NOTICE:

The title III regulation was modified by the Pool Extension Final Rule, the ADA Amendments Act Final Rule, and the Movie Captioning and Audio Description Final Rule, which can be found in the Title III Regulation Supplement. This document and the supplement should be read together for the most up-to-date regulation.

Alternatively, the fully updated regulation is available in html. Americans with Disabilities Act Title III Regulations

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

Department of Justice September 15, 2010 Contents

1 Supplementary Information.....………...……... 1

Revised Final Title III Regulation 2 with Integrated Text...... 29

2010 Guidance and 3 Section-by-Section Analysis...... 65

1991 Preamble and 4 Section-by-Section Analysis...... 199

i ii Department of Justice Title IIIIII Regulations Regulations Supplementary Information

Department of Justice Department of Justice Department of Justice 28 CFR Part 36

DEPARTMENT OF JUSTICE of Justice, at (202) 307–0663 (voice or TTY). This is not a toll-free number. Information may also be 28 CFR Part 36 obtained from the Department’s toll-free ADA In- formation Line at (800) 514–0301 (voice) or (800) [CRT Docket No. 106; AG Order No. 3181– 514–0383 (TTY). 2010] This rule is also available in an accessible for- mat on the ADA Home Page at http://www.ada. RIN 1190–AA44 gov. You may obtain copies of this rule in large print or on computer disk by calling the ADA In- Nondiscrimination on the Basis of formation Line listed above. Disability by Public Accommodations and in Commercial Facilities SUPPLEMENTARY INFORMATION:

AGENCY: Department of Justice, Civil The Roles of the Access Board and the Depart- Rights Division. ment of Justice ACTION: Final rule. The Access Board was established by section 502 of the Rehabilitation Act of 1973. 29 U.S.C. SUMMARY: This final rule revises the Depart- 792. The Board consists of 13 public members ment of Justice (Department) regulation that appointed by the President, the majority of whom implements title III of the Americans with Disabil- must be individuals with disabilities, and the ities Act (ADA), relating to nondiscrimination on heads of 12 Federal departments and agencies the basis of disability by public accommodations specified by statute, including the heads of the De- and in commercial facilities. The Department is partment of Justice and the Department of Trans- issuing this final rule in order to adopt enforceable portation (DOT). Originally, the Access Board accessibility standards under the Americans with was established to develop and maintain accessi- Disabilities Act of 1990 (ADA) that are consistent bility guidelines for facilities designed, construct- with the minimum guidelines and requirements is- ed, altered, or leased with Federal dollars under sued by the Architectural and Transportation Bar- the Architectural Barriers Act of 1968 (ABA). 42 riers Compliance Board, and to update or amend U.S.C. 4151 et seq. The passage of the ADA ex- certain provisions of the title III regulation so that panded the Access Board’s responsibilities. they comport with the Department’s legal and The ADA requires the Access Board to ‘‘issue practical experiences in enforcing the ADA since minimum guidelines that shall supplement the 1991. Concurrently with the publication of the existing Minimum Guidelines and Requirements final rule for title III, the Department is publishing for Accessible Design for purposes of subchapters a final rule amending its ADA title II regulation, II and III of this chapter * * * to ensure that build- which covers nondiscrimination on the basis of ings, facilities, rail passenger cars, and vehicles disability in State and local government services. are accessible, in terms of architecture and design, transportation, and communication, to individu- DATES: Effective Date: March 15, 2011. als with disabilities.’’ 42 U.S.C. 12204. The ADA FOR FURTHER INFORMATION requires the Department to issue regulations that CONTACT: include enforceable accessibility standards appli- Janet L. Blizard, Deputy Chief, or Christina Galin- cable to facilities subject to title II or title III that do-Walsh, Attorney Advisor, Disability Rights are consistent with the ‘‘minimum guidelines’’ Section, Civil Rights Division, U.S. Department issued by the Access Board, 42 U.S.C. 12134(c),

Department of Justice Department of Justice Supplementary Information- 1 28 CFR Part 36

12186(c), but vests in the Attorney General sole in the business of transporting people (sections responsibility for the promulgation of those stan- 302(b)(2)(B) and (C)) and for private entities that dards that fall within the Department’s jurisdiction are primarily engaged in the business of transport- and enforcement of the regulations. ing people (section 304). See 42 U.S.C. 12182(b), The ADA also requires the Department to de- 12184, 12186(a). Section 306(b) directs the At- velop regulations with respect to existing facilities torney General to promulgate regulations to carry subject to title II (Subtitle A) and title III. How out the provisions of the rest of title III. 42 U.S.C. and to what extent the Access Board’s guidelines 12186(b). are used with respect to the barrier removal re- Title II applies to State and local government quirement applicable to existing facilities under entities, and, in Subtitle A, protects qualified in- title III of the ADA and to the provision of pro- dividuals with disabilities from discrimination gram accessibility under title II of the ADA are on the basis of disability in services, programs, solely within the discretion of the Department. and activities provided by State and local govern- ment entities. Title II extends the prohibition on Enactment of the ADA and Issuance of the 1991 discrimination established by section 504 of the Regulations Rehabilitation Act of 1973, as amended, 29 U.S.C. On July 26, 1990, President George H.W. 794 (section 504), to all activities of State and lo- Bush signed into law the ADA, a comprehensive cal governments regardless of whether these enti- civil rights law prohibiting discrimination on the ties receive Federal financial assistance. 42 U.S.C. basis of disability.1 The ADA broadly protects 12131–65. the rights of individuals with disabilities in em- Title III, which this rule addresses, prohibits ployment, access to State and local government discrimination on the basis of disability in the services, places of public accommodation, trans- activities of places of public accommodation portation, and other important areas of American (businesses that are generally open to the public life. The ADA also requires newly designed and and that fall into one of 12 categories listed in the constructed or altered State and local government ADA, such as restaurants, movie theaters, schools, facilities, public accommodations, and commer- day care facilities, recreation facilities, and doc- cial facilities to be readily accessible to and usable tors’ offices) and requires newly constructed or by individuals with disabilities. 42 U.S.C. 12101 altered places of public accommodation—as well et seq. Section 306(a) of the ADA directs the as commercial facilities (privately owned, nonresi- Secretary of Transportation to issue regulations dential facilities such as factories, warehouses, or for demand responsive or fixed route systems office buildings)—to comply with the ADA Stan- operated by private entities not primarily engaged dards. 42 U.S.C. 12181–89. On July 26, 1991, the Department issued rules 1 On September 25, 2008, President George W.Bush signed into law the Americans with Disabilities implementing title II and title III, which are codi- Amendments Act of 2008 (ADA Amendments Act), fied at 28 CFR part 35 (title II) and part 36 (title Public Law 110–325. The ADA Amendments Act III). Appendix A of the 1991 title III regulation, amended the ADA definition of disability to clarify its which is republished as Appendix D to 28 CFR coverage of persons with disabilities and to provide part 36, contains the ADA Standards for Acces- guidance on the application of the definition. This final sible Design (1991 Standards), which were based rule does not contain regulatory language implement- ing the ADA Amendments Act. The Department intends upon the version of the Americans with Disabili- to publish a supplemental rule to amend the regulatory ties Act Accessibility Guidelines (1991 ADAAG) definition of ‘‘disability’’ to implement the changes published by the Access Board on the same date. mandated by that law. Under the Department’s 1991 title III regulation,

2 - Supplementary Information Department of Justice 28 CFR Part 36 places of public accommodation and commercial codes to consider amendments that would promote facilities currently are required to comply with the further harmonization. In September of 2002, the 1991 Standards with respect to newly constructed Access Board set forth specific guidelines on rec- or altered facilities. reation facilities. 67 FR 56352 (Sept. 3, 2002). The Access Board’s publication of the 2004 By the date of its final publication on ADA/ABA Guidelines was the culmination of a July 23, 2004, the 2004 ADA/ABA Guidelines long-term effort to facilitate ADA compliance by had been the subject of extraordinary review and eliminating, to the extent possible, inconsistencies public participation. The Access Board received among Federal accessibility requirements and be- more than 2,500 comments from individuals tween Federal accessibility requirements and State with disabilities, affected industries, State and lo- and local building codes. In support of this effort, cal governments, and others. The Access Board the Department is amending its regulation imple- provided further opportunity for participation by menting title III and adopting standards consistent holding public hearings. with ADA Chapter 1, ADA Chapter 2, and Chap- The Department was involved extensively in ters 3 through 10 of the 2004 ADA/ABA Guide- the development of the 2004 ADA/ABA Guide- lines. The Department is also amending its title II lines. As a Federal member of the Access Board, regulation, which prohibits discrimination on the the Attorney General’s representative voted to ap- basis of disability in State and local government prove the revised guidelines. ADA Chapter 1 and services, concurrently with the publication of this ADA Chapter 2 of the 2004 ADA/ABA Guide- rule in this issue of the Federal Register. lines provide scoping requirements for facilities subject to the ADA; ‘‘scoping’’ is a term used Development of the 2004 ADA/ABA in the 2004 ADA/ABA Guidelines to describe Guidelines requirements that prescribe which elements and In 1994, the Access Board began the process spaces—and, in some cases, how many—must of updating the 1991 ADAAG by establishing comply with the technical specifications. ABA an advisory committee composed of members of Chapter 1 and ABA Chapter 2 provide scoping the design and construction industry, the building requirements for facilities subject to the ABA (i.e., code community, and State and local government facilities designed, built, altered, or leased with entities, as well as individuals with disabilities. In Federal funds). Chapters 3 through 10 of the 2004 1998, the Access Board added specific guidelines ADA/ABA Guidelines provide uniform technical on State and local government facilities, 63 FR specifications for facilities subject to either the 2000 (Jan. 13, 1998), and building elements de- ADA or the ABA. This revised format is designed signed for use by children, 63 FR 2060 to eliminate unintended conflicts between the two (Jan. 13, 1998). In 1999, based largely on the sets of Federal accessibility standards and to mini- report and recommendations of the advisory com- mize conflicts between the Federal regulations and mittee, the Access Board issued a notice of pro- the model codes that form the basis of many State posed rulemaking (NPRM) to update and revise and local building codes. For the purposes of this its ADA and ABA Accessibility Guidelines. See final rule, the Department will refer to ADA Chap- 64 FR 62248 (Nov. 16, 1999). In 2000, the Access ter 1, ADA Chapter 2, and Chapters 3 through 10 Board added specific guidelines on play areas. See of the 2004 ADA/ABA Guidelines as the 2004 65 FR 62498 (Oct. 18, 2000). The Access Board ADAAG. released an interim draft of its guidelines to the These amendments to the 1991 ADAAG have public on April 2, 2002, 67 FR 15509, in order not been adopted previously by the Department to provide an opportunity for entities with model as ADA Standards. Through this rule, the Depart-

Department of Justice Supplementary Information- 3 28 CFR Part 36 ment is adopting revised ADA Standards consis- engaged in the business of transporting people and tent with the 2004 ADAAG, including all of the that provide the goods and services of a public ac- amendments to the 1991 ADAAG since 1998. commodation are covered by this regulation and For the purposes of this part, the Department’s re- the Department of Transportation’s passenger ves- vised standards are entitled ‘‘The 2010 Standards sel rule, 49 CFR part 39. A vessel operator whose for Accessible Design’’ and consist of the 2004 vessel takes passengers from Point A to Point B ADAAG and the requirements contained in sub- (e.g., a cruise ship that sails from Miami to one part D of 28 CFR part 36. Because the Department or more Caribbean islands, a private ferry boat has adopted the 2004 ADAAG as part of its title II between two points on either side of a river or bay, and title III regulations, once the Department’s fi- a water taxi between two points in an urban area) nal rules become effective, the 2004 ADAAG will is most likely a private entity primarily engaged have legal effect with respect to the Department’s in the business of transporting people. Persons title II and title III regulations and will cease to with questions about how this regulation applies be mere guidance for those areas regulated by to such operators and vessels may contact the the Department. In 2006, DOT adopted the 2004 Department of Justice or the Department of Trans- ADAAG. With respect to those areas regulated by portation for guidance or further information. DOT, these guidelines, as adopted by DOT, have However, the Department of Justice has enforce- had legal effect since 2006. ment authority for all private entities under title III Under this regulation, the Department of Justice of the ADA, so individuals with complaints about covers passenger vessels operated by private enti- noncompliance with part 39 should provide those ties not primarily engaged in the business of trans- complaints to the Department of Justice. porting people with respect to the provision of The provisions of this rule and 49 CFR part 39 goods and services of a public accommodation on are intended to be substantively consistent with the vessel. For example, a vessel operator whose one another. Consequently, in interpreting the ap- vessel departs from Point A, takes passengers on plication of this rule to vessel operators who are a recreational trip, and returns passengers to Point private entities not primarily engaged in the busi- A without ever providing for disembarkation at a ness of transporting people, the Department of Point B (e.g., a dinner or harbor cruise, a fishing Justice views the obligations of those vessel op- charter) is a public accommodation operated by a erators as being similar to those of private entities private entity not primarily engaged in the busi- primarily engaged in the business of transporting ness of transporting people. This regulation covers people under the provisions of 49 CFR part 39. those aspects of the vessel’s operation relating to the use and enjoyment of the public accommoda- The Department’s Rulemaking History tion, including, for example, the boarding process, The Department published an advance notice of safety policies, accessible routes on the vessel, and proposed rulemaking (ANPRM) on the provision of effective communication. Persons September 30, 2004, 69 FR 58768 for two rea- with complaints or concerns about discrimination sons: (1) To begin the process of adopting the on the basis of disability by vessel operators who 2004 ADAAG by soliciting public input on issues are private entities not primarily engaged in the relating to the potential application of the Access business of transporting people, or questions about Board’s revisions once the Department adopts how this regulation applies to such operators and them as revised standards; and (2) to request back- vessels, should contact the Department of Justice. ground information that would assist the Depart- Vessels operated by private entities primarily ment in preparing a regulatory analysis under the guidance provided in Office of Management and

