Wednesday, 

September 15, 2010 

Part II 

Department of 

Justice 

28 CFR Parts 35 and 36 

Nondiscrimination on the Basis of 

Disability in State and Local Government 

Services; Final Rules 

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56164 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

1On September 25, 2008, President George W. 

Bush signed into law the Americans with 

Disabilities Amendments Act of 2008 (ADA 

Amendments Act), Public Law 110–325. The ADA 

Amendments Act amended the ADA definition of 

disability to clarify its coverage of persons with 

disabilities and to provide guidance on the 

application of the definition. This final rule does 

not contain regulatory language implementing the 

ADA Amendments Act. The Department intends to 

publish a supplemental rule to amend the 

regulatory definition of ‘‘disability’’ to implement 

the changes mandated by that law. 

DEPARTMENT OF JUSTICE 

28 CFR Parts 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. 

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 (800) 514–0383 

(TTY). 

This rule is also available in an 

accessible format on the ADA Home 

Page at http://www.ada.gov. 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 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56165 

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 

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56166 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

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 34466). 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., 

Overlook Mutual Homes, Inc. v. 

Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 

2009). Public entities that operate 

housing facilities must ensure that they 

apply the reasonable accommodation 

requirements of the FHAct in 

determining whether to allow a 

particular animal needed by a person 

with a disability into housing and may 

not use the ADA definition as a 

justification for reducing their FHAct 

obligations. In addition, nothing in the 

ADA prevents a covered entity subject 

to one statute from modifying its 

policies and providing greater access in 

order to assist individuals with 

disabilities in achieving access to 

entities subject to other Federal statutes. 

For example, a public airport is a title 

II facility that houses air carriers subject 

to the ACAA. The public airport 

operator is required to comply with the 

title II requirements, but is not covered 

by the ACAA. Conversely, the air carrier 

is required to comply with the ACAA, 

but is not covered by title II of the ADA. 

If a particular animal is a service animal 

for purposes of the ACAA and is thus 

allowed on an airplane, but is not a 

service animal for purposes of the ADA, 

nothing in the ADA prohibits an airport 

from allowing a ticketed passenger with 

a disability who is traveling with a 

service animal that meets the ACAA’s 

definition of a service animal to bring 

that animal into the facility even though 

under the ADA’s definition of service 

animal the animal could be lawfully 

excluded. 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56167 

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 

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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 

ada.gov/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). 

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 

2The analysis assumes these regulations will be in force for 15 years. Incremental costs and benefits are calculated for all construction, alterations, and barrier removal that is expected to occur during these 15 years. The analysis also assumes that any new or revised ADA rules enacted 15 years from now will include a safe harbor provision. Thus, any facilities constructed in year 14 of the final rules are assumed to continue to generate benefits to users, and to incur any operating or replacement costs for the life of these buildings, which is assumed to be 40 

years. 

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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. 

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 inswinging 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 singleuser 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 fronttransfer 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 outswinging 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 benefitsrelated 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 outswinging 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 outswinging 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 outswinging 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. 

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 inswinging doors tend to be larger (in 

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terms of square footage) in order to 

accommodate clearance for the inswinging 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 inswinging 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 outswinging 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 inswinging 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 independencepromoting 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 outswinging doors from those with inswinging 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 outswinging 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 singleuser 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 

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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 ADAcovered 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 requirementspecific 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 

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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 

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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-byelement 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 

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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 

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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 

required for start of play areas. 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, 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 

http://www.ada.gov/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 elementby-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 

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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 welldefined 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 (800) 514–0301 

(voice); (800) 514–0383 (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 

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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— 

PART 35—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN STATE 

AND LOCAL GOVERNMENT SERVICES 

■ 1. The authority citation for 28 CFR 

part 35 is revised to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 12134. 

Subpart A—General 

■ 2. Amend § 35.104 by adding the 

following definitions of 1991 Standards, 

2004 ADAAG, 2010 Standards, direct 

threat, existing facility, housing at a 

place of education, other power-driven 

mobility device, service animal, 

qualified reader, video remote 

interpreting (VRI) service, and 

wheelchair in alphabetical order and 

revising the definitions of auxiliary aids 

and services and qualified interpreter to 

read as follows: 

§ 35.104 Definitions. 

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. 

Auxiliary aids and services 

includes—(1) Qualified interpreters onsite 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. 

* * * * * 

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. 

* * * * * 

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. 

* * * * * 

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. 

* * * * * 

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). 

* * * * * 

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. 

* * * * * 

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 handler’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. 

* * * * * 

Video remote interpreting (VRI) 

service means an interpreting service 

that uses video conference technology 

over dedicated lines or wireless 

technology offering high-speed, widebandwidth video connection that 

delivers high-quality video images as 

provided in § 35.160(d). 

* * * * * 

Wheelchair means a manuallyoperated or power-driven device 

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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). 

Subpart B—General Requirements 

■ 3. Amend § 35.130 by adding 

paragraph (h) to read as follows: 

§ 35.130 General prohibitions against 

discrimination. 

* * * * * 

* * * * * 

(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. 

■ 4. Amend § 35.133 by adding 

paragraph (c) to read as follows: 

§ 35.133 Maintenance of accessible 

features. 

* * * * * 

(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. 

* * * * * 

■ 5. Add § 35.136 to read as follows: 

§ 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. 

(C) Other requirements. Paragraphs 

35.136(c) through (h) of this section, 

which apply to service animals, shall 

also apply to miniature horses. 

■ 6. Add § 35.137 to read as follows: 

§ 35.137 Mobility devices. 

(a) Use of wheelchairs and manuallypowered 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 

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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 powerdriven mobility device questions about 

the nature and extent of the individual’s 

disability. 

(2) Inquiry into use of other powerdriven mobility device. A public entity 

may ask a person using an other powerdriven 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 powerdriven 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 powerdriven 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. 

■ 7. Add § 35.138 to read as follows: 

§ 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, presales, 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. 

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56180 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

(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-ofevents 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-ofevents 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 seriesof-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. 

■ 8. Add § 35.139 to read as follows: 

§ 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 D—Program Accessibility 

■ 9. Amend § 35.150 as follows— 

■ a. Redesignate paragraph (b)(2) as 

paragraph (b)(3), 

■ b. Add the words ‘‘or acquisition’’ after 

the word ‘‘redesign’’ in the first sentence 

of paragraph (b)(1) and add new 

paragraph (b)(2) to read as follows: 

§ 35.150 Existing facilities. 

* * * * * 

(b) * * * 

(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. 

* * * * * 

■ 10. Amend § 35.151 as follows— 

a. Revise paragraphs (a) through (d), 

b. Revise the heading of paragraph (c), 

c. Redesignate paragraph (e) as 

paragraph (i), and 

d. Add paragraphs (e), (f), (g), (h), (j), 

and (k), to read as follows: 

§ 35.151 New construction and alterations. 

(a) Design and construction. (1) Each 

facility or part of a facility constructed 

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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 

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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 the 

September 15, 2010, then new 

construction and alterations subject to 

this section must comply with either 

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 dates for 

new construction and 

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 

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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. 

* * * * * 

(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 preidentified 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 longterm 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. 

■ 11. Add § 35.152 to read as follows: 

§ 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. 

Subpart E—Communications 

■ 12. Amend § 35.160 by revising 

paragraphs (a) and (b), and adding 

paragraphs (c) and (d) to read as follows: 

§ 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. 

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(b)(1) A public entity shall furnish 

appropriate auxiliary aids and services 

where necessary to afford 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 highquality 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. 

■ 13. Revise § 35.161 to read as follows: 

§ 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, voicemail and 

messaging, or an interactive voice 

response system, for receiving and 

directing incoming telephone calls, that 

system must provide effective real-time 

communication with individuals using 

auxiliary aids and services, including 

TTYs and all forms of FCC-approved 

telecommunications relay systems, 

including Internet-based relay systems. 

(c) A public entity shall respond to 

telephone calls from a 

telecommunications relay service 

established under title IV of the ADA in 

the same manner that it responds to 

other telephone calls. 

Subpart F—Compliance Procedures 

■ 14. Amend § 35.171 by revising 

paragraph (a)(2) to read as follows: 

§ 35.171 Acceptance of complaints. 

(a) * * * 

(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. 

* * * * * 

■ 15. Revise § 35.172 to read as follows: 

§ 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. 

Subpart G—Designated Agencies 

■ 16. Amend § 35.190 by adding 

paragraph (e) to read as follows: 

§ 35.190 Designated Agencies. 

* * * * * 

(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. 

■ 17. Redesignate Appendix A to part 

35 as Appendix B to part 35 and add 

Appendix A to read as follows: 

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. 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56185 

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 

Section 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://www.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-BySection 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 ‘‘the 

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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 powerdriven 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 

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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 fuelpowered 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 twotiered 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 twotiered 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 powerdriven 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 

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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 manuallyoperated 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 

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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 poweroperated 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 powerdriven 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 otherpowered 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 nonWReier-Aviles on DSKGBLS3C1PROD with RULES2

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exhaustive list of examples in § 35.137(a). 

The NPRM queried whether the Department 

should maintain this approach to manuallypowered 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 nonexhaustive 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 fuelpowered 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 powerdriven 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 cuedspeech 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. 

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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 ‘‘cuedspeech 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 cuedlanguage 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 

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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 handler’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 

handler to take medications, and protecting 

the handler 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 handler 

by nudging or pawing the handler 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 socalled ‘‘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 

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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 handler 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, 

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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 

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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 handler 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, 

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typically the interpreter, is at a separate 

location. VRI can be provided as an ondemand 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:// 

www.ada.gov/qasrvc.ftm and ADA Guide for 

Small Businesses (1999), available at http:// 

www.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 

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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 

handler’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:// 

www.ada.gov/qasrvc.htm, and ADA Guide for 

Small Businesses, (1999), available at http:// 

www.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 

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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 

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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 manuallypowered mobility aids, including walkers, 

crutches, canes, braces, or similar devices. 

Because mobility scooters satisfy the 

definition of ‘‘wheelchair’’ (i.e., ‘‘manuallyoperated 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 powerdriven 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 powerdriven 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, allterrain 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 

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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 powerdriven 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 

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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 powerdriven 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, Stateissued 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 Stateissued 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 powerdriven mobility devices. Accordingly, a 

credible assurance that the other powerdriven 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 Stateissued 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. 

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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 singleevent 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 thirdparty ticket vendors are required to provide 

accessible seating to the third-party ticket 

vendor. This provision will enhance thirdparty 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, presales, 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 colorcoded 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 

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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.’’ 

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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 seasonticket 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 

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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 lastminute 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-sizefits-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 

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3The term ‘‘existing facility’’ is defined in 

§ 35.104 as amended by this rule. 

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 nonwheelchair 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 

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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 groundlevel 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 groundlevel 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 

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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 caseby-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 

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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 

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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-bycase 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 

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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 

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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 (http://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 

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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. 

The Department received a number of 

comments about the proposed six-month 

effective date for the title II regulation that 

were similar in content to those received on 

this issue for the proposed title III regulation. 

Several commenters supported the six-month 

effective date. One commenter stated that any 

revisions to its State building code becomes 

effective six months after adoption and that 

this has worked well. In addition, this 

commenter stated that since 2004 ADAAG is 

similar to IBC 2006 and ICC/ANSI A117.1– 

2003, the transition should be easy. By 

contrast, another commenter advocated for a 

minimum 12-month effective date, arguing 

that a shorter effective date could cause 

substantial economic hardships to many 

cities and towns because of the lengthy lead 

time necessary for construction projects. This 

commenter was concerned that a six-month 

effective date could lead to projects having to 

be completely redrawn, rebid, and 

rescheduled to ensure compliance with the 

new standards. Other commenters advocated 

that the effective date be extended to at least 

18 months after the publication of the rule. 

One of these commenters expressed concern 

that the kinds of bureaucratic organizations 

subject to the title II regulations lack the 

internal resources to quickly evaluate the 

regulatory changes, determine whether they 

are currently compliant with the 1991 

standards, and determine what they have to 

do to comply with the new standards. The 

other commenter argued that 18 months is 

the minimum amount of time necessary to 

ensure that projects that have already been 

designed and approved do not have to 

undergo costly design revisions at taxpayer 

expense. 

The Department is persuaded by the 

concerns raised by commenters for both the 

title II and III regulations that the six-month 

compliance date proposed in the NPRM for 

application of the 2010 Standards may be too 

short for certain projects that are already in 

the midst of the design and permitting 

process. The Department has determined that 

for new construction and alterations, 

compliance with the 2010 Standards will not 

be required until 18 months from the date the 

final rule is published. Until the time 

compliance with the 2010 Standards is 

required, public entities will have the option 

of complying with the 2010 Standards, the 

UFAS, or the 1991 Standards. However, 

public entities that choose to comply with 

the 2010 Standards in lieu of the 1991 

Standards or UFAS prior to the compliance 

date described in this rule must choose one 

of the three standards, and may not rely on 

some of the requirements contained in one 

standard and some of the requirements 

contained in the other standards. 

Triggering event. In § 35.151(c)(2) of the 

NPRM, the Department proposed that the 

commencement of construction serve as the 

triggering event for applying the proposed 

standards to new construction and alterations 

under title II. This language is consistent 

with the triggering event set forth in 

§ 35.151(a) of the 1991 title II regulation. The 

Department received only four comments on 

this section of the title II rule. Three 

commenters supported the use of ‘‘start of 

construction’’ as the triggering event. One 

commenter argued that the Department 

should use the ‘‘last building permit or start 

of physical construction, whichever comes 

first,’’ stating that ‘‘altering a design after a 

building permit has been issued can be an 

undue burden.’’ 

After considering these comments, the 

Department has decided to continue to use 

the commencement of physical construction 

as the triggering event for application of the 

2010 Standards for entities covered by title 

II. The Department has also added clarifying 

language at § 35.151(c)(4) to the regulation to 

make it clear that the date of ceremonial 

groundbreaking or the date a structure is 

razed to make it possible for construction of 

a facility to take place does not qualify as the 

commencement of physical construction. 

Section 234 of the 2010 Standards provides 

accessibility guidelines for newly designed 

and constructed amusement rides. The 

amusement ride provisions do not provide a 

‘‘triggering event’’ for new construction or 

alteration of an amusement ride. An industry 

commenter requested that the triggering 

event of ‘‘first use,’’ as noted in the Advisory 

note to section 234.1 of the 2004 ADAAG, be 

included in the final rule. The Advisory note 

provides that ‘‘[a] custom designed and 

constructed ride is new upon its first use, 

which is the first time amusement park 

patrons take the ride.’’ The Department 

declines to treat amusement rides differently 

than other types of new construction and 

alterations. Under the final rule, they are 

subject to § 35.151(c). Thus, newly 

constructed and altered amusement rides 

shall comply with the 2010 Standards if the 

start of physical construction or the alteration 

is on or after 18 months from the publication 

date of this rule. The Department also notes 

that section 234.4.2 of the 2010 Standards 

only applies where the structural or 

operational characteristics of an amusement 

ride are altered. It does not apply in cases 

where the only change to a ride is the theme. 

Noncomplying new construction and 

alterations. The element-by-element safe 

harbor referenced in § 35.150(b)(2) has no 

effect on new or altered elements in existing 

facilities that were subject to the 1991 

Standards or UFAS on the date that they 

were constructed or altered, but do not 

comply with the technical and scoping 

specifications for those elements in the 1991 

Standards or UFAS. Section 35.151(c)(5) of 

the final rule sets forth the rules for 

noncompliant new construction or 

alterations in facilities that were subject to 

the requirements of this part. Under those 

provisions, noncomplying new construction 

and alterations constructed or altered after 

the effective date of the applicable ADA 

requirements and before March 15, 2012 

shall, before March 15, 2012, be made 

accessible in accordance with either the 1991 

Standards, UFAS, or the 2010 Standards. 

Noncomplying new construction and 

alterations constructed or altered after the 

effective date of the applicable ADA 

requirements and before March 15, 2012, 

shall, on or after March 15, 2012 be made 

accessible in accordance with the 2010 

Standards. 

Section 35.151(d) Scope of coverage 

In the NPRM, the Department proposed a 

new provision, § 35.151(d), to clarify that the 

requirements established by § 35.151, 

including those contained in the 2004 

ADAAG, prescribe what is necessary to 

ensure that buildings and facilities, including 

fixed or built-in elements in new or altered 

facilities, are accessible to individuals with 

disabilities. Once the construction or 

alteration of a facility has been completed, all 

other aspects of programs, services, and 

activities conducted in that facility are 

subject to the operational requirements 

established in this final rule. Although the 

Department may use the requirements of the 

2010 Standards as a guide to determining 

when and how to make equipment and 

furnishings accessible, those determinations 

fall within the discretionary authority of the 

Department. 

The Department also wishes to clarify that 

the advisory notes, appendix notes, and 

figures that accompany the 1991 and 2010 

Standards do not establish separately 

enforceable requirements unless specifically 

stated otherwise in the text of the standards. 

This clarification has been made to address 

concerns expressed by ANPRM commenters 

who mistakenly believed that the advisory 

notes in the 2004 ADAAG established 

requirements beyond those established in the 

text of the guidelines (e.g., Advisory 504.4 

suggests, but does not require, that covered 

entities provide visual contrast on stair tread 

nosing to make them more visible to 

individuals with low vision). The 

Department received no significant 

comments on this section and it is 

unchanged in the final rule. 

Definitions of residential facilities and 

transient lodging. The 2010 Standards add a 

definition of ‘‘residential dwelling unit’’ and 

modify the current definition of ‘‘transient 

lodging.’’ Under section 106.5 of the 2010 

Standards, ‘‘residential dwelling unit’’ is 

defined as ‘‘[a] unit intended to be used as 

a residence, that is primarily long-term in 

nature’’ and does not include transient 

lodging, inpatient medical care, licensed 

long-term care, and detention or correctional 

facilities. Additionally, section 106.5 of the 

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2010 Standards changes the definition of 

‘‘transient lodging’’ to a building or facility 

‘‘containing one or more guest room(s) for 

sleeping that provides accommodations that 

are primarily short-term in nature.’’ 

‘‘Transient lodging’’ does not include 

residential dwelling units intended to be 

used as a residence. The references to 

‘‘dwelling units’’ and ‘‘dormitories’’ that are in 

the definition of the 1991 Standards are 

omitted from the 2010 Standards. 

The comments about the application of 

transient lodging or residential standards to 

social service center establishments, and 

housing at a place of education are addressed 

separately below. The Department received 

one additional comment on this issue from 

an organization representing emergency 

response personnel seeking an exemption 

from the transient lodging accessibility 

requirements for crew quarters and common 

use areas serving those crew quarters (e.g., 

locker rooms, exercise rooms, day room) that 

are used exclusively by on-duty emergency 

response personnel and that are not used for 

any public purpose. The commenter argued 

that since emergency response personnel 

must meet certain physical qualifications that 

have the effect of exempting persons with 

mobility disabilities, there is no need to build 

crew quarters and common use areas serving 

those crew quarters to meet the 2004 

ADAAG. In addition, the commenter argued 

that applying the transient lodging standards 

would impose significant costs and create 

living space that is less usable for most 

emergency response personnel. 

The ADA does not exempt spaces because 

of a belief or policy that excludes persons 

with disabilities from certain work. However, 

the Department believes that crew quarters 

that are used exclusively as a residence by 

emergency response personnel and the 

kitchens and bathrooms exclusively serving 

those quarters are more like residential 

dwelling units and are therefore covered by 

the residential dwelling standards in the 

2010 Standards, not the transient lodging 

standards. The residential dwelling standards 

address most of the concerns of the 

commenter. For example, the commenter was 

concerned that sinks in kitchens and 

lavatories in bathrooms that are accessible 

under the transient lodging standards would 

be too low to be comfortably used by 

emergency response personnel. The 

residential dwelling standards allow such 

features to be adaptable so that they would 

not have to be lowered until accessibility was 

needed. Similarly, grab bars and shower seats 

would not have to be installed at the time of 

construction provided that reinforcement has 

been installed in walls and located so as to 

permit their installation at a later date. 

Section 35.151(e) Social service center 

establishments 

In the NPRM, the Department proposed a 

new § 35.151(e) requiring group homes, 

halfway houses, shelters, or similar social 

service center establishments that provide 

temporary sleeping accommodations or 

residential dwelling units to comply with the 

provisions of the 2004 ADAAG that apply to 

residential facilities, including, but not 

limited to, the provisions in sections 233 and 

809. 

The NPRM explained that this proposal 

was based on two important changes in the 

2004 ADAAG. First, for the first time, 

residential dwelling units are explicitly 

covered in the 2004 ADAAG in section 233. 

Second, the 2004 ADAAG eliminates the 

language contained in the 1991 Standards 

addressing scoping and technical 

requirements for homeless shelters, group 

homes, and similar social service center 

establishments. Currently, such 

establishments are covered in section 9.5 of 

the transient lodging section of the 1991 

Standards. The deletion of section 9.5 creates 

an ambiguity of coverage that must be 

addressed. 

The NPRM explained the Department’s 

belief that transferring coverage of social 

service center establishments from the 

transient lodging standards to the residential 

facilities standards would alleviate 

conflicting requirements for social service 

center providers. The Department believes 

that a substantial percentage of social service 

center establishments are recipients of 

Federal financial assistance from the 

Department of Housing and Urban 

Development (HUD). The Department of 

Health and Human Services (HHS) also 

provides financial assistance for the 

operation of shelters through the 

Administration for Children and Families 

programs. As such, these establishments are 

covered both by the ADA and section 504 of 

the Rehabilitation Act. UFAS is currently the 

design standard for new construction and 

alterations for entities subject to section 504. 

The two design standards for accessibility— 

the 1991 Standards and UFAS—have 

confronted many social service providers 

with separate, and sometimes conflicting, 

requirements for design and construction of 

facilities. To resolve these conflicts, the 

residential facilities standards in the 2004 

ADAAG have been coordinated with the 

section 504 requirements. The transient 

lodging standards, however, are not similarly 

coordinated. The deletion of section 9.5 of 

the 1991 Standards from the 2004 ADAAG 

presented two options: (1) Require coverage 

under the transient lodging standards, and 

subject such facilities to separate, conflicting 

requirements for design and construction; or 

(2) require coverage under the residential 

facilities standards, which would harmonize 

the regulatory requirements under the ADA 

and section 504. The Department chose the 

option that harmonizes the regulatory 

requirements: coverage under the residential 

facilities standards. 

In the NPRM, the Department expressed 

concern that the residential facilities 

standards do not include a requirement for 

clear floor space next to beds similar to the 

requirement in the transient lodging 

standards and as a result, the Department 

proposed adding a provision that would 

require certain social service center 

establishments that provide sleeping rooms 

with more than 25 beds to ensure that a 

minimum of 5 percent of the beds have clear 

floor space in accordance with section 

806.2.3 or 3004 ADAAG. 

In the NPRM, the Department requested 

information from providers who operate 

homeless shelters, transient group homes, 

halfway houses, and other social service 

center establishments, and from the clients of 

these facilities who would be affected by this 

proposed change, asking, ‘‘[t]o what extent 

have conflicts between the ADA and section 

504 affected these facilities? What would be 

the effect of applying the residential dwelling 

unit requirements to these facilities, rather 

than the requirements for transient lodging 

guest rooms?’’ 73 FR 34466, 34491 (June 17, 

2008). 

Many of the commenters supported 

applying the residential facilities 

requirements to social service center 

establishments, stating that even though the 

residential facilities requirements are less 

demanding in some instances, the existence 

of one clear standard will result in an overall 

increased level of accessibility by eliminating 

the confusion and inaction that are 

sometimes caused by the current existence of 

multiple requirements. One commenter also 

stated that ‘‘it makes sense to treat social 

service center establishments like residential 

facilities because this is how these 

establishments function in practice.’’ 

Two commenters agreed with applying the 

residential facilities requirements to social 

service center establishments but 

recommended adding a requirement for 

various bathing options, such as a roll-in 

shower (which is not required under the 

residential standards). 

One commenter objected to the change and 

asked the Department to require that social 

service center establishments continue to 

comply with the transient lodging standards. 

