hands, and eyes in all transmissions. Finally, one State agency asked for additional guidance, outreach, and mandated advertising about the availability of VRI in title II situations so that local government entities would budget for and facilitate the use of VRI in libraries, schools, and other places.

After consideration of the comments and the Department’s own research and experience, the Department has determined that VRI can be an effective method of providing interpreting services in certain circumstances, but not in others. For example, VRI should be effective in many situations involving routine medical care, as well as in the emergency room where urgent care is important, but no in-person interpreter is available; however, VRI may not be effective in situations involving surgery or other medical procedures where the patient is limited in his or her ability to see the video screen. Similarly, VRI may not be effective in situations where there are multiple people in a room and the information exchanged is highly complex and fast-paced. The Department recognizes that in these and other situations, such as where communication is needed for persons who are deaf-blind, it may be necessary to summon an in-person interpreter to assist certain individuals. To ensure that VRI is effective in situations where it is appropriate, the Department has established performance standards in § 35.160(d).

Subpart B—General Requirements

Section 35.130(h) Safety.

Section 36.301(b) of the 1991 title III regulation provides that a public accommodation “may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks, and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 CFR 36.301(b). Although the 1991 title II regulation did not include similar language, the Department’s 1993 ADA Title II Technical Assistance Manual at II-3.5200 makes clear the Department’s view that public entities also have the right to impose legitimate safety requirements necessary for the safe operation of services, programs, or activities. To ensure consistency between the title II and title III regulations, the Department has added a new § 35.130(h) in the final rule incorporating this longstanding position relating to imposition of legitimate safety requirements.

Section 35.133 Maintenance of accessible features.

Section 35.133 in the 1991 title II regulation provides that a public entity must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by qualified individuals with disabilities. See 28 CFR 35.133(a). In the NPRM, the Department clarified the application of this provision and proposed one change to the section to address the discrete situation in which the scoping requirements provided in the 2010 Standards reduce the number of required elements below the requirements of the 1991 Standards. In that discrete event, a public entity may reduce such accessible features in accordance with the requirements in the 2010 Standards.

The Department received only four comments on this proposed amendment. None of the commenters opposed the change. In the final rule, the Department has revised the section to make it clear that if the 2010 Standards reduce either the technical requirements or the number of required accessible elements below that required by the 1991 Standards, then the public entity may reduce the technical requirements or the number of accessible elements in a covered facility in accordance with the requirements of the 2010 Standards.

One commenter urged the Department to amend § 35.133(b) to expand the language of the section to restocking of shelves as a permissible activity for isolated or temporary interruptions in service or access. It is the Department’s position that a temporary interruption that blocks an accessible route, such as restocking of shelves, is already permitted by § 35.133(b), which clarifies that “isolated or temporary interruptions in service or access due to maintenance or repairs” are permitted. Therefore, the Department will not make any additional changes in the final rule to the language of § 35.133(b) other than those discussed in the preceding paragraph.

Section 35.136 Service animals.

The 1991 title II regulation states that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.” 28 CFR 130(b)(7). Unlike the title III regulation, the 1991 title II regulation did not contain a specific provision addressing service animals.

In the NPRM, the Department stated the intention of providing the broadest feasible access to individuals with disabilities and their service animals, unless a public entity can demonstrate that making the modifications to policies excluding animals would fundamentally alter the nature of the public entity’s service, program, or activity. The Department proposed creating a new § 35.136 addressing service animals that was intended to retain the scope of the 1991 title III regulation at § 36.302(c), while clarifying the Department’s longstanding policies and interpretations, as outlined in published technical assistance, Commonly Asked Questions About Service Animals in Places of Business (1996), available at http://archive.ada.gov/qasrvc.htm and ADA Guide for Small Businesses (1999), available at http://archive.ada.gov/smbustxt.htm, and to add that a public entity may exclude a service animal in certain circumstances where the service animal fails to meet certain behavioral standards. The Department received extensive comments in response to proposed § 35.136 from individuals, disability advocacy groups, organizations involved in training service animals, and public entities. Those comments and the Department’s response are discussed below.

Exclusion of service animals. In the NPRM, the Department proposed incorporating the title III regulatory language of § 36.302(c) into new § 35.136(a), which states that “[g]enerally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability, unless the public entity can demonstrate that the use of a service animal would fundamentally alter the public entity’s service, program, or activity.” The final rule retains this language with some modifications.

In addition, in the NPRM, the Department proposed clarifying those circumstances where otherwise eligible service animals may be excluded by public entities from their programs or facilities. The Department proposed in § 35.136(b)(1) of the NPRM that a public entity may ask an individual with a disability to remove a service animal from a title II service, program, or activity if: “[t]he animal is out of control and the animal’s handler does not take effective action to control it.” 73 FR 34466, 34504 (June 17, 2008).

The Department has long held that a service animal must be under the control of the handler at all times. Commenters overwhelmingly were in favor of this language, but noted that there are occasions when service animals are provoked to disruptive or aggressive behavior by agitators or troublemakers, as in the case of a blind individual whose service dog is taunted or pinched. While all service animals are trained to ignore and overcome these types of incidents, misbehavior in response to provocation is not always unreasonable. In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public entity must give the handler a reasonable opportunity to gain control of the animal. Further, if the individual with a disability asserts that the animal was provoked or injured, or if the public entity otherwise has reason to suspect that provocation or injury has occurred, the public entity should seek to determine the facts and, if provocation or injury occurred, the public entity should take effective steps to prevent further provocation or injury, which may include asking the provocateur to leave the public entity. This language is unchanged in the final rule.

The NPRM also proposed language at § 35.136(b)(2) to permit a public entity to exclude a service animal if the animal is not housebroken (i.e., trained so that, absent illness or accident, the animal controls its waste elimination) or the animal’s presence or behavior fundamentally alters the nature of the service the public entity provides (e.g., repeated barking during a live performance). Several commenters were supportive of this NPRM language, but cautioned against overreaction by the public entity in these instances. One commenter noted that animals get sick, too, and that accidents occasionally happen. In these circumstances, simple clean up typically addresses the incident. Commenters noted that the public entity must be careful when it excludes a service animal on the basis of “fundamental alteration,” asserting for example that a public entity should not exclude a service animal for barking in an environment where other types of noise, such as loud cheering or a child crying, is tolerated. The Department maintains that the appropriateness of an exclusion can be assessed by reviewing how a public entity addresses comparable situations that do not involve a service animal. The Department has retained in § 35.136(b) of the final rule the exception requiring animals to be housebroken. The Department has not retained the specific NPRM language stating that animals can be excluded if their presence or behavior fundamentally alters the nature of the service provided by the public entity, because the Department believes that this exception is covered by the general reasonable modification requirement contained in § 35.130(b)(7).

The NPRM also proposed at § 35.136(b)(3) that a service animal can be excluded where”[t]he animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.” 73 FR 34466, 34504 (June 17, 2008). Commenters were universally supportive of this provision as it makes express the discretion of a public entity to exclude a service animal that poses a direct threat. Several commenters cautioned against the overuse of this provision and suggested that the Department provide an example of the rule’s application. The Department has decided not to include regulatory language specifically stating that a service animal can be excluded if it poses a direct threat. The Department believes that the addition of new§ 35.139, which incorporates the language of the title III provisions at § 36.302 relating to the general defense of direct threat, is sufficient to establish the availability of this defense to public entities.

Access to a public entity following the proper exclusion of a service animal. The NPRM proposed that in the event a public entity properly excludes a service animal, the public entity must give the individual with a disability the opportunity to access the programs, services, and facilities of the public entity without the service animal. Most commenters welcomed this provision as a common sense approach. These commenters noted that they do not wish to preclude individuals with disabilities from the full and equal enjoyment of the State or local government’s programs, services, or facilities, simply because of an isolated problem with a service animal. The Department has elected to retain this provision in § 35.136(a).

Other requirements. The NPRM also proposed that the regulation include the following requirements: that the work or tasks performed by the service animal must be directly related to the handler’s disability; that a service animal must be individually trained to do work or perform a task, be housebroken, and be under the control of the handler; and that a service animal must have a harness, leash, or other tether. Most commenters addressed at least one of these issues in their responses. Most agreed that these provisions are important to clarify further the 1991 service animal regulation. The Department has moved the requirement that the work or tasks performed by the service animal must be related directly to the individual’s disability to the definition of “service animal” in § 35.104. In addition, the Department has modified the proposed language in § 35.136(d) relating to the handler’s control of the animal with a harness, leash, or other tether to state that “[a] service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g._*, voice control, signals, or other effective means).” The Department has retained the requirement that the service animal must be individually trained (see Appendix A discussion of § 35.104, definition of “service animal”), as well as the requirement that the service animal be housebroken.

Responsibility for supervision and care of a service animal. The NPRM proposed language at § 35.136(e) stating that “[a] public entity is not responsible for caring for or supervising a service animal.” 73 FR 34466, 34504 (June 17, 2008). Most commenters did not address this particular provision. The Department recognizes that there are occasions when a person with a disability is confined to bed in a hospital for a period of time. In such an instance, the individual may not be able to walk or feed the service animal. In such cases, if the individual has a family member, friend, or other person willing to take on these responsibilities in the place of the individual with disabilities, the individual’s obligation to be responsible for the care and supervision of the service animal would be satisfied. The language of this section is retained, with minor modifications, in § 35.136(e) of the final rule.

Inquiries about service animals. The NPRM proposed language at § 35.136(f) setting forth parameters about how a public entity may determine whether an animal qualifies as a service animal. The proposed section stated that a public entity may ask if the animal is required because of a disability and what task or work the animal has been trained to do but may not require proof of service animal certification or licensing. Such inquiries are limited to eliciting the information necessary to make a decision without requiring disclosure of confidential disability-related information that a State or local government entity does not need. This language is consistent with the policy guidance outlined in two Department publications, Commonly Asked Questions about Service Animals in Places of Business (1996), available at http://archive.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, (1999), available at http://archive.ada.gov/smbustxt.htm.

Although some commenters contended that the NPRM service animal provisions leave unaddressed the issue of how a public entity can distinguish between a psychiatric service animal, which is covered under the final rule, and a comfort animal, which is not, other commenters noted that the Department’s published guidance has helped public entities to distinguish between service animals and pets on the basis of an individual’s response to these questions. Accordingly, the Department has retained the NPRM language incorporating its guidance concerning the permissible questions into the final rule.

Some commenters suggested that a title II entity be allowed to require current documentation, no more than one year old, on letterhead from a mental health professional stating the following: (1) That the individual seeking to use the animal has a mental health-related disability; (2) that having the animal accompany the individual is necessary to the individual’s mental health or treatment or to assist the person otherwise; and (3) that the person providing the assessment of the individual is a licensed mental health professional and the individual seeking to use the animal is under that individual’s professional care. These commenters asserted that this will prevent abuse and ensure that individuals with legitimate needs for psychiatric service animals may use them. The Department believes that this proposal would treat persons with psychiatric, intellectual, and other mental disabilities less favorably than persons with physical or sensory disabilities. The proposal would also require persons with disabilities to obtain medical documentation and carry it with them any time they seek to engage in ordinary activities of daily life in their communities— something individuals without disabilities have not been required to do. Accordingly, the Department has concluded that a documentation requirement of this kind would be unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA.

Areas of a public entity open to the public, participants in services, programs, or activities, or invitees. The NPRM proposed at § 35.136(g) that an individual with a disability who uses a service animal has the same right of access to areas of a title II entity as members of the public, participants in services, programs, or activities, or invitees. Commenters indicated that allowing individuals with disabilities to go with their service animals into the same areas as members of the public, participants in programs, services, or activities, or invitees is accepted practice by most State and local government entities. The Department has included a slightly modified version of this provision in § 35.136(g) of the final rule.

The Department notes that under the final rule, a healthcare facility must also permit a person with a disability to be accompanied by a service animal in all areas of the facility in which that person would otherwise be allowed. There are some exceptions, however. The Department follows the guidance of the Centers for Disease Control and Prevention (CDC) on the use of service animals in a hospital setting. Zoonotic diseases can be transmitted to humans through bites, scratches, direct contact, arthropod vectors, or aerosols.

Consistent with CDC guidance, it is generally appropriate to exclude a service animal from limited-access areas that employ general infection-control measures, such as operating rooms and burn units. See Centers for Disease Control and Prevention, Guidelines for Environmental Infection Control in Health-Care Facilities: Recommendations of CDC and the Healthcare Infection Control Practices Advisory Committee (June 2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited June 24, 2010). A service animal may accompany its handler to such areas as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, restrooms, and all other areas of the facility where healthcare personnel, patients, and visitors are permitted without added precaution.

Prohibition against surcharges for use of a service animal. In the NPRM, the Department proposed to incorporate the previously mentioned policy guidance, which prohibits the assessment of a surcharge for the use of a service animal, into proposed § 35.136(h). Several commenters agreed that this provision makes clear the obligation of a public entity to admit an individual with a service animal without surcharges, and that any additional costs imposed should be factored into the overall cost of administering a program, service, or activity, and passed on as a charge to all participants, rather than an individualized surcharge to the service animal user. Commenters also noted that service animal users cannot be required to comply with other requirements that are not generally applicable to other persons. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal. The Department has retained this language, with minor modifications, in the final rule at § 35.136(h).

Training requirement. Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process, but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.