4 - Supplementary Information Department of Justice 28 CFR Part 36

Budget (OMB) Circular A–4 sections D (Analyti- garding elements scoped for the first time in the cal Approaches) and E (Identifying and Measuring 2004 ADAAG, including recreation facilities and Benefits and Costs) (Sept. 17, 2003), available play areas. Commenters also provided some in- at http://www.whitehouse.gov/OMB/ circulars/ formation on how to assess the cost of elements a004/a-4.pdf (last visited June 24, 2010). While in small facilities, office buildings, hotels and mo- underscoring that the Department, as a member tels, assembly areas, hospitals and long-term care of the Access Board, already had reviewed com- facilities, residential units, recreation facilities, ments provided to the Access Board during its de- and play areas. Still other commenters addressed velopment of the 2004 ADAAG, the Department the effective date of the proposed standards, the specifically requested public comment on the po- triggering event by which the effective date is tential application of the 2004 ADAAG to existing calculated for new construction, and variations on facilities. The extent to which the 2004 ADAAG a safe harbor that would excuse elements built in is used with respect to the barrier removal require- compliance with the 1991 Standards from compli- ment applicable to existing facilities under title ance with the proposed standards. III (as well as with respect to the program access After careful consideration of the public com- requirement in title II) is within the sole discretion ments in response to the ANPRM, on of the Department. The ANPRM dealt with the June 17, 2008, the Department published an Department’s responsibilities under both title II NPRM covering title III. 73 FR 34508. The De- and title III. partment also published an NPRM on that day The public response to the ANPRM was sub- covering title II. 73 FR 34466. The NPRMs ad- stantial. The Department extended the comment dressed the issues raised in the public’s comments deadline by four months at the public’s request. to the ANPRM and sought additional comment, 70 FR 2992 (Jan. 19, 2005). By the end of the generally and in specific areas, such as the Depart- extended comment period, the Department had ment’s adoption of the 2004 ADAAG, the Depart- received more than 900 comments covering a ment’s regulatory assessment of the costs and broad range of issues. Many of the commenters benefits of the rule, its updates and amendments responded to questions posed specifically by the of certain provisions of the existing title II and III Department, including questions regarding the De- regulations, and areas that were in need of addi- partment’s application of the 2004 ADAAG once tional clarification or specificity. adopted by the Department and the Department’s A public hearing was held on July 15, 2008, in regulatory assessment of the costs and benefits of Washington, DC. Forty-five individuals testified particular elements. Many other commenters ad- in person or by phone. The hearing was streamed dressed areas of desired regulation or of particular live over the Internet. By the end of the 60-day concern. comment period, the Department had received To enhance accessibility strides made since the 4,435 comments addressing a broad range of is- enactment of the ADA, commenters asked the sues, many of which were common to the Department to focus on previously unregulated title II and title III NPRMs, from representatives areas, such as ticketing in assembly areas; reserva- of businesses and industries, State and local gov- tions for hotel rooms, rental cars, and boat slips; ernment agencies, disability advocacy organiza- and captioning. They also asked for clarification tions, and private individuals. on some issues in the 1991 regulations, such as The Department notes that this rulemaking was the requirements regarding service animals. Other unusual in that much of the proposed regulatory commenters dealt with specific requirements in text and many of the questions asked across the 2004 ADAAG or responded to questions re- titles II and III were the same. Consequently,

Department of Justice Supplementary Information- 5 28 CFR Part 36 many of the commenters did not provide separate common law) that provide greater or equal protec- sets of documents for the proposed title II and title tion for the rights of individuals with disabilities III rules, and in many instances, the commenters or individuals associated with them. did not specify which title was being commented These provisions remain unchanged by the final upon. As a result, where comments could be read rule. The Department recognizes that public ac- to apply to both titles II and III, the Department commodations subject to title III of the ADA may included them in the comments and responses for also be subject to title I of the ADA, which pro- each final rule. hibits discrimination on the basis of disability in Most of the commenters responded to questions employment; section 504 of the Rehabilitation Act posed specifically by the Department, including of 1973 and other Federal statutes that prohibit what were the most appropriate definitions for discrimination on the basis of disability in the pro- terms such as ‘‘wheelchair,’’ ‘‘mobility device,’’ grams and activities of recipients of Federal finan- and ‘‘service animal’’; how to quantify various cial assistance; and other Federal statutes such as benefits that are difficult to monetize; what re- the Air Carrier Access Act (ACAA), quirements to adopt for ticketing and assembly 49 U.S.C. 41705 et seq., and the Fair Housing Act areas; whether to adopt safe harbors for small (FHAct), 42 U.S.C. 3601 et seq. Compliance with businesses; and how best to regulate captioning. the Department’s title II and title III regulations Some comments addressed specific requirements does not ensure compliance with other Federal in the 2004 ADAAG or responded to questions statutes. regarding elements scoped for the first time in the Public accommodations that are subject to the 2004 ADAAG, including recreation facilities and ADA as well as other Federal disability discrimi- play areas. Other comments responded to ques- nation laws must be aware of the requirements tions posed by the Department concerning certain of all applicable laws and must comply with specific requirements in the 2004 ADAAG. these laws and their implementing regulations. Although in many cases similar provisions of dif- Relationship to Other Laws ferent statutes are interpreted to impose similar The Department of Justice regulation imple- requirements, there are circumstances in which menting title III, 28 CFR 36.103, provides the fol- similar provisions are applied differently because lowing: of the nature of the covered entity or activity, or (a) Rule of interpretation. Except as otherwise because of distinctions between the statutes. For provided in this part, this part shall not be con- example, emotional support animals that do not strued to apply a lesser standard than the standards qualify as service animals under the Department’s applied under title V of the Rehabilitation Act of title III regulations may nevertheless qualify as 1973 (29 U.S.C. 791) or the regulations issued by permitted reasonable accommodations for persons Federal agencies pursuant to that title. with disabilities under the FHAct and the ACAA. (b) Section 504. This part does not affect the ob- See, e.g., Overlook Mutual Homes, Inc. v. Spencer, ligations of a recipient of Federal financial assis- 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public ac- tance to comply with the requirements of section commodations that operate housing facilities must 504 of the Rehabilitation Act of 1973 (29 U.S.C. ensure that they apply the reasonable accommo- 794) and regulations issued by Federal agencies dation requirements of the FHAct in determining implementing section 504. whether to allow a particular animal needed by a (c) Other laws. This part does not invalidate or person with a disability into housing and may not limit the remedies, rights, and procedures of any use the ADA definition as a justification for reduc- other Federal, State, or local laws (including State ing their FHAct obligations. In addition, nothing

6 - Supplementary Information Department of Justice 28 CFR Part 36 in the ADA prevents a public accommodation of its existing regulation, the Department has subject to one statute from modifying its policies reviewed the title III regulation section by sec- and providing greater access in order to assist tion, and, as a result, has made several clarifica- individuals with disabilities in achieving access tions and amendments in this rule. Appendix A of to entities subject to other Federal statutes. For the final rule, ‘‘Guidance on Revisions to ADA example, a quick service restaurant at an airport Regulation on Nondiscrimination on the Basis of is, as a public accommodation, subject to the title Disability by Public Accommodations and Com- III requirements, not to the ACAA requirements. mercial Facilities,’’ codified as Appendix A to 28 Conversely, an air carrier that flies in and out of CFR part 36, provides the Department’s response the same airport is required to comply with the to comments and its explanations of the changes ACAA, but is not covered by title III of the ADA. to the regulation. The section entitled ‘‘Section- If a particular animal is a service animal for pur- by-Section Analysis and Response to Comments’’ poses of the ACAA and is thus allowed on an air- in Appendix A provides a detailed discussion of plane, but is not a service animal for purposes of the changes to the title III regulation. The Section- the ADA, nothing in the ADA prohibits an airport by-Section Analysis follows the order of the 1991 restaurant from allowing a ticketed passenger with title III regulation, except that regulatory sec- a disability who is traveling with a service animal tions that remain unchanged are not referenced. that meets the ACAA’s definition of a service The discussion within each section explains the animal to bring that animal into the facility even changes and the reasoning behind them, as well as though under the ADA’s definition of service ani- the Department’s response to related public com- mal the animal lawfully could be excluded. ments. Subject areas that deal with more than one section of the regulation include references to the Organization of This Rule related sections, where appropriate. The Section- Throughout this rule, the original ADA Stan- by-Section Analysis also discusses many of the dards, which are republished as Appendix D to questions asked by the Department for specific 28 CFR part 36, will be referred to as the ‘‘1991 public response. The section of Appendix A en- Standards.’’ The original title III regulation, codi- titled ‘‘Other Issues’’ discusses public comment fied at 28 CFR part 36 (2009), will be referred on several issues of concern to the Department to as the ‘‘1991 regulation’’ or the ‘‘1991 title that were the subject of questions that are not III regulation.’’ ADA Chapter 1, ADA Chapter specifically addressed in the Section-by-Section 2, and Chapters 3 through 10 of the 2004 ADA/ Analysis. ABA Guidelines, 36 CFR part 1191, app. B and D The Department’s description of the 2010 Stan- (2009), will be referred to as the ‘‘2004 ADAAG.’’ dards, as well as a discussion of the public com- The Department’s Notice of Proposed Rulemak- ments on specific sections of the 2004 ADAAG, is ing, 73 FR 34508 (June 17, 2008), will be referred found in Appendix B of this final rule, ‘‘Analysis to as the ‘‘NPRM.’’ As noted above, the 2004 and Commentary on the 2010 ADA Standards for ADAAG, taken together with the requirements Accessible Design,’’ codified as Appendix B to 28 contained in subpart D of 28 CFR part 36 (New CFR part 36. Construction and Alterations) of the final rule, The provisions of this rule generally take ef- will be referred to as the ‘‘2010 Standards.’’ The fect six months from its publication in the Fed- amendments made to the 1991 title III regulation eral Register. The Department has determined, and the adoption of the 2004 ADAAG, taken to- however, that compliance with the requirements gether, will be referred to as the ‘‘final rule.’’ related to new construction and alterations and In performing the required periodic review reservations at a place of lodging shall not be

Department of Justice Supplementary Information- 7 28 CFR Part 36 required until 18 months from the publication lar A–4, available at http://www.whitehouse.gov/ date of this rule. These exceptions are set forth in OMB/circulars/a004/a-4.pdf (last visited June 24, §§ 36.406(a) and 36.302(e)(3), respectively, and 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 are discussed in greater detail in Appendix A. Comp., p. 247. See discussions in Appendix A entitled ‘‘Section In the NPRM, the Department kept open the 36.406 Standards for New Construction and Al- possibility that, if warranted by public comments terations’’ and ‘‘Section 36.302(e) Hotel Reserva- received on an issue raised by the 2004 ADAAG tions.’’ or by the results of the Department’s Initial Regu- This final rule only addresses issues that were latory Impact Analysis (Initial RIA), available at identified in the NPRM as subjects the Depart- http://www.ada.gov/NPRM2008/ria.htm, showing ment intended to regulate through this rulemaking that the likely costs of making a particular feature proceeding. Because the Department indicated in or facility accessible were disproportionate to the the NPRM that it did not intend to regulate certain benefits (including both monetized and nonmon- areas, including equipment and furniture, acces- etized benefits) to persons with disabilities, the At- sible golf cars, and movie captioning and video torney General, as a member of the Access Board, description, as part of this rulemaking proceeding, could return the issue to the Access Board for the Department believes it would be appropriate further consideration. After careful consideration, to solicit more public comment about these areas the Department has determined that it is unneces- prior to making them the subject of a rulemaking. sary to return any issues to the Access Board for The Department intends to engage in additional additional consideration. rulemaking in the near future addressing acces- sibility in these areas and others, including next Executive Order 12866 generation 9–1–1 and accessibility of Web sites This rule has been reviewed by the Office of operated by covered public entities and public ac- Management and Budget (OMB) under Executive commodations. Order 12866. The Department has evaluated its existing regulations for title II and title III section ADDITIONAL INFORMATION: by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any Regulatory Process Matters (SBREFA, negative effects on small entities. A Final Regula- Regulatory Flexibility Act, and tory Impact Analysis (Final RIA or RIA) was pre- Executive Orders) pared by the Department’s contractor, HDR|HLB The Department must provide two types of as- Decision Economics, Inc. (HDR). In accordance sessments as part of its final rule: An analysis of with Executive Order 12866, as amended, and the costs and benefits of adopting the changes OMB Circular A–4, the Department has reviewed contained in this rule, and a periodic review of its and considered the Final RIA and has accepted existing regulations to consider their impact on the results of this analysis as its assessment of the small entities, including small businesses, small benefits and costs of the final rules. nonprofit organizations, and small governmental Executive Order 12866 refers explicitly not jurisdictions. See E.O. 12866, 58 FR 51735, 3 only to monetizable costs and benefits but also CFR, 1994 Comp., p. 638, as amended; Regula- to ‘‘distributive impacts’’ and ‘‘equity,’’ see E.O. tory Flexibility Act of 1980 (RFA), 12866, section 1(a), and it is important to recog- 5 U.S.C. 601 et seq., as amended by the Small nize that the ADA is intended to provide important Business Regulatory Enforcement Fairness Act of benefits that are distributional and equitable in 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circu- character. The ADA states, ‘‘[i]t is the purpose

8 - Supplementary Information Department of Justice 28 CFR Part 36 of this [Act] (1) to provide a clear and compre- of six requirements. The Department believes that hensive national mandate for the elimination of the estimates resulting from this approach repre- discrimination against individuals with disabili- sent a reasonable upper and lower measure of the ties; [and] (2) to provide clear, strong, consistent, likely effects these requirements will have that the enforceable standards addressing discrimination Department was able to quantify and monetize. against individuals with disabilities[.]’’ 42 U.S.C. The Final RIA estimates the benefits and costs 12101(b). Many of the benefits of this rule stem for all new (referred to as ‘‘supplemental’’) re- from the provision of such standards, which will quirements and revised requirements across all promote inclusion, reduce stigma and potential types of newly constructed and existing facilities. embarrassment, and combat isolation, segrega- The Final RIA also incorporates a sophisticated tion, and second-class citizenship of individuals risk analysis process that quantifies the inherent with disabilities. Some of these benefits are, in uncertainties in estimating costs and benefits and the words of Executive Order 12866, ‘‘difficult to then assesses (through computer simulations) the quantify, but nevertheless essential to consider.’’ relative impact of these factors when varied simul- E.O. 12866, section 1(a). The Department has taneously. A copy of the Final RIA will be made considered such benefits here. available online for public review on the Depart- ment’s ADA Home Page (http://www.ada.gov). Final Regulatory Impact Analysis From an economic perspective (as specified in The Final RIA embodies a comprehensive OMB Circular A–B4), the results of the Final RIA benefit-cost analysis of the final rules for both demonstrate that the Department’s final rules in- title II and title III and assesses the incremental crease social resources and thus represent a public benefits and costs of the 2010 Standards relative good because monetized benefits exceed mon- to a primary baseline scenario (1991 Standards). etized costs—that is, the regulations have a posi- In addition, the Department conducted additional tive net present value (NPV). Indeed, under every research and analyses for requirements having scenario assessed in the Final RIA, the final rules the highest negative net present values under the have a positive NPV. The Final RIA’s first sce- primary baseline scenario. This approach was nario examines the incremental impact of the final taken because, while the 1991 Standards are the rules using the ‘‘main’’ set of assumptions (i.e., only uniform set of accessibility standards that assuming a primary baseline (1991 Standards), apply to public accommodations, commercial fa- that the safe harbor applies, and that for title III cilities, and State and local government facilities entities barrier removal is readily achievable for nationwide, it is also understood that many State 50 percent of elements subject to supplemental and local jurisdictions have already adopted IBC/ requirements). ANSI model code provisions that mirror those in Under this set of assumptions, the final rules the 2004 ADAAG. The assessments based on this have an expected NPV of $9.3 billion (7 percent approach assume that covered entities currently discount rate) and $40.4 billion (3 percent dis- implementing codes that mirror the 2004 ADAAG count rate). See Final RIA, table ES–1 & figure will not need to modify their code requirements ES–2. 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