One commenter stated that it did not agree 

that the standards for residential coverage 

would serve persons with disabilities as well 

as the 1991 transient lodging standards. This 

commenter expressed concern that the 

Department had eliminated guidance for 

social service agencies and that the rule 

should be put on hold until those safeguards 

are restored. Another commenter argued that 

the rule that would provide the greatest 

access for persons with disabilities should 

prevail. 

Several commenters argued for the 

application of the transient lodging standards 

to all social service center establishments 

except those that were ‘‘intended as a 

person’s place of abode,’’ referencing the 

Department’s question related to the 

definition of ‘‘place of lodging’’ in the title III 

NPRM. One commenter stated that the 

International Building Code requires 

accessible units in all transient facilities. The 

commenter expressed concern that group 

homes should be built to be accessible, rather 

than adaptable. 

The Department continues to be concerned 

about alleviating the challenges for social 

service providers that are also subject to 

section 504 and would likely be subject to 

conflicting requirements if the transient 

lodging standards were applied. Thus, the 

Department has retained the requirement that 

social service center establishments comply 

with the residential dwelling standards. The 

Department believes, however, that social 

service center establishments that provide 

emergency shelter to large transient 

populations should be able to provide 

bathing facilities that are accessible to 

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persons with mobility disabilities who need 

roll-in showers. Because of the transient 

nature of the population of these large 

shelters, it will not be feasible to modify 

bathing facilities in a timely manner when 

faced with a need to provide a roll-in shower 

with a seat when requested by an overnight 

visitor. As a result, the Department has added 

a requirement that social service center 

establishments with sleeping 

accommodations for more than 50 

individuals must 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. This supplemental requirement to the 

residential facilities standards is in addition 

to the supplemental requirement that was 

proposed in the NPRM for clear floor space 

in sleeping rooms with more than 25 beds. 

The Department also notes that while 

dwelling units at some social service center 

establishments are also subject to the Fair 

Housing Act (FHAct) design and construction 

requirements that require certain features of 

adaptable and accessible design, FHAct units 

do not provide the same level of accessibility 

that is required for residential facilities under 

the 2010 Standards. The FHAct 

requirements, where also applicable, should 

not be considered a substitute for the 2010 

Standards. Rather, the 2010 Standards must 

be followed in addition to the FHAct 

requirements. 

The Department also notes that whereas 

the NPRM used the term ‘‘social service 

establishment,’’ the final rule uses the term 

‘‘social service center establishment.’’ The 

Department has made this editorial change so 

that the final rule is consistent with the 

terminology used in the ADA. See 42 U.S.C. 

12181(7)(k). 

Section 35.151(f) Housing at a place of 

education 

The Department of Justice and the 

Department of Education share responsibility 

for regulation and enforcement of the ADA in 

postsecondary educational settings, 

including its requirements for architectural 

features. In addition, the Department of 

Housing and Urban Development (HUD) has 

enforcement responsibility for housing 

subject to title II of the ADA. Housing 

facilities in educational settings range from 

traditional residence halls and dormitories to 

apartment or townhouse-style residences. In 

addition to title II of the ADA, public 

universities and schools that receive Federal 

financial assistance are also subject to section 

504, which contains its own accessibility 

requirements through the application of 

UFAS. Residential housing in an educational 

setting is also covered by the FHAct, which 

requires newly constructed multifamily 

housing to include certain features of 

accessible and adaptable design. Covered 

entities subject to the ADA must always be 

aware of, and comply with, any other Federal 

statutes or regulations that govern the 

operation of residential properties. 

Although the 1991 Standards mention 

dormitories as a form of transient lodging, 

they do not specifically address how the 

ADA applies to dormitories or other types of 

residential housing provided in an 

educational setting. The 1991 Standards also 

do not contain any specific provisions for 

residential facilities, allowing covered 

entities to elect to follow the residential 

standards contained in UFAS. Although the 

2004 ADAAG contains provisions for both 

residential facilities and transient lodging, 

the guidelines do not indicate which 

requirements apply to housing provided in 

an educational setting, leaving it to the 

adopting agencies to make that choice. After 

evaluating both sets of standards, the 

Department concluded that the benefits of 

applying the transient lodging standards 

outweighed the benefits of applying the 

residential facilities standards. Consequently, 

in the NPRM, the Department proposed a 

new § 35.151(f) that provided that residence 

halls or dormitories operated by or on behalf 

of places of education shall comply with the 

provisions of the proposed standards for 

transient lodging, including, but not limited 

to, the provisions in sections 224 and 806 of 

the 2004 ADAAG. 

Both public and private school housing 

facilities have varied characteristics. College 

and university housing facilities typically 

provide housing for up to one academic year, 

but may be closed during school vacation 

periods. In the summer, they are often used 

for short-term stays of one to three days, a 

week, or several months. Graduate and 

faculty housing is often provided year-round 

in the form of apartments, which may serve 

individuals or families with children. These 

housing facilities are diverse in their layout. 

Some are double-occupancy rooms with a 

shared toilet and bathing room, which may 

be inside or outside the unit. Others may 

contain cluster, suite, or group arrangements 

where several rooms are located inside a 

defined unit with bathing, kitchen, and 

similar common facilities. In some cases, 

these suites are indistinguishable in features 

from traditional apartments. Universities may 

build their own housing facilities or enter 

into agreements with private developers to 

build, own, or lease housing to the 

educational institution or to its students. 

Academic housing may be located on the 

campus of the university or may be located 

in nearby neighborhoods. 

Throughout the school year and the 

summer, academic housing can become 

program areas in which small groups meet, 

receptions and educational sessions are held, 

and social activities occur. The ability to 

move between rooms—both accessible rooms 

and standard rooms—in order to socialize, to 

study, and to use all public use and common 

use areas is an essential part of having access 

to these educational programs and activities. 

Academic housing is also used for short-term 

transient educational programs during the 

time students are not in regular residence 

and may be rented out to transient visitors in 

a manner similar to a hotel for special 

university functions. 

The Department was concerned that 

applying the new construction requirements 

for residential facilities to educational 

housing facilities could hinder access to 

educational programs for students with 

disabilities. Elevators are not generally 

required under the 2004 ADAAG residential 

facilities standards unless they are needed to 

provide an accessible route from accessible 

units to public use and common use areas, 

while under the 2004 ADAAG as it applies 

to other types of facilities, multistory public 

facilities must have elevators unless they 

meet very specific exceptions. In addition, 

the residential facilities standards do not 

require accessible roll-in showers in 

bathrooms, while the transient lodging 

requirements require some of the accessible 

units to be served by bathrooms with roll-in 

showers. The transient lodging standards also 

require that a greater number of units have 

accessible features for persons with 

communication disabilities. The transient 

lodging standards provide for installation of 

the required accessible features so that they 

are available immediately, but the residential 

facilities standards allow for certain features 

of the unit to be adaptable. For example, only 

reinforcements for grab bars need to be 

provided in residential dwellings, but the 

actual grab bars must be installed under the 

transient lodging standards. By contrast, the 

residential facilities standards do require 

certain features that provide greater 

accessibility within units, such as more 

usable kitchens, and an accessible route 

throughout the dwelling. The residential 

facilities standards also require 5 percent of 

the units to be accessible to persons with 

mobility disabilities, which is a continuation 

of the same scoping that is currently required 

under UFAS, and is therefore applicable to 

any educational institution that is covered by 

section 504. The transient lodging standards 

require a lower percentage of accessible 

sleeping rooms for facilities with large 

numbers of rooms than is required by UFAS. 

For example, if a dormitory had 150 rooms, 

the transient lodging standards would require 

seven accessible rooms while the residential 

standards would require eight. In a large 

dormitory with 500 rooms, the transient 

lodging standards would require 13 

accessible rooms and the residential facilities 

standards would require 25. There are other 

differences between the two sets of standards 

as well with respect to requirements for 

accessible windows, alterations, kitchens, 

accessible route throughout a unit, and clear 

floor space in bathrooms allowing for a side 

transfer. 

In the NPRM, the Department requested 

public comment on how to scope educational 

housing facilities, asking, ‘‘[w]ould the 

residential facility requirements or the 

transient lodging requirements in the 2004 

ADAAG be more appropriate for housing at 

places of education? How would the different 

requirements affect the cost when building 

new dormitories and other student housing?’’ 

73 FR 34466, 34492 (June 17, 2008). 

The vast majority of the comments 

received by the Department advocated using 

the residential facilities standards for 

housing at a place of education instead of the 

transient lodging standards, arguing that 

housing at places of public education are in 

fact homes for the students who live in them. 

These commenters argued, however, that the 

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Department should impose a requirement for 

a variety of options for accessible bathing and 

should ensure that all floors of dormitories be 

accessible so that students with disabilities 

have the same opportunities to participate in 

the life of the dormitory community that are 

provided to students without disabilities. 

Commenters representing persons with 

disabilities and several individuals argued 

that, although the transient lodging standards 

may provide a few more accessible features 

(such as roll-in showers), the residential 

facilities standards would ensure that 

students with disabilities have access to all 

rooms in their assigned unit, not just to the 

sleeping room, kitchenette, and wet bar. One 

commenter stated that, in its view, the 

residential facilities standards were 

congruent with overlapping requirements 

from HUD, and that access provided by the 

residential facilities requirements within 

alterations would ensure dispersion of 

accessible features more effectively. This 

commenter also argued that while the 

increased number of required accessible 

units for residential facilities as compared to 

transient lodging may increase the cost of 

construction or alteration, this cost would be 

offset by a reduced need to adapt rooms later 

if the demand for accessible rooms exceeds 

the supply. The commenter also encouraged 

the Department to impose a visitability 

(accessible doorways and necessary clear 

floor space for turning radius) requirement 

for both the residential facilities and 

transient lodging requirements to allow 

students with mobility impairments to 

interact and socialize in a fully integrated 

fashion. 

Two commenters supported the 

Department’s proposed approach. One 

commenter argued that the transient lodging 

requirements in the 2004 ADAAG would 

provide greater accessibility and increase the 

opportunity of students with disabilities to 

participate fully in campus life. A second 

commenter generally supported the provision 

of accessible dwelling units at places of 

education, and pointed out that the relevant 

scoping in the International Building Code 

requires accessible units ‘‘consistent with 

hotel accommodations.’’ 

The Department has considered the 

comments recommending the use of the 

residential facilities standards and 

acknowledges that they require certain 

features that are not included in the transient 

lodging standards and that should be 

required for housing provided at a place of 

education. In addition, the Department notes 

that since educational institutions often use 

their academic housing facilities as shortterm transient lodging in the summers, it is 

important that accessible features be installed 

at the outset. It is not realistic to expect that 

the educational institution will be able to 

adapt a unit in a timely manner in order to 

provide accessible accommodations to 

someone attending a one-week program 

during the summer. 

The Department has determined that the 

best approach to this type of housing is to 

continue to require the application of 

transient lodging standards, but at the same 

time to add several requirements drawn from 

the residential facilities standards related to 

accessible turning spaces and work surfaces 

in kitchens, and the accessible route 

throughout the unit. This will ensure the 

maintenance of the transient lodging 

standard requirements related to access to all 

floors of the facility, roll-in showers in 

facilities with more than 50 sleeping rooms, 

and other important accessibility features not 

found in the residential facilities standards, 

but will also ensure usable kitchens and 

access to all the rooms in a suite or 

apartment. 

The Department has added a new 

definition to § 35.104, ‘‘Housing at a Place of 

Education,’’ and has revised § 35.151(f) to 

reflect the accessible features that now will 

be required in addition to the requirements 

set forth under the transient lodging 

standards. The Department also recognizes 

that some educational institutions provide 

some residential housing on a year-round 

basis to graduate students and staff which is 

comparable to private rental housing, and 

which contains no facilities for educational 

programming. Section 35.151(f)(3) exempts 

from the transient lodging standards 

apartments or townhouse facilities provided 

by or on behalf of a place of education that 

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; 

instead, such housing shall comply with the 

requirements for residential facilities in 

sections 233 and 809 of the 2010 Standards. 

Section 35.151(f) uses the term ‘‘sleeping 

room’’ in lieu of the term ‘‘guest room,’’ which 

is the term used in the transient lodging 

standards. The Department is using this term 

because it believes that, for the most part, it 

provides a better description of the sleeping 

facilities used in a place of education than 

‘‘guest room.’’ The final rule states that the 

Department intends the terms to be used 

interchangeably in the application of the 

transient lodging standards to housing at a 

place of education. 

Section 35.151(g) Assembly areas 

In the NPRM, the Department proposed 

§ 35.151(g) to supplement the assembly area 

requirements of the 2004 ADAAG, which the 

Department is adopting as part of the 2010 

Standards. The NPRM proposed at 

§ 35.151(g)(1) to require wheelchair spaces 

and companion seating locations to be 

dispersed to all levels of the facility and are 

served by an accessible route. The 

Department received no significant 

comments on this paragraph and has decided 

to adopt the proposed language with minor 

modifications. The Department has retained 

the substance of this section in the final rule 

but has clarified that the requirement applies 

to stadiums, arenas, and grandstands. In 

addition, the Department has revised the 

phrase ‘‘wheelchair and companion seating 

locations’’ to ‘‘wheelchair spaces and 

companion seats.’’ 

Section 35.151(g)(1) ensures that there is 

greater dispersion of wheelchair spaces and 

companion seats throughout stadiums, 

arenas, and grandstands than would 

otherwise be required by sections 221 and 

802 of the 2004 ADAAG. In some cases, the 

accessible route may not be the same route 

that other individuals use to reach their seats. 

For example, if other patrons reach their 

seats on the field by an inaccessible route 

(e.g., by stairs), but there is an accessible 

route that complies with section 206.3 of the 

2010 Standards that could be connected to 

seats on the field, wheelchair spaces and 

companion seats must be placed on the field 

even if that route is not generally available 

to the public. 

Regulatory language that was included in 

the 2004 ADAAG advisory, but that did not 

appear in the NPRM, has been added by the 

Department in § 35.151(g)(2). Section 

35.151(g)(2) now requires an assembly area 

that has seating encircling, in whole or in 

part, a field of play or performance area such 

as an arena or stadium, to place wheelchair 

spaces and companion seats around the 

entire facility. This rule, which is designed 

to prevent a public entity from placing 

wheelchair spaces and companion seats on 

one side of the facility only, is consistent 

with the Department’s enforcement practices 

and reflects its interpretation of section 

4.33.3 of the 1991 Standards. 

In the NPRM, the Department proposed 

§ 35.151(g)(2) which prohibits wheelchair 

spaces and companion seating locations from 

being ‘‘located on, (or obstructed by) 

temporary platforms or other moveable 

structures.’’ Through its enforcement actions, 

the Department discovered that some venues 

place wheelchair spaces and companion 

seats on temporary platforms that, when 

removed, reveal conventional seating 

underneath, or cover the wheelchair spaces 

and companion seats with temporary 

platforms on top of which they place risers 

of conventional seating. These platforms 

cover groups of conventional seats and are 

used to provide groups of wheelchair seats 

and companion seats. 

Several commenters requested an 

exception to the prohibition of the use of 

temporary platforms for public entities that 

sell most of their tickets on a season-ticket or 

other multi-event basis. Such commenters 

argued that they should be able to use 

temporary platforms because they know, in 

advance, that the patrons sitting in certain 

areas for the whole season do not need 

wheelchair spaces and companion seats. The 

Department declines to adopt such an 

exception. As it explained in detail in the 

NPRM, the Department believes that 

permitting the use of movable platforms that 

seat four or more wheelchair users and their 

companions have the potential to reduce the 

number of available wheelchair seating 

spaces below the level required, thus 

reducing the opportunities for persons who 

need accessible seating to have the same 

choice of ticket prices and amenities that are 

available to other patrons in the facility. In 

addition, use of removable platforms may 

result in instances where last minute requests 

for wheelchair and companion seating cannot 

be met because entire sections of accessible 

seating will be lost when a platform is 

removed. See 73 FR 34466, 34493 (June 17, 

2008). Further, use of temporary platforms 

allows facilities to limit persons who need 

accessible seating to certain seating areas, 

and to relegate accessible seating to less 

desirable locations. The use of temporary 

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platforms has the effect of neutralizing 

dispersion and other seating requirements 

(e.g., line of sight) for wheelchair spaces and 

companion seats. Cf. Independent Living 

Resources v. Oregon Arena Corp., 1 F. Supp. 

2d 1159, 1171 (D. Or. 1998) (holding that 

while a public accommodation may ‘‘infill’’ 

wheelchair spaces with removable seats 

when the wheelchair spaces are not needed 

to accommodate individuals with 

disabilities, under certain circumstances 

‘‘[s]uch a practice might well violate the rule 

that wheelchair spaces must be dispersed 

throughout the arena in a manner that is 

roughly proportionate to the overall 

distribution of seating’’). In addition, using 

temporary platforms to convert unsold 

wheelchair spaces to conventional seating 

undermines the flexibility facilities need to 

accommodate secondary ticket markets 

exchanges as required by § 35.138(g) of the 

final rule. 

As the Department explained in the NPRM, 

however, this provision was not designed to 

prohibit temporary seating that increases 

seating for events (e.g., placing temporary 

seating on the floor of a basketball court for 

a concert). Consequently, the final rule, at 

§ 35.151(g)(3), has been amended to clarify 

that if an entire seating section is on a 

temporary platform for a particular event, 

then wheelchair spaces and companion seats 

may be in that seating section. However, 

adding a temporary platform to create 

wheelchair spaces and companion seats that 

are otherwise dissimilar from nearby fixed 

seating and then simply adding a small 

number of additional seats to the platform 

would not qualify as an ‘‘entire seating 

section’’ on the platform. In addition, 

§ 35.151(g)(3) clarifies that facilities may fill 

in wheelchair spaces with removable seats 

when the wheelchair spaces are not needed 

by persons who use wheelchairs. 

The Department has been responsive to 

assembly areas’ concerns about reduced 

revenues due to unused accessible seating. 

Accordingly, the Department has reduced 

scoping requirements significantly—by 

almost half in large assembly areas—and 

determined that allowing assembly areas to 

infill unsold wheelchair spaces with readily 

removable temporary individual seats 

appropriately balances their economic 

concerns with the rights of individuals with 

disabilities. See section 221.2 of the 2010 

Standards. 

For stadium-style movie theaters, in 

§ 35.151(g)(4) of the NPRM the Department 

proposed requiring placement of wheelchair 

seating spaces and companion seats on a riser 

or cross-aisle in the stadium section of the 

theater and placement of such seating so that 

it satisfies at least one of the following 

criteria: (1) It is located within the rear 60 

percent of the seats provided in the 

auditorium; or (2) it is located within the area 

of the auditorium where the vertical viewing 

angles are between the 40th to 100th 

percentile of vertical viewing angles for all 

seats in that theater as ranked from the first 

row (1st percentile) to the back row (100th 

percentile). The vertical viewing angle is the 

angle between a horizontal line 

perpendicular to the seated viewer’s eye to 

the screen and a line from the seated viewer’s 

eye to the top of the screen. 

The Department proposed this bright-line 

rule for two reasons: (1) The movie theater 

industry petitioned for such a rule; and (2) 

the Department has acquired expertise on the 

design of stadium style theaters from 

litigation against several major movie theater 

chains. See U.S. v. AMC Entertainment, 232 

F. Supp. 2d 1092 (C.D. Ca. 2002), rev’d in 

part, 549 F. 3d 760 (9th Cir. 2008); U.S. v. 

Cinemark USA, Inc., 348 F. 3d 569 (6th Cir. 

2003), cert. denied, 542 U.S. 937 (2004). Two 

industry commenters—at least one of whom 

otherwise supported this rule—requested 

that the Department explicitly state that this 

rule does not apply retroactively to existing 

theaters. Although this rule on its face 

applies to new construction and alterations, 

these commenters were concerned that the 

rule could be interpreted to apply 

retroactively because of the Department’s 

statement in the ANPRM that this bright-line 

rule, although newly-articulated, does not 

represent a ‘‘substantive change from the 

existing line-of-sight requirements’’ of section 

4.33.3 of the 1991 Standards. See 69 FR 

58768, 58776 (Sept. 30, 2004). 

Although the Department intends for 

§ 35.151(g)(4) of this rule to apply 

prospectively to new construction and 

alterations, this rule is not a departure from, 

and is consistent with, the line-of-sight 

requirements in the 1991 Standards. The 

Department has always interpreted the lineof-sight requirements in the 1991 Standards 

to require viewing angles provided to patrons 

who use wheelchairs to be comparable to 

those afforded to other spectators. Section 

35.151(g)(4) merely represents the 

application of these requirements to stadiumstyle movie theaters. 

One commenter from a trade association 

sought clarification whether § 35.151(g)(4) 

applies to stadium-style theaters with more 

than 300 seats, and argued that it should not 

since dispersion requirements apply in those 

theaters. The Department declines to limit 

this rule to stadium-style theaters with 300 

or fewer seats; stadium-style theaters of all 

sizes must comply with this rule. So, for 

example, stadium-style theaters that must 

vertically disperse wheelchair and 

companion seats must do so within the 

parameters of this rule. 

The NPRM included a provision that 

required assembly areas with more than 

5,000 seats to provide at least five wheelchair 

spaces with at least three companion seats for 

each of those five wheelchair spaces. The 

Department agrees with commenters who 

asserted that group seating is better 

addressed through ticketing policies rather 

than design and has deleted that provision 

from this section of the final rule. 

Section 35.151(h) Medical care facilities 

In the 1991 title II regulation, there was no 

provision addressing the dispersion of 

accessible sleeping rooms in medical care 

facilities. The Department is aware, however, 

of problems that individuals with disabilities 

face in receiving full and equal medical care 

when accessible sleeping rooms are not 

adequately dispersed. When accessible rooms 

are not fully dispersed, a person with a 

disability is often placed in an accessible 

room in an area that is not medically 

appropriate for his or her condition, and is 

thus denied quick access to staff with 

expertise in that medical specialty and 

specialized equipment. While the Access 

Board did not establish specific design 

requirements for dispersion in the 2004 

ADAAG, in response to extensive comments 

in support of dispersion it added an advisory 

note, Advisory 223.1 General, encouraging 

dispersion of accessible rooms within the 

facility so that accessible rooms are more 

likely to be proximate to appropriate 

qualified staff and resources. 

In the NPRM, the Department sought 

additional comment on the issue, asking 

whether it should require medical care 

facilities, such as hospitals, to disperse their 

accessible sleeping rooms, and if so, by what 

method (by specialty area, floor, or other 

criteria). All of the comments the Department 

received on this issue supported dispersing 

accessible sleeping rooms proportionally by 

specialty area. These comments, from 

individuals, organizations, and a building 

code association, argued that it would not be 

difficult for hospitals to disperse rooms by 

specialty area, given the high level of 

regulation to which hospitals are subject and 

the planning that hospitals do based on 

utilization trends. Further, commenters 

suggested that without a requirement, it is 

unlikely that hospitals would disperse the 

rooms. In addition, concentrating accessible 

rooms in one area perpetuates segregation of 

individuals with disabilities, which is 

counter to the purpose of the ADA. 

The Department has decided to require 

medical care facilities to disperse their 

accessible sleeping rooms in a manner that is 

proportionate by type of medical specialty. 

This does not require exact mathematical 

proportionality, which at times would be 

impossible. However, it does require that 

medical care facilities disperse their 

accessible rooms by medical specialty so that 

persons with disabilities can, to the extent 

practical, stay in an accessible room within 

the wing or ward that is appropriate for their 

medical needs. The language used in this 

rule (‘‘in a manner that is proportionate by 

type of medical specialty’’) is more specific 

than that used in the NPRM (‘‘in a manner 

that enables patients with disabilities to have 

access to appropriate specialty services’’) and 

adopts the concept of proportionality 

proposed by the commenters. Accessible 

rooms should be dispersed throughout all 

medical specialties, such as obstetrics, 

orthopedics, pediatrics, and cardiac care. 