Some commenters proposed specific behavior or training standards for service animals, arguing that without such standards, the public has no way to differentiate between untrained pets and service animals. Many of the suggested behavior or training standards were lengthy and detailed. The Department believes that this rule addresses service animal behavior sufficiently by including provisions that address the obligations of the service animal user and the circumstances under which a service animal may be excluded, such as the requirements that an animal be housebroken and under the control of its handler.

Miniature horses. The Department has been persuaded by commenters and the available research to include a provision that would require public entities to make reasonable modifications to policies, practices, or procedures to permit the use of a miniature horse by a person with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. The traditional service animal is a dog, which has a long history of guiding individuals who are blind or have low vision, and over time dogs have been trained to perform an even wider variety of services for individuals with all types of disabilities. However, an organization that developed a program to train miniature horses, modeled on the program used for guide dogs, began training miniature horses in 1991.

Although commenters generally supported the species limitations proposed in the NPRM, some were opposed to the exclusion of miniature horses from the definition of a service animal. These commenters noted that these animals have been providing assistance to persons with disabilities for many years. Miniature horses were suggested by some commenters as viable alternatives to dogs for individuals with allergies, or for those whose religious beliefs preclude the use of dogs. Another consideration mentioned in favor of the use of miniature horses is the longer life span and strength of miniature horses in comparison to dogs. Specifically, miniature horses can provide service for more than 25 years while dogs can provide service for approximately 7 years, and, because of their strength, miniature horses can provide services that dogs cannot provide. Accordingly, use of miniature horses reduces the cost involved to retire, replace, and train replacement service animals.

The miniature horse is not one specific breed, but may be one of several breeds, with distinct characteristics that produce animals suited to service animal work. The animals generally range in height from 24 inches to 34 inches measured to the withers, or shoulders, and generally weigh between 70 and 100 pounds. These characteristics are similar to those of large breed dogs such as Labrador Retrievers, Great Danes, and Mastiffs. Similar to dogs, miniature horses can be trained through behavioral reinforcement to be “housebroken.” Most miniature service horse handlers and organizations recommend that when the animals are not doing work or performing tasks, the miniature horses should be kept outside in a designated area, instead of indoors in a house.

According to information provided by an organization that trains service horses, these miniature horses are trained to provide a wide array of services to their handlers, primarily guiding individuals who are blind or have low vision, pulling wheelchairs, providing stability and balance for individuals with disabilities that impair the ability to walk, and supplying leverage that enables a person with a mobility disability to get up after a fall. According to the commenter, miniature horses are particularly effective for large stature individuals. The animals can be trained to stand (and in some cases, lie down) at the handler’s feet in venues where space is at a premium, such as assembly areas or inside some vehicles that provide public transportation. Some individuals with disabilities have traveled by train and have flown commercially with their miniature horses.

The miniature horse is not included in the definition of service animal, which is limited to dogs. However, the Department has added a specific provision at § 35.136(i) of the final rule covering miniature horses. Under this provision, a public entity must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. The public entity may take into account a series of assessment factors in determining whether to allow a miniature horse into a specific facility. These include the type, size, and weight of the miniature horse; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation. In addition, paragraphs (c)-(h) of this section, which are applicable to dogs, also apply to miniature horses.

Ponies and full-size horses are not covered by § 35.136(i). Also, because miniature horses can vary in size and can be larger and less flexible than dogs, covered entities may exclude this type of service animal if the presence of the miniature horse, because of its larger size and lower level of flexibility, results in a fundamental alteration to the nature of the programs activities, or services provided.

Section 35.137 Mobility devices.

Section 35.137 of the NPRM clarified the scope and circumstances under which covered entities are legally obligated to accommodate various “mobility devices.” Section 35.137 set forth specific requirements for the accommodation of “mobility devices,” including wheelchairs, manually-powered mobility aids, and other power-driven mobility devices.

In both the NPRM and the final rule, § 35.137(a) states the general rule that in any areas open to pedestrians, public entities shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, including walkers, crutches, canes, braces, or similar devices. Because mobility scooters satisfy the definition of “wheelchair” (i.e., “manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor locomotion”), the reference to them in § 35.137(a) of the final rule has been omitted to avoid redundancy.

Some commenters expressed concern that permitting the use of other power-driven mobility devices by individuals with mobility disabilities would make such devices akin to wheelchairs and would require them to make physical changes to their facilities to accommodate their use. This concern is misplaced. If a facility complies with the applicable design requirements in the 1991 Standards or the 2010 Standards, the public entity will not be required to exceed those standards to accommodate the use of wheelchairs or other power-driven mobility devices that exceed those requirements.

Legal standard for other power-driven mobility devices. The NPRM version of § 35.137(b) provided that “[a] public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration in the public entity’s service, program, or activity.” 73 FR 34466, 34505 (June 17, 2008). In other words, public entities are by default required to permit the use of other power-driven mobility devices; the burden is on them to prove the existence of a valid exception.

Most commenters supported the notion of assessing whether the use of a particular device is reasonable in the context of a particular venue. Commenters, however, disagreed about the meaning of the word “reasonable” as it is used in § 35.137(b) of the NPRM. Advocacy and nonprofit groups almost universally objected to the use of a general reasonableness standard with regard to the assessment of whether a particular device should be allowed at a particular venue. They argued that the assessment should be based on whether reasonable modifications could be made to allow a particular device at a particular venue, and that the only factors that should be part of the calculus that results in the exclusion of a particular device are undue burden, direct threat, and fundamental alteration.

A few commenters opposed the proposed provision requiring public entities to assess whether reasonable modifications can be made to allow other power-driven mobility devices, preferring instead that the Department issue guidance materials so that public entities would not have to incur the cost of such analyses. Another commenter noted a “fox guarding the hen house”-type of concern with regard to public entities developing and enforcing their own modification policy.

In response to comments received, the Department has revised § 35.137(b) to provide greater clarity regarding the development of legitimate safety requirements regarding other power-driven mobility devices and has added a new § 35.130(h) (Safety) to the title II regulation which specifically permits public entities to impose legitimate safety requirements necessary for the safe operation of their services, programs, and activities. (See discussion below.) The Department has not retained the proposed NPRM language stating that an other power-driven mobility device can be excluded if a public entity can demonstrate that its use is unreasonable or will result in a fundamental alteration of the entity’s service, program, or activity, because the Department believes that this exception is covered by the general reasonable modification requirement contained in § 35.130(b)(7).

Assessment factors. Section 35.137(c) of the NPRM required public entities to “establish policies to permit the use of other power-driven mobility devices” and articulated four factors upon which public entities must base decisions as to whether a modification is reasonable to allow the use of a class of other power-driven mobility devices by individuals with disabilities in specific venues (e.g., parks, courthouses, office buildings, etc.). 73 FR 34466, 34504 (June 17, 2008).

The Department has relocated and modified the NPRM text that appeared in § 35.137(c) to new paragraph § 35.137(b)(2) to clarify what factors the public entity shall use in determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification. Section 35.137(b)(2) now states that “[i]n determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under (b)(1), a public entity shall consider” certain enumerated factors. The assessment factors are designed to assist public entities in determining whether allowing the use of a particular other power-driven mobility device in a specific facility is reasonable. Thus, the focus of the analysis must be on the appropriateness of the use of the device at a specific facility, rather than whether it is necessary for an individual to use a particular device.

The NPRM proposed the following specific assessment factors: (1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair; (2) the potential risk of harm to others by the operation of the mobility device; (3) the risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and (4) the ability of the public entity to stow the mobility device when not in use, if requested by the user.

Factor 1 was designed to help public entities assess whether a particular device was appropriate, given its particular physical features, for a particular location. Virtually all commenters said the physical features of the device affected their view of whether a particular device was appropriate for a particular location. For example, while many commenters supported the use of another power-driven mobility device if the device were a Segway® PT, because of environmental and health concerns they did not offer the same level of support if the device were an off-highway vehicle, all-terrain vehicle (ATV), golf car, or other device with a fuel-powered or combustion engine. Most commenters noted that indicators such as speed, weight, and dimension really were an assessment of the appropriateness of a particular device in specific venues and suggested that factor 1 say this more specifically.

The term “in relation to a wheelchair” in the NPRM’s factor 1 apparently created some concern that the same legal standards that apply to wheelchairs would be applied to other power-driven mobility devices. The Department has omitted the term “in relation to a wheelchair” from § 35.137(b)(2)(i) to clarify that if a facility that is in compliance with the applicable provisions of the 1991 Standards or the 2010 Standards grants permission for an other power-driven mobility device to go on-site, it is not required to exceed those standards to accommodate the use of other power-driven mobility devices.

In response to requests that NPRM factor 1 state more specifically that it requires an assessment of an other power-driven mobility device’s appropriateness under particular circumstances or in particular venues, the Department has added several factors and more specific language. In addition, although the NPRM made reference to the operation of other power-driven mobility devices in “specific venues,” the Department’s intent is captured more clearly by referencing “specific facility” in paragraph (b)(2). The Department also notes that while speed is included in factor 1, public entities should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public entities should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device. Finally, since the ability of the public entity to stow the mobility device when not in use is an aspect of its design and operational characteristics, the text proposed as factor 4 in the NPRM has been incorporated in paragraph (b)(2)(iii).

The NPRM’s version of factor 2 provided that the “risk of potential harm to others by the operation of the mobility device” is one of the determinants in the assessment of whether other power-driven mobility devices should be excluded from a site. The Department intended this requirement to be consistent with the Department’s longstanding interpretation, expressed in § II-3.5200 (Safety) of the 1993 Title II Technical Assistance Manual, which provides that public entities may “impose legitimate safety requirements that are necessary for safe operation.” (This language parallels the provision in the title III regulation at § 36.301(b).) However, several commenters indicated that they read this language, particularly the phrase “risk of potential harm,” to mean that the Department had adopted a concept of risk analysis different from that which is in the existing standards. The Department did not intend to create a new standard and has changed the language in paragraphs (b)(1) and (b)(2) to clarify the applicable standards, thereby avoiding the introduction of new assessments of risk beyond those necessary for the safe operation of the public entity. In addition, the Department has added a new section, 35.130(h), which incorporates the existing safety standard into the title II regulation.

While all applicable affirmative defenses are available to public entities in the establishment and execution of their policies regarding other power-driven mobility devices, the Department did not explicitly incorporate the direct threat defense into the assessment factors because § 35.130(h) provides public entities the appropriate framework with which to assess whether legitimate safety requirements that may preclude the use of certain other power-driven mobility devices are necessary for the safe operation of the public entities. In order to be legitimate, the safety requirement must be based on actual risks and not mere speculation regarding the device or how it will be operated. Of course, public entities may enforce legitimate safety rules established by the public entity for the operation of other power-driven mobility devices (e.g., reasonable speed restrictions). Finally, NPRM factor 3 concerning environmental resources and conflicts of law has been relocated to § 35.137(b)(2)(v).

As a result of these comments and requests, NPRM factors 1, 2, 3, and 4 have been revised and renumbered within paragraph (b)(2) in the final rule.

Several commenters requested that the Department provide guidance materials or more explicit concepts of which considerations might be appropriate for inclusion in a policy that allows the use of other power-driven mobility devices. A public entity that has determined that reasonable modifications can be made in its policies, practices, or procedures to allow the use of other power-driven mobility devices should develop a policy that clearly states the circumstances under which the use of other power-driven mobility devices by individuals with a mobility disability will be permitted. It also should include clear, concise statements of specific rules governing the operation of such devices. Finally, the public entity should endeavor to provide individuals with disabilities who use other power-driven mobility devices with advanced notice of its policy regarding the use of such devices and what rules apply to the operation of these devices.

For example, the U.S. General Services Administration (GSA) has developed a policy allowing the use of the Segway® PT and other EPAMDs in all Federal buildings under GSA’s jurisdiction. See General Services Administration, Interim Segway® Personal Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June 24, 2010). The GSA policy defines the policy’s scope of coverage by setting out what devices are and are not covered by the policy. The policy also sets out requirements for safe operation, such as a speed limit, prohibits the use of EPAMDs on escalators, and provides guidance regarding security screening of these devices and their operators.

A public entity that determines that it can make reasonable modifications to permit the use of an other power-driven mobility device by an individual with a mobility disability might include in its policy the procedure by which claims that the other power-driven mobility device is being used for a mobility disability will be assessed for legitimacy (i.e., a credible assurance that the device is being used for a mobility disability, including a verbal representation by the person with a disability that is not contradicted by observable fact, or the presentation of a disability parking space placard or card, or State-issued proof of disability); the type or classes of other power-driven mobility devices are permitted to be used by individuals with mobility disabilities; the size, weight, and dimensions of the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the speed limit for the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the places, times, or circumstances under which the use of the other power-driven mobility device is or will be restricted or prohibited; safety, pedestrian, and other rules concerning the use of the other power-driven mobility device; whether, and under which circumstances, storage for the other power-driven mobility device will be made available; and how and where individuals with a mobility disability can obtain a copy of the other power-driven mobility device policy.

Public entities also might consider grouping other power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, and other devices). For example, an amusement park may determine that it is reasonable to allow individuals with disabilities to use EPAMDs in a variety of outdoor programs and activities, but that it would not be reasonable to allow the use of golf cars as mobility devices in similar circumstances. At the same time, the entity may address its concerns about factors such as space limitations by disallowing use of EPAMDs by members of the general public who do not have mobility disabilities.