Department of Justice Supplementary Information- 9 28 CFR Part 36

Expected Impact of the Rules2 sistance in toileting, or forgo the visit entirely. The (in billions) revised water closet clearance regulations would make single-user toilet rooms accessible to all per- Discount Expected Total Total sons who use wheelchairs, not just those with the rate NPV Expected Expected physical strength, balance, and dexterity and the PV PV training to use a front-transfer method. Single-user (Benefits) (Costs) toilet rooms are located in a wide variety of public 3% $40.4 $66.2 $25.8 and private facilities, including restaurants, fast- food establishments, schools, retail stores, parks, 7% $9.3 $22.0 $12.8 sports stadiums, and hospitals. Final promulgation of these requirements might thus, for example, en- Water Closet Clearances able a person who uses a side or parallel transfer The Department gave careful consideration to method to use the restroom (or use the restroom the costs and benefits of its adoption of the stan- independently) at his or her local coffee shop for dards relating to water closet clearances in single- the first time. user toilet rooms. The primary effect of the De- Because of the complex nature of its cost-ben- partment’s proposed final rules governing water efit analysis, the Department is providing ‘‘plain closet clearances in single-user toilet rooms with language’’ descriptions of the benefits calculations in-swinging and out-swinging doors is to allow for the two revised requirements with the high- sufficient room for ‘‘side’’ or ‘‘parallel’’ methods est estimated total costs: Water closet clearance of transferring from a wheelchair to a toilet. Under in single-user toilet rooms with out-swinging the current 1991 Standards, the requisite clear- doors (RIA Req. #28) (section 604.3 of the 2010 ance space in single-user toilet rooms between and Standards) and water closet clearance in single- around the toilet and the lavatory does not permit user toilet rooms with in-swinging doors (RIA these methods of transfer. Side or parallel trans- Req. #32) (sections 604.3 and 603.2.3 Exception fers are used by large numbers of persons who use 2 of the 2010 Standards). Since many of the con- wheelchairs and are regularly taught in rehabilita- cepts and calculations in the Final RIA are highly tion and occupational therapy. Currently, persons technical, it is hoped that, by providing ‘‘lay’’ who use side or parallel transfer methods from descriptions of how benefits are monetized for their wheelchairs are faced with a stark choice at an illustrative set of requirements, the Final RIA establishments with single-user toilet rooms—i.e., will be more transparent and afford readers a more patronize the establishment but run the risk of complete understanding of the benefits model gen- needing assistance when using the restroom, travel erally. Because of the widespread adoption of the with someone who would be able to provide as- water closet clearance standards in existing State 2 The analysis assumes these regulations will be in and local building codes, the following calcula- force for 15 years. Incremental costs and benefits are tions use the IBC/ANSI baseline. calculated for all construction, alterations, and barrier General description of monetized benefits removal that is expected to occur during these 15 years. for water closet clearance in single-user toilet The analysis also assumes that any new or revised rooms—out-swinging doors (Req. #28). In order ADA rules enacted 15 years from now will include a safe harbor provision. Thus, any facilities constructed to assess monetized benefits for the requirement in year 14 of the final rules are assumed to continue to covering water closet clearances in single-user generate benefits to users, and to incur any operating or toilet rooms with out-swinging doors, a deter- replacement costs for the life of these buildings, which mination needed to be made concerning the is assumed to be 40 years. population of users with disabilities who would

10 - Supplementary Information Department of Justice 28 CFR Part 36 likely benefit from this revised standard. Based estimated that approximately 3 percent of existing on input received from a panel of experts jointly single-user toilet rooms with out-swinging doors convened by HDR and the Department to discuss would be altered each year, and that the number benefits-related estimates and assumptions used in of newly constructed facilities with these types of the RIA model, it was assumed that accessibility toilet rooms would increase at the rate of about 1 changes brought about by this requirement would percent each year. However, due to the widespread benefit persons with any type of ambulatory (i.e., adoption at the State and local level of model mobility-related) disability, such as persons who code provisions that mirror Req. #28, it is further use wheelchairs, walkers, or braces. Recent cen- understood that about half of all existing facilities sus figures estimate that about 11.9 percent of assumed to have single-user toilet rooms with out- Americans ages 15 and older have an ambulatory swinging doors already are covered by State or disability, or about 35 million people. This expert local building codes that require equivalent water panel also estimated that single-user toilet rooms closet clearances. Due to the general element-by- with out-swinging doors would be used slightly element safe harbor provision in the final rules, less than once every other visit to a facility with no unaltered single-user toilet rooms that comply such toilet rooms covered by the final rules (or, with the current 1991 Standards will be required viewed another way, about once every two hours to retrofit to meet the revised clearance require- spent at a covered facility assumed to have one or ments in the final rules. more single-user toilet rooms with out-swinging With respect to new construction, it is assumed doors) by an individual with an ambulatory dis- that each single-user toilet room with an out- ability. The expert panel further estimated that, for swinging door will last the life of the building, such individuals, the revised requirement would about 40 years. For alterations, the amount of time result in an average time savings of about five such a toilet room will be used depends upon the and a half minutes when using the restroom. This remaining life of the building (i.e., a period of time savings is due to the revised water closet time between 1 and 39 years). clearance standard, which permits, among other Summing up monetized benefits to users with things, greater flexibility in terms of access to the disabilities across all types of public and private toilet by parallel or side transfer, thereby perhaps facilities covered by the final rules, and assum- reducing the wait for another person to assist with ing 46 percent of covered facilities nationwide toileting and the need to twist or struggle to access are located in jurisdictions that have adopted the the toilet independently. Based on average hourly relevant equivalent IBC/ ANSI model code provi- wage rates compiled by the U.S. Department of sions, it is expected that the revised requirement Labor, the time savings for Req. #28 is valued at for water closet clearance in single-user toilet just under $10 per hour. rooms with out-swinging doors will result in net For public and private facilities covered by the benefits of approximately $900 million over the final rules, it is estimated that there are currently life of these regulations. about 11 million single-user toilet rooms with out- General description of monetized benefits swinging doors. The majority of these types of for water closet clearance in single-user toilet single-user toilet rooms, nearly 7 million, are as- rooms—in-swinging doors (Req. # 32). For the sumed to be located at ‘‘Indoor Service Establish- water closet clearance in single-user toilet rooms ments,’’ a broad facility group that encompasses with the in-swinging door requirement (Req. #32), various types of indoor retail stores such as baker- the expert panel determined that the primary ben- ies, grocery stores, clothing stores, and hardware eficiaries would be persons who use wheelchairs. stores. Based on construction industry data, it was As compared to single-user toilet rooms with out-

Department of Justice Supplementary Information- 11 28 CFR Part 36 swinging doors, those with in-swinging doors tend rooms with in-swinging doors will last the life of to be larger (in terms of square footage) in order to the building, about 40 years. For alterations, the accommodate clearance for the in-swinging door amount of time such a toilet room will be used and, thus, are already likely to have adequate clear depends upon the remaining life of the building floor space for persons with disabilities who use (i.e., a period of time between 1 and 39 years). other types of mobility aids such as walkers and Over this time period, the total estimated value of crutches. benefits to users of water closets with in-swinging The expert benefits panel estimated that single- doors from the time they will save and decreased user toilet rooms with in-swinging doors are used discomfort they will experience is nearly $12 mil- less frequently on average—about once every 20 lion. visits to a facility with such a toilet room by a per- Additional benefits of water closet clearance son who uses a wheelchair—than their counterpart standards. The standards requiring sufficient toilet rooms with out-swinging doors. This panel space in single-user toilet rooms for a wheelchair also determined that, on average, each user would user to effect a side or parallel transfer are among realize a time savings of about 9 minutes as a re- the most costly (in monetary terms) of the new sult of the enhanced clearances required by this provisions in the Access Board’s guidelines that revised standard. the Department adopts in this rule—but also, the The RIA estimates that there are about 4 million Department believes, one of the most beneficial single-user toilet rooms with in-swinging doors in non-monetary terms. Although the monetized in existing facilities. About half of the single-user costs of these requirements substantially exceed toilet rooms with in-swinging doors are assumed the monetized benefits, the additional benefits to be located in single-level stores, and about that persons with disabilities will derive from a quarter of them are assumed to be located in greater safety, enhanced independence, and the restaurants. Based on construction industry data, avoidance of stigma and humiliation— benefits it was estimated that approximately 3 percent of that the Department’s economic model could not existing single-user toilet rooms with in-swinging put in monetary terms—are, in the Department’s doors would be altered each year, and that the experience and considered judgment, likely to be number of newly constructed facilities with these quite high. Wheelchair users, including veterans types of toilet rooms would increase at the rate of returning from our Nation’s wars with disabilities, about 1 percent each year. However, due to the are taught to transfer onto toilets from the side. widespread adoption at the State and local level Side transfers are the safest, most efficient, and of model code provisions that mirror Req. #32, it most independence-promoting way for wheelchair is further understood that slightly more than 70 users to get onto the toilet. The opportunity to ef- percent of all existing facilities assumed to have fect a side transfer will often obviate the need for single-user toilet rooms with in-swinging doors al- a wheelchair user or individual with another type ready are covered by State or local building codes of mobility impairment to obtain the assistance of that require equivalent water closet clearances. another person to engage in what is, for most peo- Due to the general element-by-element safe harbor ple, among the most private of activities. Execu- provision in the final rules, no unaltered single-us- tive Order 12866 refers explicitly not only to mon- er toilet rooms that comply with the current 1991 etizable costs and benefits but also to ‘‘distributive Standards will be required to retrofit to meet the impacts’’ and ‘‘equity,’’ see E.O. 12866, section revised clearance requirements in the final rules. 1(a), and it is important to recognize that the ADA Similar to the assumptions for Req. #28, it is is intended to provide important benefits that are assumed that newly constructed single-user toilet distributional and equitable in character. These

12 - Supplementary Information Department of Justice 28 CFR Part 36 water closet clearance provisions will have non- experience and informed judgment, that 5 cents monetized benefits that promote equal access and substantially understates the value people with the equal opportunity for individuals with disabilities, relevant disabilities would place on these benefits and will further the ADA’ s purpose of providing in this context. ‘‘a clear and comprehensive national mandate for There are substantially fewer single-user toilet the elimination of discrimination against individu- rooms with in-swinging doors, and substantially als with disabilities.’’ 42 U.S.C. 12101(b)(1). fewer people with disabilities will benefit from The Department’s calculations indicated that, making those rooms accessible. While both wheel- in fact, people with the relevant disabilities would chair users and individuals with other ambulatory have to place only a very small monetary value disabilities will benefit from the additional space on these quite substantial benefits for the costs in a room with an out-swinging door, the Depart- and benefits of these water closet clearance stan- ment believes, based on the estimates of its expert dards to break even. To make these calculations, panel and its own experience, that wheelchair us- the Department separated out toilet rooms with ers likely will be the primary beneficiaries of the out-swinging doors from those with in-swinging in-swinging door requirement. The Department doors, because the costs and benefits of the re- estimates that people with the relevant disabili- spective water closet clearance requirements are ties will use a newly accessible single-user toilet significantly different. The Department estimates room with an in-swinging door approximately that, assuming 46 percent of covered facilities 8.7 million times per year. Moreover, the altera- nationwide are located in jurisdictions that have tion costs to make a single-user toilet room with adopted the relevant equivalent IBC/ANSI model an in-swinging door accessible are substantially code provisions, the costs of the requirement as higher (because of the space taken up by the door) applied to toilet rooms with out-swinging doors than the equivalent costs of making a room with will exceed the monetized benefits by $454 mil- an out-swinging door accessible. Thus, the De- lion, an annualized net cost of approximately partment calculates that, assuming 72 percent of $32.6 million. But a large number of people with covered facilities nationwide are located in juris- disabilities will realize benefits of independence, dictions that have adopted the relevant equivalent safety, and avoided stigma and humiliation as a IBC/ANSI model code provisions, the costs of result of the requirement’s application in this con- applying the toilet room accessibility standard text. Based on the estimates of its expert panel and to rooms with in-swinging doors will exceed the its own experience, the Department believes that monetized benefits of doing so by $266.3 million both wheelchair users and people with a variety over the life of the regulations, or approximately of other mobility disabilities will benefit. The De- $19.14 million per year. Dividing the $19.14 mil- partment estimates that people with the relevant lion annual cost by the 8.7 million annual uses, disabilities will use a newly accessible single-user the Department concludes that for the costs and toilet room with an out-swinging door approxi- benefits to break even in this context, people with mately 677 million times per year. Dividing the the relevant disabilities will have to value safety, $32.6 million annual cost by the 677 million an- independence, and the avoidance of stigma and nual uses, the Department concludes that for the humiliation at approximately $2.20 per visit. The costs and benefits to break even in this context, Department believes, based on its experience and people with the relevant disabilities will have to informed judgment, that this figure approximates, value safety, independence, and the avoidance and probably understates, the value wheelchair us- of stigma and humiliation at just under 5 cents ers place on safety, independence, and the avoid- per visit. The Department believes, based on its ance of stigma and humiliation in this context.