Section 35.151(i) Curb ramps 

Section 35.151(e) on curb ramps in the 

1991 rule has been redesignated as 

§ 35.151(i). In the NPRM, the Department 

proposed making a minor editorial change to 

this section, deleting the phrase ‘‘other sloped 

areas’’ from the two places in which it 

appears in the 1991 title II regulation. In the 

NPRM, the Department stated that the phrase 

‘‘other sloped areas’’ lacks technical 

precision. The Department received no 

significant public comments on this 

proposal. Upon further consideration, 

however, the Department has concluded that 

the regulation should acknowledge that there 

are times when there are transitions from 

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sidewalk to road surface that do not 

technically qualify as ‘‘curb ramps’’ (sloped 

surfaces that have a running slope that 

exceed 5 percent). Therefore, the Department 

has decided not to delete the phrase ‘‘other 

sloped areas.’’ 

Section 35.151(j) Residential housing for 

sale to individual owners 

Although public entities that operate 

residential housing programs are subject to 

title II of the ADA, and therefore must 

provide accessible residential housing, the 

1991 Standards did not contain scoping or 

technical standards that specifically applied 

to residential housing units. As a result, 

under the Department’s title II regulation, 

these agencies had the choice of complying 

with UFAS, which contains specific scoping 

and technical standards for residential 

housing units, or applying the ADAAG 

transient lodging standards to their housing. 

Neither UFAS nor the 1991 Standards 

distinguish between residential housing 

provided for rent and those provided for sale 

to individual owners. Thus, under the 1991 

title II regulation, public entities that 

construct residential housing units to be sold 

to individual owners must ensure that some 

of those units are accessible. This 

requirement is in addition to any 

accessibility requirements imposed on 

housing programs operated by public entities 

that receive Federal financial assistance from 

Federal agencies such as HUD. 

The 2010 Standards contain scoping and 

technical standards for residential dwelling 

units. However, section 233.3.2 of the 2010 

Standards specifically defers to the 

Department and to HUD, the standard-setting 

agency under the ABA, to decide the 

appropriate scoping for those residential 

dwelling units built by or on behalf of public 

entities with the intent that the finished units 

will be sold to individual owners. These 

programs include, for example, HUD’s public 

housing and HOME programs as well as 

State-funded programs to construct units for 

sale to individuals. In the NPRM, the 

Department did not make a specific proposal 

for this scoping. Instead, the Department 

stated that after consultation and 

coordination with HUD, the Department 

would make a determination in the final rule. 

The Department also sought public comment 

on this issue stating that ‘‘[t]he Department 

would welcome recommendations from 

individuals with disabilities, public housing 

authorities, and other interested parties that 

have experience with these programs. Please 

comment on the appropriate scoping for 

residential dwelling units built by or on 

behalf of public entities with the intent that 

the finished units will be sold to individual 

owners.’’ 73 FR 34466, 34492 (June 17, 2008). 

All of the public comments received by the 

Department in response to this question were 

supportive of the Department’s ensuring that 

the residential standards apply to housing 

built on behalf of public entities with the 

intent that the finished units would be sold 

to individual owners. The vast majority of 

commenters recommended that the 

Department require that projects consisting of 

five or more units, whether or not the units 

are located on one or multiple locations, 

comply with the 2004 ADAAG requirements 

for scoping of residential units, which 

require that 5 percent, and no fewer than one, 

of the dwelling units provide mobility 

features, and that 2 percent, and no fewer 

than one, of the dwelling units provide 

communication features. See 2004 ADAAG 

Section 233.3. These commenters argued that 

the Department should not defer to HUD 

because HUD has not yet adopted the 2004 

ADAAG and there is ambiguity on the scope 

of coverage of pre-built for sale units under 

HUD’s current section 504 regulations. In 

addition, these commenters expressed 

concern that HUD’s current regulation, 24 

CFR 8.29, presumes that a prospective buyer 

is identified before design and construction 

begins so that disability features can be 

incorporated prior to construction. These 

commenters stated that State and Federally 

funded homeownership programs typically 

do not identify prospective buyers before 

construction has commenced. One 

commenter stated that, in its experience, 

when public entities build accessible for-sale 

units, they often sell these units through a 

lottery system that does not make any effort 

to match persons who need the accessible 

features with the units that have those 

features. Thus, accessible units are often sold 

to persons without disabilities. This 

commenter encouraged the Department to 

make sure that accessible for-sale units built 

or funded by public entities are placed in a 

separate lottery restricted to income-eligible 

persons with disabilities. 

Two commenters recommended that the 

Department develop rules for four types of 

for-sale projects: single family pre-built 

(where buyer selects the unit after 

construction), single family post-built (where 

the buyer chooses the model prior to its 

construction), multi-family pre-built, and 

multi-family post-built. These commenters 

recommended that the Department require 

pre-built units to comply with the 2004 

ADAAG 233.1 scoping requirements. For 

post-built units, the commenters 

recommended that the Department require all 

models to have an alternate design with 

mobility features and an alternate design 

with communications features in compliance 

with 2004 ADAAG. Accessible models 

should be available at no extra cost to the 

buyer. One commenter recommended that, in 

addition to required fully accessible units, all 

ground floor units should be readily 

convertible for accessibility or for sensory 

impairments technology enhancements. 

The Department believes that consistent 

with existing requirements under title II, 

housing programs operated by public entities 

that design and construct or alter residential 

units for sale to individual owners should 

comply with the 2010 Standards, including 

the requirements for residential facilities in 

sections 233 and 809. These requirements 

will ensure that a minimum of 5 percent of 

the units, but no fewer than one unit, of the 

total number of residential dwelling units 

will be designed and constructed to be 

accessible for persons with mobility 

disabilities. At least 2 percent, but no fewer 

than one unit, of the total number of 

residential dwelling units shall provide 

communication features. 

The Department recognizes that there are 

some programs (such as the one identified by 

the commenter), in which units are not 

designed and constructed until an individual 

buyer is identified. In such cases, the public 

entity is still obligated to comply with the 

2010 Standards. In addition, the public entity 

must ensure that pre-identified buyers with 

mobility disabilities and visual and hearing 

disabilities are afforded the opportunity to 

buy the accessible units. Once the program 

has identified buyers who need the number 

of accessible units mandated by the 2010 

Standards, it may have to make reasonable 

modifications to its policies, practices, and 

procedures in order to provide accessible 

units to other buyers with disabilities who 

request such units. 

The Department notes that the residential 

facilities standards allow for construction of 

units with certain features of adaptability. 

Public entities that are concerned that fully 

accessible units are less marketable may 

choose to build these units to include the 

allowable adaptable features, and then adapt 

them at their own expense for buyers with 

mobility disabilities who need accessible 

units. For example, features such as grab bars 

are not required but may be added by the 

public entity if needed by the buyer at the 

time of purchase and cabinets under sinks 

may be designed to be removable to allow 

access to the required knee space for a 

forward approach. 

The Department agrees with the 

commenters that covered entities may have 

to make reasonable modifications to their 

policies, practices, and procedures in order 

to ensure that when they offer pre-built 

accessible residential units for sale, the units 

are offered in a manner that gives access to 

those units to persons with disabilities who 

need the features of the units and who are 

otherwise eligible for the housing program. 

This may be accomplished, for example, by 

adopting preferences for accessible units for 

persons who need the features of the units, 

holding separate lotteries for accessible units, 

or other suitable methods that result in the 

sale of accessible units to persons who need 

the features of such units. In addition, the 

Department believes that units designed and 

constructed or altered that comply with the 

requirements for residential facilities and are 

offered for sale to individuals must be 

provided at the same price as units without 

such features. 

Section 35.151(k) Detention and 

correctional facilities 

The 1991 Standards did not contain 

specific accessibility standards applicable to 

cells in correctional facilities. However, 

correctional and detention facilities operated 

by or on behalf of public entities have always 

been subject to the nondiscrimination and 

program accessibility requirements of title II 

of the ADA. The 2004 ADAAG established 

specific requirements for the design and 

construction and alterations of cells in 

correctional facilities for the first time. 

Based on complaints received by the 

Department, investigations, and compliance 

reviews of jails, prisons, and other detention 

and correctional facilities, the Department 

has determined that many detention and 

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correctional facilities do not have enough 

accessible cells, toilets, and shower facilities 

to meet the needs of their inmates with 

mobility disabilities and some do not have 

any at all. Inmates are sometimes housed in 

medical units or infirmaries separate from 

the general population simply because there 

are no accessible cells. In addition, some 

inmates have alleged that they are housed at 

a more restrictive classification level simply 

because no accessible housing exists at the 

appropriate classification level. The 

Department’s compliance reviews and 

investigations have substantiated certain of 

these allegations. 

The Department believes that the 

insufficient number of accessible cells is, in 

part, due to the fact that most jails and 

prisons were built long before the ADA 

became law and, since then, have undergone 

few alterations that would trigger the 

obligation to provide accessible features in 

accordance with UFAS or the 1991 

Standards. In addition, the Department has 

found that even some new correctional 

facilities lack accessible features. The 

Department believes that the unmet demand 

for accessible cells is also due to the 

changing demographics of the inmate 

population. With thousands of prisoners 

serving life sentences without eligibility for 

parole, prisoners are aging, and the prison 

population of individuals with disabilities 

and elderly individuals is growing. A Bureau 

of Justice Statistics study of State and Federal 

sentenced inmates (those sentenced to more 

than one year) shows the total estimated 

count of State and Federal prisoners aged 55 

and older grew by 36,000 inmates from 2000 

(44,200) to 2006 (80,200). William J. Sabol et 

al., Prisoners in 2006, Bureau of Justice 

Statistics Bulletin, Dec. 2007, at 23 (app. 

table 7), available at http://bjs.ojp.usdoj.gov/ 

index.cfm?ty=pbdetail&iid=908 (last visited 

July 16, 2008); Allen J. Beck et al., Prisoners 

in 2000, Bureau of Justice Statistics Bulletin, 

Aug. 2001, at 10 (Aug. 2001) (Table 14), 

available at bjs.ojp.usdoj.gov/ 

index.cfm?ty=pbdetail&iid=927 (last visited 

July 16, 2008). This jump constitutes an 

increase of 81 percent in prisoners aged 55 

and older during this period. 

In the NPRM, the Department proposed a 

new section, § 35.152, which combined a 

range of provisions relating to both program 

accessibility and application of the proposed 

standards to detention and correctional 

facilities. In the final rule, the Department is 

placing those provisions that refer to design, 

construction, and alteration of detention and 

correction facilities in a new paragraph (k) of 

§ 35.151, the section of the rule that 

addresses new construction and alterations 

for covered entities. Those portions of the 

final rule that address other issues, such as 

placement policies and program accessibility, 

are placed in the new § 35.152. 

In the NPRM, the Department also sought 

input on how best to meet the needs of 

inmates with mobility disabilities in the 

design, construction, and alteration of 

detention and correctional facilities. The 

Department received a number of comments 

in response to this question. 

New Construction. The NPRM did not 

expressly propose that new construction of 

correctional and detention facilities shall 

comply with the proposed standards because 

the Department assumed it would be clear 

that the requirements of § 35.151 would 

apply to new construction of correctional and 

detention facilities in the same manner that 

they apply to other facilities constructed by 

covered entities. The Department has 

decided to create a new section, 

§ 35.151(k)(1), which clarifies that new 

construction of jails, prisons, and other 

detention facilities shall comply with the 

requirements of 2010 Standards. Section 

35.151(k)(1) also increases the scoping for 

accessible cells from the 2 percent specified 

in the 2004 ADAAG to 3 percent. 

Alterations. Although the 2010 Standards 

contain specifications for alterations in 

existing detention and correctional facilities, 

section 232.2 defers to the Attorney General 

the decision as to the extent these 

requirements will apply to alterations of 

cells. The NPRM proposed at § 35.152(c) that 

‘‘[a]lterations to jails, prisons, and other 

detention and correctional facilities will 

comply with the requirements of 

§ 35.151(b).’’ 73 FR 34466, 34507 (June 17, 

2008). The final rule retains that requirement 

at § 35.151(k)(2), but increases the scoping for 

accessible cells from the 2 percent specified 

in the 2004 ADAAG to 3 percent. 

Substitute cells. In the ANPRM, the 

Department sought public comment about 

the most effective means to ensure that 

existing correctional facilities are made 

accessible to prisoners with disabilities and 

presented three options: (1) Require all 

altered elements to be accessible, which 

would maintain the current policy that 

applies to other ADA alteration requirements; 

(2) permit substitute cells to be made 

accessible within the same facility, which 

would permit correctional authorities to meet 

their obligation by providing the required 

accessible features in cells within the same 

facility, other than those specific cells in 

which alterations are planned; or (3) permit 

substitute cells to be made accessible within 

a prison system, which would focus on 

ensuring that prisoners with disabilities are 

housed in facilities that best meet their 

needs, as alterations within a prison 

environment often result in piecemeal 

accessibility. 

In § 35.152(c) of the NPRM, the Department 

proposed language based on Option 2, 

providing that when cells are altered, a 

covered entity may satisfy its obligation to 

provide the required number of cells with 

mobility features by providing the required 

mobility features in substitute cells (i.e., cells 

other than those where alterations are 

originally planned), provided that each 

substitute cell is located within the same 

facility, is integrated with other cells to the 

maximum extent feasible, and has, at a 

minimum, physical access equal to that of 

the original 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. 

The Department received few comments on 

this proposal. The majority who chose to 

comment supported an approach that 

allowed substitute cells to be made accessible 

within the same facility. In their view, such 

an approach balanced administrators’ needs, 

cost considerations, and the needs of inmates 

with disabilities. One commenter noted, 

however, that with older facilities, required 

modifications may be inordinately costly and 

technically infeasible. A large county jail 

system supported the proposed approach as 

the most viable option allowing modification 

or alteration of existing cells based on need 

and providing a flexible approach to provide 

program and mobility accessibility. It noted, 

as an alternative, that permitting substitute 

cells to be made accessible within a prison 

system would also be a viable option since 

such an approach could create a centralized 

location for accessibility needs and, because 

that jail system’s facilities were in close 

proximity, it would have little impact on 

families for visitation or on accessible 

programming. 

A large State department of corrections 

objected to the Department’s proposal. The 

commenter stated that some very old prison 

buildings have thick walls of concrete and 

reinforced steel that are difficult, if not 

impossible to retrofit, and to do so would be 

very expensive. This State system approaches 

accessibility by looking at its system as a 

whole and providing access to programs for 

inmates with disabilities at selected prisons. 

This commenter explained that not all of its 

facilities offer the same programs or the same 

levels of medical or mental health services. 

An inmate, for example, who needs 

education, substance abuse treatment, and 

sex offender counseling may be transferred 

between facilities in order to meet his needs. 

The inmate population is always in flux and 

there are not always beds or program 

availability for every inmate at his security 

level. This commenter stated that the 

Department’s proposed language would put 

the State in the position of choosing between 

adding accessible cells and modifying paths 

of travel to programs and services at great 

expense or not altering old facilities, causing 

them to become in states of disrepair and 

obsolescent, which would be fiscally 

irresponsible. 

The Department is persuaded by these 

comments and has modified the alterations 

requirement in § 35.151(k)(2)(iv) in the final 

rule to allow that if it is technically infeasible 

to provide substitute cells in the same 

facility, cells can be provided elsewhere 

within the corrections system. 

Number of accessible cells. Section 232.2.1 

of the 2004 ADAAG requires at least 2 

percent, but no fewer than one, of the cells 

in newly constructed detention and 

correctional facilities to have accessibility 

features for individuals with mobility 

disabilities. Section 232.3 provides that, 

where special holding cells or special 

housing cells are provided, at least one cell 

serving each purpose shall have mobility 

features. The Department sought input on 

whether these 2004 ADAAG requirements are 

sufficient to meet the needs of inmates with 

mobility disabilities. A major association 

representing county jails throughout the 

country stated that the 2004 ADAAG 2 

percent requirement for accessible cells is 

sufficient to meet the needs of county jails. 

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Similarly, a large county sheriff’s department 

advised that the 2 percent requirement far 

exceeds the need at its detention facility, 

where the average age of the population is 32. 

This commenter stressed that the regulations 

need to address the differences between a 

local detention facility with low average 

lengths of stay as opposed to a State prison 

housing inmates for lengthy periods. This 

commenter asserted that more stringent 

requirements will raise construction costs by 

requiring modifications that are not needed. 

If more stringent requirements are adopted, 

the commenter suggested that they apply 

only to State and Federal prisons that house 

prisoners sentenced to long terms. The 

Department notes that a prisoner with a 

mobility disability needs a cell with mobility 

features regardless of the length of 

incarceration. However, the length of 

incarceration is most relevant in addressing 

the needs of an aging population. 

The overwhelming majority of commenters 

responded that the 2 percent ADAAG 

requirement is inadequate to meet the needs 

of the incarcerated. Many commenters 

suggested that the requirement be expanded 

to apply to each area, type, use, and class of 

cells in a facility. They asserted that if a 

facility has separate areas for specific 

programs, such as a dog training program or 

a substance abuse unit, each of these areas 

should also have 2 percent accessible cells 

but not less than one. These same 

commenters suggested that 5–7 percent of 

cells should be accessible to meet the needs 

of both an aging population and the larger 

number of inmates with mobility disabilities. 

One organization recommended that the 

requirement be increased to 5 percent 

overall, and that at least 2 percent of each 

type and use of cell be accessible. Another 

commenter recommended that 10 percent of 

cells be accessible. An organization with 

extensive corrections experience noted that 

the integration mandate requires a sufficient 

number and distribution of accessible cells so 

as to provide distribution of locations 

relevant to programs to ensure that persons 

with disabilities have access to the programs. 

Through its investigations and compliance 

reviews, the Department has found that in 

most detention and correctional facilities, a 

2 percent accessible cell requirement is 

inadequate to meet the needs of the inmate 

population with disabilities. That finding is 

supported by the majority of the commenters 

that recommended a 5–7 percent 

requirement. Indeed, the Department itself 

requires more than 2 percent of the cells to 

be accessible at its own corrections facilities. 

The Federal Bureau of Prisons is subject to 

the requirements of the 2004 ADAAG 

through the General Services 

Administration’s adoption of the 2004 

ADAAG as the enforceable accessibility 

standard for Federal facilities under the 

Architectural Barriers Act of 1968. 70 FR 

67786, 67846–47 (Nov. 8, 2005). However, in 

order to meet the needs of inmates with 

mobility disabilities, the Bureau of Prisons 

has elected to increase that percentage and 

require that 3 percent of inmate housing at 

its facilities be accessible. Bureau of Prisons, 

Design Construction Branch, Design 

Guidelines, Attachment A: Accessibility 

Guidelines for Design, Construction, and 

Alteration of Federal Bureau of Prisons (Oct. 

31, 2006). 

The Department believes that a 3 percent 

accessible requirement is reasonable. 

Moreover, it does not believe it should 

impose a higher percentage on detention and 

corrections facilities than it utilizes for its 

own facilities. Thus, the Department has 

adopted a 3 percent requirement in 

§ 35.151(k) for both new construction and 

alterations. The Department notes that the 3 

percent requirement is a minimum. As 

corrections systems plan for new facilities or 

alterations, the Department urges planners to 

include numbers of inmates with disabilities 

in their population projections in order to 

take the necessary steps to provide a 

sufficient number of accessible cells to meet 

inmate needs. 

Dispersion of Cells. The NPRM did not 

contain express language addressing 

dispersion of cells in a facility. However, 

Advisory 232.2 of the 2004 ADAAG 

recommends that ‘‘[a]ccessible cells or rooms 

should be dispersed among different levels of 

security, housing categories, and holding 

classifications (e.g., male/female and adult/ 

juvenile) to facilitate access.’’ In explaining 

the basis for recommending, but not 

requiring, this type of dispersal, the Access 

Board stated that ‘‘[m]any detention and 

correctional facilities are designed so that 

certain areas (e.g., ‘shift’ areas) can be 

adapted to serve as different types of housing 

according to need’’ and that ‘‘[p]lacement of 

accessible cells or rooms in shift areas may 

allow additional flexibility in meeting 

requirements for dispersion of accessible 

cells or rooms.’’ 

The Department notes that inmates are 

typically housed in separate areas of 

detention and correctional facilities based on 

a number of factors, including their 

classification level. In many instances, 

detention and correctional facilities have 

housed inmates in inaccessible cells, even 

though accessible cells were available 

elsewhere in the facility, because there were 

no cells in the areas where they needed to 

be housed, such as in administrative or 

disciplinary segregation, the women’s section 

of the facility, or in a particular security 

classification area. 

The Department received a number of 

comments stating that dispersal of accessible 

cells together with an adequate number of 

accessible cells is necessary to prevent 

inmates with disabilities from placement in 

improper security classification and to 

ensure integration. Commenters 

recommended modification of the scoping 

requirements to require a percentage of 

accessible cells in each program, 

classification, use or service area. The 

Department is persuaded by these comments. 

Accordingly, § 35.151(k)(1) and (k)(2) of the 

final rule require accessible cells in each 

classification area. 

Medical facilities. The NPRM also did not 

propose language addressing the application 

of the 2004 ADAAG to medical and long-term 

care facilities in correctional and detention 

facilities. The provisions of the 2004 ADAAG 

contain requirements for licensed medical 

and long-term care facilities, but not those 

that are unlicensed. A disability advocacy 

group and a number of other commenters 

recommended that the Department expand 

the application of section 232.4 to apply to 

all such facilities in detention and 

correctional facilities, regardless of licensure. 

They recommended that whenever a 

correctional facility has a program that is 

addressed specifically in the 2004 ADAAG, 

such as a long-term care facility, the 2004 

ADAAG scoping and design features should 

apply for those elements. Similarly, a 

building code organization noted that its 

percentage requirements for accessible units 

is based on what occurs in the space, not on 

the building type. 

The Department is persuaded by these 

comments and has added § 35.151(k)(3), 

which states that ‘‘[w]ith 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.’’ 

Section 35.152 Detention and correctional 

facilities—program requirements 

As noted in the discussion of § 35.151(k), 

the Department has determined that inmates 

with mobility and other disabilities in 

detention and correctional facilities do not 

have equal access to prison services. The 

Department’s concerns are based not only on 

complaints it has received, but the 

Department’s substantial experience in 

investigations and compliance reviews of 

jails, prisons, and other detention and 

correctional facilities. Based on that review, 

the Department has found that many 

detention and correctional facilities have too 

few or no accessible cells, toilets, and shower 

facilities to meet the needs of their inmates 

with mobility disabilities. These findings, 

coupled with statistics regarding the current 

percentage of inmates with mobility 

disabilities and the changing demographics 

of the inmate population reflecting thousands 

of prisoners serving life sentences and 

increasingly large numbers of aging inmates 

who are not eligible for parole, led the 

Department to conclude that a new 

regulation was necessary to address these 

concerns. 

In the NPRM, the Department proposed a 

new section, § 35.152, which combined a 

range of provisions relating to both program 

accessibility and application of the proposed 

standards to detention and correctional 

facilities. As mentioned above, in the final 

rule, the Department is placing those 

provisions that refer to design, construction, 

and alteration of detention and correction 

facilities in new paragraph (k) in § 35.151 

dealing with new construction and 

alterations for covered entities. Those 

portions of the final rule that address other 

program requirements remain in § 35.152. 

The Department received many comments 

in response to the program accessibility 

requirements in proposed § 35.152. These 

comments are addressed below. 

Facilities operated through contractual, 

licensing, or other arrangements with other 

public entities or private entities. The 

Department is aware that some public 

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entities are confused about the applicability 

of the title II requirements to correctional 

facilities built or run by other public entities 

or private entities. It has consistently been 

the Department’s position that title II 

requirements apply to correctional facilities 

used by State or local government entities, 

irrespective of whether the public entity 

contracts with another public or private 

entity to build or run the correctional facility. 

The power to incarcerate citizens rests with 

the State or local government, not a private 

entity. As the Department stated in the 

preamble to the original title II regulation, 

‘‘[a]ll governmental activities of public 

entities are covered, even if they are carried 

out by contractors.’’ 28 CFR part 35, app. A 

at 558 (2009). If a prison is occupied by State 

prisoners and is inaccessible, the State is 

responsible under title II of the ADA. The 

same is true for a county or city jail. In 

essence, the private builder or contractor that 

operates the correctional facility does so at 

the direction of the government entity. 