The Department anticipates that, in many circumstances, public entities will be able to develop policies that will allow the use of other power-driven mobility devices by individuals with mobility disabilities. Consider the following example:

A county courthouse has developed a policy whereby EPAMDs may be operated in the pedestrian areas of the courthouse if the operator of the device agrees not to operate the device faster than pedestrians are walking; to yield to pedestrians; to provide a rack or stand so that the device can stand upright; and to use the device only in courtrooms that are large enough to accommodate such devices. If the individual is selected for jury duty in one of the smaller courtrooms, the county’s policy indicates that if it is not possible for the individual with the disability to park the device and walk into the courtroom, the location of the trial will be moved to a larger courtroom.

Inquiry into the use of other power-driven mobility device. The NPRM version of § 35.137(d) provided that “[a] public entity may ask a person using a power-driven mobility device if the mobility device is needed due to the person’s disability. A public entity shall not ask a person using a mobility device questions about the nature and extent of the person’s disability.” 73 FR 34466, 34504 (June 17, 2008).

Many environmental, transit system, and government commenters expressed concern about people feigning mobility disabilities to be able to use other power-driven mobility devices in public entities in which their use is otherwise restricted. These commenters felt that a mere inquiry into whether the device is being used for a mobility disability was an insufficient mechanism by which to detect fraud by other power-driven mobility device users who do not have mobility disabilities. These commenters believed they should be given more latitude to make inquiries of other power-driven mobility device users claiming a mobility disability than they would be given for wheelchair users. They sought the ability to establish a policy or method by which public entities may assess the legitimacy of the mobility disability. They suggested some form of certification, sticker, or other designation. One commenter suggested a requirement that a sticker bearing the international symbol for accessibility be placed on the device or that some other identification be required to signal that the use of the device is for a mobility disability. Other suggestions included displaying a disability parking placard on the device or issuing EPAMDs, like the Segway® PT, a permit that would be similar to permits associated with parking spaces reserved for those with disabilities.

Advocacy, nonprofit, and several individual commenters balked at the notion of allowing any inquiry beyond whether the device is necessary for a mobility disability and encouraged the Department to retain the NPRM’s language on this topic. Other commenters, however, were empathetic with commenters who had concerns about fraud. At least one Segway® PT advocate suggested it would be permissible to seek documentation of the mobility disability in the form of a simple sign or permit.

The Department has sought to find common ground by balancing the needs of public entities and individuals with mobility disabilities wishing to use other power-driven mobility devices with the Department’s longstanding, well-established policy of not allowing public entities or establishments to require proof of a mobility disability. There is no question that public entities have a legitimate interest in ferreting out fraudulent representations of mobility disabilities, especially given the recreational use of other power-driven mobility devices and the potential safety concerns created by having too many such devices in a specific facility at one time. However, the privacy of individuals with mobility disabilities and respect for those individuals, is also vitally important.

Neither § 35.137(d) of the NPRM nor § 35.137(c) of the final rule permits inquiries into the nature of a person’s mobility disability. However, the Department does not believe it is unreasonable or overly intrusive for an individual with a mobility disability seeking to use an other power-driven mobility device to provide a credible assurance to verify that the use of the other power-driven mobility device is for a mobility disability. The Department sought to minimize the amount of discretion and subjectivity exercised by public entities in assessing whether an individual has a mobility disability and to allow public entities to verify the existence of a mobility disability. The solution was derived from comments made by several individuals who said they have been admitted with their Segway® PTs into public entities and public accommodations that ordinarily do not allow these devices on-site when they have presented or displayed State-issued disability parking placards. In the examples provided by commenters, the parking placards were accepted as verification that the Segway® PTs were being used as mobility devices.

Because many individuals with mobility disabilities avail themselves of State programs that issue disability parking placards or cards and because these programs have penalties for fraudulent representations of identity and disability, utilizing the parking placard system as a means to establish the existence of a mobility disability strikes a balance between the need for privacy of the individual and fraud protection for the public entity. Consequently, the Department has decided to include regulatory text in § 35.137(c)(2) of the final rule that requires public entities to accept the presentation of a valid, State-issued disability parking placard or card, or State-issued proof of disability, as verification that an individual uses the other power-driven mobility device for his or her mobility disability. A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards. Public entities are required to accept a valid, State-issued disability parking placard or card, or State-issued proof of disability as a credible assurance, but they cannot demand or require the presentation of a valid disability placard or card, or State-issued proof of disability, as a prerequisite for use of an other power-driven mobility device, because not all persons with mobility disabilities have such means of proof. If an individual with a mobility disability does not have such a placard or card, or State-issued proof of disability, he or she may present other information that would serve as a credible assurance of the existence of a mobility disability.

In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a verbal representation, not contradicted by observable fact, shall be accepted as a credible assurance that the other power-driven mobility device is being used because of a mobility disability. This does not mean, however, that a mobility disability must be observable as a condition for allowing the use of an other power-driven mobility device by an individual with a mobility disability, but rather that if an individual represents that a device is being used for a mobility disability and that individual is observed thereafter engaging in a physical activity that is contrary to the nature of the represented disability, the assurance given is no longer credible and the individual may be prevented from using the device.

Possession of a valid, State-issued disability parking placard or card or a verbal assurance does not trump a public entity’s valid restrictions on the use of other power-driven mobility devices. Accordingly, a credible assurance that the other power-driven mobility device is being used because of a mobility disability is not a guarantee of entry to a public entity because, notwithstanding such credible assurance, use of the device in a particular venue may be at odds with the legal standard in § 35.137(b)(1) or with one or more of the § 35.137(b)(2) factors. Only after an individual with a disability has satisfied all of the public entity’s policies regarding the use of other power-driven mobility devices does a credible assurance become a factor in allowing the use of the device. For example, if an individual seeking to use an other power-driven mobility device fails to satisfy any of the public entity’s stated policies regarding the use of other power-driven mobility devices, the fact that the individual legitimately possesses and presents a valid, State-issued disability parking placard or card, or State-issued proof of disability, does not trump the policy and require the public entity to allow the use of the device. In fact, in some instances, the presentation of a legitimately held placard or card, or State-issued proof of disability, will have no relevance or bearing at all on whether the other power-driven mobility device may be used, because the public entity’s policy does not permit the device in question on-site under any circumstances (e.g., because its use would create a substantial risk of serious harm to the immediate environment or natural or cultural resources). Thus, an individual with a mobility disability who presents a valid disability placard or card, or State-issued proof of disability, will not be able to use an ATV as an other power-driven mobility device in a State park if the State park has adopted a policy banning their use for any or all of the above-mentioned reasons. However, if a public entity permits the use of a particular other power-driven mobility device, it cannot refuse to admit an individual with a disability who uses that device if the individual has provided a credible assurance that the use of the device is for a mobility disability.

Section 35.138 Ticketing

The 1991 title II regulation did not contain specific regulatory language on ticketing. The ticketing policies and practices of public entities, however, are subject to title II’s nondiscrimination provisions. Through the investigation of complaints, enforcement actions, and public comments related to ticketing, the Department became aware that some venue operators, ticket sellers, and distributors were violating title II’s nondiscrimination mandate by not providing individuals with disabilities the same opportunities to purchase tickets for accessible seating as they provided to spectators purchasing conventional seats. In the NPRM, the Department proposed § 35.138 to provide explicit direction and guidance on discriminatory practices for entities involved in the sale or distribution of tickets.

The Department received comments from advocacy groups, assembly area trade associations, public entities, and individuals. Many commenters supported the addition of regulatory language pertaining to ticketing and urged the Department to retain it in the final rule. Several commenters, however, questioned why there were inconsistencies between the title II and title III provisions and suggested that the same language be used for both titles. The Department has decided to retain ticketing regulatory language and to ensure consistency between the ticketing provisions in title II and title III.

Because many in the ticketing industry view season tickets and other multi-event packages differently from individual tickets, the Department bifurcated some season ticket provisions from those concerning single-event tickets in the NPRM. This structure, however, resulted in some provisions being repeated for both types of tickets but not for others even though they were intended to apply to both types of tickets. The result was that it was not entirely clear that some of the provisions that were not repeated also were intended to apply to season tickets. The Department is addressing the issues raised by these commenters using a different approach. For the purposes of this section, a single event refers to an individual performance for which tickets may be purchased. In contrast, a series of events includes, but is not limited to, subscription events, event packages, season tickets, or any other tickets that may be purchased for multiple events of the same type over the course of a specified period of time whose ownership right reverts to the public entity at the end of each season or time period. Series-of-events tickets that give their holders an enhanced ability to purchase such tickets from the public entity in seasons or periods of time that follow, such as a right of first refusal or higher ranking on waiting lists for more desirable seats, are subject to the provisions in this section. In addition, the final rule merges together some NPRM paragraphs that dealt with related topics and has reordered and renamed some of the paragraphs that were in the NPRM.

Ticket sales. In the NPRM, the Department proposed, in § 35.138(a), a general rule that a public entity shall modify its policies, practices, or procedures to ensure that individuals with disabilities can purchase tickets for accessible seating for an event or series of events in the same way as others (i.e., during the same hours and through the same distribution methods as other seating is sold). 73 FR 34466, 34504 (June 17, 2008). “Accessible seating” is defined in § 35.138(a)(1) of the final rule to mean “wheelchair spaces and companion seats that comply with sections 221 and 802 of the 2010 Standards along with any other seats required to be offered for sale to the individual with a disability pursuant to paragraph (d) of this section.” The defined term does not include designated aisle seats. A “wheelchair space” refers to a space for a single wheelchair and its occupant.

The NPRM proposed requiring that accessible seats be sold through the “same methods of distribution” as non-accessible seats. Comments from venue managers and others in the business community, in general, noted that multiple parties are involved in ticketing, and because accessible seats may not be allotted to all parties involved at each stage, such parties should be protected from liability. For example, one commenter noted that a third-party ticket vendor, like Ticketmaster, can only sell the tickets it receives from its client. Because § 35.138(a)(2)(iii) of the final rule requires venue operators to make available accessible seating through the same methods of distribution they use for their regular tickets, venue operators that provide tickets to third-party ticket vendors are required to provide accessible seating to the third-party ticket vendor. This provision will enhance third-party ticket vendors’ ability to acquire and sell accessible seating for sale in the future. The Department notes that once third-party ticket vendors acquire accessible tickets, they are obligated to sell them in accordance with these rules.

The Department also has received frequent complaints that individuals with disabilities have not been able to purchase accessible seating over the Internet, and instead have had to engage in a laborious process of calling a customer service line, or sending an e-mail to a customer service representative and waiting for a response. Not only is such a process burdensome, but it puts individuals with disabilities at a disadvantage in purchasing tickets for events that are popular and may sell out in minutes. Because § 35.138(e) of the final rule authorizes venues to release accessible seating in case of a sellout, individuals with disabilities effectively could be cut off from buying tickets unless they also have the ability to purchase tickets in real time over the Internet. The Department’s new regulatory language is designed to address this problem.

Several commenters representing assembly areas raised concerns about offering accessible seating for sale over the Internet. They contended that this approach would increase the incidence of fraud since anyone easily could purchase accessible seating over the Internet. They also asserted that it would be difficult technologically to provide accessible seating for sale in real time over the Internet, or that to do so would require simplifying the rules concerning the purchase of multiple additional accompanying seats. Moreover, these commenters argued that requiring an individual purchasing accessible seating to speak with a customer service representative would allow the venue to meet the patron’s needs most appropriately and ensure that wheelchair spaces are reserved for individuals with disabilities who require wheelchair spaces. Finally, these commenters argued that individuals who can transfer effectively and conveniently from a wheelchair to a seat with a movable armrest seat could instead purchase designated aisle seats.

The Department considered these concerns carefully and has decided to continue with the general approach proposed in the NPRM. Although fraud is an important concern, the Department believes that it is best combated by other means that would not have the effect of limiting the ability of individuals with disabilities to purchase tickets, particularly since restricting the purchase of accessible seating over the Internet will, of itself, not curb fraud. In addition, the Department has identified permissible means for covered entities to reduce the incidence of fraudulent accessible seating ticket purchases in § 35.138(h) of the final rule.

Several commenters questioned whether ticket websites themselves must be accessible to individuals who are blind or have low vision, and if so, what that requires. The Department has consistently interpreted the ADA to cover websites that are operated by public entities and stated that such sites must provide their services in an accessible manner or provide an accessible alternative to the website that is available 24 hours a day, seven days a week. The final rule, therefore, does not impose any new obligation in this area. The accessibility of websites is discussed in more detail in the section of Appendix A entitled “Other Issues.”

In § 35.138(b) of the NPRM, the Department also proposed requiring public entities to make accessible seating available during all stages of tickets sales including, but not limited to, pre-sales, promotions, lotteries, waitlists, and general sales. For example, if tickets will be presold for an event that is open only to members of a fan club, or to holders of a particular credit card, then tickets for accessible seating must be made available for purchase through those means. This requirement does not mean that any individual with a disability would be able to purchase those seats. Rather, it means that an individual with a disability who meets the requirement for such a sale (e.g., who is a member of the fan club or holds that credit card) will be able to participate in the special promotion and purchase accessible seating. The Department has maintained the substantive provisions of the NPRM’s § 35.138(a) and (b) but has combined them in a single paragraph at § 35.138(a)(2) of the final rule so that all of the provisions having to do with the manner in which tickets are sold are located in a single paragraph.