Department of Justice Supplementary Information- 13 28 CFR Part 36

Alternate Scenarios baselines results in positive expected NPVs in all Another scenario in the Final RIA explores the cases. See Final RIA, figure ES–4. These results incremental impact of varying the assumptions also indicate that IBC 2000 and IBC 2006 respec- concerning the percentage of existing elements tively have the highest and lowest expected NPVs. subject to supplemental requirements for which These results are due to changes in the make-up barrier removal would be readily achievable. of the set of requirements that is included in each Readily achievable barrier removal rates are mod- alternative baseline. eled at 0 percent, 50 percent, and 100 percent lev- Additionally, a second, more limited alternate els. The results of this scenario show that the ex- baseline analysis in the Final RIA uses a State- pected NPV is positive for each readily achievable specific and requirement-specific alternate IBC/ barrier removal rate and that varying this assumed ANSI baseline in order to demonstrate the likely rate has little impact on expected NPV. See Final actual incremental impact of an illustrative sub- RIA, figure ES–3. set of 20 requirements under current conditions A third set of analyses in the Final RIA dem- nationwide. For this analysis, research was con- onstrates the impact of using alternate baselines ducted on a subset of 20 requirements in the final based on model codes instead of the primary rules that have negative net present values under baseline. The IBC model codes, which have been the primary baseline and readily identifiable IBC/ widely adopted by State and local jurisdictions ANSI counterparts to determine the extent to around the country, are significant because many which they each respectively have been adopted at of the requirements in the final rules mirror ac- the State or local level. With respect to facilities, cessibility provisions in the IBC model codes the population of adopting jurisdictions was used (or standards incorporated therein by reference, as a proxy for facility location. In other words, it such as ANSI A117.1). The actual economic im- was assumed that the number of ADA-covered pact of the Department’s final rules is, therefore, facilities respectively compliant with these 20 tempered by the fact that many jurisdictions na- requirements was equal to the percentage of the tionwide have already adopted and are enforcing United States population (based on statistics from portions of the final rules—indeed, this was one of the Census Bureau) currently residing in those the goals underlying the Access Board’s efforts to States or local jurisdictions that have adopted the harmonize the 2004 ADAAG Standards with the IBC/ANSI counterparts to these requirements. The model codes. However, capturing the economic results of this more limited analysis, using State- impact of this reality poses a difficult modeling specific and requirement-specific alternate IBC/ challenge due to the variety of methods by which ANSI baselines for these 20 requirements, demon- States and localities have adopted the IBC/ANSI strate that the widespread adoption of IBC model model codes (e.g., in whole, in part, and with or codes by States and localities significantly lessens without amendments), as well as the lack of a na- the financial impact of these specific require- tional ‘‘facility census’ establishing the location, ments. Indeed, the Final RIA estimates that, if the type, and age of existing ADA-covered facilities. NPVs for these 20 requirements resulting from the As a result, in the first set of alternate IBC base- requirement-specific alternate IBC/ANSI baseline line analyses, the Final RIA assumes that all of the are substituted for their respective results under three IBC model codes—IBC 2000, IBC 2003, the primary baseline, the overall NPV for the final and IBC 2006—have been fully adopted by all rules increases from $9.2 billion to $12.0 billion. jurisdictions and apply to all facilities nationwide. See Final RIA, section 6.2.2 & table 10. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC

14 - Supplementary Information Department of Justice 28 CFR Part 36

Benefits Not Monetized in the Formal out disabilities may also benefit from many of the Analysis requirements. Even though the requirements were Finally, the RIA recognizes that additional not designed to benefit persons without disabili- benefits are likely to result from the new stan- ties, any time savings or easier access to a facility dards. Many of these benefits are more difficult to experienced by persons without disabilities are quantify. Among the potential benefits that have also benefits that should properly be attributed to been discussed by researchers and advocates are that change in accessibility. Curb cuts in sidewalks reduced administrative costs due to harmonized make life easier for those using wheeled suitcases guidelines, increased business opportunities, in- or pushing a baby stroller. For people with a lot creased social development, and improved health of luggage or a need to change clothes, the larger benefits. For example, the final rules will substan- bathroom stalls can be highly valued. A ramp into tially increase accessibility at newly scoped facili- a pool can allow a child (or adult) with a fear of ties such as recreation facilities and judicial facili- water to ease into that pool. All are examples of ties, which previously have been very difficult for ‘‘unintended’’ benefits of the rule. And ideally, all persons with disabilities to access. Areas where should be part of the calculus of the benefits to the Department believes entities may incur ben- society of the rule. efits that are not monetized in the formal analysis Social benefits. Evidence supports the notion include, but may not be limited to, the following: that children with and without disabilities benefit Use benefits accruing to persons with disabili- in their social development from interaction with ties. The final rules should improve the overall one another. Therefore, there will likely be social sense of well-being of persons with disabilities, development benefits generated by an increase in who will know that public entities and places of accessible play areas. However, these benefits are public accommodation are generally accessible, nearly impossible to quantify for several reasons. and who will have improved individual experi- First, there is no guarantee that accessibility will ences. Some of the most frequently cited qualita- generate play opportunities between children with tive benefits of increased access are the increase and without disabilities. Second, there may be in one’s personal sense of dignity that arises from substantial overlap between interactions at acces- increased access and the decrease in possibly hu- sible play areas and interactions at other facilities, miliating incidents due to accessibility barriers. such as schools and religious facilities. Third, it is Struggling to join classmates on a stage, to use a not certain what the unit of measurement for so- bathroom with too little clearance, or to enter a cial development should be. swimming pool all negatively affect a person’s Non-use benefits. There are additional, indirect sense of independence and can lead to humiliating benefits to society that arise from improved ac- accidents, derisive comments, or embarrassment. cessibility. For instance, resource savings may These humiliations, together with feelings of be- arise from reduced social service agency outlays ing stigmatized as different or inferior from being when people are able to access centralized points relegated to use other, less comfortable or pleas- of service delivery rather than receiving home- ant elements of a facility (such as a bathroom in- based care. Home-based and other social services stead of a kitchen sink for rinsing a coffee mug at may include home health care visits and welfare work), all have a negative effect on persons with benefits. Third-party employment effects can arise disabilities. when enhanced accessibility results in increasing Use benefits accruing to persons without dis- rates of consumption by disabled and non-disabled abilities. Improved accessibility can affect more populations, which in turn results in reduced un- than just the rule’s target population; persons with- employment.

Department of Justice Supplementary Information- 15 28 CFR Part 36

Two additional forms of benefits are discussed Costs Not Monetized in the Formal Analysis less often, let alone quantified: Option value and The Department also recognizes that in addition existence value. Option value is the value that to benefits that cannot reasonably be quantified or people with and without disabilities derive from monetized, there may be negative consequences the option of using accessible facilities at some and costs that fall into this category as well. The point in the future. As with insurance, people absence of a quantitative assessment of such costs derive benefit from the knowledge that the op- in the formal regulatory analysis is not meant to tion to use the accessible facility exists, even if minimize their importance to affected entities; it ultimately goes unused. Simply because an rather, it reflects the inherent difficulty in esti- individual is a nonuser of accessible elements mating those costs. Areas where the Department today does not mean that he or she will remain so believes entities may incur costs that are not mon- tomorrow. In any given year, there is some prob- etized in the formal analysis include, but may not ability that an individual will develop a disability be limited to, the following: (either temporary or permanent) that will neces- Costs from deferring or forgoing alterations. sitate use of these features. For example, the 2000 Entities covered by the final rules may choose Census found that 41.9 percent of adults 65 years to delay otherwise desired alterations to their and older identified themselves as having a dis- facilities due to the increased incremental costs ability. Census Bureau figures, moreover, project imposed by compliance with the new require- that the number of people 65 years and older will ments. This may lead to facility deterioration and more than double between 2000 and 2030—from decrease in the value of such facilities. In extreme 35 million to 71.5 million. Therefore, even indi- cases, the costs of complying with the new re- viduals who have no direct use for accessibility quirements may lead some entities to opt to not features today get a direct benefit from the knowl- build certain facilities at all. For example, the edge of their existence should such individuals Department estimates that the incremental costs need them in the future. of building a new wading pool associated with Existence value is the benefit that individuals the final rules will increase by about $142,500 on get from the plain existence of a good, service or average. Some facilities may opt to not build such resource—in this case, accessibility. It can also be pools to avoid incurring this increased cost. described as the value that people both with and Loss of productive space while modifying an without disabilities derive from the guarantees existing facility. During complex alterations, such of equal treatment and non-discrimination that as where moving walls or plumbing systems will are accorded through the provision of accessible be necessary to comply with the final rules, pro- facilities. In other words, people value living in a ductive space may be unavailable until the altera- country that affords protections to individuals with tions are complete. For example, a hotel altering disabilities, whether or not they themselves are its bathrooms to comply with the final rules will directly or indirectly affected. Unlike use benefits be unable to allow guests to occupy these rooms and option value, existence value does not require while construction activities are underway, and an individual ever to use the resource or plan on thus the hotel may forgo revenue from these using the resource in the future. There are numer- rooms during this time. While the amount of time ous reasons why individuals might value accessi- necessary to perform alterations varies signifi- bility even if they do not require it now and do not cantly, the costs associated with unproductive anticipate needing it in the future. space could be high in certain cases, especially if space is already limited or if an entity or facility is

16 - Supplementary Information Department of Justice 28 CFR Part 36 located in an area where real estate values are par- Section 610 Review ticularly high (e.g., New York or San Francisco). The Department also is required to conduct a Expert fees. Another type of cost to entities periodic regulatory review pursuant to section 610 that is not monetized in the formal analysis is le- of the RFA, as amended by the SBREFA. gal fees to determine what, if anything, a facility The review requires agencies to consider five needs to do in order to comply with the new rules factors: (1) The continued need for the rule; (2) or to respond to lawsuits. Several commenters the nature of complaints or comments received indicated that entities will incur increased legal concerning the rule from the public; (3) the com- costs because the requirements are changing for plexity of the rule; (4) the extent to which the rule the first time since 1991. Since litigation risk overlaps, duplicates, or conflicts with other Fed- could increase, entities could spend more on legal eral rules, and, to the extent feasible, with State fees than in the past. Likewise, covered entities and local governmental rules; and (5) the length may face incremental costs when undertaking of time since the rule has been evaluated or the alterations because their engineers, architects, or degree to which technology, economic conditions, other consultants may also need to consider what or other factors have changed in the area affected modifications are necessary to comply with the by the rule. 5 U.S.C. 610(b). Based on these fac- new requirements. The Department has not quan- tors, the agency is required to determine whether tified the incremental costs of the services of these to continue the rule without change or to amend or kinds of experts. rescind the rule, to minimize any significant eco- Reduction in facility value and losses to indi- nomic impact of the rule on a substantial number viduals without disabilities due to the new ac- of small entities. See id. 610(a). cessibility requirements. It is possible that some In developing the 2010 Standards, the Depart- changes made by entities to their facilities in order ment reviewed the 1991 Standards section by to comply with the new requirements may result section, and, as a result, has made several clari- in fewer individuals without disabilities using fications and amendments in both the title II and such facilities (because of decreased enjoyment) title III implementing regulations. The changes and may create a disadvantage for individuals reflect the Department’s analysis and review of without disabilities, even though the change might complaints or comments from the public, as well increase accessibility for individuals with disabili- as changes in technology. Many of the amend- ties. For example, the new requirements for wad- ments aim to clarify and simplify the obligations ing pools might decrease the value of the pool to of covered entities. As discussed in greater detail the entity that owns it due to fewer individuals us- above, one significant goal of the development of ing it (because the new requirements for a sloped the 2004 ADAAG was to eliminate duplication or entry might make the pool too shallow). Similarly, overlap in Federal accessibility guidelines, as well several commenters from the miniature golf in- as to harmonize the Federal guidelines with model dustry expressed concern that it would be difficult codes. The Department also has worked to create to comply with the regulations for accessible holes harmony where appropriate between the require- without significantly degrading the experience for ments of titles II and III. Finally, while the regula- other users. Finally, with respect to costs to indi- tion is required by statute and there is a continued viduals who do not have disabilities, a very tall need for it as a whole, the Department proposes person, for example, may be inconvenienced by several modifications that are intended to reduce having to reach further for a lowered light switch. its effects on small entities. The Department has consulted with the Small Business Administration’s Office of Advocacy

Department of Justice Supplementary Information- 17 28 CFR Part 36 about this process. The Office of Advocacy has ADA that are consistent with the Access Board’s advised that although the process followed by the minimum accessibility guidelines and require- Department was ancillary to the proposed adop- ments. Accordingly, this rule adopts ADA Chap- tion of revised ADA Standards, the steps taken to ter 1, ADA Chapter 2, and Chapters 3 through 10 solicit public input and to respond to public con- of the 2004 ADA/ABA Guidelines as part of the cerns are functionally equivalent to the process 2010 Standards, which will give the guidelines required to complete a section 610 review. There- legal effect with respect to the Department’s title fore, this rulemaking fulfills the Department’s II and title III regulations. obligations under the RFA. Under the SBREFA, the Department is re- quired to perform a periodic review of its 1991 Final Regulatory Flexibility Analysis rule because the rule may have a significant eco- This final rule also has been reviewed by the nomic impact on a substantial number of small Small Business Administration’s Office of Advo- entities. The SBREFA also requires the Depart- cacy (Advocacy) in accordance with Executive ment to make a regulatory assessment of the Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., costs and benefits of any significant regulatory p. 247. Chapter Seven of the Final RIA demon- action. See preamble sections of the final rules strates that the final rule will not have a signifi- for titles II and III entitled ‘‘Summary’’; Depart- cant economic impact on a substantial number of ment of Justice Advanced Notice of Proposed small entities. The Department has also conduct- Rulemaking, 69 FR 58768, 58768B70, (Sept. 30, ed a final regulatory flexibility analysis (FRFA) 2004) (outlining the regulatory history, goals, and as a component of this rulemaking. Collectively, rationale underlying the Department’s proposal the ANPRM, NPRM, Initial RIA, Final RIA, and to revise its regulations implementing titles II 2010 Standards include all of the elements of a and III of the ADA); and Department of Justice FRFA required by the RFA. See 5 U.S.C. 604(a) Notice of Proposed Rulemaking, 73 FR 34508, (1)–(5). 34508B14 (June 17, 2008) (outlining the regula- Section 604(a) lists the specific requirements tory history and rationale underlying the Depart- for a FRFA. The Department has addressed these ment’s proposal to revise its regulations imple- RFA requirements throughout the ANPRM, menting titles II and III of the ADA). NPRM, the 2010 Standards, and the RIA. In 2. Summaries of significant issues raised by summary, the Department has satisfied its FRFA public comments in response to the Department’s obligations under section 604(a) by providing the initial regulatory flexibility analysis (IRFA) and following: discussions of regulatory revisions made as a 1. Succinct summaries of the need for, and ob- result of such comments. The majority of the jectives of, the final rule. The Department is issu- comments received by the Department address- ing this final rule in order to comply with its ob- ing its IRFA set forth in the title III NPRM were ligations under both the ADA and the SBREFA. submitted by the Advocacy. Advocacy acknowl- The Department is also updating or amending edged that the Department took into account the certain provisions of the existing title III regula- comments and concerns of small businesses; tion so that they are consistent with the title II however, Advocacy remained concerned about regulations and comport with the Department’s certain items in the Department’s NPRM and legal and practical experiences in enforcing the requested clarification or additional guidance on ADA. certain items. The ADA requires the Department to adopt General Safe Harbor. Advocacy expressed enforceable accessibility standards under the support for the Department’s proposal to allow an