Moreover, even if the State enters into a 

contractual, licensing, or other arrangement 

for correctional services with a public entity 

that has its own title II obligations, the State 

is still responsible for ensuring that the other 

public entity complies with title II in 

providing these services. 

Also, through its experience in 

investigations and compliance reviews, the 

Department has noted that public entities 

contract for a number of services to be run 

by private or other public entities, for 

example, medical and mental health services, 

food services, laundry, prison industries, 

vocational programs, and drug treatment and 

substance abuse programs, all of which must 

be operated in accordance with title II 

requirements. 

Proposed § 35.152(a) in the NPRM was 

designed to make it clear that title II applies 

to all State and local detention and 

correctional facilities, regardless of whether 

the detention or correctional facility is 

directly operated by the public entity or 

operated by a private entity through a 

contractual, licensing, or other arrangement. 

Commenters specifically supported the 

language of this section. One commenter 

cited Department of Justice statistics stating 

that of the approximately 1.6 million inmates 

in State and Federal facilities in December 

2006, approximately 114,000 of these 

inmates were held in private prison facilities. 

See William J. Sabol et al., Prisoners in 2006, 

Bureau of Justice Statistics Bulletin, Dec. 

2007, at 1, 4, available at http:// 

bjs.ojp.usdoj.gov/ 

index.cfm?ty=pbdetail&iid=908. Some 

commenters wanted the text ‘‘through 

contracts or other arrangements’’ changed to 

read ‘‘through contracts or any other 

arrangements’’ to make the intent clear. 

However, a large number of commenters 

recommended that the text of the rule make 

explicit that it applies to correctional 

facilities operated by private contractors. 

Many commenters also suggested that the 

text make clear that the rule applies to adult 

facilities, juvenile justice facilities, and 

community correctional facilities. In the final 

rule, the Department is adopting these latter 

two suggestions in order to make the 

section’s intent explicit. 

Section 35.152(a) of the final rule states 

specifically that the requirements of the 

section apply to public entities responsible 

for the operation or management of 

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.’’ Additionally, the 

section explicitly provides that it applies to 

adult and juvenile justice detention and 

correctional facilities and community 

correctional facilities. 

Discrimination prohibited. In the NPRM, 

§ 35.152(b)(1) proposed language stating that 

public entities are prohibited from excluding 

qualified detainees and inmates from 

participation in, or denying, benefits, 

services, programs, or activities because a 

facility is inaccessible to persons with 

disabilities ‘‘unless the public entity can 

demonstrate that the required actions would 

result in a fundamental alteration or undue 

burden.’’ 73 FR 34446, 34507 (June 17, 2008). 

One large State department of corrections 

objected to the entire section applicable to 

detention and correctional facilities, stating 

that it sets a higher standard for correctional 

and detention facilities because it does not 

provide a defense for undue administrative 

burden. The Department has not retained the 

proposed NPRM language referring to the 

defenses of fundamental alteration or undue 

burden because the Department believes that 

these exceptions are covered by the general 

language of 35.150(a)(3), which states that a 

public entity is not required to take ‘‘any 

action that it can demonstrate would result 

in a fundamental alteration in the nature of 

a service, program, or activity, or in undue 

financial and administrative burdens.’’ The 

Department has revised the language of 

§ 35.152(b)(1) accordingly. 

Integration of inmates and detainees with 

disabilities. In the NPRM, the Department 

proposed language in § 35.152(b)(2) 

specifically applying the ADA’s general 

integration mandate to detention and 

correctional facilities. The proposed language 

would have required public entities to ensure 

that individuals with disabilities are housed 

in the most integrated setting appropriate to 

the needs of the individual. It further stated 

that unless the public entity can demonstrate 

that it is appropriate to make an exception for 

a specific individual, a public entity: 

(1) Should not place inmates or detainees 

with disabilities in locations that exceed 

their security classification because there are 

no accessible cells or beds in the appropriate 

classification; 

(2) should not place inmates or detainees 

with disabilities in designated medical areas 

unless they are actually receiving medical 

care or treatment; 

(3) should not place inmates or detainees 

with disabilities in facilities that do not offer 

the same programs as the facilities where 

they would ordinarily be housed; and 

(4) should not place inmates or detainees 

with disabilities in facilities farther away 

from their families in order to provide 

accessible cells or beds, thus diminishing 

their opportunity for visitation based on their 

disability. 73 FR 34466, 34507 (June 17, 

2008). 

In the NPRM, the Department recognized 

that there are a wide range of considerations 

that affect decisions to house inmates or 

detainees and that in specific cases there may 

be compelling reasons why a placement that 

does not meet the general requirements of 

§ 35.152(b)(2) may, nevertheless, comply 

with the ADA. However, the Department 

noted that it is essential that the planning 

process initially assume that inmates or 

detainees with disabilities will be assigned 

within the system under the same criteria 

that would be applied to inmates who do not 

have disabilities. Exceptions may be made on 

a case-by-case basis if the specific situation 

warrants different treatment. For example, if 

an inmate is deaf and communicates only 

using sign language, a prison may consider 

whether it is more appropriate to give 

priority to housing the prisoner in a facility 

close to his family that houses no other deaf 

inmates, or if it would be preferable to house 

the prisoner in a setting where there are sign 

language interpreters and other sign language 

users with whom he can communicate. 

In general, commenters strongly supported 

the NPRM’s clarification that the title II 

integration mandate applies to State and 

local corrections agencies and the facilities in 

which they house inmates. Commenters 

pointed out that inmates with disabilities 

continue to be segregated based on their 

disabilities and also excluded from 

participation in programs. An organization 

actively involved in addressing the needs of 

prisoners cited a number of recent lawsuits 

in which prisoners allege such 

discrimination. 

The majority of commenters objected to the 

language in proposed § 35.152(b)(2) that 

creates an exception to the integration 

mandate when the ‘‘public entity can 

demonstrate that it is appropriate to make an 

exception for a specific individual.’’ 73 FR 

34466, 34507 (June 17, 2008). The vast 

majority of commenters asserted that, given 

the practice of many public entities to 

segregate and cluster inmates with 

disabilities, the exception will be used to 

justify the status quo. The commenters 

acknowledged that the intent of the section 

is to ensure that an individual with a 

disability who can be better served in a less 

integrated setting can legally be placed in 

that setting. They were concerned, however, 

that the proposed language would allow 

certain objectionable practices to continue, 

e.g., automatically placing persons with 

disabilities in administrative segregation. An 

advocacy organization with extensive 

experience working with inmates 

recommended that the inmate have ‘‘input’’ 

in the placement decision. 

Others commented that the exception does 

not provide sufficient guidance on when a 

government entity may make an exception, 

citing the need for objective standards. Some 

commenters posited that a prison 

administration may want to house a deaf 

inmate at a facility designated and equipped 

for deaf inmates that is several hundred miles 

from the inmate’s home. Although under the 

exception language, such a placement may be 

appropriate, these commenters argued that 

this outcome appears to contradict the 

regulation’s intent to eliminate or reduce the 

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segregation of inmates with disabilities and 

prevent them from being placed far from 

their families. The Department notes that in 

some jurisdictions, the likelihood of such 

outcomes is diminished because corrections 

facilities with different programs and levels 

of accessibility are clustered in close 

proximity to one another, so that being far 

from family is not an issue. The Department 

also takes note of advancements in 

technology that will ease the visitation 

dilemma, such as family visitation through 

the use of videoconferencing. 

Only one commenter, a large State 

department of corrections, objected to the 

integration requirement. This commenter 

stated it houses all maximum security 

inmates in maximum security facilities. 

Inmates with lower security levels may or 

may not be housed in lower security facilities 

depending on a number of factors, such as 

availability of a bed, staffing, program 

availability, medical and mental health 

needs, and enemy separation. The 

commenter also objected to the proposal to 

prohibit housing inmates with disabilities in 

medical areas unless they are receiving 

medical care. This commenter stated that 

such housing may be necessary for several 

days, for example, at a stopover facility for 

an inmate with a disability who is being 

transferred from one facility to another. Also, 

this commenter stated that inmates with 

disabilities in disciplinary status may be 

housed in the infirmary because not every 

facility has accessible cells in disciplinary 

housing. Similarly the commenter objected to 

the prohibition on placing inmates in 

facilities without the same programs as 

facilities where they normally would be 

housed. Finally, the commenter objected to 

the prohibition on placing an inmate at a 

facility distant from where the inmate would 

normally be housed. The commenter stressed 

that in its system, there are few facilities near 

most inmates’ homes. The commenter noted 

that most inmates are housed at facilities far 

from their homes, a fact shared by all 

inmates, not just inmates with disabilities. 

Another commenter noted that in some 

jurisdictions, inmates who need assistance in 

activities of daily living cannot obtain that 

assistance in the general population, but only 

in medical facilities where they must be 

housed. 

The Department has considered the 

concerns raised by the commenters with 

respect to this section and recognizes that 

corrections systems may move inmates 

routinely and for a variety of reasons, such 

as crowding, safety, security, classification 

change, need for specialized programs, or to 

provide medical care. Sometimes these 

moves are within the same facility or prison 

system. On other occasions, inmates may be 

transferred to facilities in other cities, 

counties, and States. Given the nature of the 

prison environment, inmates have little say 

in their placement and administrators must 

have flexibility to meet the needs of the 

inmates and the system. The Department has 

revised the language of the exception 

contained in renumbered § 35.152(b)(2) to 

better accommodate corrections 

administrators’ need for flexibility in making 

placement decisions based on legitimate, 

specific reasons. Moreover, the Department 

believes that temporary, short-term moves 

that are necessary for security or 

administrative purposes (e.g., placing an 

inmate with a disability in a medical area at 

a stopover facility during a transfer from one 

facility to another) do not violate the 

requirements of § 35.152(b)(2). 

The Department notes that § 35.150(a)(3) 

states that a public entity is not required to 

take ‘‘any action that it can demonstrate 

would result in a fundamental alteration in 

the nature of a service, program, or activity 

or in undue financial and administrative 

burdens.’’ Thus, corrections systems would 

not have to comply with the requirements of 

§ 35.152(b)(1) in any specific circumstance 

where these defenses are met. 

Several commenters recommended that the 

word ‘‘should’’ be changed to ‘‘shall’’ in the 

subparts to § 35.152(b)(2). The Department 

agrees that because the rule contains a 

specific exception and because the 

integration requirement is subject to the 

defenses provided in paragraph (a) of that 

section, it is more appropriate to use the 

word ‘‘shall’’ and the Department accordingly 

is making that change in the final rule. 

Program requirements. In a unanimous 

decision, the Supreme Court, in 

Pennsylvania Department of Corrections v. 

Yeskey, 524 U.S. 206 (1998), stated explicitly 

that the ADA covers the operations of State 

prisons; accordingly, title II’s program 

accessibility requirements apply to State and 

local correctional and detention facilities. In 

the NPRM, in addressing the accessibility of 

existing correctional and detention facilities, 

the Department considered the challenges of 

applying the title II program access 

requirement for existing facilities under 

§ 31.150(a) in light of the realities of many 

inaccessible correctional facilities and 

strained budgets. 

Correctional and detention facilities 

commonly provide a variety of different 

programs for education, training, counseling, 

or other purposes related to rehabilitation. 

Some examples of programs generally 

available to inmates include programs to 

obtain GEDs, computer training, job skill 

training and on-the-job training, religious 

instruction and guidance, alcohol and 

substance abuse groups, anger management, 

work assignments, work release, halfway 

houses, and other programs. Historically, 

individuals with disabilities have been 

excluded from such programs because they 

are not located in accessible locations, or 

inmates with disabilities have been 

segregated in units without equivalent 

programs. In light of the Supreme Court’s 

decision in Yeskey and the requirements of 

title II, however, it is critical that public 

entities provide these opportunities to 

inmates with disabilities. In proposed 

§ 35.152, the Department sought to clarify 

that title II required equal access for inmates 

with disabilities to participate in programs 

offered to inmates without disabilities. 

The Department wishes to emphasize that 

detention and correctional facilities are 

unique facilities under title II. Inmates 

cannot leave the facilities and must have 

their needs met by the corrections system, 

including needs relating to a disability. If the 

detention and correctional facilities fail to 

accommodate prisoners with disabilities, 

these individuals have little recourse, 

particularly when the need is great (e.g., an 

accessible toilet; adequate catheters; or a 

shower chair). It is essential that corrections 

systems fulfill their nondiscrimination and 

program access obligations by adequately 

addressing the needs of prisoners with 

disabilities, which include, but are not 

limited to, proper medication and medical 

treatment, accessible toilet and shower 

facilities, devices such as a bed transfer or a 

shower chair, and assistance with hygiene 

methods for prisoners with physical 

disabilities. 

In the NPRM, the Department also sought 

input on whether it should establish a 

program accessibility requirement that public 

entities modify additional cells at a detention 

or correctional facility to incorporate the 

accessibility features needed by specific 

inmates with mobility disabilities when the 

number of cells required by sections 232.2 

and 232.3 of the 2004 ADAAG are inadequate 

to meet the needs of their inmate population. 

Commenters supported a program 

accessibility requirement, viewing it as a 

flexible and practical means of allowing 

facilities to meet the needs of inmates in a 

cost effective and expedient manner. One 

organization supported a requirement to 

modify additional cells when the existing 

number of accessible cells is inadequate. It 

cited the example of a detainee who was held 

in a hospital because the local jail had no 

accessible cells. Similarly, a State agency 

recommended that the number of accessible 

cells should be sufficient to accommodate the 

population in need. One group of 

commenters voiced concern about 

accessibility being provided in a timely 

manner and recommended that the rule 

specify that the program accessibility 

requirement applies while waiting for the 

accessibility modifications. A group with 

experience addressing inmate needs 

recommended the inmate’s input should be 

required to prevent inappropriate segregation 

or placement in an inaccessible or 

inappropriate area. 

The Department is persuaded by these 

comments. Accordingly, § 35.152(b)(3) 

requires public entities to ‘‘implement 

reasonable policies, including physical 

modifications to additional cells in 

accordance with the 2010 Standards, so as to 

ensure that each inmate with a disability is 

housed in a cell with the accessible elements 

necessary to afford the inmate access to safe, 

appropriate housing.’’ 

Communication. Several large disability 

advocacy organizations commented on the 

2004 ADAAG section 232.2.2 requirement 

that at least 2 percent of the general holding 

cells and housing cells must be equipped 

with audible emergency alarm systems. 

Permanently installed telephones within 

these cells must have volume control. 

Commenters said that the communication 

features in the 2004 ADAAG do not address 

the most common barriers that deaf and hardof-hearing inmates face. They asserted that 

few cells have telephones and the 

requirements to make them accessible is 

limited to volume control, and that 

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emergency alarm systems are only a small 

part of the amplified information that 

inmates need. One large association 

commented that it receives many inmate 

complaints that announcements are made 

over loudspeakers or public address systems, 

and that inmates who do not hear 

announcements for inmate count or other 

instructions face disciplinary action for 

failure to comply. They asserted that inmates 

who miss announcements miss meals, 

exercise, showers, and recreation. They 

argued that systems that deliver audible 

announcements, signals, and emergency 

alarms must be made accessible and that 

TTYs must be made available. Commenters 

also recommended that correctional facilities 

should provide access to advanced forms of 

telecommunications. Additional commenters 

noted that few persons now use TTYs, 

preferring instead to communicate by email, 

texting, and videophones. 

The Department agrees with the 

commenters that correctional facilities and 

jails must ensure that inmates who are deaf 

or hard of hearing actually receive the same 

information provided to other inmates. The 

Department believes, however, that the 

reasonable modifications, program access, 

and effective communications requirements 

of title II are sufficient to address the needs 

of individual deaf and hard of hearing 

inmates, and as a result, declines to add 

specific requirements for communications 

features in cells for deaf and hard of hearing 

inmates at this time. The Department notes 

that as part of its ongoing enforcement of the 

reasonable modifications, program access, 

and effective communications requirements 

of title II, the Department has required 

correctional facilities and jails to provide 

communication features in cells serving deaf 

and hard of hearing inmates. 

Subpart E—Communications 

Section 35.160 Communications. 

Section 35.160 of the 1991 title II 

regulation requires a public entity to take 

appropriate steps to ensure that 

communications with applicants, 

participants, and members of the public with 

disabilities are as effective as 

communications with others. 28 CFR 

35.160(a). In addition, a public entity must 

‘‘furnish appropriate auxiliary aids and 

services where necessary to afford an 

individual with a disability an equal 

opportunity to participate in, and enjoy the 

benefits of, a service, program, or activity 

conducted by a public entity.’’ 28 CFR 

35.160(b)(1). Moreover, the public entity 

must give ‘‘primary consideration to the 

requests of the individual with disabilities’’ 

in determining what type of auxiliary aid and 

service is necessary. 28 CFR 35.160(b)(2). 

Since promulgation of the 1991 title II 

regulation, the Department has investigated 

hundreds of complaints alleging failures by 

public entities to provide effective 

communication, and many of these 

investigations resulted in settlement 

agreements and consent decrees. From these 

investigations, the Department has concluded 

that public entities sometimes misunderstand 

the scope of their obligations under the 

statute and the regulation. Section 35.160 in 

the final rule codifies the Department’s 

longstanding policies in this area and 

includes provisions that reflect technological 

advances in the area of auxiliary aids and 

services. 

In the NPRM, the Department proposed 

adding ‘‘companion’’ to the scope of coverage 

under § 35.160 to codify the Department’s 

longstanding position that a public entity’s 

obligation to ensure effective communication 

extends not just to applicants, participants, 

and members of the public with disabilities, 

but to companions as well, if any of them are 

individuals with disabilities. The NPRM 

defined companion as a person who is a 

family member, friend, or associate of a 

program participant, who, along with the 

program participant, is ‘‘an appropriate 

person with whom the public entity should 

communicate.’’ 73 FR 34466, 34507 (June 17, 

2008). 

Many commenters supported inclusion of 

‘‘companions’’ in the rule, and urged even 

more specific language about public entities’ 

obligations. Some commenters asked the 

Department to clarify that a companion with 

a disability may be entitled to effective 

communication from a public entity even 

though the applicants, participants, or 

members of the general public seeking access 

to, or participating in, the public entity’s 

services, programs, or activities are not 

individuals with disabilities. Others 

requested that the Department explain the 

circumstances under which auxiliary aids 

and services should be provided to 

companions. Still others requested explicit 

clarification that where the individual 

seeking access to or participating in the 

public entity’s program, services, or activities 

requires auxiliary aids and services, but the 

companion does not, the public entity may 

not seek out, or limit its communications to, 

the companion instead of communicating 

directly with the individual with a disability 

when it would be appropriate to do so. 

Some in the medical community objected 

to the inclusion of any regulatory language 

regarding companions, asserting that such 

language is overbroad, seeks services for 

individuals whose presence is not required 

by the public entity, is not necessary for the 

delivery of the services or participation in the 

program, and places additional burdens on 

the medical community. These commenters 

asked that the Department limit the public 

entity’s obligation to communicate effectively 

with a companion to situations where such 

communications are necessary to serve the 

interests of the person who is receiving the 

public entity’s services. 

After consideration of the many comments 

on this issue, the Department believes that 

explicit inclusion of ‘‘companions’’ in the 

final rule is appropriate to ensure that public 

entities understand the scope of their 

effective communication obligations. There 

are many situations in which the interests of 

program participants without disabilities 

require that their companions with 

disabilities be provided effective 

communication. In addition, the program 

participant need not be physically present to 

trigger the public entity’s obligations to a 

companion. The controlling principle is that 

auxiliary aids and services must be provided 

if the companion is an appropriate person 

with whom the public entity should or 

would communicate. 

Examples of such situations include backto-school nights or parent-teacher 

conferences at a public school. If the faculty 

writes on the board or otherwise displays 

information in a visual context during a backto-school night, this information must be 

communicated effectively to parents or 

guardians who are blind or have low vision. 

At a parent-teacher conference, deaf parents 

or guardians must be provided with 

appropriate auxiliary aids and services to 

communicate effectively with the teacher and 

administrators. It makes no difference that 

the child who attends the school does not 

have a disability. Likewise, when a deaf 

spouse attempts to communicate with public 

social service agencies about the services 

necessary for the hearing spouse, appropriate 

auxiliary aids and services to the deaf spouse 

must be provided by the public entity to 

ensure effective communication. Parents or 

guardians, including foster parents, who are 

individuals with disabilities, may need to 

interact with child services agencies on 

behalf of their children; in such a 

circumstance, the child services agencies 

would need to provide appropriate auxiliary 

aids and services to those parents or 

guardians. 

Effective communication with companions 

is particularly critical in health care settings 

where miscommunication may lead to 

misdiagnosis and improper or delayed 

medical treatment. The Department has 

encountered confusion and reluctance by 

medical care providers regarding the scope of 

their obligation with respect to such 

companions. Effective communication with a 

companion is necessary in a variety of 

circumstances. For example, a companion 

may be legally authorized to make health 

care decisions on behalf of the patient or may 

need to help the patient with information or 

instructions given by hospital personnel. A 

companion may be the patient’s next-of-kin 

or health care surrogate with whom hospital 

personnel must communicate about the 

patient’s medical condition. A companion 

could be designated by the patient to 

communicate with hospital personnel about 

the patient’s symptoms, needs, condition, or 

medical history. Or the companion could be 

a family member with whom hospital 

personnel normally would communicate. 

Accordingly, § 35.160(a)(1) in the final rule 

now reads, ‘‘[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.’’ Section 

35.160(a)(2) further defines ‘‘companion’’ as 

‘‘a family member, friend, or associate of an 

individual seeking access to a service, 

program, or activity of a public entity, who, 

along with the individual, is an appropriate 

person with whom the public entity should 

communicate.’’ Section 35.160(b)(1) clarifies 

that the obligation to furnish auxiliary aids 

and services extends to companions who are 

individuals with disabilities, whether or not 

the individual accompanied also is an 

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individual with a disability. The provision 

now states that ‘‘[a] public entity shall furnish 

appropriate auxiliary aids and services where 

necessary to afford 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.’’ 

These provisions make clear that if the 

companion is someone with whom the 

public entity normally would or should 

communicate, then the public entity must 

provide appropriate auxiliary aids and 

services to that companion to ensure effective 

communication with the companion. This 

common-sense rule provides the guidance 

necessary to enable public entities to 

properly implement the nondiscrimination 

requirements of the ADA. 

As set out in the final rule, § 35.160(b)(2) 

states, in pertinent part, that ‘‘[t]he 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.’’ 

The second sentence of § 35.160(b)(2) of 

the final rule restores the ‘‘primary 

consideration’’ obligation set out at 

§ 35.160(b)(2) in the 1991 title II regulation. 

This provision was inadvertently omitted 

from the NPRM, and the Department agrees 

with the many commenters on this issue that 

this provision should be retained. As noted 

in the preamble to the 1991 title II regulation, 

and reaffirmed here: ‘‘The public entity shall 

honor the choice [of the individual with a 

disability] unless it can demonstrate that 

another effective means of communication 

exists or that use of the means chosen would 

not be required under § 35.164. Deference to 

the request of the individual with a disability 

is desirable because of the range of 

disabilities, the variety of auxiliary aids and 

services, and different circumstances 

requiring effective communication.’’ 28 CFR 

part 35, app. A at 580 (2009). 