Identification of available accessible seating. In the NPRM, the Department proposed § 35.138(c), which, as modified and renumbered as paragraph (b)(3) in the final rule, requires a facility to identify available accessible seating through seating maps, brochures, or other methods if that information is made available about other seats sold to the general public. This rule requires public entities to provide information about accessible seating to the same degree of specificity that it provides information about general seating. For example, if a seating map displays color-coded blocks pegged to prices for general seating, then accessible seating must be similarly color-coded. Likewise, if covered entities provide detailed maps that show exact seating and pricing for general seating, they must provide the same for accessible seating.

The NPRM did not specify a requirement to identify prices for accessible seating. The final rule requires that if such information is provided for general seating, it must be provided for accessible seating as well.

In the NPRM, the Department proposed in § 35.138(d) that a public entity, upon being asked, must inform persons with disabilities and their companions of the locations of all unsold or otherwise available seating. This provision is intended to prevent the practice of “steering” individuals with disabilities to certain accessible seating so that the facility can maximize potential ticket sales by releasing unsold accessible seating, especially in preferred or desirable locations, for sale to the general public. The Department received no significant comment on this proposal. The Department has retained this provision in the final rule but has added it, with minor modifications, to § 35.138(b) as paragraph (1).

Ticket prices. In the NPRM, the Department proposed § 35.138(e) requiring that ticket prices for accessible seating be set no higher than the prices for other seats in that seating section for that event. The NPRM’s provision also required that accessible seating be made available at every price range, and if an existing facility has barriers to accessible seating within a particular price range, a proportionate amount of seating (determined by the ratio of the total number of seats at that price level to the total number of seats in the assembly area) must be offered in an accessible location at that same price. Under this rule, for example, if a public entity has a 20,000- seat facility built in 1980 with inaccessible seating in the $20-price category, which is on the upper deck, and it chooses not to put accessible seating in that section, then it must place a proportionate number of seats in an accessible location for $20. If the upper deck has 2,000 seats, then the facility must place 10 percent of its accessible seating in an accessible location for $20 provided that it is part of a seating section where ticket prices are equal to or more than $20—a facility may not place the $20-accessible seating in a $10-seating section. The Department received no significant comment on this rule, and it has been retained, as amended, in the final rule in § 35.138(c).

Purchase of multiple tickets. In the NPRM, the Department proposed § 35.138(i) to address one of the most common ticketing complaints raised with the Department: That individuals with disabilities are not able to purchase more than two tickets. The Department proposed this provision to facilitate the ability of individuals with disabilities to attend events with friends, companions, or associates who may or may not have a disability by enabling individuals with disabilities to purchase the maximum number of tickets allowed per transaction to other spectators; by requiring venues to place accompanying individuals in general seating as close as possible to accessible seating (in the event that a group must be divided because of the large size of the group); and by allowing an individual with a disability to purchase up to three additional contiguous seats per wheelchair space if they are available at the time of sale. Section 35.138(i)(2) of the NPRM required that a group containing one or more wheelchair users must be placed together, if possible, and that in the event that the group could not be placed together, the individuals with disabilities may not be isolated from the rest of the group.

The Department asked in the NPRM whether this rule was sufficient to effectuate the integration of individuals with disabilities. Many advocates and individuals praised it as a welcome and much-needed change, stating that the trade-off of being able to sit with their family or friends was worth reducing the number of seats available for individuals with disabilities. Some commenters went one step further and suggested that the number of additional accompanying seats should not be restricted to three.

Although most of the substance of the proposed provision on the purchase of multiple tickets has been maintained in the final rule, it has been renumbered as § 35.138(d), reorganized, and supplemented. To preserve the availability of accessible seating for other individuals with disabilities, the Department has not expanded the rule beyond three additional contiguous seats. Section 35.138(d)(1) of the final rule requires public entities to make available for purchase three additional tickets for seats in the same row that are contiguous with the wheelchair space provided that at the time of the purchase there are three such seats available. The requirement that the additional seats be “contiguous with the wheelchair space” does not mean that each of the additional seats must be in actual contact or have a border in common with the wheelchair space; however, at least one of the additional seats should be immediately adjacent to the wheelchair space. The Department recognizes that it will often be necessary to use vacant wheelchair spaces to provide for contiguous seating.

The Department has added paragraphs (d)(2) and (d)(3) to clarify that in situations where there are insufficient unsold seats to provide three additional contiguous seats per wheelchair space or a ticket office restricts sales of tickets to a particular event to less than four tickets per customer, the obligation to make available three additional contiguous seats per wheelchair space would be affected. For example, if at the time of purchase, there are only two additional contiguous seats available for purchase because the third has been sold already, then the ticket purchaser would be entitled to two such seats. In this situation, the public entity would be required to make up the difference by offering one additional ticket for sale that is as close as possible to the accessible seats. Likewise, if ticket purchases for an event are limited to two per customer, a person who uses a wheelchair who seeks to purchase tickets would be entitled to purchase only one additional contiguous seat for the event.

The Department also has added paragraph (d)(4) to clarify that the requirement for three additional contiguous seats is not intended to serve as a cap if the maximum number of tickets that may be purchased by members of the general public exceeds the four tickets an individual with a disability ordinarily would be allowed to purchase (i.e., a wheelchair space and three additional contiguous seats). If the maximum number of tickets that may be purchased by members of the general public exceeds four, an individual with a disability is to be allowed to purchase the maximum number of tickets; however, additional tickets purchased by an individual with a disability beyond the wheelchair space and the three additional contiguous seats provided in § 35.138(d)(1) do not have to be contiguous with the wheelchair space.

The NPRM proposed at § 35.138(i)(2) that for group sales, if a group includes one or more individuals who use a wheelchair, then the group shall be placed in a seating area with accessible seating so that, if possible, the group can sit together. If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from the rest of the members of their group. The final rule retains the NPRM language in paragraph (d)(5).

Hold-and-release of unsold accessible seating. The Department recognizes that not all accessible seating will be sold in all assembly areas for every event to individuals with disabilities who need such seating and that public entities may have opportunities to sell such seating to the general public. The Department proposed in the NPRM a provision aimed at striking a balance between affording individuals with disabilities adequate time to purchase accessible seating and the entity’s desire to maximize ticket sales. In the NPRM, the Department proposed § 35.138(f), which allowed for the release of accessible seating under the following circumstances: (i) When all seating in the facility has been sold, excluding luxury boxes, club boxes, or suites; (ii) when all seating in a designated area has been sold and the accessible seating being released is in the same area; or (iii) when all seating in a designated price range has been sold and the accessible seating being released is within the same price range.

The Department’s NPRM asked “whether additional regulatory guidance is required or appropriate in terms of a more detailed or set schedule for the release of tickets in conjunction with the three approaches described above. For example, does the proposed regulation address the variable needs of assembly areas covered by the ADA? Is additional regulatory guidance required to eliminate discriminatory policies, practices and procedures related to the sale, hold, and release of accessible seating? What considerations should appropriately inform the determination of when unsold accessible seating can be released to the general public?” 73 FR 34466, 34484 (June 17, 2008).

The Department received comments both supporting and opposing the inclusion of a hold-and-release provision. One side proposed loosening the restrictions on the release of unsold accessible seating. One commenter from a trade association suggested that tickets should be released regardless of whether there is a sell-out, and that these tickets should be released according to a set schedule. Conversely, numerous individuals, advocacy groups, and at least one public entity urged the Department to tighten the conditions under which unsold tickets for accessible seating may be released. These commenters suggested that venues should not be permitted to release tickets during the first two weeks of sale, or alternatively, that they should not be permitted to be released earlier than 48 hours before a sold-out event. Many of these commenters criticized the release of accessible seating under the second and third prongs of § 35.138(f) in the NPRM (when there is a sell-out in general seating in a designated seating area or in a price range), arguing that it would create situations where general seating would be available for purchase while accessible seating would not be.

Numerous commenters—both from the industry and from advocacy groups—asked for clarification of the term “sell-out.” Business groups commented that industry practice is to declare a sell-out when there are only “scattered singles” available— isolated seats that cannot be purchased as a set of adjacent pairs. Many of those same commenters also requested that “sell-out” be qualified with the phrase “of all seating available for sale” since it is industry practice to hold back from release tickets to be used for groups connected with that event (e.g., the promoter, home team, or sports league). They argued that those tickets are not available for sale and any return of these tickets to the general inventory happens close to the event date. Noting the practice of holding back tickets, one advocacy group suggested that covered entities be required to hold back accessible seating in proportion to the number of tickets that are held back for later release.

The Department has concluded that it would be inappropriate to interfere with industry practice by defining what constitutes a “sell-out” and that a public entity should continue to use its own approach to defining a “sell-out.” If, however, a public entity declares a sell-out by reference to those seats that are available for sale, but it holds back tickets that it reasonably anticipates will be released later, it must hold back a proportional percentage of accessible seating to be released as well.

Adopting any of the alternatives proposed in the comments summarized above would have upset the balance between protecting the rights of individuals with disabilities and meeting venues’ concerns about lost revenue from unsold accessible seating. As a result, the Department has retained § 35.138(f) (renumbered as § 35.138(e)) in the final rule.

The Department has, however, modified the regulation text to specify that accessible seating may be released only when “all nonaccessible tickets in a designated seating area have been sold and the tickets for accessible seating are being released in the same designated area.” As stated in the NPRM, the Department intended for this provision to allow, for example, the release of accessible seating at the orchestra level when all other seating at the orchestra level is sold. The Department has added this language to the final rule at § 35.138(e)(1)(ii) to clarify that venues cannot designate or redesignate seating areas for the purpose of maximizing the release of unsold accessible seating. So, for example, a venue may not determine on an ad hoc basis that a group of seats at the orchestra level is a designated seating area in order to release unsold accessible seating in that area.

The Department also has maintained the hold-and-release provisions that appeared in the NPRM but has added a provision to address the release of accessible seating for series-of-events tickets on a series-of-events basis. Many commenters asked the Department whether unsold accessible seating may be converted to general seating and released to the general public on a season-ticket basis or longer when tickets typically are sold as a season-ticket package or other long-term basis. Several disability rights organizations and individual commenters argued that such a practice should not be permitted, and, if it were, that conditions should be imposed to ensure that individuals with disabilities have future access to those seats.

The Department interprets the fundamental principle of the ADA as a requirement to give individuals with disabilities equal, not better, access to those opportunities available to the general public. Thus, for example, a public entity that sells out its facility on a season ticket only basis is not required to leave unsold its accessible seating if no persons with disabilities purchase those season-ticket seats. Of course, public entities may choose to go beyond what is required by reserving accessible seating for individuals with disabilities (or releasing such seats for sale to the general public) on an individual-game basis.

If a covered entity chooses to release unsold accessible seating for sale on a season-ticket or other long-term basis, it must meet at least two conditions. Under § 35.138(g) of the final rule, public entities must leave flexibility for game-day changeouts to accommodate ticket transfers on the secondary market. And public entities must modify their ticketing policies so that, in future years, individuals with disabilities will have the ability to purchase accessible seating on the same basis as other patrons (e.g., as season tickets). Put differently, releasing accessible seating to the general public on a season-ticket or other long-term basis cannot result in that seating being lost to individuals with disabilities in perpetuity. If, in future years, season tickets become available and persons with disabilities have reached the top of the waiting list or have met any other eligibility criteria for seasonticket purchases, public entities must ensure that accessible seating will be made available to the eligible individuals. In order to accomplish this, the Department has added § 35.138(e)(3)(i) to require public entities that release accessible season tickets to individuals who do not have disabilities that require the features of accessible seating to establish a process to prevent the automatic reassignment of such ticket holders to accessible seating. For example, a public entity could have in place a system whereby accessible seating that was released because it was not purchased by individuals with disabilities is not in the pool of tickets available for purchase for the following season unless and until the conditions for ticket release have been satisfied in the following season. Alternatively, a public entity might release tickets for accessible seating only when a purchaser who does not need its features agrees that he or she has no guarantee of or right to the same seats in the following season, or that if season tickets are guaranteed for the following season, the purchaser agrees that the offer to purchase tickets is limited to non-accessible seats having to the extent practicable, comparable price, view, and amenities to the accessible seats such individuals held in the prior year. The Department is aware that this rule may require some administrative changes but believes that this process will not create undue financial and administrative burdens. The Department believes that this approach is balanced and beneficial. It will allow public entities to sell all of their seats and will leave open the possibility, in future seasons or series of events, that persons who need accessible seating may have access to it.

The Department also has added § 35.138(e)(3)(ii) to address how season tickets or series-of-events tickets that have attached ownership rights should be handled if the ownership right returns to the public entity (e.g., when holders forfeit their ownership right by failing to purchase season tickets or sell their ownership right back to a public entity). If the ownership right is for accessible seating, the public entity is required to adopt a process that allows an eligible individual with a disability who requires the features of such seating to purchase the rights and tickets for such seating.

Nothing in the regulatory text prevents a public entity from establishing a process whereby such ticket holders agree to be voluntarily reassigned from accessible seating to another seating area so that individuals with mobility disabilities or disabilities that require the features of accessible seating and who become newly eligible to purchase season tickets have an opportunity to do so. For example, a public entity might seek volunteers to relocate to another location that is at least as good in terms of its location, price, and amenities, or a public entity might use a seat with forfeited ownership rights as an inducement to get a ticket holder to give up accessible seating he or she does not need.