18 - Supplementary Information Department of Justice 28 CFR Part 36

element-by-element safe harbor for elements that businesses in any future rulemaking; however, now comply with the 1991 Standards and encour- based on the information currently available, the aged the Department to include specific techni- Department has declined to commit to a specific cal assistance in the Small Business Compliance regulatory approach in the final rule. Guide that the Department is required to publish Indirect Costs. Advocacy and other comment- pursuant to section 212 of the SBREFA, 5 U.S.C. ers representing business interests expressed 610 et seq. Advocacy requested that technical as- concern that businesses would incur substantial sistance outlining which standards are subject to indirect costs under the final rule for accessibil- the safe harbor be included in the Department’s ity consultants, legal counsel, training, and the guidance. The Department has provided a list of development of new policies and procedures. The the new requirements in the 2010 Standards that Department believes that such ‘‘indirect costs,’’ are not eligible for the safe harbor in § 36.304(d) even assuming they would occur as described (2)(iii)(A)–(L) of the final rule and plans to in- by these commenters, are not properly attributed clude additional information about the applica- to the Department’s final rule implementing the tion of the safe harbor in the Department’s Small ADA. Business Compliance Guide. Advocacy also re- The vast majority of the new requirements are quested that guidance regarding the two effective incremental changes subject to a safe harbor. All dates for regulations also be provided, and the businesses currently in compliance with the 1991 Department plans to include such guidance in its Standards will neither need to undertake further Small Business Compliance Guide. retrofits nor require the services of a consultant Small Business Safe Harbor. Advocacy ex- to tell them so. If, on the other hand, elements at pressed disappointment that the Department did an existing facility are not currently in compli- not include a small business safe harbor in the fi- ance with the 1991 Standards, then the cost of nal rule. In the NPRM, the Department proposed making such a determination and bringing these to include a small business safe harbor. Advocacy elements into compliance are not properly attrib- conceptually supported this safe harbor but had uted to the final rule, but to lack of compliance concerns regarding its application. Commenters with the 1991 Standards. from both the disability community and the busi- For the limited number of requirements in the ness community uniformly, and quite adamantly, final rule that are supplemental, the Department opposed the Department’s proposal. Some busi- believes that covered entities simply need to de- ness commenters suggested alternative safe termine whether they have an element covered harbors, but there was no common thread among by a supplemental requirement (e.g., a swimming their suggestions that would enable the Depart- pool) and then conduct any necessary barrier ment to craft a proposal that would draw support removal work either in-house or by contacting from the affected communities. a local contractor. Determining whether such an Advocacy recommended that the Depart- element exists is expected to take only a minimal ment continue to study how the proposed small amount of staff time. Nevertheless, Chapter 5 business safe harbor might be made workable of the Final RIA has a high-end estimate of the in future rulemakings, and recommended that additional management costs of such evaluation the Department also seek other alternatives that (from 1 to 8 hours of staff time). minimize the economic impact of the ADA rule- The Department also anticipates that busi- makings in the future. The Department is mindful nesses will incur minimal costs for accessibility of its obligations under the SBREFA and will be consultants to ensure compliance with the new sensitive to the need to mitigate costs for small requirements for New Construction and Altera-

Department of Justice Supplementary Information- 19 28 CFR Part 36 tions in the final rule. Both the 2004 ADAAG and 3. Estimates of the number and type of small the proposed requirements have been made public entities to which the final rule will apply. The for some time and are already being incorporated Department estimates that the final rule will apply into design plans by architects and builders. Fur- to approximately three million small entities or ther, in adopting the final rule, the Department facilities covered by title III. See Final RIA, Ch. has sought to harmonize, to the greatest extent 7, ‘‘Small Business Impact Analysis,’’ table 17, possible, the ADA Standards with model codes and app. 5, ‘‘Small Business Data’’; see also 73 that have been adopted on a widespread basis by FR 36964, 36996–37009 (June 30, 2008) (estimat- State and local jurisdictions across the country. ing the number of small entities the Department Accordingly, many of the requirements in the final believes may be impacted by the NPRM and cal- rule are already incorporated into building codes culating the likely incremental economic impact nationwide. Additionally, it is assumed to be part of the rule on small facilities/entities versus ‘‘typi- of the regular course of business—and thereby cal’’ (i.e., average-sized facilities/entities). incorporated into standard professional services 4. A description of the projected reporting, or construction contracts—for architects and con- record-keeping, and other compliance require- tractors to keep abreast of changes in applicable ments of the final rule, including an estimate of Federal, State, and local laws and building codes. the classes of small entities that will be subject to Given these considerations, the Department has the requirement and the type of professional skills determined that the additional costs, if any, for ar- necessary for preparation of the report or record. chitectural or contractor services that arise out of The final rule imposes no new recordkeeping or the final rule should be minimal. reporting requirements. See preamble section en- Some commenters stated that the final rule titled ‘‘Paperwork Reduction Act.’’ Small entities would require them to develop new policies or may incur costs as a result of complying with the manuals to retrain employees on the revised ADA final rules. These costs are detailed in the Final standards. However, it is the Department’s view RIA, Chapter 7, ‘‘Small Business Impact Analy- that because the revised and supplemental require- sis’’ and accompanying Appendix 5, ‘‘Small Busi- ments address architectural issues and features, ness Data.’’ the final rule would require minimal, if any, 5. Descriptions of the steps taken by the Depart- changes to the overall policies and procedures of ment to minimize any significant economic impact covered entities. on small entities consistent with the stated objec- Finally, commenters representing business tives of the ADA, including the reasons for select- interests expressed the view that the final rule ing the alternatives adopted in the final rule and would cause businesses to incur significant legal for rejecting other significant alternatives. From costs in order to defend ADA lawsuits. However, the outset of this rulemaking, the Department has regulatory impact analyses are not an appropri- been mindful of small entities and has taken nu- ate forum for assessing the cost covered entities merous steps to minimize the impact of the final may bear, or the repercussions they may face, for rule on small businesses. Several of these steps are failing to comply (or allegedly failing to comply) summarized below. with current law. See Final RIA, Ch. 3, section As an initial matter, the Department— as a 3.1.4, ‘‘Other Management Transition Costs’’; Ch. voting member of the Access Board—was exten- 5,‘‘Updates to the Regulatory Impact Analysis’’; sively involved in the development of the 2004 and table 15, ‘‘Impact of NPV of Estimated Mana- ADAAG. These guidelines, which are incorpo- gerial Costs for Supplemental Requirements at All rated into the 2010 Standards, reflect a conscious Facilities.’’ effort to mitigate any significant economic impact

20 - Supplementary Information Department of Justice 28 CFR Part 36 on small businesses in several respects. First, sibility Guidelines for Buildings and Facilities— one of the express goals of the 2004 ADAAG is Recreation Facilities Final Rule, 36 CFR parts harmonization of Federal accessibility guidelines 1190 and 1191. with industry standards and model codes that The Department also published an ANPRM to often form the basis of State and local building solicit public input on the adoption of the 2004 codes, thereby minimizing the impact of these ADAAG as the revised Federal accessibility stan- guidelines on all covered entities, but especially dards implementing titles II and III of the ADA. small businesses. Second, the 2004 ADAAG is the Among other things, the ANPRM specifically product of a 10-year rulemaking effort in which a invited comment from small entities regarding the host of private and public entities, including small proposed rule’s potential economic impact and business groups, worked cooperatively to develop suggested regulatory alternatives to ameliorate accessibility guidelines that achieved an appropri- any such impact. See ‘‘Nondiscrimination on the ate balance between accessibility and cost. For Basis of Disability by Public Accommodations example, as originally recommended by the Ac- and in Commercial Facilities,’’ Department of cess Board’s Recreation Access Advisory Com- Justice Advance Notice of Proposed Rulemaking, mittee, all holes on a miniature golf course would 69 FR 58768, 58778–79 (Sept. 30, 2004). The De- be required to be accessible except for sloped sur- partment received over 900 comments, and small faces where the ball could not come to rest. See, business interests figured prominently. See ‘‘Non- e.g., ‘‘ADA Accessibility Guidelines for Buildings discrimination on the Basis of Disability by Public and Facilities—Recreation Facilities and Outdoor Accommodations and in Commercial Facilities,’’ Developed Areas,’’ Access Board Advance Notice Department of Justice Notice of Proposed Rule- of Proposed Rulemaking, 59 FR 48542 (Sept. 21, making, 73 FR 34508, 34511, 34550 (June 17, 1994). Miniature golf trade groups and facility 2008). operators, who are nearly all small businesses, Subsequently, when the Department published expressed significant concern that such require- its NPRM in June 2008, several regulatory pro- ments would be prohibitively expensive, would posals were included to address concerns raised require additional space, and might fundamentally by the small business community in ANPRM alter the nature of their courses. See, e.g., ‘‘ADA comments. First, to mitigate costs to existing facil- Accessibility Guidelines for Buildings and Facili- ities, the Department proposed an element-by-el- ties—Recreation Facilities,’’ Access Board Notice ement safe harbor that would exempt elements in of Proposed Rulemaking, 64 FR 37326 (July 9, compliance with applicable technical and scoping 1999). In consideration of such concerns and after requirements in the 1991 Standards from any ret- holding informational meetings with miniature rofit obligations under the revised title III rule. Id. golf representatives and persons with disabilities, at 34514–15, 34532–33. While this proposed safe the Access Board significantly revised the final harbor applied to title III covered entities irrespec- miniature golf guidelines. The final guidelines not tive of size, it was small businesses that especially only reduced significantly the number of holes stood to benefit since, according to comments required to be accessible to 50 percent of all holes from small business advocates, small businesses (with one break in the sequence of consecutive are more likely to operate in older buildings and holes permitted), but also added an exemption for facilities. The title III NPRM also offered for carpets used on playing surfaces, modified ramp public comment a novel safe harbor provision landing slope and size requirements, and reduced specifically designed to address small business the space required for start of play areas. See, e.g., advocates’ request for clearer guidance on the Americans with Disabilities Act (ADA) Acces- readily achievable barrier removal requirement.

Department of Justice Supplementary Information- 21 28 CFR Part 36

This proposal provided that qualified small busi- portunity to ask questions of the Department and nesses would be deemed to have satisfied their provide feedback. readily achievable barrier removal obligations As a result of the feedback provided by repre- for a given year if, during that tax year, they had sentatives of small business interests on the title spent at least 1 percent of their respective gross III NPRM, the Department was able to assess the revenues undertaking measures in compliance impact of various alternatives on small businesses with title III barrier removal requirements. Id. at before adopting its final rule and took steps to 34538–39. Lastly, the NPRM sought public input minimize any significant impact on small entities. on the inclusion of reduced scoping provisions for Most notably, the final rule retains the element-by- certain types of small existing recreation facilities element safe harbor for which the small business (i.e., swimming pools, play areas, and saunas). Id. community voiced strong support. See Appendix at 34515, 34534–37. A discussion of removal of barriers (§ 36.304). During the NPRM comment period, the Depart- The Department believes that this element-by- ment engaged in considerable public outreach element safe harbor provision will go a long way to the small business community. A public hear- toward mitigating the economic impact of the ing was held in Washington, D.C., during which final rule on existing facilities owned or operated nearly 50 persons, including several small busi- by small businesses. Indeed, as demonstrated in ness owners, testified in person or by phone. See the Final RIA, the element-by-element safe harbor Transcript of the Public Hearing on Notices of will provide substantial relief to small businesses Proposed Rulemaking (July 15, 2008), available at that is estimated at $ 7.5 billion over the expected www.ada.gov/NPRM2008/ public_hearing_tran- life of the final rule. script.htm. This hearing was also streamed live Additional regulatory measures mitigating the over the Internet. By the end of the 60-day com- economic impact of the final rule on title III-cov- ment period, the Department had also received ered entities (including small businesses) include nearly 4,500 public comments on the title III deletion of the proposed requirement for caption- NPRM, including a significant number of com- ing of safety and emergency information on score- ments reflecting small businesses’ perspectives on boards at sporting venues, retention of the pro- a wide range of regulatory issues. posed path of travel safe harbor, extension of the In addition to soliciting input from small enti- compliance date of the 2010 Standards as applied ties through the formal process for public com- to new construction and alterations from 6 months ment, the Department also targeted the small to 18 months after publication of the final rule, business community with less formal regulatory and, in response to public comments, modification discussions, including a Small Business Round- of the triggering event for application of the 2010 table convened by the Office of Advocacy and Standards to new construction and alterations held at the offices of the Small Business Adminis- from a unitary approach (commencement of phys- tration in Washington, D.C., and an informational ical construction) to a two-pronged approach (date question-and-answer session concerning the titles of last application for building permit or com- II and III NPRMs at the Department of Justice in mencement of physical construction) depending which business representatives attended in-person on whether a building permit is or is not required and by telephone. These outreach efforts provided for the type of construction at issue by State or the small business community with information local building authorities. See Appendix A discus- on the NPRM proposals being considered by the sions of captioning at sporting venues (§36.303), Department and gave small businesses the op- alterations and path of travel (§ 36.403), and com-

22 - Supplementary Information Department of Justice 28 CFR Part 36 pliance dates and triggering events for new con- Once the final rule is promulgated, small busi- struction and alterations (§ 36.406). nesses will also have a wealth of documents to Two sets of proposed alternative measures assist them in complying with the 2010 Standards. that would have potentially provided some cost For example, accompanying the final rule in the savings to small businesses—the safe harbor for Federal Register is the Department’s‘‘Analysis qualified small businesses and reduced scoping and Commentary on the 2010 ADA Standards for certain existing recreation facilities—were for Accessible Design,’’ which provides a plain not adopted by the Department in the final rule. language description of the revised scoping and As discussed in more depth previously, the safe technical requirements in these Standards and harbor for qualified small businesses was omit- provides illustrative figures. The Department also ted from the final rule because the general safe expects to publish guidance specifically tailored harbor already provides significant relief for small to small businesses in the form of a small business businesses located in existing facilities, the pro- compliance guide, as well as to publish technical posed safe harbor provision lacked support from assistance materials of general interest to all cov- the small business community and no consensus ered entities following promulgation of the final emerged from business commenters concerning rule. Additionally, the Access Board has published feasible bases for the final regulatory provision, a number of guides that discuss and illustrate ap- and commenters noted practical considerations plication of the 2010 Standards to play areas and that would potentially make some small business- various types of recreation facilities. es incur greater expense or administrative burden. See Appendix A discussion of the safe harbor for Executive Order 13132: Federalism qualified small businesses (§ 36.304). Executive Order 13132, 64 FR 43255, 3 CFR, The Department also omitted the proposals 2000 Comp., p. 206, requires executive branch to reduce scoping for certain existing recreation agencies to consider whether a rule will have facilities in the final rule. While these proposals federalism implications. That is, the rulemaking were not specific to small entities, they nonethe- agency must determine whether the rule is likely less might have mitigated the impact of the final to have substantial direct effects on State and lo- rule for some small businesses that owned or oper- cal governments, a substantial direct effect on the ated existing facilities at which these recreational relationship between the Federal government and elements were located. See Appendix A discus- the States and localities, or a substantial direct sion of reduced scoping for play areas and other effect on the distribution of power and responsi- recreation facilities (§ 36.304). The Department bilities among the different levels of government. gave careful consideration to how best to insulate If an agency believes that a rule is likely to have small businesses from overly burdensome barrier federalism implications, it must consult with State removal costs under the 2010 Standards for exist- and local elected officials about how to minimize ing small play areas, swimming pools, and saunas, or eliminate the effects. while still providing accessible and integrated Title III of the ADA covers public accommoda- recreation facilities that are of great importance tions and commercial facilities. These facilities to persons with disabilities. The Department con- are generally subject to regulation by different cluded that the existing readily achievable barrier levels of government, including Federal, State, removal standard, rather than specific exemptions and local governments. The ADA and the 2010 for these types of existing facilities, is the most Standards set minimum civil rights protections efficacious method by which to protect small busi- for individuals with disabilities that in turn may nesses. affect the implementation of State and local laws,