The first sentence in § 35.160(b)(2) codifies 

the axiom that the type of auxiliary aid or 

service necessary to ensure effective 

communication will vary with the situation, 

and provides factors for consideration in 

making the determination, including 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. Inclusion of this language 

under title II is consistent with longstanding 

policy in this area. See, e.g., The Americans 

with Disabilities Act Title II Technical 

Assistance Manual Covering State and Local 

Government Programs and Services, section 

II–7.1000, available at www.ada.gov/ 

taman2.html (‘‘The type of auxiliary aid or 

service necessary to ensure effective 

communication will vary in accordance with 

the length and complexity of the 

communication involved. * * * Sign 

language or oral interpreters, for example, 

may be required when the information being 

communicated in a transaction with a deaf 

individual is complex, or is exchanged for a 

lengthy period of time. Factors to be 

considered in determining whether an 

interpreter is required include the context in 

which the communication is taking place, the 

number of people involved, and the 

importance of the communication.’’); see also 

28 CFR part 35, app. A at 580 (2009). As 

explained in the NPRM, an individual who 

is deaf or hard of hearing may need a 

qualified interpreter to communicate with 

municipal hospital personnel about 

diagnoses, procedures, tests, treatment 

options, surgery, or prescribed medication 

(e.g., dosage, side effects, drug interactions, 

etc.), or to explain follow-up treatments, 

therapies, test results, or recovery. In 

comparison, in a simpler, shorter interaction, 

the method to achieve effective 

communication can be more basic. An 

individual who is seeking local tax forms 

may only need an exchange of written notes 

to achieve effective communication. 

Section 35.160(c)(1) has been added to the 

final rule to make clear that a public entity 

shall not require an individual with a 

disability to bring another individual to 

interpret for him or her. The Department 

receives many complaints from individuals 

who are deaf or hard of hearing alleging that 

public entities expect them to provide their 

own sign language interpreters. Proposed 

§ 35.160(c)(1) was intended to clarify that 

when a public entity is interacting with a 

person with a disability, it is the public 

entity’s responsibility to provide an 

interpreter to ensure effective 

communication. It is not appropriate to 

require the person with a disability to bring 

another individual to provide such services. 

Section 35.160(c)(2) of the NPRM proposed 

codifying the Department’s position that 

there are certain limited instances when a 

public entity may rely on an accompanying 

individual to interpret or facilitate 

communication: (1) In an emergency 

involving a threat to the public safety or 

welfare; or (2) if the individual with a 

disability specifically requests it, the 

accompanying individual agrees to provide 

the assistance, and reliance on that 

individual for this assistance is appropriate 

under the circumstances. 

Many commenters supported this 

provision, but sought more specific language 

to address what they see as a particularly 

entrenched problem. Some commenters 

requested that the Department explicitly 

require the public entity first to notify the 

individual with a disability that the 

individual has a right to request and receive 

appropriate auxiliary aids and services 

without charge from the public entity before 

using that person’s accompanying individual 

as a communication facilitator. Advocates 

stated that an individual who is unaware of 

his or her rights may decide to use a third 

party simply because he or she believes that 

is the only way to communicate with the 

public entity. 

The Department has determined that 

inclusion of specific language requiring 

notification is unnecessary. Section 

35.160(b)(1) already states that is the 

responsibility of the public entity to provide 

auxiliary aids and services. Moreover, 

§ 35.130(f) already prohibits the public entity 

from imposing a surcharge on a particular 

individual with a disability or on any group 

of individuals with disabilities to cover the 

costs of auxiliary aids. However, the 

Department strongly advises public entities 

that they should first inform the individual 

with a disability that the public entity can 

and will provide auxiliary aids and services, 

and that there would be no cost for such aids 

or services. 

Many commenters requested that the 

Department make clear that the public entity 

cannot request, rely upon, or coerce an adult 

accompanying an individual with a disability 

to provide effective communication for that 

individual with a disability—that only a 

voluntary offer is acceptable. The Department 

states unequivocally that consent of, and for, 

the adult accompanying the individual with 

a disability to facilitate communication must 

be provided freely and voluntarily both by 

the individual with a disability and the 

accompanying third party—absent an 

emergency involving an imminent threat to 

the safety or welfare of an individual or the 

public where there is no interpreter available. 

The public entity may not coerce or attempt 

to persuade another adult to provide effective 

communication for the individual with a 

disability. Some commenters expressed 

concern that the regulation could be read by 

public entities, including medical providers, 

to prevent parents, guardians, or caregivers 

from providing effective communication for 

children or that a child, regardless of age, 

would have to specifically request that his or 

her caregiver act as interpreter. The 

Department does not intend § 35.160(c)(2) to 

prohibit parents, guardians, or caregivers 

from providing effective communication for 

children where so doing would be 

appropriate. Rather, the rule prohibits public 

entities, including medical providers, from 

requiring, relying on, or forcing adults 

accompanying individuals with disabilities, 

including parents, guardians, or caregivers, to 

facilitate communication. 

Several commenters asked that the 

Department make absolutely clear that 

children are not to be used to provide 

effective communication for family members 

and friends, and that it is the public entity’s 

responsibility to provide effective 

communication, stating that often 

interpreters are needed in settings where it 

would not be appropriate for children to be 

interpreting, such as those involving medical 

issues, domestic violence, or other situations 

involving the exchange of confidential or 

adult-related material. Commenters observed 

that children are often hesitant to turn down 

requests to provide communication services, 

and that such requests put them in a very 

difficult position vis-a-vis family members 

and friends. The Department agrees. It is the 

Department’s position that a public entity 

shall not rely on a minor child to facilitate 

communication with a family member, 

friend, or other individual, except in an 

emergency involving imminent threat to the 

safety or welfare of an individual or the 

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public where there is no interpreter available. 

Accordingly, the Department has revised the 

rule to state: ‘‘A public entity shall not rely 

on a minor child to interpret or facilitate 

communication, except in an emergency 

involving imminent threat to the safety or 

welfare of an individual or the public where 

there is no interpreter available.’’ 

§ 35.160(c)(3). Sections 35.160(c)(2) and (3) 

have no application in circumstances where 

an interpreter would not otherwise be 

required in order to provide effective 

communication (e.g., in simple transactions 

such as purchasing movie tickets at a 

theater). The Department stresses that 

privacy and confidentiality must be 

maintained but notes that covered entities, 

such as hospitals, that are subject to the 

Health Insurance Portability and 

Accountability Act of 1996 (HIPAA), Public 

Law 104–191, Privacy Rules are permitted to 

disclose to a patient’s relative, close friend, 

or any other person identified by the patient 

(such as an interpreter) relevant patient 

information if the patient agrees to such 

disclosures. See 45 CFR parts 160 and 164. 

The agreement need not be in writing. 

Covered entities should consult the HIPAA 

Privacy Rules regarding other ways 

disclosures might be able to be made to such 

persons. 

With regard to emergency situations, the 

NPRM proposed permitting reliance on an 

individual accompanying an individual with 

a disability to interpret or facilitate 

communication in an emergency involving a 

threat to the public safety or welfare. 

Commenters requested that the Department 

make clear that often a public entity can 

obtain appropriate auxiliary aids and services 

in advance of an emergency by making 

necessary advance arrangements, particularly 

in anticipated emergencies such as predicted 

dangerous weather or certain medical 

situations such as childbirth. These 

commenters did not want public entities to 

be relieved of their responsibilities to provide 

effective communication in emergency 

situations, noting that the obligation to 

provide effective communication may be 

more critical in such situations. Several 

commenters requested a separate rule that 

requires public entities to provide timely and 

effective communication in the event of an 

emergency, noting that the need for effective 

communication escalates in an emergency. 

Commenters also expressed concern that 

public entities, particularly law enforcement 

authorities and medical personnel, would 

apply the ‘‘emergency situation’’ provision in 

inappropriate circumstances and would rely 

on accompanying individuals without 

making any effort to seek appropriate 

auxiliary aids and services. Other 

commenters asked that the Department 

narrow this provision so that it would not be 

available to entities that are responsible for 

emergency preparedness and response. Some 

commenters noted that certain exigent 

circumstances, such as those that exist 

during and perhaps immediately after, a 

major hurricane, temporarily may excuse 

public entities of their responsibilities to 

provide effective communication. However, 

they asked that the Department clarify that 

these obligations are ongoing and that, as 

soon as such situations begin to abate or 

stabilize, the public entity must provide 

effective communication. 

The Department recognizes that the need 

for effective communication is critical in 

emergency situations. After due 

consideration of all of these concerns raised 

by commenters, the Department has revised 

§ 35.160(c) to narrow the exception 

permitting reliance on individuals 

accompanying the individual with a 

disability during an emergency to make it 

clear that it only applies to emergencies 

involving an ‘‘imminent threat to the safety 

or welfare of an individual or the public.’’ See 

§ 35.160(c)(2)–(3). Arguably, all visits to an 

emergency room or situations to which 

emergency workers respond are by definition 

emergencies. Likewise, an argument can be 

made that most situations that law 

enforcement personnel respond to involve, in 

one way or another, a threat to the safety or 

welfare of an individual or the public. The 

imminent threat exception in § 35.160(c)(2)– 

(3) is not intended to apply to the typical and 

foreseeable emergency situations that are part 

of the normal operations of these institutions. 

As such, a public entity may rely on an 

accompanying individual to interpret or 

facilitate communication under the 

§ 35.160(c)(2)–(3) imminent threat exception 

only where in truly exigent circumstances, 

i.e., where any delay in providing immediate 

services to the individual could have lifealtering or life-ending consequences. 

Many commenters urged the Department to 

stress the obligation of State and local courts 

to provide effective communication. The 

Department has received many complaints 

that State and local courts often do not 

provide needed qualified sign language 

interpreters to witnesses, litigants, jurors, 

potential jurors, and companions and 

associates of persons participating in the 

legal process. The Department cautions 

public entities that without appropriate 

auxiliary aids and services, such individuals 

are denied an opportunity to participate fully 

in the judicial process, and denied benefits 

of the judicial system that are available to 

others. 

Another common complaint about access 

to State and local court systems is the failure 

to provide effective communication in 

deferral programs that are intended as an 

alternative to incarceration, or for other 

court-ordered treatment programs. These 

programs must provide effective 

communication, and courts referring 

individuals with disabilities to such 

programs should only refer individuals with 

disabilities to programs or treatment centers 

that provide effective communication. No 

person with a disability should be denied 

access to the benefits conferred through 

participation in a court-ordered referral 

program on the ground that the program 

purports to be unable to provide effective 

communication. 

The general nondiscrimination provision 

in § 35.130(a) provides that no 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. The 

Department consistently interprets this 

provision and § 35.160 to require effective 

communication in courts, jails, prisons, and 

with law enforcement officers. Persons with 

disabilities who are participating in the 

judicial process as witnesses, jurors, 

prospective jurors, parties before the court, or 

companions of persons with business in the 

court, should be provided auxiliary aids and 

services as needed for effective 

communication. The Department has 

developed a variety of technical assistance 

and guidance documents on the requirements 

for title II entities to provide effective 

communication; those materials are available 

on the Department Web site at: http:// 

www.ada.gov. 

Many advocacy groups urged the 

Department to add language in the final rule 

that would require public entities to provide 

accessible material in a manner that is 

timely, accurate, and private. The 

Department has included language in 

§ 35.160(b)(2) stating that ‘‘[i]n order to be 

effective, auxiliary aids and services must be 

provided in accessible formats, in a timely 

manner, and in such a way so as to protect 

the privacy and independence of the 

individual with a disability.’’ 

Because the appropriateness of particular 

auxiliary aids and services may vary as a 

situation changes, the Department strongly 

encourages public entities to do a 

communication assessment of the individual 

with a disability when the need for auxiliary 

aids and services is first identified, and to reassess communication effectiveness regularly 

throughout the communication. For example, 

a deaf individual may go to an emergency 

department of a public community health 

center with what is at first believed to be a 

minor medical emergency, such as a sore 

knee, and the individual with a disability 

and the public community health center both 

believe that exchanging written notes will be 

effective. However, during that individual’s 

visit, it is determined that the individual is, 

in fact, suffering from an anterior cruciate 

ligament tear and must have surgery to repair 

the torn ligament. As the situation develops 

and the diagnosis and recommended course 

of action evolve into surgery, an interpreter 

most likely will be necessary. A public entity 

has a continuing obligation to assess the 

auxiliary aids and services it is providing, 

and should consult with individuals with 

disabilities on a continuing basis to assess 

what measures are required to ensure 

effective communication. Public entities are 

further advised to keep individuals with 

disabilities apprised of the status of the 

expected arrival of an interpreter or the 

delivery of other requested or anticipated 

auxiliary aids and services. 

Video remote interpreting (VRI) services. In 

§ 35.160(d) of the NPRM, the Department 

proposed the inclusion of four performance 

standards for VRI (which the NPRM termed 

video interpreting services (VIS)), for 

effective communication: (1) High-quality, 

clear, real-time, full-motion video and audio 

over a dedicated high-speed Internet 

connection; (2) a clear, sufficiently large, and 

sharply delineated picture of the 

participating individual’s head, arms, hands, 

and fingers, regardless of his body position; 

(3) clear transmission of voices; and (4) 

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persons who are trained to set up and operate 

the VRI quickly. Commenters generally 

approved of those performance standards, 

but recommended that some additional 

standards be included in the final rule. Some 

State agencies and advocates for persons with 

disabilities requested that the Department 

add more detail in the description of the first 

standard, including modifying the term 

‘‘dedicated high-speed Internet connection’’ 

to read ‘‘dedicated high-speed, widebandwidth video connection.’’ These 

commenters argued that this change was 

necessary to ensure a high-quality video 

image that will not produce lags, choppy 

images, or irregular pauses in 

communication. The Department agrees with 

those comments and has amended the 

provision in the final rule accordingly. 

For persons who are deaf with limited 

vision, commenters requested that the 

Department include an explicit requirement 

that interpreters wear high-contrast clothing 

with no patterns that might distract from 

their hands as they are interpreting, so that 

a person with limited vision can see the signs 

made by the interpreter. While the 

Department reiterates the importance of such 

practices in the delivery of effective VRI, as 

well as in-person interpreting, the 

Department declines to adopt such 

performance standards as part of this rule. In 

general, professional interpreters already 

follow such practices—the Code of 

Professional Conduct for interpreters 

developed by the Registry of Interpreters for 

the Deaf, Inc. and the National Association of 

the Deaf incorporates attire considerations 

into their standards of professionalism and 

conduct. (This code is available at http://

www.vid.org/userfiles/file/pdfs/codeofethics.

pdf (Last visited July 18, 2010). Moreover, as 

a result of this code, many VRI agencies have 

adopted detailed dress standards that 

interpreters hired by the agency must follow. 

In addition, commenters urged that a clear 

image of the face and eyes of the interpreter 

and others be explicitly required. Because the 

face includes the eyes, the Department has 

amended § 35.160(d)(2) of the final rule to 

include a requirement that the interpreter’s 

face be displayed. 

In response to comments seeking more 

training for users and non-technicians 

responsible for VRI in title II facilities, the 

Department is extending the requirement in 

§ 35.160(d)(4) to require training for ‘‘users of 

the technology’’ so that staff who would have 

reason to use the equipment in an emergency 

room, State or local court, or elsewhere are 

properly trained. Providing for such training 

will enhance the success of VRI as means of 

providing effective communication. 

Captioning at sporting venues. In the 

NPRM at § 35.160(e), the Department 

proposed that sports stadiums that have a 

capacity of 25,000 or more shall provide 

captioning for safety and emergency 

information on scoreboards and video 

monitors. In addition, the Department posed 

four questions about captioning of 

information, especially safety and emergency 

information announcements, provided over 

public address (PA) systems. The Department 

received many extremely detailed and 

divergent responses to each of the four 

questions and the proposed regulatory text. 

Because comments submitted on the 

Department’s title II and title III proposals 

were intertwined, because of the similarity of 

issues involved for title II entities and title 

III entities, and in recognition of the fact that 

many large sports stadiums are covered by 

both title II and title III as joint operations of 

State or local governments and one or more 

public accommodations, the Department 

presents here a single consolidated review 

and summary of the issues raised in 

comments. 

The Department asked whether requiring 

captioning of safety and emergency 

information made over the public address 

system in stadiums seating fewer than 25,000 

would create an undue burden for smaller 

entities, whether it would be feasible for 

small stadiums, or whether a larger 

threshold, such as sports stadiums with a 

capacity of 50,000 or more, would be 

appropriate. 

There was a consensus among the 

commenters, including disability advocates 

as well as venue owners and stadium 

designers and operators, that using the 

stadium size or seating capacity as the 

exclusive deciding factor for any obligation 

to provide captioning for safety and 

emergency information broadcast over the PA 

system is not preferred. Most disability 

advocacy organizations and individuals with 

disabilities complained that using size or 

seating capacity as a threshold for captioning 

safety and emergency information would 

undermine the ‘‘undue burden’’ defense 

found in both titles II and III. Many 

commenters provided examples of facilities 

like professional hockey arenas that seat less 

than 25,000 fans but which, commenters 

argued, should be able to provide real-time 

captioning. Other commenters suggested that 

some high school or college stadiums, for 

example, may hold 25,000 fans or more and 

yet lack the resources to provide real-time 

captioning. Many commenters noted that 

real-time captioning would require trained 

stenographers and that most high school and 

college sports facilities rely upon volunteers 

to operate scoreboards and PA systems, and 

they would not be qualified stenographers, 

especially in case of an emergency. One 

national association noted that the typical 

stenographer expense for a professional 

football game in Washington, DC is about 

$550 per game. Similarly, one trade 

association representing venues estimated 

that the cost for a professional stenographer 

at a sporting event runs between $500 and 

$1,000 per game or event, the cost of which, 

they argued, would be unduly burdensome in 

many cases. Some commenters posited that 

schools that do not sell tickets to athletic 

events would find it difficult to meet such 

expenses, in contrast to major college athletic 

programs and professional sports teams, 

which would be less likely to prevail using 

an ‘‘undue burden’’ defense. 

Some venue owners and operators and 

other covered entities argued that stadium 

size should not be the key consideration 

when requiring scoreboard captioning. 

Instead, these entities suggested that 

equipment already installed in the stadium, 

including necessary electrical equipment and 

backup power supply, should be the 

determining factor for whether captioning is 

mandated. Many commenters argued that the 

requirement to provide captioning should 

only apply to stadiums with scoreboards that 

meet the National Fire Protection Association 

(NFPA) National Fire Alarm Code (NFPA 72). 

Commenters reported that NFPA 72 requires 

at least two independent and reliable power 

supplies for emergency information systems, 

including one source that is a generator or 

battery sufficient to run the system in the 

event the primary power fails. Alternatively, 

some stadium designers and title II entities 

commented that the requirement should 

apply when the facility has at least one 

elevator providing firefighter emergency 

operation, along with approval of authorities 

with responsibility for fire safety. Other 

commenters argued for flexibility in the 

requirements for providing captioning and 

that any requirement should only apply to 

stadiums constructed after the effective date 

of the regulation. 

In the NPRM, the Department also asked 

whether the rule should address the specific 

means of captioning equipment, whether it 

should be provided through any effective 

means (scoreboards, line boards, handheld 

devices, or other means), or whether some 

means, such as handheld devices, should be 

eliminated as options. This question elicited 

many comments from advocates for persons 

with disabilities as well as from covered 

entities. Advocacy organizations and 

individuals with experience using handheld 

devices argue that such devices do not 

provide effective communication. These 

commenters noted that information is often 

delayed in the transmission to such devices, 

making them hard to use when following 

action on the playing field or in the event of 

an emergency when the crowd is already 

reacting to aural information provided over 

the PA system well before it is received on 

the handheld device. 

Several venue owners and operators and 

others commented that handheld technology 

offers advantages of flexibility and portability 

so that it may be used successfully regardless 

of where in the facility the user is located, 

even when not in the line of sight of a 

scoreboard or other captioning system. Still 

other commenters urged the Department not 

to regulate in such a way as to limit 

innovation and use of such technology now 

and in the future. Cost considerations were 

included in some comments from some 

stadium designers and venue owners and 

operators, who reported that the cost of 

providing handheld systems is far less than 

the cost of real-time captioning on 

scoreboards, especially in facilities that do 

not currently have the capacity to provide 

real-time captions on existing equipment. 

Others noted that handheld technology is not 

covered by fire and safety model codes, 

including the NFPA, and thus would be more 

easily adapted into existing facilities if 

captioning were required by the Department. 

The Department also asked about 

providing open captioning of all public 

address announcements, and not limiting 

captioning to safety and emergency 

information. A variety of advocates and 

persons with disabilities argued that all 

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information broadcast over a PA system 

should be captioned in real time at all 

facilities in order to provide effective 

communication and that a requirement only 

to provide emergency and safety information 

would not be sufficient. A few organizations 

for persons with disabilities commented that 

installation of new systems should not be 

required, but that all systems within existing 

facilities that are capable of providing 

captioning must be utilized to the maximum 

extent possible to provide captioning of as 

much information as possible. Several 

organizations representing persons with 

disabilities commented that all facilities must 

include in safety planning the requirement to 

caption all aurally-provided information for 

patrons with communication disabilities. 

Some advocates suggested that demand for 

captions will only increase as the number of 

deaf and hard of hearing persons grows with 

the aging of the general population and with 

increasing numbers of veterans returning 

from war with disabilities. Multiple 

comments noted that the captioning would 

benefit others as well as those with 

communication disabilities. 

By contrast, venue owners and operators 

and others commented that the action on the 

sports field is self-explanatory and does not 

require captioning and they objected to an 

explicit requirement to provide real-time 

captioning for all information broadcast on 

the PA system at a sporting event. Other 

commenters objected to requiring captioning 

even for emergency and safety information 

over the scoreboard rather than through some 

other means. By contrast, venue operators, 

State government agencies, and some model 

code groups, including NFPA, commented 

that emergency and safety information must 

be provided in an accessible format and that 

public safety is a paramount concern. Other 

commenters argued that the best method to 

deliver safety and emergency information 

would be television monitors showing local 

TV broadcasts with captions already 

mandated by the FCC. Some commenters 

posited that the most reliable information 

about a major emergency would be provided 

on the television news broadcasts. Several 

commenters argued that television monitors 

may be located throughout the facility, 

improving line of sight for patrons, some of 

whom might not be able to see the scoreboard 

from their seats or elsewhere in the facility. 

Some stadium designers, venue operators, 

and model code groups pointed out that 

video monitors are not regulated by the 

NFPA or other agencies, so that such 

monitors could be more easily provided. 

Video monitors may receive transmissions 

from within the facility and could provide 

real-time captions if there is the necessary 

software and equipment to feed the 

captioning signal to a closed video network 

within the facility. Several comments 

suggested that using monitors would be 

preferable to requiring captions on the 

scoreboard if the regulation mandates realtime captioning. Some venue owners and 

operators argued that retrofitting existing 

stadiums with new systems could easily cost 

hundreds of thousands of dollars per 

scoreboard or system. Some stadium 

designers and others argued that captioning 

should only be required in stadiums built 

after the effective date of the regulation. For 

stadiums with existing systems that allow for 

real-time captioning, one commenter posited 

that dedicating the system exclusively to 

real-time captioning would lead to an annual 

loss of between $2 and $3 million per 

stadium in revenue from advertising 

currently running in that space. 

After carefully considering the wide range 

of public comments on this issue, the 

Department has concluded that the final rule 

will not provide additional requirements for 

effective communication or emergency 

information provided at sports stadiums at 

this time. The 1991 title II and title III 

regulations and statutory requirements are 

not in any way affected by this decision. The 

decision to postpone rulemaking on this 

complex issue is based on a number of 

factors, including the multiple layers of 

existing regulation by various agencies and 

levels of government, and the wide array of 

information, requests, and recommendations 

related to developing technology offered by 

the public. In addition, there is a huge variety 

of covered entities, information and 

communication systems, and differing 

characteristics among sports stadiums. The 

Department has concluded that further 

consideration and review would be prudent 

before it issues specific regulatory 

requirements. 

Section 35.161 Telecommunications. 

The Department proposed to retitle this 

section ‘‘Telecommunications’’ to reflect 

situations in which the public entity must 

provide an effective means to communicate 

by telephone for individuals with 

disabilities. First, the NPRM proposed 

redesignating § 35.161 as § 35.161(a) and 

replacing the term ‘‘Telecommunications 

devices for the deaf (TDD)’’ with ‘‘Text 

telephones (TTY).’’ Public comment was 

universally supportive of this change in 

nomenclature to TTY. 

In the NPRM, at § 35.161(b), the 

Department addressed automated-attendant 

systems that handle telephone calls 

electronically. Often individuals with 

disabilities, including persons who are deaf 

or hard of hearing, are unable to use such 

automated systems. Some systems are not 

compatible with TTYs or the 

telecommunications relay service. 