Ticket transfer. The Department received many comments asking whether accessible seating has the same transfer rights as general seats. The proposed regulation at § 35.138(e) required that individuals with disabilities must be allowed to purchase season tickets for accessible seating on the same terms and conditions as individuals purchasing season tickets for general seating, including the right—if it exists for other ticket-holders—to transfer individual tickets to friends or associates. Some commenters pointed out that the NPRM proposed explicitly allowing individuals with disabilities holding season tickets to transfer tickets but did not address the transfer of tickets purchased for individual events. Several commenters representing assembly areas argued that persons with disabilities holding tickets for an individual event should not be allowed to sell or transfer them to third parties because such ticket transfers would increase the risk of fraud or would make unclear the obligation of the entity to accommodate secondary ticket transfers. They argued that individuals holding accessible seating should either be required to transfer their tickets to another individual with a disability or return them to the facility for a refund.

Although the Department is sympathetic to concerns about administrative burden, curtailing transfer rights for accessible seating when other ticket holders are permitted to transfer tickets would be inconsistent with the ADA’s guiding principle that individuals with disabilities must have rights equal to others. Thus, the Department has added language in the final rule in § 35.138(f) that requires that individuals with disabilities holding accessible seating for any event have the same transfer rights accorded other ticket holders for that event. Section 35.138(f) also preserves the rights of individuals with disabilities who hold tickets to accessible seats for a series of events to transfer individual tickets to others, regardless of whether the transferee needs accessible seating. This approach recognizes the common practice of individuals splitting season tickets or other multi-event ticket packages with friends, colleagues, or other spectators to make the purchase of season tickets affordable; individuals with disabilities should not be placed in the burdensome position of having to find another individual with a disability with whom to share the package.

This provision, however, does not require public entities to seat an individual who holds a ticket to an accessible seat in such seating if the individual does not need the accessible features of the seat. A public entity may reserve the right to switch these individuals to different seats if they are available, but a public entity is not required to remove a person without a disability who is using accessible seating from that seating, even if a person who uses a wheelchair shows up with a ticket from the secondary market for a non-accessible seat and wants accessible seating.

Secondary ticket market. Section 35.138(g) is a new provision in the final rule that requires a public entity to modify its policies, practices, or procedures to ensure that an individual with a disability, who acquires a ticket in the secondary ticket market, may use that ticket under the same terms and conditions as other ticket holders who acquire a ticket in the secondary market for an event or series of events. This principle was discussed in the NPRM in connection with § 35.138(e), pertaining to season-ticket sales. There, the Department asked for public comment regarding a public entity’s proposed obligation to accommodate the transfer of accessible seating tickets on the secondary ticket market to those who do not need accessible seating and vice versa.

The secondary ticket market, for the purposes of this rule, broadly means any transfer of tickets after the public entity’s initial sale of tickets to individuals or entities. It thus encompasses a wide variety of transactions, from ticket transfers between friends to transfers using commercial exchange systems. Many commenters noted that the distinction between the primary and secondary ticket market has become blurred as a result of agreements between teams, leagues, and secondary market sellers. These commenters noted that the secondary market may operate independently of the public entity, and parts of the secondary market, such as ticket transfers between friends, undoubtedly are outside the direct jurisdiction of the public entity.

To the extent that venues seat persons who have purchased tickets on the secondary market, they must similarly seat persons with disabilities who have purchased tickets on the secondary market. In addition, some public entities may acquire ADA obligations directly by formally entering the secondary ticket market.

The Department’s enforcement experience with assembly areas also has revealed that venues regularly provide for and make last-minute seat transfers. As long as there are vacant wheelchair spaces, requiring venues to provide wheelchair spaces for patrons who acquired inaccessible seats and need wheelchair spaces is an example of a reasonable modification of a policy under title II of the ADA. Similarly, a person who has a ticket for a wheelchair space but who does not require its accessible features could be offered non-accessible seating if such seating is available.

The Department’s longstanding position that title II of the ADA requires venues to make reasonable modifications in their policies to allow individuals with disabilities who acquired non-accessible tickets on the secondary ticket market to be seated in accessible seating, where such seating is vacant, is supported by the only Federal court to address this issue. See Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). The Department has incorporated this position into the final rule at § 35.138(g)(2).

The NPRM contained two questions aimed at gauging concern with the Department’s consideration of secondary ticket market sales. The first question asked whether a secondary purchaser who does not have a disability and who buys an accessible seat should be required to move if the space is needed for someone with a disability.

Many disability rights advocates answered that the individual should move provided that there is a seat of comparable or better quality available for him and his companion. Some venues, however, expressed concerns about this provision, and asked how they are to identify who should be moved and what obligations apply if there are no seats available that are equivalent or better in quality.

The Department’s second question asked whether there are particular concerns about the obligation to provide accessible seating, including a wheelchair space, to an individual with a disability who purchases an inaccessible seat through the secondary market.

Industry commenters contended that this requirement would create a “logistical nightmare,” with venues scrambling to reseat patrons in the short time between the opening of the venues’ doors and the commencement of the event. Furthermore, they argued that they might not be able to reseat all individuals and that even if they were able to do so, patrons might be moved to inferior seats (whether in accessible or non-accessible seating). These commenters also were concerned that they would be sued by patrons moved under such circumstances.

These commenters seem to have misconstrued the rule. Covered entities are not required to seat every person who acquires a ticket for inaccessible seating but needs accessible seating, and are not required to move any individual who acquires a ticket for accessible seating but does not need it. Covered entities that allow patrons to buy and sell tickets on the secondary market must make reasonable modifications to their policies to allow persons with disabilities to participate in secondary ticket transfers. The Department believes that there is no one-size-fits-all rule that will suit all assembly areas. In those circumstances where a venue has accessible seating vacant at the time an individual with a disability who needs accessible seating presents his ticket for inaccessible seating at the box office, the venue must allow the individual to exchange his ticket for an accessible seat in a comparable location if such an accessible seat is vacant. Where, however, a venue has sold all of its accessible seating, the venue has no obligation to provide accessible seating to the person with a disability who purchased an inaccessible seat on the secondary market. Venues may encourage individuals with disabilities who hold tickets for inaccessible seating to contact the box office before the event to notify them of their need for accessible seating, even though they may not require ticketholders to provide such notice.

The Department notes that public entities are permitted, though not required, to adopt policies regarding moving patrons who do not need the features of an accessible seat. If a public entity chooses to do so, it might mitigate administrative concerns by marking tickets for accessible seating as such, and printing on the ticket that individuals who purchase such seats but who do not need accessible seating are subject to being moved to other seats in the facility if the accessible seating is required for an individual with a disability. Such a venue might also develop and publish a ticketing policy to provide transparency to the general public and to put holders of tickets for accessible seating who do not require it on notice that they may be moved.

Prevention of fraud in purchase of accessible seating. Assembly area managers and advocacy groups have informed the Department that the fraudulent purchase of accessible seating is a pressing concern. Curbing fraud is a goal that public entities and individuals with disabilities share. Steps taken to prevent fraud, however, must be balanced carefully against the privacy rights of individuals with disabilities. Such measures also must not impose burdensome requirements upon, nor restrict the rights of, individuals with disabilities.

In the NPRM, the Department struck a balance between these competing concerns by proposing § 35.138(h), which prohibited public entities from asking for proof of disability before the purchase of accessible seating but provided guidance in two paragraphs on appropriate measures for curbing fraud. Paragraph (1) proposed allowing a public entity to ask individuals purchasing single-event tickets for accessible seating whether they are wheelchair users. Paragraph (2) proposed allowing a public entity to require the individuals purchasing accessible seating for season tickets or other multi-event ticket packages to attest in writing that the accessible seating is for a wheelchair user. Additionally, the NPRM proposed to permit venues, when they have good cause to believe that an individual has fraudulently purchased accessible seating, to investigate that individual.

Several commenters objected to this rule on the ground that it would require a wheelchair user to be the purchaser of tickets. The Department has reworded this paragraph to reflect that the individual with a disability does not have to be the ticket purchaser. The final rule allows third parties to purchase accessible tickets at the request of an individual with a disability.

Commenters also argued that other individuals with disabilities who do not use wheelchairs should be permitted to purchase accessible seating. Some individuals with disabilities who do not use wheelchairs urged the Department to change the rule, asserting that they, too, need accessible seating. The Department agrees that such seating, although designed for use by a wheelchair user, may be used by non-wheelchair users, if those persons are persons with a disability who need to use accessible seating because of a mobility disability or because their disability requires the use of the features that accessible seating provides (e.g., individuals who cannot bend their legs because of braces, or individuals who, because of their disability, cannot sit in a straight-back chair).

Some commenters raised concerns that allowing venues to ask questions to determine whether individuals purchasing accessible seating are doing so legitimately would burden individuals with disabilities in the purchase of accessible seating. The Department has retained the substance of this provision in § 35.138(h) of the final rule, but emphasizes that such questions should be asked at the initial time of purchase. For example, if the method of purchase is via the Internet, then the question(s) should be answered by clicking a yes or no box during the transaction. The public entity may warn purchasers that accessible seating is for individuals with disabilities and that individuals purchasing such tickets fraudulently are subject to relocation.

One commenter argued that face-to-face contact between the venue and the ticket holder should be required in order to prevent fraud and suggested that individuals who purchase accessible seating should be required to pick up their tickets at the box office and then enter the venue immediately. The Department has declined to adopt that suggestion. It would be discriminatory to require individuals with disabilities to pick up tickets at the box office when other spectators are not required to do so. If the assembly area wishes to make face-to-face contact with accessible seating ticket holders to curb fraud, it may do so through its ushers and other customer service personnel located within the seating area.

Some commenters asked whether it is permissible for assembly areas to have voluntary clubs where individuals with disabilities self-identify to the public entity in order to become a member of a club that entitles them to purchase accessible seating reserved for club members or otherwise receive priority in purchasing accessible seating. The Department agrees that such clubs are permissible, provided that a reasonable amount of accessible seating remains available at all prices and dispersed at all locations for individuals with disabilities who are non-members.

§ 35.139 Direct threat.

In Appendix A of the Department’s 1991 title II regulation, the Department included a detailed discussion of “direct threat” that, among other things, explained that “the principles established in § 36.208 of the Department’s [title III] regulation” were “applicable” as well to title II, insofar as “questions of safety are involved.” 28 CFR part 35, app. A at 565 (2009). In the final rule, the Department has included specific requirements related to “direct threat” that parallel those in the title III rule. These requirements are found in new § 35.139.

Subpart D—Program Accessibility

Section 35.150(b)(2) Safe harbor

The “program accessibility” requirement in regulations implementing title II of the Americans with Disabilities Act requires that each service, program, or activity, when viewed in its entirety, be readily accessible to and usable by individuals with disabilities. 28 CFR 35.150(a). Because title II evaluates a public entity’s programs, services, and activities in their entirety, public entities have flexibility in addressing accessibility issues. Program access does not necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities, and public entities are not required to make structural changes to existing facilities where other methods are effective in achieving program access. See id. 3 Public entities do, however, have program access considerations that are independent of, but may coexist with, requirements imposed by new construction or alteration requirements in those same facilities.

Where a public entity opts to alter existing facilities to comply with its program access requirements, the entity must meet the accessibility requirements for alterations set out in § 35.151. Under the final rule, these alterations will be subject to the 2010 Standards. The 2010 Standards introduce technical and scoping specifications for many elements not covered by the 1991 Standards. In existing facilities, these supplemental requirements need to be taken into account by a public entity in ensuring program access. Also included in the 2010 Standards are revised technical and scoping requirements for a number of elements that were addressed in the 1991 Standards. These revised requirements reflect incremental changes that were added either because of additional study by the Access Board or in order to harmonize requirements with the model codes.

Although the program accessibility standard offers public entities a level of discretion in determining how to achieve program access, in the NPRM, the Department proposed an addition to § 35.150 at § 35.150(b)(2), denominated “Safe Harbor,” to clarify that “[i]f a public entity has constructed or altered elements * * * in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standard, such public entity is not, solely because of the Department’s adoption of the [2010] Standards, required to retrofit such elements to reflect incremental changes in the proposed standards.” 73 FR 34466, 34505 (June 17, 2008). In these circumstances, the public entity would be entitled to a safe harbor for the already compliant elements until those elements are altered. The safe harbor does not negate a public entity’s new construction or alteration obligations. A public entity must comply with the new construction or alteration requirements in effect at the time of the construction or alteration. With respect to existing facilities designed and constructed after January 26, 1992, but before the public entities are required to comply with the 2010 Standards, the rule is that any elements in these facilities that were not constructed in conformance with UFAS or the 1991 Standards are in violation of the ADA and must be brought into compliance. If elements in existing facilities were altered after January 26, 1992, and those alterations were not made in conformance with the alteration requirements in effect at the time, then those alteration violations must be corrected. Section 35.150(b)(2) of the final rule specifies that until the compliance date for the Standards (18 months from the date of publication of the rule), facilities or elements covered by § 35.151(a) or (b) that are noncompliant with either the 1991 Standards or UFAS shall be made accessible in accordance with the 1991 Standards, UFAS, or the 2010 Standards. Once the compliance date is reached, such noncompliant facilities or elements must be made accessible in accordance with the 2010 Standards.