Department of Justice Supplementary Information- 23 28 CFR Part 36 particularly building codes. The 2010 Standards oped or adopted by voluntary consensus standards address federalism concerns and mitigate federal- bodies, which are private, generally non-profit ism implications, particularly the provisions that organizations that develop technical standards or streamline the administrative process for State and specifications using well-defined procedures that local governments seeking ADA code certification require openness, balanced participation among under title III. affected interests and groups, fairness and due As a member of the Access Board, the Depart- process, and an opportunity for appeal, as a means ment was privy to substantial feedback from State to carry out policy objectives or activities. Public and local governments throughout the develop- Law 104–113 section 12(d)(1) (15 U.S.C. 272 ment of the Board’s 2004 guidelines. Before Note). In addition, the NTTAA directs agencies to those guidelines were finalized as the 2004 ADA/ consult with voluntary, private sector, consensus ABA Guidelines, they addressed and minimized standards bodies and requires that agencies par- federalism concerns expressed by State and lo- ticipate with such bodies in the development of cal governments during the development process. technical standards when such participation is in Because the Department adopted ADA Chapter 1, the public interest and is compatible with agency ADA Chapter 2, and Chapters 3 through 10 of the and departmental missions, authorities, priorities, 2004 ADA/ABA Guidelines as part of the 2010 and budget resources. Id. section 12(d)1). The Standards, the steps taken in the 2004 ADA/ABA Department, as a member of the Access Board, Guidelines to address federalism concerns are re- was an active participant in the lengthy process flected in the 2010 Standards. of developing the 2004 ADAAG, on which the The Department also solicited and received 2010 Standards are based. As part of this update, input from public entities in the September 2004 the Board has made its guidelines more consistent ANPRM and the June 2008 NPRM. Through with model building codes, such as the IBC, and the ANPRM and NPRM processes, the Depart- industry standards. It coordinated extensively with ment solicited comments from elected State and model code groups and standard-setting bodies local officials and their representative national throughout the process so that differences could be organizations about the potential federalism impli- reconciled. As a result, an historic level of harmo- cations. The Department received comments ad- nization has been achieved that has brought about dressing whether the ANPRM and NPRM directly improvements to the guidelines, as well as to affected State and local governments, the rela- counterpart provisions in the IBC and key industry tionship between the Federal government and the standards, including those for accessible facilities States, and the distribution of power and respon- issued through the American National Standards sibilities among the various levels of government. Institute. The rule preempts State laws affecting entities subject to the ADA only to the extent that those Plain Language Instructions laws conflict with the requirements of the ADA, The Department makes every effort to promote as set forth in the rule. clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting lan- National Technology Transfer and Advance- guage that is simple and straightforward and draft- ment Act of 1995 ing language that gives full effect to issues of legal The National Technology Transfer and Ad- interpretation. The Department operates a toll-free vancement Act of 1995 (NTTAA) directs that, as ADA Information Line (800) 514–0301(voice); a general matter, all Federal agencies and depart- (800) 514–0383 (TTY) that the public is welcome ments shall use technical standards that are devel- to call at any time to obtain assistance in under-

24 - Supplementary Information Department of Justice 28 CFR Part 36 standing 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, Disability Rights Section, whose contact information is provided in the in- troductory section of this rule, entitled FOR FUR- THER INFORMATION CONTACT.

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

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

List of Subjects for 28 CFR Part 36 Administrative practice and procedure, Build- ings and facilities, Business and industry, Civil rights, Individuals with disabilities, Penalties, Re- porting and recordkeeping requirements. •By the authority vested in me as Attorney Gen- eral by law, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with Disabilities Act of 1990, Public Law 101–336 (42 U.S.C. 12186), and for the reasons set forth in Ap- pendix A to 28 CFR part 36, chapter I of title 28 of the Code of Federal Regulations is amended as follows:

Department of Justice Supplementary Information- 25 26 Department of Justice Title III Regulations Revised Final Title III Regulation with Integrated Text

Department of Justice 28 Department of Justice 28 CFR Part 36

Part 36 Nondiscrimination on the Basis of (ii) A facility used as, or designed and con- Disability in Public Accommodations structed for use as, a commercial facility. and Commercial Facilities (as amended by the (c) Commercial facilities. The requirements of final rule published on September 15, 2010) this part applicable to commercial facilities are set forth in subpart D of this part. Authority: (d) Examinations and courses. The requirements 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. of this part applicable to private entities that offer 12186(b). examinations or courses as specified in paragraph (a) of this section are set forth in § 36.309. Subpart A – General (e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that § 36.101 Purpose. the facilities of the private club are made available The purpose of this part is to implement title III to customers or patrons of a place of public ac- of the Americans with Disabilities Act of 1990 (42 commodation), or to any religious entity or public U.S.C. 12181), which prohibits discrimination on entity. the basis of disability by public accommodations and requires places of public accommodation and § 36.103 Relationship to other laws. commercial facilities to be designed, constructed, (a) Rule of interpretation. Except as otherwise and altered in compliance with the accessibility provided in this part, this part shall not be con- standards established by this part. strued to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of § 36.102 Application. 1973 (29 U.S.C. 791) or the regulations issued by (a) General. This part applies to any – Federal agencies pursuant to that title. (1) Public accommodation; (b) Section 504. This part does not affect the ob- (2) Commercial facility; or ligations of a recipient of Federal financial assis- (3) Private entity that offers examinations tance to comply with the requirements of section or courses related to applications, licensing, 504 of the Rehabilitation Act of 1973 (29 U.S.C. certification, or credentialing for secondary or 794) and regulations issued by Federal agencies postsecondary education, professional, or trade implementing section 504. purposes. (c) Other laws. This part does not invalidate or (b) Public accommodations. limit the remedies, rights, and procedures of any (1) The requirements of this part applicable to other Federal laws, or State or local laws (includ- public accommodations are set forth in subparts ing State common law) that provide greater or B, C, and D of this part. equal protection for the rights of individuals with (2) The requirements of subparts B and C of disabilities or individuals associated with them. this part obligate a public accommodation only with respect to the operations of a place of pub- § 36.104 Definitions. lic accommodation. For purposes of this part, the term– (3) The requirements of subpart D of this part obligate a public accommodation only with re- 1991 Standards means requirements set forth in spect to – the ADA Standards for Accessible Design, origi- (i) A facility used as, or designed or con- nally published on July 26, 1991, and republished structed for use as, a place of public accommo- as Appendix D to this part. dation; or

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2004 ADAAG means the requirements set forth in reasonable belief that a person´s drug use is cur- appendices B and D to 36 CFR part 1191 (2009). rent or that continuing use is a real and ongoing problem. 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 Direct threat means a significant risk to the health ADAAG and the requirements contained in sub- or safety of others that cannot be eliminated by a part D of this part. modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, as Act means the Americans with Disabilities Act of provided in § 36.208. 1990 (Pub. L. 101 - 336, 104 Stat. 327, 42 U.S.C. 12101 - 12213 and 47 U.S.C. 225 and 611). Disability means, with respect to an individual, a physical or mental impairment that substantially Commerce means travel, trade, traffic, commerce, limits one or more of the major life activities of transportation, or communication – such individual; a record of such an impairment; (1) Among the several States; or being regarded as having such an impairment. (2) Between any foreign country or any terri- (1) The phrase physical or mental impairment tory or possession and any State; or means – (3) Between points in the same State but (i) Any physiological disorder or condition, through another State or foreign country. cosmetic disfigurement, or anatomical loss affecting one or more of the following body Commercial facilities means facilities – systems: neurological; musculoskeletal; special (1) Whose operations will affect commerce; sense organs; respiratory, including speech or- (2) That are intended for nonresidential use by gans; cardiovascular; reproductive; digestive; a private entity; and genitourinary; hemic and lymphatic; skin; and (3) That are not – endocrine; (i) Facilities that are covered or expressly (ii) Any mental or psychological disorder exempted from coverage under the Fair Hous- such as mental retardation, organic brain syn- ing Act of 1968, as amended (42 U.S.C. 3601 drome, emotional or mental illness, and spe- - 3631); cific learning disabilities; (ii) Aircraft; or (iii) The phrase physical or mental impair- (iii) Railroad locomotives, railroad freight ment includes, but is not limited to, such con- cars, railroad cabooses, commuter or intercity tagious and noncontagious diseases and condi- passenger rail cars (including coaches, dining tions as orthopedic, visual, speech, and hearing cars, sleeping cars, lounge cars, and food ser- impairments, cerebral palsy, epilepsy, muscular vice cars), any other railroad cars described in dystrophy, multiple sclerosis, cancer, heart section 242 of the Act or covered under title II disease, diabetes, mental retardation, emotional of the Act, or railroad rights-of-way. For pur- illness, specific learning disabilities, HIV dis- poses of this definition, "rail" and "railroad" ease (whether symptomatic or asymptomatic), have the meaning given the term "railroad" in tuberculosis, drug addiction, and alcoholism; section 202(e) of the Federal Railroad Safety (iv) The phrase physical or mental impair- Act of 1970 (45 U.S.C. 431(e)). ment does not include homosexuality or bi- sexuality. Current illegal use of drugs means illegal use of 2) The phrase major life activities means func- drugs that occurred recently enough to justify a tions such as caring for one´s self, performing

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manual tasks, walking, seeing, hearing, speak- property, including the site where the building, ing, breathing, learning, and working. property, structure, or equipment is located. (3) The phrase has a record of such an impair- ment means has a history of, or has been mis- Housing at a place of education means housing classified as having, a mental or physical impair- operated by or on behalf of an elementary, sec- ment that substantially limits one or more major ondary, undergraduate, or postgraduate school, or life activities. other place of education, including dormitories, (4) The phrase is regarded as having an im- suites, apartments, or other places of residence. pairment means – (i) Has a physical or mental impairment that Illegal use of drugs means the use of one or more does not substantially limit major life activities drugs, the possession or distribution of which is but that is treated by a private entity as consti- unlawful under the Controlled Substances Act (21 tuting such a limitation; U.S.C. 812). The term "illegal use of drugs" does (ii) Has a physical or mental impairment not include the use of a drug taken under supervi- that substantially limits major life activities sion by a licensed health care professional, or oth- only as a result of the attitudes of others toward er uses authorized by the Controlled Substances such impairment; or Act or other provisions of Federal law. (iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by Individual with a disability means a person who a private entity as having such an impairment. has a disability. The term "individual with a dis- (5) The term disability does not include – ability" does not include an individual who is cur- (i) Transvestism, transsexualism, pedophil- rently engaging in the illegal use of drugs, when ia, exhibitionism, voyeurism, gender identity the private entity acts on the basis of such use. disorders not resulting from physical impair- ments, or other sexual behavior disorders; Other power-driven mobility device means any (ii) Compulsive gambling, kleptomania, or mobility device powered by batteries, fuel, or oth- pyromania; or er engines – whether or not designed primarily for (iii) Psychoactive substance use disorders use by individuals with mobility disabilities – that resulting from current illegal use of drugs. is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, Drug means a controlled substance, as defined in electronic personal assistance mobility devices schedules I through V of section 202 of the Con- (EPAMDs), such as the Segway® PT, or any mo- trolled Substances Act (21 U.S.C. 812). bility device designed to operate in areas without defined pedestrian routes, but that is not a wheel- Existing facility means a facility in existence on chair within the meaning of this section. This defi- any given date, without regard to whether the fa- nition does not apply to Federal wilderness areas; cility may also be considered newly constructed or wheelchairs in such areas are defined in section altered under this part. 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Facility means all or any portion of buildings, Place of public accommodation means a facil- structures, sites, complexes, equipment, rolling ity operated by a private entity whose operations stock or other conveyances, roads, walks, pas- affect commerce and fall within at least one of the sageways, parking lots, or other real or personal following categories –

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(1) Place of lodging, except for an establish- fice, professional office of a health care provider, ment located within a facility that contains not hospital, or other service establishment; more than five rooms for rent or hire and that (7) A terminal, depot, or other station used for actually is occupied by the proprietor of the es- specified public transportation; tablishment as the residence of the proprietor. (8) A museum, library, gallery, or other place For purposes of this part, a facility is a "place of of public display or collection; lodging" if it is – (9) A park, zoo, amusement park, or other (i) An inn, hotel, or motel; or place of recreation; (ii) A facility that – (10) A nursery, elementary, secondary, under- (A) Provides guest rooms for sleeping graduate, or postgraduate private school, or other for stays that primarily are short-term in place of education; nature (generally 30 days or less) where (11) A day care center, senior citizen center, the occupant does not have the right to homeless shelter, food bank, adoption agency, or return to a specific room or unit after the other social service center establishment; and conclusion of his or her stay; and (12) A gymnasium, health spa, bowling alley, (B) Provides guest rooms under condi- golf course, or other place of exercise or recre- tions and with amenities similar to a ation. hotel, motel, or inn, including the follow- ing – Private club means a private club or establishment (1) On- or off-site management and exempted from coverage under title II of the Civil reservations service; Rights Act of 1964 (42 U.S.C. 2000a(e)). (2) Rooms available on a walk-up or call-in basis; Private entity means a person or entity other than (3) Availability of housekeeping or a public entity. linen service; and (4) Acceptance of reservations for a Public accommodation means a private entity that guest room type without guaranteeing owns, leases (or leases to), or operates a place of a particular unit or room until check- public accommodation. in, and without a prior lease or secu- rity deposit. Public entity means – (2) A restaurant, bar, or other establishment (1) Any State or local government; serving food or drink; (2) Any department, agency, special purpose (3) A motion picture house, theater, concert district, or other instrumentality of a State or hall, stadium, or other place of exhibition or en- States or local government; and tertainment; (3) The National Railroad Passenger Corpora- (4) An auditorium, convention center, lecture tion, and any commuter authority (as defined hall, or other place of public gathering; in section 103(8) of the Rail Passenger Service (5) A bakery, grocery store, clothing store, Act). (45 U.S.C. 541) hardware store, shopping center, or other sales or rental establishment; Qualified interpreter means an interpreter who, (6) A laundromat, dry-cleaner, bank, barber via a video remote interpreting (VRI) service or shop, beauty shop, travel service, shoe repair an on-site appearance, is able to interpret effec- service, funeral parlor, gas station, office of an tively, accurately, and impartially, both receptively accountant or lawyer, pharmacy, insurance of- and expressively, using any necessary specialized

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vocabulary. Qualified interpreters include, for ex- whether wild or domestic, trained or untrained, are ample, sign language interpreters, oral translitera- not service animals for the purposes of this defini- tors, and cued-language transliterators. tion. The work or tasks performed by a service animal must be directly related to the individual´s Qualified reader means a person who is able to disability. Examples of work or tasks include, but read effectively, accurately, and impartially using are not limited to, assisting individuals who are any necessary specialized vocabulary. blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard Readily achievable means easily accomplishable of hearing to the presence of people or sounds, and able to be carried out without much difficulty providing non-violent protection or rescue work, or expense. In determining whether an action is pulling a wheelchair, assisting an individual dur- readily achievable factors to be considered in- ing a seizure, alerting individuals to the presence clude – of allergens, retrieving items such as medicine (1) The nature and cost of the action needed or the telephone, providing physical support and under this part; assistance with balance and stability to individu- (2) The overall financial resources of the site or als with mobility disabilities, and helping persons sites involved in the action; the number of per- with psychiatric and neurological disabilities by sons employed at the site; the effect on expenses preventing or interrupting impulsive or destruc- and resources; legitimate safety requirements tive behaviors. The crime deterrent effects of an that are necessary for safe operation, including animal´s presence and the provision of emotional crime prevention measures; or the impact other- support, well-being, comfort, or companionship wise of the action upon the operation of the site; do not constitute work or tasks for the purposes of (3) The geographic separateness, and the ad- this definition. ministrative or fiscal relationship of the site or sites in question to any parent corporation or Specified public transportation means transporta- entity; tion by bus, rail, or any other conveyance (other (4) If applicable, the overall financial resources than by aircraft) that provides the general public of any parent corporation or entity; the overall with general or special service (including charter size of the parent corporation or entity with re- service) on a regular and continuing basis. spect to the number of its employees; the num- ber, type, and location of its facilities; and State means each of the several States, the Dis- (5) If applicable, the type of operation or oper- trict of Columbia, the Commonwealth of Puerto ations of any parent corporation or entity, includ- Rico, Guam, American Samoa, the Virgin Islands, ing the composition, structure, and functions of the Trust Territory of the Pacific Islands, and the the workforce of the parent corporation or entity. Commonwealth of the Northern Mariana Islands.