Automated systems can and often do 

disconnect calls from TTYs or relay calls, 

making it impossible for persons using a TTY 

or relay system to do business with title II 

entities in the same manner as others. The 

Department proposed language that would 

require a telecommunications service to 

permit persons using relay or TTYs or other 

assistive technology to use the automatedattendant system provided by the public 

entity. The FCC raised this concern with the 

Department after the 1991 title II regulation 

went into effect, and the Department acted 

upon that request in the NPRM. Comments 

from disability advocates and persons with 

disabilities consistently requested the 

provision be amended to cover ‘‘voice mail, 

messaging, auto-attendant, and interactive 

voice response systems.’’ The Department 

recognizes that those are important features 

of widely used telecommunications 

technology that should be as accessible to 

persons who are deaf or hard of hearing as 

they are to others, and has amended the 

section in the final rule to include the 

additional features. 

Many commenters, including advocates 

and persons with disabilities, as well as State 

agencies and national organizations, asked 

that all automated systems have an option for 

the caller to bypass the automated system 

and speak to a live person who could 

communicate using relay services. The 

Department understands that automated 

telecommunications systems typically do not 

offer the opportunity to avoid or bypass the 

automated system and speak to a live person. 

The Department believes that at this time it 

is inappropriate to add a requirement that all 

such systems provide an override capacity 

that permits a TTY or relay caller to speak 

with a live clerk on a telecommunications 

relay system. However, if a system already 

provides an option to speak to a person, that 

system must accept TTY and relay calls and 

must not disconnect or refuse to accept such 

calls. 

Other comments from advocacy 

organizations and individuals urged the 

Department to require specifications for the 

operation of such systems that would involve 

issuing technical requirements for encoding 

and storage of automated text, as well as 

controls for speed, pause, rewind, and repeat, 

and prompts without any background noise. 

The same comments urged that these 

requirements should be consistent with a 

pending advisory committee report to the 

Access Board, submitted in April 2008. See 

Telecommunications and Electronic 

Information Technology Advisory 

Committee, Report to the Access Board 

Refreshed Accessibility Standards and 

Guidelines in Telecommunications and 

Electronic and Information Technology (Apr. 

2008) available at http://www.access-board.

gov/sec508/refresh/report/. The Department 

is declining at this time to preempt ongoing 

consideration of these issues by the Board. 

Instead, the Department will monitor activity 

by the Board. The Department is convinced 

that the general requirement to make such 

automated systems usable by persons with 

disabilities is appropriate at this time and 

title II entities should evaluate their 

automated systems in light of concerns about 

providing systems that offer effective 

communication to persons with disabilities. 

Finally, the Department has adopted in 

§ 35.161(c) of the final rule the requirement 

that all such systems must not disconnect or 

refuse to take calls from all forms of FCCapproved telecommunications relay systems, 

including Internet-based relay systems. 

(Internet-based relay systems refer to the 

mechanism by which the message is relayed). 

They do not require a public entity to have 

specialized computer equipment. 

Commenters from some State agencies, many 

advocacy organizations, and individuals 

strongly urged the Department to mandate 

such action because of the high proportion of 

TTY calls and relay service calls that are not 

completed because the title II entity’s phone 

system or employees do not take the calls. 

This presents a serious obstacle for persons 

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doing business with State and local 

government and denies persons with 

disabilities access to use the telephone for 

business that is typically handled over the 

phone for others. 

In addition, commenters requested that the 

Department include ‘‘real-time’’ before any 

mention of ‘‘computer-aided’’ technology to 

highlight the value of simultaneous 

translation of any communication. The 

Department has added ‘‘real-time’’ before 

‘‘computer-aided transcription services’’ in 

the definition of ‘‘auxiliary aids in § 35.104 

and before ‘‘communication’’ in § 35.161(b). 

Subpart F—Compliance Procedures 

Section 35.171 Acceptance of complaints. 

In the NPRM, the Department proposed 

changing the current language in 

§ 35.171(a)(2)(i) regarding misdirected 

complaints to make it clear that if an agency 

receives a complaint for which it lacks 

jurisdiction either under section 504 or as a 

designated agency under the ADA, the 

agency may refer the complaint to the 

appropriate agency with title II or section 504 

jurisdiction or to the Department of Justice. 

The language of the 1991 title II regulation 

only requires the agency to refer such a 

complaint to the Department, which in turn 

refers the complaint to the appropriate 

designated agency. The proposed revisions to 

§ 35.171 made it clear that an agency can 

refer a misdirected complaint either directly 

to the appropriate agency or to the 

Department. This amendment was intended 

to protect against the unnecessary 

backlogging of complaints and to prevent 

undue delay in an agency taking action on a 

complaint. 

Several commenters supported this 

amendment as a more efficient means of 

directing title II complaints to the 

appropriate enforcing agency. One 

commenter requested that the Department 

emphasize the need for timeliness in 

referring a complaint. The Department does 

not believe it is appropriate to adopt a 

specific time frame but will continue to 

encourage designated agencies to make 

timely referrals. The final rule retains, with 

minor modifications, the language in 

proposed § 35.171(a)(2)(i). The Department 

has also amended § 35.171(a)(2)(ii) to be 

consistent with the changes in the rule at 

§ 35.190(e), as discussed below. 

Section 35.172 Investigations and 

compliance reviews. 

In the NPRM, the Department proposed a 

number of changes to language in § 35.172 

relating to the resolution of complaints. 

Subtitle A of title II of the ADA defines the 

remedies, procedures, and rights provided for 

qualified individuals with disabilities who 

are discriminated against on the basis of 

disability in the services, programs, or 

activities of State and local governments. 42 

U.S.C. 12131–12134. Subpart F of the current 

regulation establishes administrative 

procedures for the enforcement of title II of 

the ADA. 28 CFR 35.170–35.178. Subpart G 

identifies eight ‘‘designated agencies,’’ 

including the Department, that have 

responsibility for investigating complaints 

under title II. See 28 CFR 35.190(b). 

The Department’s 1991 title II regulation is 

based on the enforcement procedures 

established in regulations implementing 

section 504. Thus, the Department’s 1991 

title II regulation provides that the designated 

agency ‘‘shall investigate each complete 

complaint’’ alleging a violation of title II and 

shall ‘‘attempt informal resolution’’ of such 

complaint. 28 CFR 35.172(a). The full range 

of remedies (including compensatory 

damages) that are available to the Department 

when it resolves a complaint or resolves 

issues raised in a compliance review are 

available to designated agencies when they 

are engaged in informal complaint resolution 

or resolution of issues raised in a compliance 

review under title II. 

In the years since the 1991 title II 

regulation went into effect, the Department 

has received many more complaints alleging 

violations of title II than its resources permit 

it to resolve. The Department has reviewed 

each complaint that the Department has 

received and directed its resources to 

resolving the most critical matters. In the 

NPRM, the Department proposed deleting the 

word ‘‘each’’ as it appears before ‘‘complaint’’ 

in § 35.172(a) of the 1991 title II regulation 

as a means of clarifying that designated 

agencies may exercise discretion in selecting 

title II complaints for resolution. 

Many commenters opposed the removal of 

the term ‘‘each,’’ requesting that all title II 

complaints be investigated. The commenters 

explained that complaints against title II 

entities implicate the fundamental right of 

access to government facilities and programs, 

making an administrative enforcement 

mechanism critical. Rather than aligning 

enforcement discretion of title II complaints 

with the discretion under the enforcement 

procedures of title III, the commenters 

favored obtaining additional resources to 

address more complaints. The commenters 

highlighted the advantage afforded by 

Federal involvement in complaint 

investigations in securing favorable voluntary 

resolutions. When Federal involvement 

results in settlement agreements, commenters 

believed those agreements are more 

persuasive to other public entities than 

private settlements. Private litigation as a 

viable alternative was rejected by the 

commenters because of the financial 

limitations of many complainants, and 

because in some scenarios legal barriers 

foreclose private litigation as an option. 

Several of those opposing this amendment 

argued that designated agencies are required 

to investigate each complaint under section 

504, and a departure for title II complaints 

would be an inconsistency. The Department 

believes that § 35.171(a) of the final rule is 

consistent with the obligation to evaluate all 

complaints. However, there is no statutory 

requirement that every title II complaint 

receive a full investigation. Section 203 of the 

ADA, 42 U.S.C. 12133, adopts the ‘‘remedies, 

procedures, and rights set forth in section 

505 of the Rehabilitation Act of 1973’’ (29 

U.S.C. 794a). Section 505 of the 

Rehabilitation Act, in turn, incorporates the 

remedies available under title VI of the Civil 

Rights Act of 1964 into section 504. Under 

these statutes, agencies may engage in 

conscientious enforcement without fully 

investigating each citizen complaint. An 

agency’s decision to conduct a full 

investigation requires a complicated 

balancing of a number of factors that are 

particularly within its expertise. Thus, the 

agency must not only assess whether a 

violation may have occurred, but also 

whether agency resources are best spent on 

this complaint or another, whether the 

agency is likely to succeed if it acts, and 

whether the particular enforcement action 

requested best fits the agency’s overall 

policies. Availability of resources will always 

be a factor, and the Department believes 

discretion to maximize these limited 

resources will result in the most effective 

enforcement program. If agencies are bound 

to investigate each complaint fully, 

regardless of merit, such a requirement could 

have a deleterious effect on their overall 

enforcement efforts. The Department 

continues to expect that each designated 

agency will review the complaints the agency 

receives to determine whether further 

investigation is appropriate. 

The Department also proposed revising 

§ 35.172 to add a new paragraph (b) that 

provided explicit authority for compliance 

reviews consistent with the Department’s 

longstanding position that such authority 

exists. The proposed section stated, ‘‘[t]he 

designated agency may conduct compliance 

reviews of public entities based on 

information indicating a possible failure to 

comply with the nondiscrimination 

requirements of this part.’’ Several 

commenters supported this amendment, 

identifying title III compliance reviews as 

having been a successful means for the 

Department and designated agencies to 

improve accessibility. The Department has 

retained this section. However, the 

Department has modified the language of the 

section to make the authority to conduct 

compliance reviews consistent with that 

available under section 504 and title VI. See, 

e.g., 28 CFR 42.107(a). The new provision 

reads as follows: ‘‘(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.’’ 

The Department has also added a provision 

to § 35.172(c)(2) clarifying the Department’s 

longstanding view that agencies may obtain 

compensatory damages on behalf of 

complainants as the result of a finding of 

discrimination pursuant to a compliance 

review or in informal resolution of a 

complaint. 

Finally, in the NPRM, the Department 

proposed revising the requirements for letters 

of findings for clarification and to reflect 

current practice. Section 35.172(a) of the 

1991 title II regulation required designated 

agencies to issue a letter of findings at the 

conclusion of an investigation if the 

complaint was not resolved informally, and 

to attempt to negotiate a voluntary 

compliance agreement if a violation was 

found. The Department’s proposed changes 

to the 1991 title II regulation moved the 

discussion of letters of findings to a new 

paragraph (c) in the NPRM, and clarified that 

letters of findings are only required when a 

violation is found. 

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One commenter opposed the proposal to 

eliminate the obligation of the Department 

and designated agencies to issue letters of 

finding at the conclusion of every 

investigation. The commenter argued that it 

is beneficial for public entities, as well as 

complainants, for the Department to provide 

a reasonable explanation of both compliance 

and noncompliance findings. 

The Department has considered this 

comment but continues to believe that this 

change will promote the overall effectiveness 

of its enforcement program. The final rule 

retains the proposed language. 

Subpart G—Designated Agencies 

Section 35.190 Designated agencies. 

Subpart G of the 1991 title II regulation 

designates specific Federal agencies to 

investigate certain title II complaints. 

Paragraph 35.190(b) specifies these agency 

designations. Paragraphs 35.190(c) and (d), 

respectively, grant the Department discretion 

to designate further oversight responsibilities 

for matters not specifically assigned or where 

there are apparent conflicts of jurisdiction. 

The NPRM proposed adding a new 

§ 35.190(e) further refining procedures for 

complaints filed with the Department of 

Justice. Proposed § 35.190(e) provides that 

when the Department receives a complaint 

alleging a violation of title II that is directed 

to the Attorney General but may fall within 

the jurisdiction of a designated agency or 

another Federal agency with jurisdiction 

under section 504, the Department may 

exercise its discretion to retain the complaint 

for investigation under this part. The 

Department would, of course, consult with 

the designated agency when the Department 

plans to retain a complaint. In appropriate 

circumstances, the Department and the 

designated agency may conduct a joint 

investigation. 

Several commenters supported this 

amendment as a more efficient means of 

processing title II complaints. The 

commenters supported the Department using 

its discretion to conduct timely 

investigations of such complaints. The 

language of the proposed § 35.190(e) remains 

unchanged in the final rule. 

Other Issues 

Questions Posed in the NPRM Regarding 

Costs and Benefits of Complying With the 

2010 Standards 

In the NPRM, the Department requested 

comment on various cost and benefit issues 

related to eight requirements in the 

Department’s Initial Regulatory Impact 

Analysis (Initial RIA), available at ada.gov/ 

NPRM2008/ria.htm), that were projected to 

have incremental costs exceeding monetized 

benefits by more than $100 million when 

using the 1991 Standards as the comparative 

baseline, i.e., side reach, water closet 

clearances in single-user toilet rooms with inswinging doors, stairs, elevators, location of 

accessible routes to stages, accessible 

attorney areas and witness stands, assistive 

listening systems, and accessible teeing 

grounds, putting greens, and weather shelters 

at golf courses. 73 FR 34466, 34469 (June 17, 

2008). The Department noted that pursuant 

to the ADA, the Department does not have 

statutory authority to modify the 2004 

ADAAG and is required instead to issue 

regulations implementing the ADA that are 

consistent with the Board’s guidelines. In 

that regard, the Department also requested 

comment about whether any of these eight 

elements in the 2010 Standards should be 

returned to the Access Board for further 

consideration, in particular as applied to 

alterations. Many of the comments received 

by the Department in response to these 

questions addressed both titles II and III. As 

a result, the Department’s discussion of these 

comments and its response are collectively 

presented for both titles. 

Side reach. The 1991 Standards at section 

4.2.6 establish a maximum side-reach height 

of 54 inches. The 2010 Standards at section 

308.3 reduce that maximum height to 48 

inches. The 2010 Standards also add 

exceptions for certain elements to the 

scoping requirement for operable parts. 

The vast majority of comments the 

Department received were in support of the 

lower side-reach maximum of 48 inches in 

the 2010 Standards. Most of these comments, 

but not all, were received from individuals of 

short stature, relatives of individuals of short 

stature, or organizations representing the 

interests of persons with disabilities, 

including individuals of short stature. 

Comments from individuals with disabilities 

and disability advocacy groups stated that 

the 48-inch side reach would permit 

independence in performing many activities 

of daily living for individuals with 

disabilities, including individuals of short 

stature, persons who use wheelchairs, and 

persons who have limited upper body 

strength. In this regard, one commenter who 

is a business owner pointed out that as a 

person of short stature there were many 

occasions when he was unable to exit a 

public restroom independently because he 

could not reach the door handle. The 

commenter said that often elevator control 

buttons are out of his reach and, if he is 

alone, he often must wait for someone else 

to enter the elevator so that he can ask that 

person to press a floor button for him. 

Another commenter, who is also a person of 

short stature, said that he has on several 

occasions pulled into a gas station only to 

find that he was unable to reach the credit 

card reader on the gas pump. Unlike other 

customers who can reach the card reader, 

swipe their credit or debit cards, pump their 

gas and leave the station, he must use 

another method to pay for his gas. Another 

comment from a person of short stature 

pointed out that as more businesses take 

steps to reduce labor costs—a trend expected 

to continue—staffed booths are being 

replaced with automatic machines for the 

sale, for example, of parking tickets and other 

products. He observed that the ‘‘ability to 

access and operate these machines becomes 

ever more critical to function in society,’’ 

and, on that basis, urged the Department to 

adopt the 48-inch side-reach requirement. 

Another individual commented that persons 

of short stature should not have to carry with 

them adaptive tools in order to access 

building or facility elements that are out of 

their reach, any more than persons in 

wheelchairs should have to carry ramps with 

them in order to gain access to facilities. 

Many of the commenters who supported 

the revised side-reach requirement pointed 

out that lowering the side-reach requirement 

to 48 inches would avoid a problem 

sometimes encountered in the built 

environment when an element was mounted 

for a parallel approach at 54 inches only to 

find afterwards that a parallel approach was 

not possible. Some commenters also 

suggested that lowering the maximum 

unobstructed side reach to 48 inches would 

reduce confusion among design professionals 

by making the unobstructed forward and 

side-reach maximums the same (the 

unobstructed forward reach in both the 1991 

and 2010 Standards is 48 inches maximum). 

These commenters also pointed out that the 

ICC/ANSI A117.1 Standard, which is a 

private sector model accessibility standard, 

has included a 48-inch maximum high sidereach requirement since 1998. Many 

jurisdictions have already incorporated this 

requirement into their building codes, which 

these commenters believed would reduce the 

cost of compliance with the 2010 Standards. 

Because numerous jurisdictions have already 

adopted the 48-inch side-reach requirement, 

the Department’s failure to adopt the 48-inch 

side-reach requirement in the 2010 

Standards, in the view of many commenters, 

would result in a significant reduction in 

accessibility, and would frustrate efforts that 

have been made to harmonize private sector 

model construction and accessibility codes 

with Federal accessibility requirements. 

Given these concerns, they overwhelmingly 

opposed the idea of returning the revised 

side-reach requirement to the Access Board 

for further consideration. 

The Department also received comments in 

support of the 48-inch side-reach 

requirement from an association of 

professional commercial property managers 

and operators and from State governmental 

entities. The association of property 

managers pointed out that the revised sidereach requirement provided a reasonable 

approach to ‘‘regulating elevator controls and 

all other operable parts’’ in existing facilities 

in light of the manner in which the safe 

harbor, barrier removal, and alterations 

obligations will operate in the 2010 

Standards. One governmental entity, while 

fully supporting the 48-inch side-reach 

requirement, encouraged the Department to 

adopt an exception to the lower reach range 

for existing facilities similar to the exception 

permitted in the ICC/ANSI A117.1 Standard. 

In response to this latter concern, the 

Department notes that under the safe harbor, 

existing facilities that are in compliance with 

the 1991 Standards, which require a 54-inch 

side-reach maximum, would not be required 

to comply with the lower side-reach 

requirement, unless there is an alteration. See 

§ 35.150(b)(2). 

A number of commenters expressed either 

concern with, or opposition to, the 48-inch 

side-reach requirement and suggested that it 

be returned to the Access Board for further 

consideration. These commenters included 

trade and business associations, associations 

of retail stores, associations of restaurant 

owners, retail and convenience store chains, 

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and a model code organization. Several 

businesses expressed the view that the lower 

side-reach requirement would discourage the 

use of their products and equipment by most 

of the general public. In particular, concerns 

were expressed by a national association of 

pay phone service providers regarding the 

possibility that pay telephones mounted at 

the lower height would not be used as 

frequently by the public to place calls, which 

would result in an economic burden on the 

pay phone industry. The commenter 

described the lower height required for side 

reach as creating a new ‘‘barrier’’ to pay 

phone use, which would reduce revenues 

collected from pay phones and, 

consequently, further discourage the 

installation of new pay telephones. In 

addition, the commenter expressed concern 

that phone service providers would simply 

decide to remove existing pay phones rather 

than incur the costs of relocating them at the 

lower height. With regard to this latter 

concern, the commenter misunderstood the 

manner in which the safe harbor obligation 

will operate in the revised title II regulation 

for elements that comply with the 1991 

Standards. If the pay phones comply with the 

1991 Standards or UFAS, the adoption of the 

2010 Standards does not require retrofitting 

of these elements to reflect incremental 

changes in the 2010 Standards (see 

§ 35.150(b)(2)). However, pay telephones that 

were required to meet the 1991 Standards as 

part of new construction or alterations, but 

do not in fact comply with those standards, 

will need to be brought into compliance with 

the 2010 Standards as of 18 months from the 

publication date of this final rule. See 

§ 35.151(c)(5)(ii). 

The Department does not agree with the 

concerns expressed by the commenter about 

reduced revenues from pay phones mounted 

at lower heights. The Department believes 

that, while given the choice some individuals 

may prefer to use a pay phone that is at a 

higher height, the availability of some phones 

at a lower height will not deter individuals 

from making needed calls. 

The 2010 Standards will not require every 

pay phone to be installed or moved to a 

lowered height. The table accompanying 

section 217.2 of the 2010 Standards makes 

clear that, where one or more telephones are 

provided on a floor, level, or an exterior site, 

only one phone per floor, level, or exterior 

site must be placed at an accessible height. 

Similarly, where there is one bank of phones 

per floor, level, or exterior site, only one 

phone per floor, level, or exterior site must 

be accessible. And if there are two or more 

banks of phones per floor, level, or exterior 

site, only one phone per bank must be placed 

at an accessible height. 

Another comment in opposition to the 

lower reach range requirement was submitted 

on behalf of a chain of convenience stores 

with fuel stops. The commenter expressed 

the concern that the 48-inch side reach ‘‘will 

make it uncomfortable for the majority of the 

public,’’ including persons of taller stature 

who would need to stoop to use equipment 

such as fuel dispensers mounted at the lower 

height. The commenter offered no objective 

support for the observation that a majority of 

the public would be rendered uncomfortable 

if, as required in the 2010 Standards, at least 

one of each type of fuel dispenser at a facility 

was made accessible in compliance with the 

lower reach range. Indeed, the Department 

received no comments from any individuals 

of tall stature expressing concern about 

accessible elements or equipment being 

mounted at the 48-inch height. 

Several convenience store, restaurant, and 

amusement park commenters expressed 

concern about the burden the lower sidereach requirement would place on their 

businesses in terms of self-service food 

stations and vending areas if the 48-inch 

requirement were applied retroactively. The 

cost of lowering counter height, in 

combination with the lack of control 

businesses exercise over certain prefabricated 

service or vending fixtures, outweighed, they 

argued, any benefits to persons with 

disabilities. For this reason, they suggested 

the lower side-reach requirement be referred 

back to the Access Board. 

These commenters misunderstood the safe 

harbor and barrier removal obligations that 

will be in effect under the 2010 Standards. 

Those existing self-service food stations and 

vending areas that already are in compliance 

with the 1991 Standards will not be required 

to satisfy the 2010 Standards unless they 

engage in alterations. With regard to 

prefabricated vending machines and food 

service components that will be purchased 

and installed in businesses after the 2010 

Standards become effective, the Department 

expects that companies will design these 

machines and fixtures to comply with the 

2010 Standards in the future, as many have 

already done in the 10 years since the 48- 

inch side-reach requirement has been a part 

of the model codes and standards used by 

many jurisdictions as the basis for their 

construction codes. 

A model code organization commented 

that the lower side-reach requirement would 

create a significant burden if it required 

entities to lower the mounting height for light 

switches, environmental controls, and outlets 

when an alteration did not include the walls 

where these elements were located, such as 

when ‘‘an area is altered or as a path of travel 

obligation.’’ The Department believes that the 

final rule adequately addresses those 

situations about which the commenter 

expressed concern by not requiring the 

relocation of existing elements, such as light 

switches, environmental controls, and 

outlets, unless they are altered. Moreover, 

under § 35.151(b)(4)(iii) of the final rule, 

costs for altering the path of travel to an 

altered area of primary function that exceed 

20 percent of the overall costs of the 

alteration will be deemed disproportionate. 

The Department has determined that the 

revised side-reach requirement should not be 

returned to the Access Board for further 

consideration, based in large part on the 

views expressed by a majority of the 

commenters regarding the need for, and 

importance of, the lower side-reach 

requirement to ensure access for persons 

with disabilities. 

Alterations and Water Closet Clearances in 

Single-User Toilet Rooms With In-Swinging 

Doors 

The 1991 Standards allow a lavatory to be 

placed a minimum of 18 inches from the 

water closet centerline and a minimum of 36 

inches from the side wall adjacent to the 

water closet, which precludes side transfers. 