The Department received many comments on the safe harbor during the 60-day public comment period. Advocacy groups were opposed to the safe harbor for compliant elements in existing facilities. These commenters objected to the Department’s characterization of revisions between the 1991 and 2010 Standards as incremental changes and assert that these revisions represent important advances in accessibility for individuals with disabilities. Commenters saw no basis for “grandfathering” outdated accessibility standards given the flexibility inherent in the program access standard. Others noted that title II’s “undue financial and administrative burdens” and “fundamental alteration” defenses eliminate any need for further exemptions from compliance. Some commenters suggested that entities’ past efforts to comply with the program access standard of 28 CFR 35.150(a) might appropriately be a factor in determining what is required in the future.

Many public entities welcomed the Department’s proposed safe harbor. These commenters contend that the safe harbor allows public entities needed time to evaluate program access in light of the 2010 Standards, and incorporate structural changes in a careful and thoughtful way toward increasing accessibility entity-wide. Many felt that it would be an ineffective use of public funds to update buildings to retrofit elements that had already been constructed or modified to Department-issued and sanctioned specifications. One entity pointed to the “possibly budget-breaking” nature of forcing compliance with incremental changes.

The Department has reviewed and considered all information received during the 60-day public comment period. Upon review, the Department has decided to retain the title II safe harbor with minor revisions. The Department believes that the safe harbor provides an important measure of clarity and certainty for public entities as to the effect of the final rule with respect to existing facilities. Additionally, by providing a safe harbor for elements already in compliance with the technical and scoping specifications in the 1991 Standards or UFAS, funding that would otherwise be spent on incremental changes and repeated retrofitting is freed up to be used toward increased entity-wide program access. Public entities may thereby make more efficient use of the resources available to them to ensure equal access to their services, programs, or activities for all individuals with disabilities.

The safe harbor adopted with this final rule is a narrow one, as the Department recognizes that this approach may delay, in some cases, the increased accessibility that the revised requirements would provide, and that for some individuals with disabilities the impact may be significant. This safe harbor operates only with respect to elements that are in compliance with the scoping and technical specifications in either the 1991 Standards or UFAS; it does not apply to supplemental requirements, those elements for which scoping and technical specifications are first provided in the 2010 Standards.

Existing Facilities

Existing play areas. The 1991 Standards do not include specific requirements for the design and construction of play areas. To meet program accessibility requirements where structural changes are necessary, public entities have been required to apply the general new construction and alteration standards to the greatest extent possible, including with respect to accessible parking, routes to the playground, playground equipment, and playground amenities (e.g., picnic tables and restrooms). The Access Board published final guidelines for play areas in October 2000. The guidelines extended beyond general playground access to establish specific scoping and technical requirements for ground-level and elevated play components, accessible routes connecting the components, accessible ground surfaces, and maintenance of those surfaces. These guidelines filled a void left by the 1991 Standards. They have been referenced in Federal playground construction and safety guidelines and have been used voluntarily when many play areas across the country have been altered or constructed.

In adopting the 2004 ADAAG (which includes the 2000 play area guidelines), the Department acknowledges both the importance of integrated, full access to play areas for children and parents with disabilities, as well as the need to avoid placing an untenable fiscal burden on public entities. In the NPRM, the Department stated it was proposing two specific provisions to reduce the impact on existing facilities that undertake structural modifications pursuant to the program accessibility requirement. First, the Department proposed in § 35.150(b)(4) that existing play areas that are not being altered would be permitted to meet a reduced scoping requirement with respect to their elevated play components. Elevated play components, which are found on most playgrounds, are the individual components that are linked together to form large-scale composite playground equipment (e.g., the monkey bars attached to the suspension bridge attached to the tube slide, etc.) The 2010 Standards provide that a play area that includes both ground level and elevated play components must ensure that a specified number of the ground-level play components and at least 50 percent of the elevated play components are accessible.

In the NPRM, the Department asked for specific public comment with regard to whether existing play areas should be permitted to substitute additional ground-level play components for the elevated play components they would otherwise have been required to make accessible. The Department also queried if there were other requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping. Many commenters opposed permitting existing play areas to make such substitutions. Several commenters stated that the Access Board already completed significant negotiation and cost balancing in its rulemaking, so no additional exemptions should be added in either meeting program access requirements or in alterations. Others noted that elevated components are generally viewed as the more challenging and exciting by children, so making more ground than elevated play components accessible would result in discrimination against children with disabilities in general and older children with disabilities in particular. They argued that the ground components would be seen as equipment for younger children and children with disabilities, while elevated components would serve only older children without disabilities. In addition, commenters advised that including additional ground-level play components would require more accessible route and use zone surfacing, which would result in a higher cost burden than making elevated components accessible.

The Department also asked for public comment on whether it would be appropriate for the Access Board to consider issuing guidelines for alterations to play and recreational facilities that would permit reduced scoping of accessible components or substitution of ground-level play components in lieu of elevated play components. Most commenters opposed any additional reductions in scoping and substitutions. These commenters uniformly stated that the Access Board completed sufficient negotiation during its rulemaking on its play area guidelines published in 2000 and that those guidelines consequently should stand as is. One commenter advocated reduced scoping and substitution of ground play components during alterations only for those play areas built prior to the finalization of the guidelines.

The Department has considered the comments it has received and has determined that it is not necessary to provide a specific exemption to the scoping for components for existing play areas or to recommend reduced scoping or additional exemptions for alteration, and has deleted the reduced scoping proposed in NPRM § 35.150(b)(4)(i) from the final rule. The Department believes that it is preferable for public entities to try to achieve compliance with the design standards established in the 2010 Standards. If this is not possible to achieve in an existing setting, the requirements for program accessibility provide enough flexibility to permit the covered entity to pursue alternative approaches to provide accessibility.

Second, in § 35.150(b)(5)(i) of the NPRM, the Department proposed language stating that existing play areas that are less than 1,000 square feet in size and are not otherwise being altered, need not comply with the scoping and technical requirements for play areas in section 240 of the 2004 ADAAG. The Department stated it selected this size based on the provision in section 1008.2.4.1 of the 2004 ADAAG, Exception 1, which permits play areas less than 1,000 square feet in size to provide accessible routes with a reduced clear width (44 inches instead of 60 inches). In its 2000 regulatory assessment for the play area guidelines, the Access Board assumed that such “small” play areas represented only about 20 percent of the play areas located in public schools, and none of the play areas located in city and State parks (which the Board assumed were typically larger than 1,000 square feet).

In the NPRM, the Department asked if existing play areas less than 1,000 square feet should be exempt from the requirements applicable to play areas. The vast majority of commenters objected to such an exemption. One commenter stated that many localities that have parks this size are already making them accessible; many cited concerns that this would leave all or most public playgrounds in small towns inaccessible; and two commenters stated that, since many of New York City’s parks are smaller than 1,000 square feet, only scattered larger parks in the various boroughs would be obliged to become accessible. Residents with disabilities would then have to travel substantial distances outside their own neighborhoods to find accessible playgrounds. Some commenters responded that this exemption should not apply in instances where the play area is the only one in the program, while others said that if a play area is exempt for reasons of size, but is the only one in the area, then it should have at least an accessible route and 50 percent of its ground-level play components accessible. One commenter supported the exemption as presented in the question.

The Department is persuaded by these comments that it is inappropriate to exempt public play areas that are less than 1,000 square feet in size. The Department believes that the factors used to determine program accessibility, including the limits established by the undue financial and administrative burdens defense, provide sufficient flexibility to public entities in determining how to make their existing play areas accessible. In those cases where a title II entity believes that present economic concerns make it an undue financial and administrative burden to immediately make its existing playgrounds accessible in order to comply with program accessibility requirements, then it may be reasonable for the entity to develop a multiyear plan to bring its facilities into compliance.

In addition to requesting public comment about the specific sections in the NPRM, the Department also asked for public comment about the appropriateness of a general safe harbor for existing play areas and a safe harbor for public entities that have complied with State or local standards specific to play areas. In the almost 200 comments received on title II play areas, the vast majority of commenters strongly opposed all safe harbors, exemptions, and reductions in scoping. By contrast, one commenter advocated a safe harbor from compliance with the 2004 ADAAG play area requirements along with reduced scoping and exemptions for both program accessibility and alterations; a second commenter advocated only the general safe harbor from compliance with the supplemental requirements.

In response to the question of whether the Department should exempt public entities from specific compliance with the supplemental requirements for play areas, commenters stated that since no specific standards previously existed, play areas are more than a decade behind in providing full access for individuals with disabilities. When accessible play areas were created, public entities, acting in good faith, built them according to the 2004 ADAAG requirements; many equipment manufacturers also developed equipment to meet those guidelines. If existing playgrounds were exempted from compliance with the supplemental guidelines, commenters said, those entities would be held to a lesser standard and left with confusion, a sense of wasted resources, and federally condoned discrimination and segregation. Commenters also cited Federal agency settlement agreements on play areas that required compliance with the guidelines. Finally, several commenters observed that the provision of a safe harbor in this instance was invalid for two reasons: (1) The rationale for other safe harbors—that entities took action to comply with the 1991 Standards and should not be further required to comply with new standards—does not exist; and (2) concerns about financial and administrative burdens are adequately addressed by program access requirements.

The question of whether accessibility of play areas should continue to be assessed on the basis of case-by-case evaluations elicited conflicting responses. One commenter asserted that there is no evidence that the case-by-case approach is not working and so it should continue until found to be inconsistent with the ADA’s goals. Another commenter argued that case-by-case evaluations result in unpredictable outcomes which result in costly and long court actions. A third commenter, advocating against case-by-case evaluations, requested instead increased direction and scoping to define what constitutes an accessible play area program.

The Department has considered all of the comments it received in response to its questions and has concluded that there is insufficient basis to establish a safe harbor from compliance with the supplemental guidelines. Thus, the Department has eliminated the proposed exemption contained in § 35.150(b)(5)(i) of the NPRM for existing play areas that are less than 1,000 square feet. The Department believes that the factors used to determine program accessibility, including the limits established by the undue financial and administrative burdens defense, provide sufficient flexibility to public entities in determining how to make their existing play areas accessible.

In the NPRM, the Department also asked whether there are State and local standards addressing play and recreation area accessibility and, to the extent that there are such standards, whether facilities currently governed by, and in compliance with, such State and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG. The Department also asked whether it would be appropriate for the Access Board to consider the implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations. In response, commenters stated that few State or local governments have standards that address issues of accessibility in play areas, and one commenter organization said that it was unaware of any State or local standards written specifically for accessible play areas. One commenter observed from experience that most State and local governments were waiting for the Access Board guidelines to become enforceable standards as they had no standards themselves to follow. Another commenter offered that public entities across the United States already include in their playground construction bid specifications language that requires compliance with the Access Board’s guidelines. A number of commenters advocated for the Access Board’s guidelines to become comprehensive Federal standards that would complement any abbreviated State and local standards. One commenter, however, supported a safe harbor for play areas undergoing alterations if the areas currently comply with State or local standards.

The Department is persuaded by these comments that there is insufficient basis to establish a safe harbor for program access or alterations for play areas built in compliance with State or local laws.

In the NPRM, the Department asked whether “a reasonable number, but at least one” is a workable standard to determine the appropriate number of existing play areas that a public entity must make accessible. Many commenters objected to this standard, expressing concern that the phrase “at least one” would be interpreted as a maximum rather than a minimum requirement. Such commenters feared that this language would allow local governments to claim compliance by making just one public park accessible, regardless of the locality’s size, budget, or other factors, and would support segregation, forcing children with disabilities to leave their neighborhoods to enjoy an accessible play area. While some commenters criticized what they viewed as a new analysis of program accessibility, others asserted that the requirements of program accessibility should be changed to address issues related to play areas that are not the main program in a facility but are essential components of a larger program (e.g., drop-in child care for a courthouse).

The Department believes that those commenters who opposed the Department’s “reasonable number, but at least one” standard for program accessibility misunderstood the Department’s proposal. The Department did not intend any change in its longstanding interpretation of the program accessibility requirement. Program accessibility requires that each service, program, or activity be operated “so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities,” 28 CFR 35.150(a), subject to the undue financial and administrative burdens and fundamental alterations defenses provided in 28 CFR 35.150. In determining how many facilities of a multi-site program must be made accessible in order to make the overall program accessible, the standard has always been an assessment of what is reasonable under the circumstances to make the program readily accessible to and usable by individuals with disabilities, taking into account such factors as the size of the public entity, the particular program features offered at each site, the geographical distance between sites, the travel times to the sites, the number of sites, and availability of public transportation to the sites. In choosing among available methods for meeting this requirement, public entities are required to give priority “to those methods that offer services, programs, and activities * * * in the most integrated setting appropriate.” 28 CFR 35.150(b)(1). As a result, in cases where the sites are widely dispersed with difficult travel access and where the program features offered vary widely between sites, program accessibility will require a larger number of facilities to be accessible in order to ensure program accessibility than where multiple sites are located in a concentrated area with easy travel access and uniformity in program offerings.

Commenters responded positively to the Department’s question in the NPRM whether the final rule should provide a list of factors that a public entity should use to determine how many of its existing play areas should be made accessible. Commenters also asserted strongly that the number of existing parks in the locality should not be the main factor. In addition to the Department’s initial list—including number of play areas in an area, travel times or geographic distances between play areas, and the size of the public entity—commenters recommended such factors as availability of accessible pedestrian routes to the playgrounds, ready availability of accessible transportation, comparable amenities and services in and surrounding the play areas, size of the playgrounds, and sufficient variety in accessible play components within the playgrounds. The Department agrees that these factors should be considered, where appropriate, in any determination of whether program accessibility has been achieved. However, the Department has decided that it need not address these factors in the final rule itself because the range of factors that might need to be considered would vary depending upon the circumstances of particular public entities. The Department does not believe any list would be sufficiently comprehensive to cover every situation.