Religious entity means a religious organization, Undue burden means significant difficulty or ex- including a place of worship. pense. In determining whether an action would result in an undue burden, factors to be considered Service animal means any dog that is individu- include – ally trained to do work or perform tasks for the (1) The nature and cost of the action needed benefit of an individual with a disability, including under this part; a physical, sensory, psychiatric, intellectual, or (2) The overall financial resources of the site or other mental disability. Other species of animals, sites involved in the action; the number of per-

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sons employed at the site; the effect on expenses or accommodations of any place of public accom- and resources; legitimate safety requirements modation by any private entity who owns, leases that are necessary for safe operation, including (or leases to), or operates a place of public accom- crime prevention measures; or the impact other- modation. wise of the action upon the operation of the site; (b) Landlord and tenant responsibilities. Both (3) The geographic separateness, and the ad- the landlord who owns the building that houses ministrative or fiscal relationship of the site or a place of public accommodation and the tenant sites in question to any parent corporation or who owns or operates the place of public accom- entity; modation are public accommodations subject (4) If applicable, the overall financial resources to the requirements of this part. As between the of any parent corporation or entity; the overall parties, allocation of responsibility for comply- size of the parent corporation or entity with re- ing with the obligations of this part may be deter- spect to the number of its employees; the num- mined by lease or other contract. ber, type, and location of its facilities; and (5) If applicable, the type of operation or oper- § 36.202 Activities. ations of any parent corporation or entity, includ- (a) Denial of participation. A public accommoda- ing the composition, structure, and functions of tion shall not subject an individual or class of in- the workforce of the parent corporation or entity. dividuals on the basis of a disability or disabilities of such individual or class, directly, or through Video remote interpreting (VRI) service means contractual, licensing, or other arrangements, to a an interpreting service that uses video conference denial of the opportunity of the individual or class technology over dedicated lines or wireless tech- to participate in or benefit from the goods, ser- nology offering high-speed, wide-bandwidth video vices, facilities, privileges, advantages, or accom- connection that delivers high-quality video images modations of a place of public accommodation. as provided in § 36.303(f). (b) Participation in unequal benefit. A public ac- commodation shall not afford an individual or Wheelchair means a manually-operated or power- class of individuals, on the basis of a disability or driven device designed primarily for use by an disabilities of such individual or class, directly, or individual with a mobility disability for the main through contractual, licensing, or other arrange- purpose of indoor or of both indoor and outdoor ments, with the opportunity to participate in or locomotion. This definition does not apply to Fed- benefit from a good, service, facility, privilege, eral wilderness areas; wheelchairs in such areas advantage, or accommodation that is not equal to are defined in section 508(c)(2) of the ADA, 42 that afforded to other individuals. U.S.C. 12207(c)(2). (c) Separate benefit. A public accommodation shall not provide an individual or class of indi- §§ 36.105 – 36.199 [Reserved] viduals, on the basis of a disability or disabilities of such individual or class, directly, or through Subpart B – General Requirements contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or § 36.201 General. accommodation that is different or separate from (a) Prohibition of discrimination. No individual that provided to other individuals, unless such shall be discriminated against on the basis of action is necessary to provide the individual or disability in the full and equal enjoyment of the class of individuals with a good, service, facility, goods, services, facilities, privileges, advantages, privilege, advantage, or accommodation, or other

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opportunity that is as effective as that provided to § 36.205 Association. others. A public accommodation shall not exclude or (d) Individual or class of individuals. For purposes otherwise deny equal goods, services, facilities, of paragraphs (a) through (c) of this section, the privileges, advantages, accommodations, or other term "individual or class of individuals" refers to opportunities to an individual or entity because of the clients or customers of the public accommoda- the known disability of an individual with whom tion that enters into the contractual, licensing, or the individual or entity is known to have a rela- other arrangement. tionship or association.

§ 36.203 Integrated settings. § 36.206 Retaliation or coercion. (a) General. A public accommodation shall afford (a) No private or public entity shall discriminate goods, services, facilities, privileges, advantages, against any individual because that individual has and accommodations to an individual with a dis- opposed any act or practice made unlawful by this ability in the most integrated setting appropriate to part, or because that individual made a charge, the needs of the individual. testified, assisted, or participated in any manner in (b) Opportunity to participate. Notwithstanding an investigation, proceeding, or hearing under the the existence of separate or different programs or Act or this part. activities provided in accordance with this sub- (b) No private or public entity shall coerce, intimi- part, a public accommodation shall not deny an date, threaten, or interfere with any individual in individual with a disability an opportunity to par- the exercise or enjoyment of, or on account of his ticipate in such programs or activities that are not or her having exercised or enjoyed, or on account separate or different. of his or her having aided or encouraged any other (c) Accommodations and services. individual in the exercise or enjoyment of, any (1) Nothing in this part shall be construed to right granted or protected by the Act or this part. require an individual with a disability to accept (c) Illustrations of conduct prohibited by this sec- an accommodation, aid, service, opportunity, or tion include, but are not limited to: benefit available under this part that such indi- (1) Coercing an individual to deny or limit the vidual chooses not to accept. benefits, services, or advantages to which he or (2) Nothing in the Act or this part authorizes she is entitled under the Act or this part; the representative or guardian of an individual (2) Threatening, intimidating, or interfering with a disability to decline food, water, medi- with an individual with a disability who is seek- cal treatment, or medical services for that indi- ing to obtain or use the goods, services, facili- vidual. ties, privileges, advantages, or accommodations of a public accommodation; § 36.204 Administrative methods. (3) Intimidating or threatening any person be- A public accommodation shall not, directly or cause that person is assisting or encouraging an through contractual or other arrangements, utilize individual or group entitled to claim the rights standards or criteria or methods of administration granted or protected by the Act or this part to ex- that have the effect of discriminating on the basis ercise those rights; or of disability, or that perpetuate the discrimination (4) Retaliating against any person because that of others who are subject to common administra- person has participated in any investigation or tive control. action to enforce the Act or this part.

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§ 36.207 Places of public accommodation lo- (2) A public accommodation shall not discrimi- cated in private residences. nate on the basis of illegal use of drugs against (a) When a place of public accommodation is an individual who is not engaging in current il- located in a private residence, the portion of the legal use of drugs and who – residence used exclusively as a residence is not (i) Has successfully completed a supervised covered by this part, but that portion used ex- drug rehabilitation program or has otherwise clusively in the operation of the place of public been rehabilitated successfully; accommodation or that portion used both for the (ii) Is participating in a supervised rehabili- place of public accommodation and for residential tation program; or purposes is covered by this part. (iii) Is erroneously regarded as engaging in (b) The portion of the residence covered under such use. paragraph (a) of this section extends to those ele- (b) Health and drug rehabilitation services. ments used to enter the place of public accommo- (1) A public accommodation shall not deny dation, including the homeowner´s front sidewalk, health services, or services provided in connec- if any, the door or entryway, and hallways; and tion with drug rehabilitation, to an individual on those portions of the residence, interior or exterior, the basis of that individual´s current illegal use available to or used by customers or clients, in- of drugs, if the individual is otherwise entitled to cluding restrooms. such services. (2) A drug rehabilitation or treatment program § 36.208 Direct threat. may deny participation to individuals who en- (a) This part does not require a public accommo- gage in illegal use of drugs while they are in the dation to permit an individual to participate in or program. benefit from the goods, services, facilities, privi- (c) Drug testing. leges, advantages and accommodations of that (1) This part does not prohibit a public accom- public accommodation when that individual poses modation from adopting or administering rea- a direct threat to the health or safety of others. sonable policies or procedures, including but not (b) In determining whether an individual poses limited to drug testing, designed to ensure that a direct threat to the health or safety of others, a an individual who formerly engaged in the il- public accommodation must make an individual- legal use of drugs is not now engaging in current ized assessment, based on reasonable judgment illegal use of drugs. that relies on current medical knowledge or on the (2) Nothing in this paragraph (c) shall be con- best available objective evidence, to ascertain: The strued to encourage, prohibit, restrict, or autho- nature, duration, and severity of the risk; the prob- rize the conducting of testing for the illegal use ability that the potential injury will actually occur; of drugs. and whether reasonable modifications of policies, practices, or procedures or the provision of auxil- § 36.210 Smoking. iary aids or services will mitigate the risk. This part does not preclude the prohibition of, or the imposition of restrictions on, smoking in § 36.209 Illegal use of drugs. places of public accommodation. (a) General. (1) Except as provided in paragraph (b) of this § 36.211 Maintenance of accessible features. section, this part does not prohibit discrimination (a) A public accommodation shall maintain in op- against an individual based on that individual´s erable working condition those features of facili- current illegal use of drugs. ties and equipment that are required to be readily

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accessible to and usable by persons with disabili- § 36.213 Relationship of subpart B to subparts ties by the Act or this part. C and D of this part. (b) This section does not prohibit isolated or tem- Subpart B of this part sets forth the general princi- porary interruptions in service or access due to ples of nondiscrimination applicable to all entities maintenance or repairs. subject to this part. Subparts C and D of this part (c) If the 2010 Standards reduce the technical re- provide guidance on the application of the statute quirements or the number of required accessible to specific situations. The specific provisions, elements below the number required by the 1991 including the limitations on those provisions, con- Standards, the technical requirements or the num- trol over the general provisions in circumstances ber of accessible elements in a facility subject to where both specific and general provisions apply. this part may be reduced in accordance with the requirements of the 2010 Standards. §§ 36.214 – 36.299 [Reserved]

§ 36.212 Insurance. Subpart C – Specific Requirements (a) This part shall not be construed to prohibit or restrict – § 36.301 Eligibility criteria. (1) An insurer, hospital or medical service (a) General. A public accommodation shall not company, health maintenance organization, or impose or apply eligibility criteria that screen any agent, or entity that administers benefit out or tend to screen out an individual with a dis- plans, or similar organizations from underwrit- ability or any class of individuals with disabilities ing risks, classifying risks, or administering such from fully and equally enjoying any goods, ser- risks that are based on or not inconsistent with vices, facilities, privileges, advantages, or accom- State law; or modations, unless such criteria can be shown to be (2) A person or organization covered by this necessary for the provision of the goods, services, part from establishing, sponsoring, observing or facilities, privileges, advantages, or accommoda- administering the terms of a bona fide benefit tions being offered. plan that are based on underwriting risks, clas- (b) Safety. A public accommodation may impose sifying risks, or administering such risks that are legitimate safety requirements that are necessary based on or not inconsistent with State law; or for safe operation. Safety requirements must be (3) A person or organization covered by this based on actual risks and not on mere speculation, part from establishing, sponsoring, observing or stereotypes, or generalizations about individuals administering the terms of a bona fide benefit with disabilities. plan that is not subject to State laws that regulate (c) Charges. A public accommodation may not insurance. impose a surcharge on a particular individual with (b) Paragraphs (a) (1), (2), and (3) of this section a disability or any group of individuals with dis- shall not be used as a subterfuge to evade the pur- abilities to cover the costs of measures, such as the poses of the Act or this part. provision of auxiliary aids, barrier removal, alter- (c) A public accommodation shall not refuse to natives to barrier removal, and reasonable modi- serve an individual with a disability because its fications in policies, practices, or procedures, that insurance company conditions coverage or rates are required to provide that individual or group on the absence of individuals with disabilities. with the nondiscriminatory treatment required by the Act or this part.

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§ 36.302 Modifications in policies, practices, or (i) The animal is out of control and the procedures. animal´s handler does not take effective action (a) General. A public accommodation shall make to control it; or reasonable modifications in policies, practices, or (ii) The animal is not housebroken. procedures, when the modifications are necessary (3) If an animal is properly excluded. If a pub- to afford goods, services, facilities, privileges, ad- lic accommodation properly excludes a service vantages, or accommodations to individuals with animal under § 36.302(c)(2), it shall give the in- disabilities, unless the public accommodation can dividual with a disability the opportunity to ob- demonstrate that making the modifications would tain goods, services, and accommodations with- fundamentally alter the nature of the goods, ser- out having the service animal on the premises. vices, facilities, privileges, advantages, or accom- (4) Animal under handler´s control. A service modations. animal shall be under the control of its handler. (b) Specialties – A service animal shall have a harness, leash, or (1) General. A public accommodation may other tether, unless either the handler is unable refer an individual with a disability to another because of a disability to use a harness, leash, public accommodation, if that individual is seek- or other tether, or the use of a harness, leash, ing, or requires, treatment or services outside of or other tether would interfere with the service the referring public accommodation´s area of animal´s safe, effective performance of work or specialization, and if, in the normal course of its tasks, in which case the service animal must be operations, the referring public accommodation otherwise under the handler´s control (e.g., voice would make a similar referral for an individual control, signals, or other effective means). without a disability who seeks or requires the (5) Care or supervision. A public accommoda- same treatment or services. tion is not responsible for the care or supervision (2) Illustration – medical specialties. A health of a service animal. care provider may refer an individual with a (6) Inquiries. A public accommodation shall disability to another provider, if that individual not ask about the nature or extent of a person´s is seeking, or requires, treatment or services disability, but may make two inquiries to deter- outside of the referring provider´s area of spe- mine whether an animal qualifies as a service cialization, and if the referring provider would animal. A public accommodation may ask if the make a similar referral for an individual without animal is required because of a disability and a disability who seeks or requires the same treat- what work or task the animal has been trained ment or services. A physician who specializes in to perform. A public accommodation shall not treating only a particular condition cannot refuse require documentation, such as proof that the to treat an individual with a disability for that animal has been certified, trained, or licensed condition, but is not required to treat the indi- as a service animal. Generally, a public accom- vidual for a different condition. modation may not make these inquiries about a (c) Service animals. service animal when it is readily apparent that (1) General. Generally, a public accommoda- an animal is trained to do work or perform tasks tion shall modify policies, practices, or proce- for an individual with a disability (e.g., the dog dures to permit the use of a service animal by an is observed guiding an individual who is blind individual with a disability. or has low vision, pulling a person´s wheelchair, (c)(2) Exceptions. A public accommodation or providing assistance with stability or balance may ask an individual with a disability to re- to an individual with an observable mobility dis- move a service animal from the premises if: ability).