The 1991 Standards do not allow an inswinging door in a toilet or bathing room to 

overlap the required clear floor space at any 

accessible fixture. To allow greater transfer 

options, section 604.3.2 of the 2010 

Standards prohibits lavatories from 

overlapping the clear floor space at water 

closets, except in residential dwelling units. 

Section 603.2.3 of the 2010 Standards 

maintains the prohibition on doors swinging 

into the clear floor space or clearance 

required for any fixture, except that they 

permit the doors of toilet or bathing rooms 

to swing into the required turning space, 

provided that there is sufficient clearance 

space for the wheelchair outside the door 

swing. In addition, in single-user toilet or 

bathing rooms, exception 2 of section 603.2.3 

of the 2010 Standards permits the door to 

swing into the clear floor space of an 

accessible fixture if a clear floor space that 

measures at least 30 inches by 48 inches is 

available outside the arc of the door swing. 

The majority of commenters believed that 

this requirement would increase the number 

of toilet rooms accessible to individuals with 

disabilities who use wheelchairs or mobility 

scooters, and will make it easier for them to 

transfer. A number of commenters stated that 

there was no reason to return this provision 

to the Access Board. Numerous commenters 

noted that this requirement is already 

included in other model accessibility 

standards and many State and local building 

codes and that the adoption of the 2010 

Standards is an important part of 

harmonization efforts. 

Other commenters, mostly trade 

associations, opposed this requirement, 

arguing that the added cost to the industry 

outweighs any increase in accessibility. Two 

commenters stated that these proposed 

requirements would add two feet to the 

width of an accessible single-user toilet 

room; however, another commenter said the 

drawings in the proposed regulation 

demonstrated that there would be no 

substantial increase in the size of the toilet 

room. Several commenters stated that this 

requirement would require moving plumbing 

fixtures, walls, or doors at significant 

additional expense. Two commenters wanted 

the permissible overlap between the door 

swing and clearance around any fixture 

eliminated. One commenter stated that these 

new requirements will result in fewer 

alterations to toilet rooms to avoid triggering 

the requirement for increased clearances, and 

suggested that the Department specify that 

repairs, maintenance, or minor alterations 

would not trigger the need to provide 

increased clearances. Another commenter 

requested that the Department exempt 

existing guest room bathrooms and singleuser toilet rooms that comply with the 1991 

Standards from complying with the increased 

clearances in alterations. 

After careful consideration of these 

comments, the Department believes that the 

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revised clearances for single-user toilet rooms 

will allow safer and easier transfers for 

individuals with disabilities, and will enable 

a caregiver, aide, or other person to 

accompany an individual with a disability 

into the toilet room to provide assistance. 

The illustrations in Appendix B to the final 

title III rule, ‘‘Analysis and Commentary on 

the 2010 ADA Standards for Accessible 

Design,’’ published elsewhere in this volume 

and codified as Appendix B to 28 CFR part 

36, describe several ways for public entities 

and public accommodations to make 

alterations while minimizing additional costs 

or loss of space. Further, in any isolated 

instances where existing structural 

limitations may entail loss of space, the 

public entity and public accommodation may 

have a technical infeasibility defense for that 

alteration. The Department also recognizes 

that in attempting to create the required clear 

floor space pursuant to section 604.3.2, there 

may be certain specific circumstances where 

it would be technically infeasible for a 

covered entity to comply with the clear floor 

space requirement, such as where an entity 

must move a plumbing wall in a multistory 

building where the mechanical chase for 

plumbing is an integral part of a building’s 

structure or where the relocation of a wall or 

fixture would violate applicable plumbing 

codes. In such circumstances, the required 

clear floor space would not have to be 

provided although the covered entity would 

have to provide accessibility to the maximum 

extent feasible. The Department has, 

therefore, decided not to return this 

requirement to the Access Board. 

Alterations to stairs. The 1991 Standards 

only require interior and exterior stairs to be 

accessible when they provide access to levels 

that are not connected by an elevator, ramp, 

or other accessible means of vertical access. 

In contrast, section 210.1 of the 2010 

Standards requires all newly constructed 

stairs that are part of a means of egress to be 

accessible. However, exception 2 of section 

210.1 of the 2010 Standards provides that in 

alterations, stairs between levels connected 

by an accessible route need not be accessible, 

except that handrails shall be provided. Most 

commenters were in favor of this requirement 

for handrails in alterations, and stated that 

adding handrails to stairs during alterations 

was not only feasible and not costprohibitive, but also provided important 

safety benefits. One commenter stated that 

making all points of egress accessible 

increased the number of people who could 

use the stairs in an emergency. A majority of 

the commenters did not want this 

requirement returned to the Access Board for 

further consideration. 

The International Building Code (IBC), 

which is a private sector model construction 

code, contains a similar provision, and most 

jurisdictions enforce a version of the IBC as 

their building code, thereby minimizing the 

impact of this provision on public entities 

and public accommodations. The Department 

believes that by requiring only the addition 

of handrails to altered stairs where levels are 

connected by an accessible route, the costs of 

compliance for public entities and public 

accommodations are minimized, while safe 

egress for individuals with disabilities is 

increased. Therefore, the Department has 

decided not to return this requirement to the 

Access Board. 

Alterations to elevators. Under the 1991 

Standards, if an existing elevator is altered, 

only that altered elevator must comply with 

the new construction requirements for 

accessible elevators to the maximum extent 

feasible. It is therefore possible that a bank 

of elevators controlled by a single call system 

may contain just one accessible elevator, 

leaving an individual with a disability with 

no way to call an accessible elevator and thus 

having to wait indefinitely until an accessible 

elevator happens to respond to the call 

system. In the 2010 Standards, when an 

element in one elevator is altered, section 

206.6.1 will require the same element to be 

altered in all elevators that are programmed 

to respond to the same call button as the 

altered elevator. 

Most commenters favored the proposed 

requirement. This requirement, according to 

these commenters, is necessary so a person 

with a disability need not wait until an 

accessible elevator responds to his or her 

call. One commenter suggested that elevator 

owners could also comply by modifying the 

call system so the accessible elevator could 

be summoned independently. One 

commenter suggested that this requirement 

would be difficult for small businesses 

located in older buildings, and one 

commenter suggested that this requirement 

be sent back to the Access Board. 

After considering the comments, the 

Department agrees that this requirement is 

necessary to ensure that when an individual 

with a disability presses a call button, an 

accessible elevator will arrive in a timely 

manner. The IBC contains a similar 

provision, and most jurisdictions enforce a 

version of the IBC as their building code, 

minimizing the impact of this provision on 

public entities and public accommodations. 

Public entities and businesses located in 

older buildings need not comply with this 

requirement where it is technically infeasible 

to do so. Further, as pointed out by one 

commenter, modifying the call system so the 

accessible elevator can be summoned 

independently is another means of 

complying with this requirement in lieu of 

altering all other elevators programmed to 

respond to the same call button. Therefore, 

the Department has decided not to return this 

requirement to the Access Board. 

Location of accessible routes to stages. The 

1991 Standards at section 4.33.5 require an 

accessible route to connect the accessible 

seating and the stage, as well as other 

ancillary spaces used by performers. The 

2010 Standards at section 206.2.6 provide in 

addition that where a circulation path 

directly connects the seating area and the 

stage, the accessible route must directly 

connect the accessible seating and the stage, 

and, like the 1991 Standards, an accessible 

route must connect the stage with the 

ancillary spaces used by performers. 

In the NPRM, the Department asked 

operators of auditoria about the extent to 

which auditoria already provide direct access 

to stages and whether there were planned 

alterations over the next 15 years that 

included accessible direct routes to stages. 

The Department also asked how to quantify 

the benefits of this requirement for persons 

with disabilities, and invited commenters to 

provide illustrative anecdotal experiences 

about the requirement’s benefits. The 

Department received many comments 

regarding the costs and benefits of this 

requirement. Although little detail was 

provided, many industry and governmental 

entity commenters anticipated that the costs 

of this requirement would be great and that 

it would be difficult to implement. They 

noted that premium seats may have to be 

removed and that load-bearing walls may 

have to be relocated. These commenters 

suggested that the significant costs would 

deter alterations to the stage area for a great 

many auditoria. Some commenters suggested 

that ramps to the front of the stage may 

interfere with means of egress and emergency 

exits. Several commenters requested that the 

requirement apply to new construction only, 

and one industry commenter requested an 

exemption for stages used in arenas or 

amusement parks where there is no audience 

participation or where the stage is a work 

area for performers only. One commenter 

requested that the requirement not apply to 

temporary stages. 

The final rule does not require a direct 

accessible route to be constructed where a 

direct circulation path from the seating area 

to the stage does not exist. Consequently, 

those commenters who expressed concern 

about the burden imposed by the revised 

requirement (i.e., where the stage is 

constructed with no direct circulation path 

connecting the general seating and 

performing area) should note that the final 

rule will not require the provision of a direct 

accessible route under these circumstances. 

The final rule applies to permanent stages, as 

well as ‘‘temporary stages,’’ if there is a direct 

circulation path from the seating area to the 

stage. However, the Department does 

recognize that in some circumstances, such 

as an alteration to a primary function area, 

the ability to provide a direct accessible route 

to a stage may be costly or technically 

infeasible, the auditorium owner is not 

precluded by the revised requirement from 

asserting defenses available under the 

regulation. In addition, the Department notes 

that since section 4.33.5 of the 1991 

Standards requires an accessible route to a 

stage, the safe harbor will apply to existing 

facilities whose stages comply with the 1991 

Standards. 

Several governmental entities supported 

accessible auditoria and the revised 

requirement. One governmental entity noted 

that its State building code already required 

direct access, that it was possible to provide 

direct access, and that creative solutions had 

been found to do so. 

Many advocacy groups and individual 

commenters strongly supported the revised 

requirement, discussing the acute need for 

direct access to stages as it impacts a great 

number of people at important life events 

such as graduations and awards ceremonies, 

at collegiate and competitive performances 

and other school events, and at entertainment 

events that include audience participation. 

Many commenters expressed the belief that 

direct access is essential for integration 

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4The Supreme Court in Tennessee v. Lane, 541 

U.S. 509, 533–534 (2004), held that title II of the 

ADA constitutes a valid exercise of Congress’ 

enforcement power under the Fourteenth 

Amendment in cases implicating the fundamental 

right of access to the courts. 

mandates to be satisfied and that separate 

routes are stigmatizing and unequal. The 

Department agrees with these concerns. 

Commenters described the impact felt by 

persons in wheelchairs who are unable to 

access the stage at all when others are able 

to do so. Some of these commenters also 

discussed the need for performers and 

production staff who use wheelchairs to have 

direct access to the stage and provided a 

number of examples that illustrated the 

importance of the rule proposed in the 

NPRM. Personal anecdotes were provided in 

comments and at the Department’s public 

hearing on the NPRM. One mother spoke 

passionately and eloquently about the 

unequal treatment experienced by her 

daughter, who uses a wheelchair, at awards 

ceremonies and band concerts. Her daughter 

was embarrassed and ashamed to be carried 

by her father onto a stage at one band 

concert. When the venue had to be changed 

for another concert to an accessible 

auditorium, the band director made sure to 

comment that he was unhappy with the 

switch. Rather than endure the 

embarrassment and indignities, her child 

dropped out of band the following year. 

Another father commented about how he was 

unable to speak from the stage at a PTA 

meeting at his child’s school. Speaking from 

the floor limited his line of sight and his 

participation. Several examples were 

provided of children who could not 

participate on stage during graduation, 

awards programs, or special school events, 

such as plays and festivities. One student did 

not attend his college graduation because he 

would not be able to get on stage. Another 

student was unable to participate in the class 

Christmas programs or end-of-year parties 

unless her father could attend and lift her 

onto the stage. These commenters did not 

provide a method to quantify the benefits 

that would accrue by having direct access to 

stages. One commenter stated, however, that 

‘‘the cost of dignity and respect is without 

measure.’’ 

Many industry commenters and 

governmental entities suggested that the 

requirement be sent back to the Access Board 

for further consideration. One industry 

commenter mistakenly noted that some 

international building codes do not 

incorporate the requirement and that 

therefore there is a need for further 

consideration. However, the Department 

notes that both the 2003 and 2006 editions 

of the IBC include scoping provisions that are 

almost identical to this requirement and that 

these editions of the model code are the most 

frequently used. Many individuals and 

advocacy group commenters requested that 

the requirement be adopted without further 

delay. These commenters spoke of the acute 

need for direct access to stages and the 

amount of time it would take to resubmit the 

requirement to the Access Board. Several 

commenters noted that the 2004 ADAAG 

tracks recent model codes and thus there is 

no need for further consideration. The 

Department agrees that no further delay is 

necessary and therefore has decided not to 

return the requirement to the Access Board 

for further consideration. 

Attorney areas and witness stands. The 

1991 Standards do not require that public 

entities meet specific architectural standards 

with regard to the construction and alteration 

of courtrooms and judicial facilities. Because 

it is apparent that the judicial facilities of 

State and local governments have often been 

inaccessible to individuals with disabilities, 

as part of the NPRM, the Department 

proposed the adoption of sections 206.2.4, 

231.2, 808, 304, 305, and 902 of the 2004 

ADAAG concerning judicial facilities and 

courtrooms, including requirements for 

accessible courtroom stations and accessible 

jury boxes and witness stands. 

Those who commented on access to 

judicial facilities and courtrooms uniformly 

favored the adoption of the 2010 Standards. 

Virtually all of the commenters stated that 

accessible judicial facilities are crucial to 

ensuring that individuals with disabilities are 

afforded due process under law and have an 

equal opportunity to participate in the 

judicial process. None of the commenters 

favored returning this requirement to the 

Access Board for further consideration. 

The majority of commenters, including 

many disability rights and advocacy 

organizations, stated that it is crucial for 

individuals with disabilities to have effective 

and meaningful access to our judicial system 

so as to afford them due process under law. 

They objected to asking the Access Board to 

reconsider this requirement. In addition to 

criticizing the initial RIA for virtually 

ignoring the intangible and non-monetary 

benefits associated with accessible 

courtrooms, these commenters frequently 

cited the Supreme Court’s decision in 

Tennessee v. Lane, 541 U.S. 509, 531 (2004),4

as ample justification for the requirement, 

noting the Court’s finding that ‘‘[t]he unequal 

treatment of disabled persons in the 

administration of judicial services has a long 

history, and has persisted despite several 

legislative efforts to remedy the problem of 

disability discrimination.’’ Id. at 531. These 

commenters also made a number of 

observations, including the following: 

providing effective access to individuals with 

mobility impairments is not possible when 

architectural barriers impede their path of 

travel and negatively emphasize an 

individual’s disability; the perception 

generated by makeshift accommodations 

discredits witnesses and attorneys with 

disabilities, who should not be stigmatized or 

treated like second-class citizens; the cost of 

accessibility modifications to existing 

courthouses can often be significantly 

decreased by planning ahead, by focusing on 

low-cost options that provide effective 

access, and by addressing existing barriers 

when reasonable modifications to the 

courtroom can be made; by planning ahead 

and by following best practices, jurisdictions 

can avoid those situations where it is 

apparent that someone’s disability is the 

reason why ad hoc arrangements have to be 

made prior to the beginning of court 

proceedings; and accessibility should be a 

key concern during the planning and 

construction process so as to ensure that both 

courtroom grandeur and accessibility are 

achieved. One commenter stated that, in 

order for attorneys with disabilities to 

perform their professional duties to their 

clients and the court, it is essential that 

accessible courtrooms, conference rooms, law 

libraries, judicial chambers, and other areas 

of a courthouse be made barrier-free by 

taking accessible design into account prior to 

construction. 

Numerous commenters identified a variety 

of benefits that would accrue as a result of 

requiring judicial facilities to be accessible. 

These included the following: maintaining 

the decorum of the courtroom and 

eliminating the disruption of court 

proceedings when individuals confront 

physical barriers; providing an accessible 

route to the witness stand and attorney area 

and clear floor space to accommodate a 

wheelchair within the witness area; 

establishing crucial lines of sight between the 

judge, jury, witnesses, and attorneys—which 

commenters described as crucial; ensuring 

that the judge and the jury will not miss key 

visual indicators of a witness; maintaining a 

witness’s or attorney’s dignity and 

credibility; shifting the focus from a witness’s 

disability to the substance of that person’s 

testimony; fostering the independence of an 

individual with disability; allowing persons 

with mobility impairments to testify as 

witnesses, including as expert witnesses; 

ensuring the safety of various participants in 

a courtroom proceeding; and avoiding 

unlawful discrimination. One commenter 

stated that equal access to the well of the 

courtroom for both attorney and client is 

important for equal participation and 

representation in our court system. Other 

commenters indicated that accessible judicial 

facilities benefit a wide range of people, 

including many persons without disabilities, 

senior citizens, parents using strollers with 

small children, and attorneys and court 

personnel wheeling documents into the 

courtroom. One commenter urged the 

adoption of the work area provisions because 

they would result in better workplace 

accessibility and increased productivity. 

Several commenters urged the adoption of 

the rule because it harmonizes the ADAAG 

with the model IBC, the standards developed 

by the American National Standards Institute 

(ANSI), and model codes that have been 

widely adopted by State and local building 

departments, thus increasing the prospects 

for better understanding and compliance 

with the ADAAG by architects, designers, 

and builders. 

Several commenters mentioned the report 

‘‘Justice for All: Designing Accessible 

Courthouses’’ (Nov. 15, 2006), available at 

http://www.access-board.gov/caac/ 

report.htm (Nov. 24, 2009) (last visited June 

24, 2010). The report, prepared by the 

Courthouse Access Advisory Committee for 

the Access Board, contained 

recommendations for the Board’s use in 

developing and disseminating guidance on 

accessible courthouse design under the ADA 

and the ABA. These commenters identified 

some of the report’s best practices concerning 

courtroom accessibility for witness stands, 

jury boxes, and attorney areas; addressed the 

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costs and benefits arising from the use of 

accessible courtrooms; and recommended 

that the report be incorporated into the 

Department’s final rule. With respect to 

existing courtrooms, one commenter in this 

group suggested that consideration be given 

to ensuring that there are barrier-free 

emergency evacuation routes for all persons 

in the courtroom, including different 

evacuation routes for different classes of 

individuals given the unique nature of 

judicial facilities and courtrooms. 

The Department declines to incorporate the 

report into the regulation. However, the 

Department encourages State and local 

governments to consult the Committee report 

as a useful guide on ways to facilitate and 

increase accessibility of their judicial 

facilities. The report includes many excellent 

examples of accessible courtroom design. 

One commenter proposed that the 

regulation also require a sufficient number of 

accessible benches for judges with 

disabilities. Under section 206.2.4 of the 

2004 ADAAG, raised courtroom stations used 

by judges and other judicial staff are not 

required to provide full vertical access when 

first constructed or altered, as long as the 

required clear floor space, maneuvering 

space, and any necessary electrical service 

for future installation of a means of vertical 

access, is provided at the time of new 

construction or can be achieved without 

substantial reconstruction during alterations. 

The Department believes that this standard 

easily allows a courtroom station to be 

adapted to provide vertical access in the 

event a judge requires an accessible judge’s 

bench. 

The Department received several anecdotal 

accounts of courtroom experiences of 

individuals with disabilities. One commenter 

recalled numerous difficulties that her law 

partner faced as the result of inaccessible 

courtrooms, and their concerns that the 

attention of judge and jury was directed away 

from the merits of case to the lawyer and his 

disability. Among other things, the lawyer 

had to ask the judges on an appellate panel 

to wait while he maneuvered through 

insufficient space to the counsel table; ask 

judges to relocate bench conferences to 

accessible areas; and make last-minute 

preparations and rearrangements that his 

peers without disabilities did not have to 

make. Another commenter with extensive 

experience as a lawyer, witness, juror, and 

consultant observed that it is common 

practice for a witness who uses mobility 

devices to sit in front of the witness stand. 

He described how disconcerting and 

unsettling it has been for him to testify in 

front of the witness stand, which allowed 

individuals in the courtroom to see his hands 

or legs shaking because of spasticity, making 

him feel like a second-class citizen. 

Two other commenters with mobility 

disabilities described their experiences 

testifying in court. One accessibility 

consultant stated that she was able to 

represent her clients successfully when she 

had access to an accessible witness stand 

because it gave her the ability ‘‘to look the 

judge in the eye, speak comfortably and be 

heard, hold up visual aids that could be seen 

by the judge, and perform without an 

architectural stigma.’’ She did not believe that 

she was able to achieve a comparable 

outcome or have meaningful access to the 

justice system when she testified from an 

inaccessible location. Similarly, a licensed 

clinical social worker indicated that she has 

testified in several cases in accessible 

courtrooms, and that having full access to the 

witness stand in the presence of the judge 

and the jury was important to her 

effectiveness as an expert witness. She noted 

that accessible courtrooms often are not 

available, and that she was aware of 

instances in which victims, witnesses, and 

attorneys with disabilities have not been able 

to obtain needed disability accommodations 

in order to fulfill their roles at trial. 

Two other commenters indicated that they 

had been chosen for jury duty but that they 

were effectively denied their right to 

participate as jurors because the courtrooms 

were not accessible. Another commenter 

indicated that he has had to sit apart from the 

other jurors because the jury box was 

inaccessible. 

A number of commenters expressed 

approval of actions taken by States to 

facilitate access in judicial facilities. A 

member of a State commission on disability 

noted that the State had been working toward 

full accessibility since 1997 when the 

Uniform Building Code required interior 

accessible routes. This commenter stated that 

the State’s district courts had been renovated 

to the maximum extent feasible to provide 

greater access. This commenter also noted 

that a combination of Community 

Development Block Grant money and State 

funds are often awarded for renovations of 

courtroom areas. One advocacy group that 

has dealt with court access issues stated that 

members of the State legal community and 

disability advocates have long been 

promoting efforts to ensure that the State 

courts are accessible to individuals with 

disabilities. The comment cited a publication 

distributed to the Washington State courts by 

the State bar association entitled, ‘‘Ensuring 

Equal Access to the Courts for Persons with 

Disabilities.’’ (Aug. 2006), available at http:// 

www.wsba.org/ensuringaccessguidebook.pdf 

(last visited July 20, 2010). In addition, the 

commenter also indicated that the State 

supreme court had promulgated a new rule 

governing how the courts should respond to 

requests of accommodation based upon 

disability; the State legislature had created 

the position of Disability Access Coordinator 

for Courts to facilitate accessibility in the 

court system; and the State legislature had 

passed a law requiring that all planned 

improvements and alterations to historic 

courthouses be approved by the ADA State 

facilities program manager and committee in 

order to ensure that the alterations will 

enhance accessibility. 

The Department has decided to adopt the 

requirements in the 2004 ADAAG with 

respect to judicial facilities and courtrooms 

and will not ask the Access Board to review 

these requirements. The final rule is wholly 

consistent with the objectives of the ADA. It 

addresses a well-documented history of 

discrimination with respect to judicial 

administration and significantly increases 

accessibility for individuals with disabilities. 

It helps ensure that they will have an 

opportunity to participate equally in the 

judicial process. As stated, the final rule is 

consistent with a number of model and local 

building codes that have been widely 

adopted by State and local building 

departments and provides greater uniformity 

for planners, architects, and builders. 

Assistive listening systems. The 1991 

Standards at sections 4.33.6 and 4.33.7 

require assistive listening systems (ALS) in 

assembly areas and prescribe general 

performance standards for ALS systems. In 

the NPRM, the Department proposed 

adopting the technical specifications in the 

2004 ADAAG for ALS that are intended to 

ensure better quality and effective delivery of 

sound and information for persons with 

hearing impairments, especially those using 

hearing aids. The Department noted in the 

NPRM that since 1991, advancements in ALS 

and the advent of digital technology have 

made these systems more amenable to 

uniform standards, which, among other 

things, should ensure that a certain 

percentage of required ALS systems are 

hearing-aid compatible. 73 FR 34466, 34471 

(June 17, 2008). The 2010 Standards at 

section 219 provide scoping requirements 

and at section 706 address receiver jacks, 

hearing aid compatibility, sound pressure 

level, signal-to-noise ratio, and peak clipping 

level. The Department requested comments 

specifically from arena and assembly area 

administrators on the cost and maintenance 

issues associated with ALS, asked generally 

about the costs and benefits of ALS, and 

asked whether, based upon the expected 

costs of ALS, the issue should be returned to 

the Access Board for further consideration. 