The Department also requested public comment about whether there was a “tipping point” at which the costs of compliance with the new requirements for existing play areas would be so burdensome that the entity would simply shut down the playground. Commenters generally questioned the feasibility of determining a “tipping point.” No commenters offered a recommended “tipping point.” Moreover, most commenters stated that a “tipping point” is not a valid consideration for various reasons, including that “tipping points” will vary based upon each entity’s budget and other mandates, and costs that are too high will be addressed by the limitations of the undue financial and administrative burdens defense in the program accessibility requirement and that a “tipping point” must be weighed against quality of life issues, which are difficult to quantify. The Department has decided that comments did not establish any clear “tipping point” and therefore provides no regulatory requirement in this area.

Swimming pools. The 1991 Standards do not contain specific scoping or technical requirements for swimming pools. As a result, under the 1991 title II regulation, title II entities that operate programs or activities that include swimming pools have not been required to provide an accessible route into those pools via a ramp or pool lift, although they are required to provide an accessible route to such pools. In addition, these entities continue to be subject to the general title II obligation to make their programs usable and accessible to persons with disabilities.

The 2004 ADAAG includes specific technical and scoping requirements for new and altered swimming pools at sections 242 and 1009. In the NPRM, the Department sought to address the impact of these requirements on existing swimming pools. Section 242.2 of the 2004 ADAAG states that swimming pools must provide two accessible means of entry, except that swimming pools with less than 300 linear feet of swimming pool wall are only required to provide one accessible means of entry, provided that the accessible means of entry is either a swimming pool lift complying with section 1009.2 or a sloped entry complying with section 1009.3.

In the NPRM, the Department proposed, in § 35.150(b)(4)(ii), that for measures taken to comply with title II’s program accessibility requirements, existing swimming pools with at least 300 linear feet of swimming pool wall would be required to provide only one accessible means of access that complied with section 1009.2 or section 1009.3 of the 2004 ADAAG.

The Department specifically sought comment from public entities and individuals with disabilities on the question whether the Department should “allow existing public entities to provide only one accessible means of access to swimming pools more than 300 linear feet long?” The Department received significant public comment on this proposal.

Most commenters opposed any reduction in the scoping required in the 2004 ADAAG, citing the fact that swimming is a common therapeutic form of exercise for many individuals with disabilities. Many commenters also stated that the cost of a swimming pool lift, approximately $5,000, or other nonstructural options for pool access such as transfer steps, transfer walls, and transfer platforms, would not be an undue financial and administrative burden for most title II entities. Other commenters pointed out that the undue financial and administrative burdens defense already provided public entities with a means to reduce their scoping requirements. A few commenters cited safety concerns resulting from having just one accessible means of access, and stated that because pools typically have one ladder for every 75 linear feet of pool wall, they should have more than one accessible means of access. One commenter stated that construction costs for a public pool are approximately $4,000- 4,500 per linear foot, making the cost of a pool with 300 linear feet of swimming pool wall approximately $1.2 million, compared to $5,000 for a pool lift. Some commenters did not oppose the one accessible means of access for larger pools so long as a lift was used. A few commenters approved of the one accessible means of access for larger pools. The Department also considered the American National Standard for Public Swimming Pools, ANSI/NSPI-1 2003, section 23 of which states that all pools should have at least two means of egress.

In the NPRM, the Department also proposed at § 35.150(b)(5)(ii) that existing swimming pools with less than 300 linear feet of swimming pool wall be exempted from having to comply with the provisions of section 242.2. The Department’s NPRM requested public comment about the potential effect of this approach, asking whether existing swimming pools with less than 300 linear feet of pool wall should be exempt from the requirements applicable to swimming pools.

Most commenters were opposed to this proposal. A number of commenters stated, based on the Access Board estimates that 90 percent of public high school pools, 40 percent of public park and community center pools, and 30 percent of public college and university pools have less than 300 linear feet of pool wall, that a large number of public swimming pools would fall under this exemption. Other commenters pointed to the existing undue financial and administrative burdens defenses as providing public entities with sufficient protection from excessive compliance costs. Few commenters supported this exemption.

The Department also considered the fact that many existing swimming pools owned or operated by public entities are recipients of Federal financial assistance and therefore, are also subject to the program accessibility requirements of section 504 of the Rehabilitation Act.

The Department has carefully considered all the information available to it including the comments submitted on these two proposed exemptions for swimming pools owned or operated by title II entities. The Department acknowledges that swimming provides important therapeutic, exercise, and social benefits for many individuals with disabilities and is persuaded that exemption of many publicly owned or operated pools from the 2010 Standards is neither appropriate nor necessary. The Department agrees with the commenters that title II already contains sufficient limitations on public entities’ obligations to make their programs accessible. In particular, the Department agrees that those public entities that can demonstrate that making particular existing swimming pools accessible in accordance with the 2010 Standards would be an undue financial and administrative burden are sufficiently protected from excessive compliance costs. Thus, the Department has eliminated proposed §§ 35.150(b)(4)(ii) and (b)(5)(ii) from the final rule.

In addition, although the NPRM contained no specific proposed regulatory language on this issue, the NPRM sought comment on what would be a workable standard for determining the appropriate number of existing swimming pools that a public entity must make accessible for its program to be accessible. The Department asked whether a “reasonable number, but at least one” would be a workable standard and, if not, whether there was a more appropriate specific standard. The Department also asked if, in the alternative, the Department should provide “a list of factors that a public entity could use to determine how many of its existing swimming pools to make accessible, e.g., number of swimming pools, travel times or geographic distances between swimming pools, and the size of the public entity?”

A number of commenters expressed concern over the “reasonable number, but at least one” standard and contended that, in reality, public entities would never provide more than one accessible existing pool, thus segregating individuals with disabilities. Other commenters felt that the existing program accessibility standard was sufficient. Still others suggested that one in every three existing pools should be made accessible. One commenter suggested that all public pools should be accessible. Some commenters proposed a list of factors to determine how many existing pools should be accessible. Those factors include the total number of pools, the location, size, and type of pools provided, transportation availability, and lessons and activities available. A number of commenters suggested that the standard should be based on geographic areas, since pools serve specific neighborhoods. One commenter argued that each pool should be examined individually to determine what can be done to improve its accessibility.

The Department did not include any language in the final rule that specifies the “reasonable number, but at least one” standard for program access. However, the Department believes that its proposal was misunderstood by many commenters. Each service, program, or activity conducted by a public entity, when viewed in its entirety, must still be readily accessible to and usable by individuals with disabilities unless doing so would result in a fundamental alteration in the nature of the program or activity or in undue financial and administrative burdens. Determining which pool(s) to make accessible and whether more than one accessible pool is necessary to provide program access requires analysis of a number of factors, including, but not limited to, the size of the public entity, geographical distance between pool sites, whether more than one community is served by particular pools, travel times to the pools, the total number of pools, the availability of lessons and other programs and amenities at each pool, and the availability of public transportation to the pools. In many instances, making one existing swimming pool accessible will not be sufficient to ensure program accessibility. There may, however, be some circumstances where a small public entity can demonstrate that modifying one pool is sufficient to provide access to the public entity’s program of providing public swimming pools. In all cases, a public entity must still demonstrate that its programs, including the program of providing public swimming pools, when viewed in their entirety, are accessible.

Wading pools. The 1991 Standards do not address wading pools. Section 242.3 of the 2004 ADAAG requires newly constructed or altered wading pools to provide at least one sloped means of entry to the deepest part of the pool. The Department was concerned about the potential impact of this new requirement on existing wading pools. Therefore, in the NPRM, the Department sought comments on whether existing wading pools that are not being altered should be exempt from this requirement, asking, “[w]hat site constraints exist in existing facilities that could make it difficult or infeasible to install a sloped entry in an existing wading pool? Should existing wading pools that are not being altered be exempt from the requirement to provide a sloped entry? “ 73 FR 34466, 34487-88 (June 17, 2008). Most commenters agreed that existing wading pools that are not being altered should be exempt from this requirement. Almost all commenters felt that during alterations a sloped entry should be provided unless it was technically infeasible to do so. Several commenters felt that the required clear deck space surrounding a pool provided sufficient space for a sloped entry during alterations.

The Department also solicited comments on the possibility of exempting existing wading pools from the obligation to provide program accessibility. Most commenters argued that installing a sloped entry in an existing wading pool is not very feasible. Because covered entities are not required to undertake modifications that would be technically infeasible, the Department believes that the rule as drafted provides sufficient protection from unwarranted expense to the operators of small existing wading pools. Other existing wading pools, particularly those larger pools associated with facilities such as aquatic centers or water parks, must be assessed on a case-by-case basis. Therefore, the Department has not included such an exemption for wading pools in its final rule.

Saunas and steam rooms. The 1991 Standards do not address saunas and steam rooms. Section 35.150(b)(5)(iii) of the NPRM exempted existing saunas and steam rooms that seat only two individuals and were not being altered from section 241 of the 2004 ADAAG, which requires an accessible turning space. Two commenters objected to this exemption as unnecessary, and argued that the cost of accessible saunas is not high and public entities still have an undue financial and administrative burdens defense.

The Department considered these comments and has decided to eliminate the exemption for existing saunas and steam rooms that seat only two people. Such an exemption is unnecessary because covered entities will not be subject to program accessibility requirements to make existing saunas and steam rooms accessible if doing so constitutes an undue financial and administrative burden. The Department believes it is likely that because of their prefabricated forms, which include built-in seats, it would be either technically infeasible or an undue financial and administrative burden to modify such saunas and steams rooms. Consequently, a separate exemption for saunas and steam rooms would have been superfluous. Finally, employing the program accessibility standard for small saunas and steam rooms is consistent with the Department’s decisions regarding the proposed exemptions for play areas and swimming pools.

Several commenters also argued in favor of a specific exemption for existing spas. The Department notes that the technical infeasibility and program accessibility defenses are applicable equally to existing spas and declines to adopt such an exemption.

Other recreational facilities. In the NPRM, the Department asked about a number of issues relating to recreation facilities such as team or player seating areas, areas of sport activity, exercise machines, boating facilities, fishing piers and platforms, and miniature golf courses. The Department’s questions addressed the costs and benefits of applying the 2004 ADAAG to these spaces and facilities and the application of the specific technical requirements in the 2004 ADAAG for these spaces and facilities. The discussion of the comments received by the Department on these issues and the Department’s response to those comments can be found in either the section of Appendix A to this rule entitled “Other Issues,” or in Appendix B to the final title III rule, which will be published today elsewhere in this volume.

Section 35.151 New construction and alterations

Section 35.151(a), which provided that those facilities that are constructed or altered by, on behalf of, or for the use of a public entity shall be designed, constructed, or altered to be readily accessible to and usable by individuals with disabilities, is unchanged in the final rule, but has been redesignated as § 35.151(a)(1). The Department has added a new section, designated as § 35.151(a)(2), to provide that full compliance with the requirements of this section is not required where an entity can demonstrate that it is structurally impracticable to meet the requirements. Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features. This exception was contained in the title III regulation and in the 1991 Standards (applicable to both public accommodations and facilities used by public entities), so it has applied to any covered facility that was constructed under the 1991 Standards since the effective date of the ADA. The Department added it to the text of § 35.151 to maintain consistency between the design requirements that apply under title II and those that apply under title III. The Department received no significant comments about this section.

Section 35.151(b) Alterations

The 1991 title II regulation does not contain any specific regulatory language comparable to the 1991 title III regulation relating to alterations and path of travel for covered entities, although the 1991 Standards describe standards for path of travel during alterations to a primary function. See 28 CFR part 36, app A., section 4.1.6(a) (2009).

The path of travel requirements contained in the title III regulation are based on section 303(a)(2) of the ADA, 42 U.S.C. 12183(a)(2), which provides that when an entity undertakes an alteration to a place of public accommodation or commercial facility that affects or could affect the usability of or access to an area that contains a primary function, the entity shall ensure that, to the maximum extent feasible, the path of travel to the altered area—and the restrooms, telephones, and drinking fountains serving it—is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

The NPRM proposed amending § 35.151 to add both the path of travel requirements and the exemption relating to barrier removal (as modified to apply to the program accessibility standard in title II) that are contained in the title III regulation to the title II regulation. Proposed § 35.151(b)(4) contained the requirements for path of travel. Proposed § 35.151(b)(2) stated that the path of travel requirements of § 35.151(b)(4) shall not apply to measures taken solely to comply with program accessibility requirements.

Where the specific requirements for path of travel apply under title III, they are limited to the extent that the cost and scope of alterations to the path of travel are disproportionate to the cost of the overall alteration, as determined under criteria established by the Attorney General.

The Access Board included the path of travel requirement for alterations to facilities covered by the standards (other than those subject to the residential facilities standards) in section 202.4 of 2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes the criteria for determining when the cost of alterations to the path of travel is “disproportionate” to the cost of the overall alteration.

The NPRM also provided that areas such as supply storage rooms, employee lounges and locker rooms, janitorial closets, entrances, and corridors are not areas containing a primary function. Nor are restroom areas considered to contain a primary function unless the provision of restrooms is a primary purpose of the facility, such as at a highway rest stop. In that situation, a restroom would be considered to be an “area containing a primary function” of the facility.