Comments from advocacy organizations 

noted that persons who develop significant 

hearing loss often discontinue their normal 

routines and activities, including meetings, 

entertainment, and large group events, due to 

a sense of isolation caused by the hearing 

loss or embarrassment. Individuals with 

longstanding hearing loss may never have 

participated in group activities for many of 

the same reasons. Requiring ALS may allow 

individuals with disabilities to contribute to 

the community by joining in government and 

public events, and increasing economic 

activity associated with community activities 

and entertainment. Making public events and 

entertainment accessible to persons with 

hearing loss also brings families and other 

groups that include persons with hearing loss 

into more community events and activities, 

thus exponentially increasing the benefit 

from ALS. 

Many commenters noted that when a 

person has significant hearing loss, that 

person may be able to hear and understand 

information in a quiet situation with the use 

of hearing aids or cochlear implants; 

however, as background noise increases and 

the distance between the source of the sound 

and the listener grows, and especially where 

there is distortion in the sound, an ALS 

becomes essential for basic comprehension 

and understanding. Commenters noted that 

among the 31 million Americans with 

hearing loss, and with a projected increase to 

over 78 million Americans with hearing loss 

by 2030, the benefit from ALS is huge and 

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56234 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

growing. Advocates for persons with 

disabilities and individuals commented that 

they appreciated the improvements in the 

2004 ADAAG standards for ALS, including 

specifications for the ALS systems and 

performance standards. They noted that 

neckloops that translate the signal from the 

ALS transmitter to a frequency that can be 

heard on a hearing aid or cochlear implant 

are much more effective than separate ALS 

system headsets, which sometimes create 

feedback, often malfunction, and may create 

distractions for others seated nearby. 

Comments from advocates and users of ALS 

systems consistently noted that the 

Department’s regulation should, at a 

minimum, be consistent with the 2004 

ADAAG. Although there were requests for 

adjustments in the scoping requirements 

from advocates seeking increased scoping 

requirements, and from large venue operators 

seeking fewer requirements, there was no 

significant concern expressed by commenters 

about the technical specifications for ALS in 

the 2004 ADAAG. 

Some commenters from trade associations 

and large venue owners criticized the 

scoping requirements as too onerous and one 

commenter asked for a remand to the Access 

Board for new scoping rules. However, one 

State agency commented that the 2004 

ADAAG largely duplicates the requirements 

in the 2006 IBC and the 2003 ANSI codes, 

which means that entities that comply with 

those standards would not incur additional 

costs associated with ADA compliance. 

According to one State office of the courts, 

the cost to install either an infrared system 

or an FM system at average-sized facilities, 

including most courtrooms covered by title 

II, would be between $500 and $2,000, which 

the agency viewed as a small price in 

comparison to the benefits of inclusion. 

Advocacy organizations estimated wholesale 

costs of ALS systems at about $250 each and 

individual neckloops to link the signal from 

the ALS transmitter to hearing aids or 

cochlear implants at less than $50 per unit. 

Many commenters pointed out that if a 

facility already is using induction neckloops, 

it would already be in compliance and would 

not have any additional installation costs. 

One major city commented that annual 

maintenance is about $2,000 for the entire 

system of performance venues in the city. A 

trade association representing very large 

venues estimated annual maintenance and 

upkeep expenses, including labor and 

replacement parts, to be at most about 

$25,000 for a very large professional sports 

stadium. 

One commenter suggested that the scoping 

requirements for ALS in the 2004 ADAAG 

were too stringent and that the Department 

should return them to the Access Board for 

further review and consideration. Others 

commented that the requirement for new 

ALS systems should mandate multichannel 

receivers capable of receiving audio 

description for persons who are blind, in 

addition to a channel for amplification for 

persons who are hard of hearing. Some 

comments suggested that the Department 

should require a set schedule and protocol of 

mandatory maintenance. Department 

regulations already require maintenance of 

accessible features at § 35.133(a) of the title 

II regulation, which obligates a title II entity 

to maintain ALS in good working order. The 

Department recognizes that maintenance of 

ALS is key to its usability. Necessary 

maintenance will vary dramatically from 

venue to venue based upon a variety of 

factors including frequency of use, number of 

units, quality of equipment, and others items. 

Accordingly, the Department has determined 

that it is not appropriate to mandate details 

of maintenance, but notes that failure to 

maintain ALS would violate § 35.133(a) of 

this rule. 

The NPRM asked whether the Department 

should return the issue of ALS requirements 

to the Access Board. The Department has 

received substantial feedback on the 

technical and scoping requirements for ALS 

and is convinced that these requirements are 

reasonable and that the benefits justify the 

requirements. In addition, the Department 

believes that the new specifications will 

make ALS work more effectively for more 

persons with disabilities, which, together 

with a growing population of new users, will 

increase demand for ALS, thus mooting 

criticism from some large venue operators 

about insufficient demand. Thus, the 

Department has determined that it is 

unnecessary to refer this issue back to the 

Access Board for reconsideration. 

Accessible teeing grounds, putting greens, 

and weather shelters. In the NPRM, the 

Department sought public input on the 

proposed requirements for accessible golf 

courses. These requirements specifically 

relate to accessible routes within the 

boundaries of courses, as well as the 

accessibility of golfing elements (e.g., teeing 

grounds, putting greens, weather shelters). 

In the NPRM, the Department sought 

information from the owners and operators of 

golf courses, both public and private, on the 

extent to which their courses already have 

golf car passages, and, if so, whether they 

intended to avail themselves of the proposed 

accessible route exception for golf car 

passages. 73 FR 34466, 34471 (June 17, 2008). 

Most commenters expressed support for 

the adoption of an accessible route 

requirement that includes an exception 

permitting golf car passage as all or part of 

an accessible route. Comments in favor of the 

proposed standard came from golf course 

owners and operators, individuals, 

organizations, and disability rights groups, 

while comments opposing adoption of the 

golf course requirements generally came from 

golf courses and organizations representing 

the golf course industry. 

The majority of commenters expressed the 

general viewpoint that nearly all golf courses 

provide golf cars and have either welldefined paths or permit golf cars to drive on 

the course where paths are not present, thus 

meeting the accessible route requirement. 

Several commenters disagreed with the 

assumption in the initial RIA, that virtually 

every tee and putting green on an existing 

course would need to be regraded in order to 

provide compliant accessible routes. 

According to one commenter, many golf 

courses are relatively flat with little slope, 

especially those heavily used by recreational 

golfers. This commenter concurred with the 

Department that it is likely that most existing 

golf courses have a golf car passage to tees 

and greens, thereby substantially minimizing 

the cost of bringing an existing golf course 

into compliance with the proposed 

standards. One commenter reported that golf 

course access audits found that the vast 

majority of public golf courses would have 

little difficulty in meeting the proposed golf 

course requirements. In the view of some 

commenters, providing access to golf courses 

would increase golf participation by 

individuals with disabilities. 

The Department also received many 

comments requesting clarification of the term 

‘‘golf car passage.’’ For example, one 

commenter requesting clarification of the 

term ‘‘golf car passage’’ argued that golf 

courses typically do not provide golf car 

paths or pedestrian paths onto the actual 

teeing grounds or greens, many of which are 

higher or lower than the car path. This 

commenter argued that if golf car passages 

were required to extend onto teeing grounds 

and greens in order to qualify for an 

exception, then some golf courses would 

have to substantially regrade teeing grounds 

and greens at a high cost. 

After careful consideration of the 

comments, the Department has decided to 

adopt the 2010 Standards specific to golf 

facilities. The Department believes that in 

order for individuals with mobility 

disabilities to have an opportunity to play 

golf that is equal to golfers without 

disabilities, it is essential that golf courses 

provide an accessible route or accessible golf 

car passage to connect accessible elements 

and spaces within the boundary of the golf 

course, including teeing grounds, putting 

greens, and weather shelters. 

Public Comments on Other NPRM Issues 

Equipment and furniture. In the 1991 title 

II regulation, there are no specific provisions 

addressing equipment and furniture, 

although § 35.150(b) states that one means by 

which a public entity can make its program 

accessible to individuals with disabilities is 

‘‘redesign of equipment.’’ In the NPRM, the 

Department announced its intention not to 

regulate equipment, proposing instead to 

continue with the current approach, under 

which equipment and furniture are covered 

by other provisions, including those 

requiring reasonable modifications of 

policies, practices, or procedures, program 

accessibility, and effective communication. 

The Department suggested that entities apply 

the accessibility standards for fixed 

equipment in the 2004 ADAAG to analogous 

free-standing equipment in order to ensure 

that such equipment is accessible, and that 

entities consult relevant portions of the 2004 

ADAAG and standards from other Federal 

agencies to make equipment accessible to 

individuals who are blind or have low vision 

(e.g., the communication-related standards 

for ATMs in the 2004 ADAAG). 

The Department received numerous 

comments objecting to this decision and 

urging the Department to issue equipment 

and furniture regulations. Based on these 

comments, the Department has decided that 

it needs to revisit the issuance of equipment 

and furniture regulations and it intends to do 

so in future rulemaking. 

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Among the commenters’ key concerns, 

many from the disability community and 

some public entities, were objections to the 

Department’s earlier decision not to issue 

equipment regulations, especially for medical 

equipment. These groups recommended that 

the Department list by name certain types of 

medical equipment that must be accessible, 

including exam tables (that lower to 15 

inches above floor or lower), scales, medical 

and dental chairs, and radiologic equipment 

(including mammography equipment). These 

commenters emphasized that the provision of 

medically related equipment and furniture 

should also be specifically regulated since 

they are not included in the 2004 ADAAG 

(while depositories, change machines, fuel 

dispensers, and ATMs were) and because of 

their crucial role in the provision of 

healthcare. Commenters described how the 

lack of accessible medical equipment 

negatively affects the health of individuals 

with disabilities. For example, some 

individuals with mobility disabilities do not 

get thorough medical care because their 

health providers do not have accessible 

examination tables or scales. 

Commenters also said that the 

Department’s stated plan to assess the 

financial impact of free-standing equipment 

on businesses was not necessary, as any 

regulations could include a financial 

balancing test. Other commenters 

representing persons who are blind or have 

low vision urged the Department to mandate 

accessibility for a wide range of equipment— 

including household appliances (stoves, 

washers, microwaves, and coffee makers), 

audiovisual equipment (stereos and DVD 

players), exercise machines, vending 

equipment, ATMs, computers at Internet 

cafes or hotel business centers, reservations 

kiosks at hotels, and point-of-sale devices— 

through speech output and tactile labels and 

controls. They argued that modern 

technology allows such equipment to be 

made accessible at minimal cost. According 

to these commenters, the lack of such 

accessibility in point-of-sale devices is 

particularly problematic because it forces 

blind individuals to provide personal or 

sensitive information (such as personal 

identification numbers) to third parties, 

which exposes them to identity fraud. 

Because the ADA does not apply directly to 

the manufacture of products, the Department 

lacks the authority to issue design 

requirements for equipment designed 

exclusively for use in private homes. See 

Department of Justice, Americans with 

Disabilities Act, ADA Title III Technical 

Assistance Manual Covering Public 

Accommodations and Commercial Facilities, 

III–4.4200, available at http://www.ada.gov/ 

taman3. 

Some commenters urged the Department to 

require swimming pool operators to provide 

aquatic wheelchairs for the use of persons 

with disabilities when the swimming pool 

has a sloped entry. If there is a sloped entry, 

a person who uses a wheelchair would 

require a wheelchair designed for use in the 

water in order to gain access to the pool 

because taking a personal wheelchair into 

water would rust and corrode the metal on 

the chair and damage any electrical 

components of a power wheelchair. 

Providing an aquatic wheelchair made of 

non-corrosive materials and designed for 

access into the water will protect the water 

from contamination and avoid damage to 

personal wheelchairs or other mobility aids. 

Additionally, many commenters urged the 

Department to regulate the height of beds in 

accessible hotel guest rooms and to ensure 

that such beds have clearance at the floor to 

accommodate a mechanical lift. These 

commenters noted that in recent years, hotel 

beds have become higher as hotels use 

thicker mattresses, thereby making it difficult 

or impossible for many individuals who use 

wheelchairs to transfer onto hotel beds. In 

addition, many hotel beds use a solid-sided 

platform base with no clearance at the floor, 

which prevents the use of a portable lift to 

transfer an individual onto the bed. 

Consequently, individuals who bring their 

own lift to transfer onto the bed cannot 

independently get themselves onto the bed. 

Some commenters suggested various design 

options that might avoid these situations. 

The Department intends to provide specific 

guidance relating to both hotel beds and 

aquatic wheelchairs in a future rulemaking. 

For the present, the Department reminds 

covered entities that they have an obligation 

to undertake reasonable modifications to 

their current policies and to make their 

programs accessible to persons with 

disabilities. In many cases, providing aquatic 

wheelchairs or adjusting hotel bed heights 

may be necessary to comply with those 

requirements. 

The Department has decided not to add 

specific scoping or technical requirements for 

equipment and furniture in this final rule. 

Other provisions of the regulation, including 

those requiring reasonable modifications of 

policies, practices, or procedures, program 

accessibility, and effective communication 

may require the provision of accessible 

equipment in individual circumstances. The 

1991 title II regulation at § 35.150(a) requires 

that entities operate each service, program, or 

activity so that, when viewed in its entirety, 

each is readily accessible to, and usable by, 

individuals with disabilities, subject to a 

defense of fundamental alteration or undue 

financial and administrative burdens. Section 

35.150(b) specifies that such entities may 

meet their program accessibility obligation 

through the ‘‘redesign of equipment.’’ The 

Department expects to undertake a 

rulemaking to address these issues in the 

near future. 

Accessible golf cars. An accessible golf car 

means a device that is designed and 

manufactured to be driven on all areas of a 

golf course, is independently usable by 

individuals with mobility disabilities, has a 

hand-operated brake and accelerator, carries 

golf clubs in an accessible location, and has 

a seat that both swivels and raises to put the 

golfer in a standing or semi-standing 

position. 

The 1991 title II regulation contained no 

language specifically referencing accessible 

golf cars. After considering the comments 

addressing the ANPRM’s proposed 

requirement that golf courses make at least 

one specialized golf car available for the use 

of individuals with disabilities, and the 

safety of accessible golf cars and their use on 

golf course greens, the Department stated in 

the NPRM that it would not issue regulations 

specific to golf cars. 

The Department received many comments 

in response to its decision to propose no new 

regulation specific to accessible golf cars. The 

majority of commenters urged the 

Department to require golf courses to provide 

accessible golf cars. These comments came 

from individuals, disability advocacy and 

recreation groups, a manufacturer of 

accessible golf cars, and representatives of 

local government. Comments supporting the 

Department’s decision not to propose a new 

regulation came from golf course owners, 

associations, and individuals. 

Many commenters argued that while the 

existing title II regulation covered the issue, 

the Department should nonetheless adopt 

specific regulatory language requiring golf 

courses to provide accessible golf cars. Some 

commenters noted that many local 

governments and park authorities that 

operate public golf courses have already 

provided accessible golf cars. Experience 

indicates that such golf cars may be used 

without damaging courses. Some argued that 

having accessible golf cars would increase 

golf course revenue by enabling more golfers 

with disabilities to play the game. Several 

commenters requested that the Department 

adopt a regulation specifically requiring each 

golf course to provide one or more accessible 

golf cars. Other commenters recommended 

allowing golf courses to make ‘‘pooling’’ 

arrangements to meet demands for such cars. 

A few commenters expressed support for 

using accessible golf cars to accommodate 

golfers with and without disabilities. 

Commenters also pointed out that the 

Departments of the Interior and Defense have 

already mandated that golf courses under 

their jurisdictional control must make 

accessible golf cars available unless it can be 

demonstrated that doing so would change the 

fundamental nature of the game. 

While an industry association argued that 

at least two models of accessible golf cars 

meet the specifications recognized in the 

field, and that accessible golf cars cause no 

more damage to greens or other parts of golf 

courses than players standing or walking 

across the course, other commenters 

expressed concerns about the potential for 

damage associated with the use of accessible 

golf cars. Citing safety concerns, golf 

organizations recommended that an industry 

safety standard be developed. 

Although the Department declines to add 

specific scoping or technical requirements for 

golf cars to this final rule, the Department 

expects to address requirements for 

accessible golf cars in future rulemaking. In 

the meantime, the Department believes that 

golfers with disabilities who need accessible 

golf cars are protected by other existing 

provisions in the title II regulation, including 

those requiring reasonable modifications of 

policies, practices, or procedures, and 

program accessibility. 

Web site accessibility. Many commenters 

expressed disappointment that the NPRM did 

not require title II entities to make their Web 

sites, through which they offer programs and 

services, accessible to individuals with 

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disabilities, including those who are blind or 

have low vision. Commenters argued that the 

cost of making Web sites accessible, through 

Web site design, is minimal, yet critical to 

enabling individuals with disabilities to 

benefit from the entity’s programs and 

services. Internet Web sites, when accessible, 

provide individuals with disabilities great 

independence, and have become an essential 

tool for many Americans. Commenters 

recommended that the Department require 

covered entities, at a minimum, to meet the 

section 508 Standard for Electronic and 

Information Technology for Internet 

accessibility. Under section 508 of the 

Rehabilitation Act of 1973, Federal agencies 

are required to make their Web sites 

accessible. 29 U.S.C. 794(d); 36 CFR 1194. 

The Department agrees that the ability to 

access, on an equal basis, the programs and 

activities offered by public entities through 

Internet-based Web sites is of great 

importance to individuals with disabilities, 

particularly those who are blind or who have 

low vision. When the ADA was enacted in 

1990, the Internet was unknown to most 

Americans. Today, the Internet plays a 

critical role in daily life for personal, civic, 

commercial, and business purposes. In a 

period of shrinking resources, public entities 

increasingly rely on the web as an efficient 

and comprehensive way to deliver services 

and to inform and communicate with their 

citizens and the general public. In light of the 

growing importance Web sites play in 

providing access to public services and to 

disseminating the information citizens need 

to participate fully in civic life, accessing the 

Web sites of public entities can play a 

significant role in fulfilling the goals of the 

ADA. 

Although the language of the ADA does not 

explicitly mention the Internet, the 

Department has taken the position that title 

II covers Internet Web site access. Public 

entities that choose to provide services 

through web-based applications (e.g., 

renewing library books or driver’s licenses) 

or that communicate with their constituents 

or provide information through the Internet 

must ensure that individuals with disabilities 

have equal access to such services or 

information, unless doing so would result in 

an undue financial and administrative 

burden or a fundamental alteration in the 

nature of the programs, services, or activities 

being offered. The Department has issued 

guidance on the ADA as applied to the Web 

sites of public entities in a 2003 publication 

entitled, Accessibility of State and Local 

Government Web sites to People with 

Disabilities, (June 2003) available at http:// 

www.ada.gov/websites2.htm. As the 

Department stated in that publication, an 

agency with an inaccessible Web site may 

also meet its legal obligations by providing 

an alternative accessible way for citizens to 

use the programs or services, such as a 

staffed telephone information line. However, 

such an alternative must provide an equal 

degree of access in terms of hours of 

operation and the range of options and 

programs available. For example, if job 

announcements and application forms are 

posted on an inaccessible Web site that is 

available 24 hours a day, seven days a week 

to individuals without disabilities, then the 

alternative accessible method must also be 

available 24 hours a day, 7 days a week. 

Additional guidance is available in the Web 

Content Accessibility Guidelines (WCAG), 

(May 5, 1999) available at http://www.w3.org/ 

TR/WAI–WEBCONTENT (last visited June 

24, 2010) which are developed and 

maintained by the Web Accessibility 

Initiative, a subgroup of the World Wide Web 

Consortium (W3C®). 

The Department expects to engage in 

rulemaking relating to website accessibility 

under the ADA in the near future. The 

Department has enforced the ADA in the area 

of website accessibility on a case-by-case 

basis under existing rules consistent with the 

guidance noted above, and will continue to 

do so until the issue is addressed in a final 

regulation. 

Multiple chemical sensitivities. The 

Department received comments from a 

number of individuals asking the Department 

to add specific language to the final rule 

addressing the needs of individuals with 

chemical sensitivities. These commenters 

expressed concern that the presence of 

chemicals interferes with their ability to 

participate in a wide range of activities. 

These commenters also urged the Department 

to add multiple chemical sensitivities to the 

definition of a disability. 

The Department has determined not to 

include specific provisions addressing 

multiple chemical sensitivities in the final 

rule. In order to be viewed as a disability 

under the ADA, an impairment must 

substantially limit one or more major life 

activities. An individual’s major life 

activities of respiratory or neurological 

functioning may be substantially limited by 

allergies or sensitivity to a degree that he or 

she is a person with a disability. When a 

person has this type of disability, a covered 

entity may have to make reasonable 

modifications in its policies and practices for 

that person. However, this determination is 

an individual assessment and must be made 

on a case-by-case basis. 

Examinations and Courses. The 

Department received one comment 

requesting that it specifically include 

language regarding examinations and courses 

in the title II regulation. Because section 309 

of the ADA 42 U.S.C. 12189, reaches ‘‘[a]ny 

person that offers examinations or courses 

related to applications, licensing, 

certification, or credentialing for secondary 

or post secondary education, professional, or 

trade purposes,’’ public entities also are 

covered by this section of the ADA. Indeed, 

the requirements contained in title II 

(including the general prohibitions against 

discrimination, the program access 

requirements, the reasonable modifications 

requirements, and the communications 

requirements) apply to courses and 

examinations administered by public entities 

that meet the requirements of section 309. 

While the Department considers these 

requirements to be sufficient to ensure that 

examinations and courses administered by 

public entities meet the section 309 

requirements, the Department acknowledges 

that the title III regulation, because it 

addresses examinations in some detail, is 

useful as a guide for determining what 

constitutes discriminatory conduct by a 

public entity in testing situations. See 28 CFR 

36.309. 

Hotel Reservations. In the NPRM, at 

§ 36.302(e), the Department proposed adding 

specific language to title III addressing the 

requirements that hotels, timeshare resorts, 

and other places of lodging make reasonable 

modifications to their policies, practices, or 

procedures, when necessary to ensure that 

individuals with disabilities are able to 

reserve accessible hotel rooms with the same 

efficiency, immediacy, and convenience as 

those who do not need accessible guest 

rooms. The NPRM did not propose adding 

comparable language to the title II regulation 

as the Department believes that the general 

nondiscrimination, program access, effective 

communication, and reasonable 

modifications requirements of title II provide 

sufficient guidance to public entities that 

operate places of lodging (i.e., lodges in State 

parks, hotels on public college campuses). 

The Department received no public 

comments suggesting that it add language on 

hotel reservations comparable to that 

proposed for the title III regulation. Although 

the Department continues to believe that it is 

unnecessary to add specific language to the 

title II regulation on this issue, the 

Department acknowledges that the title III 

regulation, because it addresses hotel 

reservations in some detail, is useful as a 

guide for determining what constitutes 

discriminatory conduct by a public entity 

that operates a reservation system serving a 

place of lodging. See 28 CFR 36.302(e). 

■ 18. Revise the heading to Appendix B 

to read as follows: 

Appendix B to Part 35—Guidance on 

ADA Regulation on Nondiscrimination 

on the Basis of Disability in State and 

Local Government Services Originally 

Published July 26, 1991 

Dated: July 23, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–21821 Filed 9–14–10; 8:45 am] 

BILLING CODE 4410–14–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 36 

[CRT Docket No. 106; AG Order No. 3181– 

2010] 

RIN 1190–AA44 

Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and in Commercial Facilities 

AGENCY: Department of Justice, Civil 

Rights Division. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Department of Justice (Department) 

regulation that implements title III of 

the Americans with Disabilities Act 

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