The Department is not changing the requirements for program accessibility. As provided in § 35.151(b)(2) of the regulation, the path of travel requirements of § 35.151(b)(4) only apply to alterations undertaken solely for purposes other than to meet the program accessibility requirements. The exemption for the specific path of travel requirement was included in the regulation to ensure that the specific requirements and disproportionality exceptions for path of travel are not applied when areas are being altered to meet the title II program accessibility requirements in § 35.150. In contrast, when areas are being altered to meet program accessibility requirements, they must comply with all of the applicable requirements referenced in section 202 of the 2010 Standards. A covered title II entity must provide accessibility to meet the requirements of § 35.150 unless doing so is an undue financial and administrative burden in accordance with § 35.150(a)(3). A covered title II entity may not use the disproportionality exception contained in the path of travel provisions as a defense to providing an accessible route as part of its obligation to provide program accessibility. The undue financial and administrative burden standard does not contain any bright line financial tests.

The Department’s proposed § 35.151(b)(4) adopted the language now contained in § 36.403 of the title III regulation, including the disproportionality limitation (i.e., alterations made to provide an accessible path of travel to the altered area would be deemed disproportionate to the overall alteration when the cost exceeds 20 percent of the cost of the alteration to the primary function area). Proposed § 35.151(b)(2) provided that the path of travel requirements do not apply to alterations undertaken solely to comply with program accessibility requirements.

The Department received a substantial number of comments objecting to the Department’s adoption of the exemption for the path of travel requirements when alterations are undertaken solely to meet program accessibility requirements. These commenters argued that the Department had no statutory basis for providing this exemption nor does it serve any purpose. In addition, these commenters argued that the path of travel exemption has the effect of placing new limitations on the obligations to provide program access. A number of commenters argued that doing away with the path of travel requirement would render meaningless the concept of program access. They argued that just as the requirement to provide an accessible path of travel to an altered area (regardless of the reason for the alteration), including making the restrooms, telephones, and drinking fountains that serve the altered area accessible, is a necessary requirement in other alterations, it is equally necessary for alterations made to provide program access. Several commenters expressed concern that a readily accessible path of travel be available to ensure that persons with disabilities can get to the physical location in which programs are held. Otherwise, they will not be able to access the public entity’s service, program, or activity. Such access is a cornerstone of the protections provided by the ADA. Another commenter argued that it would be a waste of money to create an accessible facility without having a way to get to the primary area. This commenter also stated that the International Building Code (IBC) requires the path of travel to a primary function area, up to 20 percent of the cost of the project. Another commenter opposed the exemption, stating that the trigger of an alteration is frequently the only time that a facility must update its facilities to comply with evolving accessibility standards.

In the Department’s view, the commenters objecting to the path of travel exemption contained in § 35.151(b)(2) did not understand the intention behind the exemption. The exemption was not intended to eliminate any existing requirements related to accessibility for alterations undertaken in order to meet program access obligations under § 35.149 and § 35.150. Rather, it was intended to ensure that covered entities did not apply the path of travel requirements in lieu of the overarching requirements in this Subpart that apply when making a facility accessible in order to comply with program accessibility. The exemption was also intended to make it clear that the disproportionality test contained in the path of travel standards is not applicable in determining whether providing program access results in an undue financial and administration burden within the meaning of § 35.150(a)(3). The exemption was also provided to maintain consistency with the title III path of travel exemption for barrier removal, See § 36.304(d), in keeping with the Department’s regulatory authority under title II of the ADA. See 42 U.S.C. 12134(b); See also H. R Rep. No. 101B485, pt. 2, at 84 (1990) (“The committee intends, however, that the forms of discrimination prohibited by section 202 be identical to those set out in the applicable provisions of titles I and III of this legislation.”).

For title II entities, the path of travel requirements are of significance in those cases where an alteration is being made solely for reasons other than program accessibility. For example, a public entity might have six courtrooms in two existing buildings and might determine that only three of those courtrooms and the public use and common use areas serving those courtrooms in one building are needed to be made accessible in order to satisfy its program access obligations. When the public entity makes those courtrooms and the public use and common use areas serving them accessible in order to meet its program access obligations, it will have to comply with the 2010 Standards unless the public entity can demonstrate that full compliance would result in undue financial and administrative burdens as described in § 35.150(a)(3). If such action would result in an undue financial or administrative burden, the public entity would nevertheless be required to take some other action that would not result in such an alteration or such burdens but would ensure that the benefits and services provided by the public entity are readily accessible to persons with disabilities. When the public entity is making modifications to meet its program access obligation, it may not rely on the path of travel exception under § 35.151(b)(4), which limits the requirement to those alterations where the cost and scope of the alterations are not disproportionate to the cost and scope of the overall alterations. If the public entity later decides to alter courtrooms in the other building, for purposes of updating the facility (and, as previously stated, has met its program access obligations) then in that case, the public entity would have to comply with the path of travel requirements in the 2010 Standards subject to the disproportionality exception set forth in § 35.151(b)(4).

The Department has slightly revised proposed § 35.151(b)(2) to make it clearer that the path of travel requirements only apply when alterations are undertaken solely for purposes other than program accessibility.

Section 35.151(b)(4)(ii)(C) Path of travel— safe harbor

In § 35.151(b)(4)(ii)(C) of the NPRM, the Department included a provision that stated that public entities that have brought required elements of path of travel into compliance with the 1991 Standards are not required to retrofit those elements in order to reflect incremental changes in the 2010 Standards solely because of an alteration to a primary function area that is served by that path of travel. In these circumstances, the public entity is entitled to a safe harbor and is only required to modify elements to comply with the 2010 Standards if the public entity is planning an alteration to the element.

A substantial number of commenters objected to the Department’s imposition of a safe harbor for alterations to facilities of public entities that comply with the 1991 Standards. These commenters argued that if a public entity is already in the process of altering its facility, there should be a legal requirement that individuals with disabilities be entitled to increased accessibility by using the 2010 Standards for path of travel work. They also stated that they did not believe there was a statutory basis for “grandfathering” facilities that comply with the 1991 Standards.

The ADA is silent on the issue of “grandfathering” or establishing a safe harbor for measuring compliance in situations where the covered entity is not undertaking a planned alteration to specific building elements. The ADA delegates to the Attorney General the responsibility for issuing regulations that define the parameters of covered entities’ obligations when the statute does not directly address an issue. This regulation implements that delegation of authority.

One commenter proposed that a previous record of barrier removal be one of the factors in determining, prospectively, what renders a facility, when viewed in its entirety, usable and accessible to persons with disabilities. Another commenter asked the Department to clarify, at a minimum, that to the extent compliance with the 1991 Standards does not provide program access, particularly with regard to areas not specifically addressed in the 1991 Standards, the safe harbor will not operate to relieve an entity of its obligations to provide program access.

One commenter supported the proposal to add a safe harbor for path of travel.

The final rule retains the safe harbor for required elements of a path of travel to altered primary function areas for public entities that have already complied with the 1991 Standards with respect to those required elements. The Department believes that this safe harbor strikes an appropriate balance between ensuring that individuals with disabilities are provided access to buildings and facilities and potential financial burdens on existing public entities that are undertaking alterations subject to the 2010 Standards. This safe harbor is not a blanket exemption for facilities. If a public entity undertakes an alteration to a primary function area, only the required elements of a path of travel to that area that already comply with the 1991 Standards are subject to the safe harbor. If a public entity undertakes an alteration to a primary function area and the required elements of a path of travel to the altered area do not comply with the 1991 Standards, then the public entity must bring those elements into compliance with the 2010 Standards.

Section 35.151(b)(3) Alterations to historic facilities

The final rule renumbers the requirements for alterations to historic facilities enumerated in current § 35.151(d)(1) and (2) as § 35.151(b)(3)(i) and (ii). Currently, the regulation provides that alterations to historic facilities shall comply to the maximum extent feasible with section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards. See 28 CFR 35.151(d)(1). Section 35.151(b)(3)(i) of the final rule eliminates the option of using UFAS for alterations that commence on or after March 15, 2012. The substantive requirement in current § 35.151(d)(2)—that alternative methods of access shall be provided pursuant to the requirements of § 35.150 if it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility—is contained in § 35.151(b)(3)(ii).

Section 35.151(c) Accessibility standards for new construction and alterations

Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and Architectural Barriers Act Guidelines (2004 ADAAG) into the ADA Standards for Accessible Design (2010 Standards). As the Department has noted, the development of these standards represents the culmination of a lengthy effort by the Access Board to update its guidelines, to make the Federal guidelines consistent to the extent permitted by law, and to harmonize the Federal requirements with the private sector model codes that form the basis of many State and local building code requirements. The full text of the 2010 Standards is available for public review on the ADA Home Page (https://www.ada.gov and on the Access Board’s Web site (http://www.access-board.gov/gs.htm) (last visited June 24, 2010). The Access Board site also includes an extensive discussion of the development of the 2004 ADA/ABA Guidelines, and a detailed comparison of the 1991 Standards, the 2004 ADA/ABA Guidelines, and the 2003 International Building Code.

Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney General to issue regulations to implement title II that are consistent with the minimum guidelines published by the Access Board. The Attorney General (or his designee) is a statutory member of the Access Board (see 29 U.S.C. 792(a)(1)(B(vii)) and was involved in the development of the 2004 ADAAG. Nevertheless, during the process of drafting the NPRM, the Department reviewed the 2004 ADAAG to determine if additional regulatory provisions were necessary. As a result of this review, the Department decided to propose new sections, which were contained in § 35.151(e)-(h) of the NPRM, to clarify how the Department will apply the proposed standards to social service center establishments, housing at places of education, assembly areas, and medical care facilities. Each of these provisions is discussed below.

Congress anticipated that there would be a need for close coordination of the ADA building requirements with State and local building code requirements. Therefore, the ADA authorized the Attorney General to establish an ADA code certification process under title III of the ADA. That process is addressed in 28 CFR part 36, subpart F. Revisions to that process are addressed in the regulation amending the title III regulation published elsewhere in the Federal Register today. In addition, the Department operates an extensive technical assistance program. The Department anticipates that once this rule is final, revised technical assistance material will be issued to provide guidance about its implementation.

Section 35.151(c) of the 1991 title II regulation establishes two standards for accessible new construction and alteration. Under paragraph (c), design, construction, or alteration of facilities in conformance with UFAS or with the 1991 Standards (which, at the time of the publication of the rule were also referred to as the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (1991 ADAAG)) is deemed to comply with the requirements of this section with respect to those facilities (except that if the 1991 Standards are chosen, the elevator exemption does not apply). The 1991 Standards were based on the 1991 ADAAG, which was initially developed by the Access Board as guidelines for the accessibility of buildings and facilities that are subject to title III. The Department adopted the 1991 ADAAG as the standards for places of public accommodation and commercial facilities under title III of the ADA and it was published as Appendix A to the Department’s regulation implementing title III, 56 FR 35592 (July 26, 1991) as amended, 58 FR 17522 (April 5, 1993), and as further amended, 59 FR 2675 (Jan. 18, 1994), codified at 28 CFR part 36 (2009).

Section 35.151(c) of the final rule adopts the 2010 Standards and establishes the compliance date and triggering events for the application of those standards to both new construction and alterations. Appendix B of the final title III rule (Analysis and Commentary on the 2010 ADA Standards for Accessible Design) (which will be published today elsewhere in this volume and codified as Appendix B to 28 CFR part 36) provides a description of the major changes in the 2010 Standards (as compared to the 1991 ADAAG) and a discussion of the public comments that the Department received on specific sections of the 2004 ADAAG. A number of commenters asked the Department to revise certain provisions in the 2004 ADAAG in a manner that would reduce either the required scoping or specific technical accessibility requirements. As previously stated, although the ADA requires the enforceable standards issued by the Department under title II and title III to be consistent with the minimum guidelines published by the Access Board, it is the sole responsibility of the Attorney General to promulgate standards and to interpret and enforce those standards. The guidelines adopted by the Access Board are “minimum guidelines.” 42 U.S.C. 12186(c).

Compliance date. 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. See 42 U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under title II and alterations under either title II or title III had to comply with the design standards on that date. See 42 U.S.C. 12183(a)(1). For new construction under title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993—18 months after the 1991 Standards were published by the Department. In the NPRM, the Department proposed to amend § 35.151(c)(1) by revising the current language to limit the application of the 1991 standards to facilities on which construction commences within six months of the final rule adopting revised standards. The NPRM also proposed adding paragraph (c)(2) to § 35.151, which states that facilities on which construction commences on or after the date six months following the effective date of the final rule shall comply with the proposed standards adopted by that rule.

As a result, under the NPRM, for the first six months after the effective date, public entities would have the option to use either UFAS or the 1991 Standards and be in compliance with title II. Six months after the effective date of the rule, the new standards would take effect. At that time, construction in accordance with UFAS would no longer satisfy ADA requirements. The Department stated that in order to avoid placing the burden of complying with both standards on public entities, the Department would coordinate a government-wide effort to revise Federal agencies’ section 504 regulations to adopt the 2004 ADAAG as the standard for new construction and alterations.

The purpose of the proposed six-month delay in requiring compliance with the 2010 Standards was to allow covered entities a reasonable grace period to transition between the existing and the proposed standards. For that reason, if a title II entity preferred to use the 2010 Standards as the standard for new construction or alterations commenced within the six-month period after the effective date of the final rule, such entity would be considered in compliance with title II of the ADA.

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