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(7) Access to areas of a public accommodation. (d) Check-out aisles. A store with check-out aisles Individuals with disabilities shall be permitted shall ensure that an adequate number of accessible to be accompanied by their service animals in all check-out aisles are kept open during store hours, areas of a place of public accommodation where or shall otherwise modify its policies and prac- members of the public, program participants, cli- tices, in order to ensure that an equivalent level of ents, customers, patrons, or invitees, as relevant, convenient service is provided to individuals with are allowed to go. disabilities as is provided to others. If only one (8) Surcharges. A public accommodation shall check-out aisle is accessible, and it is generally not ask or require an individual with a disability used for express service, one way of providing to pay a surcharge, even if people accompanied equivalent service is to allow persons with mobil- by pets are required to pay fees, or to comply ity impairments to make all their purchases at that with other requirements generally not applicable aisle. to people without pets. If a public accommoda- (e) tion normally charges individuals for the damage (1) Reservations made by places of lodging. they cause, an individual with a disability may A public accommodation that owns, leases (or be charged for damage caused by his or her ser- leases to), or operates a place of lodging shall, vice animal. with respect to reservations made by any means, (9) Miniature horses. including by telephone, in-person, or through a (i) A public accommodation shall make third party – reasonable modifications in policies, practices, (i) Modify its policies, practices, or proce- or procedures to permit the use of a miniature dures to ensure that individuals with disabili- horse by an individual with a disability if the ties can make reservations for accessible guest miniature horse has been individually trained rooms during the same hours and in the same to do work or perform tasks for the benefit of manner as individuals who do not need acces- the individual with a disability. sible rooms; (ii) Assessment factors. In determining (ii) Identify and describe accessible features whether reasonable modifications in policies, in the hotels and guest rooms offered through practices, or procedures can be made to allow a its reservations service in enough detail to miniature horse into a specific facility, a public reasonably permit individuals with disabilities accommodation shall consider – to assess independently whether a given hotel (A) The type, size, and weight of the or guest room meets his or her accessibility miniature horse and whether the facility needs; can accommodate these features; (iii) Ensure that accessible guest rooms are (B) Whether the handler has sufficient held for use by individuals with disabilities un- control of the miniature horse; til all other guest rooms of that type have been (C) Whether the miniature horse is rented and the accessible room requested is the housebroken; and only remaining room of that type; (D) Whether the miniature horse´s pres- (iv) Reserve, upon request, accessible guest ence in a specific facility compromises rooms or specific types of guest rooms and en- legitimate safety requirements that are sure that the guest rooms requested are blocked necessary for safe operation. and removed from all reservations systems; (iii) Other requirements. Sections 36.302(c) and (3) through (c)(8), which apply to service ani- (v) Guarantee that the specific accessible mals, shall also apply to miniature horses. guest room reserved through its reservations

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service is held for the reserving customer, re- distributes tickets for a single event or series of gardless of whether a specific room is held in events shall, upon inquiry – response to reservations made by others. (i) Inform individuals with disabilities, their (2) Exception. The requirements in paragraphs companions, and third parties purchasing tick- (iii), (iv), and (v) of this section do not apply to ets for accessible seating on behalf of individu- reservations for individual guest rooms or other als with disabilities of the locations of all un- units not owned or substantially controlled by sold or otherwise available accessible seating the entity that owns, leases, or operates the over- for any ticketed event or events at the facility; all facility. (ii) Identify and describe the features of (3) Compliance date. The requirements in this available accessible seating in enough detail section will apply to reservations made on or af- to reasonably permit an individual with a dis- ter March 15, 2012. ability to assess independently whether a given (f) Ticketing. accessible seating location meets his or her ac- (1) cessibility needs; and (i) For the purposes of this section, "acces- (iii) Provide materials, such as seating sible seating" is defined as wheelchair spaces maps, plans, brochures, pricing charts, or other and companion seats that comply with sections information, that identify accessible seating 221 and 802 of the 2010 Standards along with and information relevant thereto with the same any other seats required to be offered for sale text or visual representations as other seats, to the individual with a disability pursuant to if such materials are provided to the general paragraph (4) of this section. public. (ii) Ticket sales. A public accommodation (3) Ticket prices. The price of tickets for acces- that sells tickets for a single event or series of sible seating for a single event or series of events events shall modify its policies, practices, or shall not be set higher than the price for other procedures to ensure that individuals with dis- tickets in the same seating section for the same abilities have an equal opportunity to purchase event or series of events. Tickets for accessible tickets for accessible seating – seating must be made available at all price levels (A) During the same hours; for every event or series of events. If tickets for (B) During the same stages of ticket accessible seating at a particular price level can- sales, including, but not limited to, pre- not be provided because barrier removal in an sales, promotions, lotteries, wait-lists, existing facility is not readily achievable, then and general sales; the percentage of tickets for accessible seating (C) Through the same methods of distri- that should have been available at that price lev- bution; el but for the barriers (determined by the ratio of (D) In the same types and numbers of the total number of tickets at that price level to ticketing sales outlets, including tele- the total number of tickets in the assembly area) phone service, in-person ticket sales at shall be offered for purchase, at that price level, the facility, or third-party ticketing ser- in a nearby or similar accessible location. vices, as other patrons; and (4) Purchasing multiple tickets. (E) Under the same terms and conditions (i) General. For each ticket for a wheelchair as other tickets sold for the same event or space purchased by an individual with a dis- series of events. ability or a third-party purchasing such a ticket (2) Identification of available accessible at his or her request, a public accommodation seating. A public accommodation that sells or shall make available for purchase three addi-

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tional tickets for seats in the same row that are (i) Tickets for accessible seating may be contiguous with the wheelchair space, provid- released for sale in certain limited circum- ed that at the time of purchase there are three stances. A public accommodation may release such seats available. A public accommodation unsold tickets for accessible seating for sale to is not required to provide more than three con- individuals without disabilities for their own tiguous seats for each wheelchair space. Such use for a single event or series of events only seats may include wheelchair spaces. under the following circumstances – (ii) Insufficient additional contiguous seats (A) When all non-accessible tickets available. If patrons are allowed to purchase at (excluding luxury boxes, club boxes, or least four tickets, and there are fewer than three suites) have been sold; such additional contiguous seat tickets avail- (B) When all non-accessible tickets in a able for purchase, a public accommodation designated seating area have been sold shall offer the next highest number of such seat and the tickets for accessible seating are tickets available for purchase and shall make being released in the same designated up the difference by offering tickets for sale for area; or seats that are as close as possible to the acces- (C) When all non-accessible tickets in a sible seats. designated price category have been sold (iii) Sales limited to fewer than four tick- and the tickets for accessible seating are ets. If a public accommodation limits sales of being released within the same desig- tickets to fewer than four seats per patron, then nated price category. the public accommodation is only obligated to (ii) No requirement to release accessible offer as many seats to patrons with disabilities, tickets. Nothing in this paragraph requires a including the ticket for the wheelchair space, facility to release tickets for accessible seating as it would offer to patrons without disabilities. to individuals without disabilities for their own (iv) Maximum number of tickets patrons use. may purchase exceeds four. If patrons are al- (iii) Release of series-of-events tickets on a lowed to purchase more than four tickets, a series-of-events basis. public accommodation shall allow patrons with (A) Series-of-events tickets sell-out when disabilities to purchase up to the same number no ownership rights are attached. When of tickets, including the ticket for the wheel- series-of-events tickets are sold out and a chair space. public accommodation releases and sells (v) Group sales. If a group includes one or accessible seating to individuals without more individuals who need to use accessible disabilities for a series of events, the seating because of a mobility disability or be- public accommodation shall establish a cause their disability requires the use of the ac- process that prevents the automatic reas- cessible features that are provided in accessible signment of the accessible seating to such seating, the group shall be placed in a seating ticket holders for future seasons, future area with accessible seating so that, if possible, years, or future series, so that individuals the group can sit together. If it is necessary to with disabilities who require the features divide the group, it should be divided so that of accessible seating and who become the individuals in the group who use wheel- newly eligible to purchase tickets when chairs are not isolated from their group. these series-of-events tickets are avail- (5) Hold and release of tickets for accessible able for purchase have an opportunity to seating. do so.

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(B) Series-of-events tickets when owner- (i) Single-event tickets. For the sale of ship rights are attached. When series- single-event tickets, it is permissible to inquire of-events tickets with an ownership right whether the individual purchasing the tickets in accessible seating areas are forfeited for accessible seating has a mobility disability or otherwise returned to a public accom- or a disability that requires the use of the ac- modation, the public accommodation cessible features that are provided in acces- shall make reasonable modifications in sible seating, or is purchasing the tickets for an its policies, practices, or procedures to individual who has a mobility disability or a afford individuals with mobility disabili- disability that requires the use of the accessible ties or individuals with disabilities that features that are provided in the accessible require the features of accessible seating seating. an opportunity to purchase such tickets in (ii) Series-of-events tickets. For series- accessible seating areas. of-events tickets, it is permissible to ask the (6) Ticket transfer. Individuals with disabilities individual purchasing the tickets for accessible who hold tickets for accessible seating shall be seating to attest in writing that the accessible permitted to transfer tickets to third parties under seating is for a person who has a mobility dis- the same terms and conditions and to the same ability or a disability that requires the use of extent as other spectators holding the same type the accessible features that are provided in the of tickets, whether they are for a single event or accessible seating. series of events. (iii) Investigation of fraud. A public accom- (7) Secondary ticket market. modation may investigate the potential misuse (i) A public accommodation shall modify of accessible seating where there is good cause its policies, practices, or procedures to ensure to believe that such seating has been purchased that an individual with a disability may use a fraudulently. ticket acquired in the secondary ticket market under the same terms and conditions as other § 36.303 Auxiliary aids and services. individuals who hold a ticket acquired in the (a) General. A public accommodation shall take secondary ticket market for the same event or those steps that may be necessary to ensure that series of events. no individual with a disability is excluded, denied (ii) If an individual with a disability ac- services, segregated or otherwise treated different- quires a ticket or series of tickets to an inac- ly than other individuals because of the absence cessible seat through the secondary market, a of auxiliary aids and services, unless the public public accommodation shall make reasonable accommodation can demonstrate that taking those modifications to its policies, practices, or pro- steps would fundamentally alter the nature of the cedures to allow the individual to exchange his goods, services, facilities, privileges, advantages, ticket for one to an accessible seat in a compa- or accommodations being offered or would result rable location if accessible seating is vacant at in an undue burden, i.e., significant difficulty or the time the individual presents the ticket to the expense. public accommodation. (b) Examples. The term "auxiliary aids and ser- (8) Prevention of fraud in purchase of tickets vices" includes – for accessible seating. A public accommodation (1) Qualified interpreters on-site or through may not require proof of disability, including, for video remote interpreting (VRI) services; no- example, a doctor´s note, before selling tickets tetakers; real-time computer-aided transcription for accessible seating. services; written materials; exchange of written

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notes; telephone handset amplifiers; assistive vary in accordance with the method of com- listening devices; assistive listening systems; munication used by the individual; the nature, telephones compatible with hearing aids; closed length, and complexity of the communication caption decoders; open and closed captioning, involved; and the context in which the com- including real-time captioning; voice, text, and munication is taking place. A public accom- video-based telecommunications products and modation should consult with individuals with systems, including text telephones (TTYs), vid- disabilities whenever possible to determine eophones, and captioned telephones, or equally what type of auxiliary aid is needed to ensure effective telecommunications devices; videotext effective communication, but the ultimate de- displays; accessible electronic and information cision as to what measures to take rests with technology; or other effective methods of mak- the public accommodation, provided that the ing aurally delivered information available to method chosen results in effective communica- individuals who are deaf or hard of hearing; tion. In order to be effective, auxiliary aids and (2) Qualified readers; taped texts; audio re- services must be provided in accessible for- cordings; Brailled materials and displays; screen mats, in a timely manner, and in such a way as reader software; magnification software; optical to protect the privacy and independence of the readers; secondary auditory programs (SAP); individual with a disability. large print materials; accessible electronic and (2) A public accommodation shall not require information technology; or other effective meth- an individual with a disability to bring another ods of making visually delivered materials avail- individual to interpret for him or her. able to individuals who are blind or have low (3) A public accommodation shall not rely on vision; an adult accompanying an individual with a dis- (3) Acquisition or modification of equipment ability to interpret or facilitate communication, or devices; and except – (4) Other similar services and actions. (i) In an emergency involving an imminent (c) Effective communication. threat to the safety or welfare of an individual (1) A public accommodation shall furnish ap- or the public where there is no interpreter propriate auxiliary aids and services where nec- available; or essary to ensure effective communication with (ii) Where the individual with a disability individuals with disabilities. This includes an specifically requests that the accompanying obligation to provide effective communication adult interpret or facilitate communication, the to companions who are individuals with disabili- accompanying adult agrees to provide such ties. assistance, and reliance on that adult for such (i) For purposes of this section, "compan- assistance is appropriate under the circum- ion" means a family member, friend, or as- stances. sociate of an individual seeking access to, or (4) A public accommodation shall not rely on participating in, the goods, services, facilities, a minor child to interpret or facilitate commu- privileges, advantages, or accommodations of nication, except in an emergency involving an a public accommodation, who, along with such imminent threat to the safety or welfare of an individual, is an appropriate person with whom individual or the public where there is no inter- the public accommodation should communi- preter available. cate. (d) Telecommunications. (ii) The type of auxiliary aid or service nec- (1) When a public accommodation uses an essary to ensure effective communication will automated-attendant system, including, but not

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limited to, voicemail and messaging, or an inter- produce lags, choppy, blurry, or grainy images, active voice response system, for receiving and or irregular pauses in communication; directing incoming telephone calls, that system (2) A sharply delineated image that is large must provide effective real-time communica- enough to display the interpreter´s face, arms, tion with individuals using auxiliary aids and hands, and fingers, and the participating services, including text telephones (TTYs) and individual´s face, arms, hands, and fingers, re- all forms of FCC-approved telecommunications gardless of his or her body position; relay systems, including Internet-based relay (3) A clear, audible transmission of voices; and systems. (4) Adequate training to users of the technol- (2) A public accommodation that offers a ogy and other involved individuals so that they customer, client, patient, or participant the op- may quickly and efficiently set up and operate portunity to make outgoing telephone calls using the VRI. the public accommodation´s equipment on more (g) Alternatives. If provision of a particular aux- than an incidental convenience basis shall make iliary aid or service by a public accommodation available public telephones, TTYs, or other tele- would result in a fundamental alteration in the communications products and systems for use by nature of the goods, services, facilities, privileges, an individual who is deaf or hard of hearing, or advantages, or accommodations being offered or has a speech impairment. in an undue burden, i.e., significant difficulty or (3) A public accommodation may use relay ser- expense, the public accommodation shall provide vices in place of direct telephone communication an alternative auxiliary aid or service, if one ex- for receiving or making telephone calls incident ists, that would not result in an alteration or such to its operations. burden but would nevertheless ensure that, to the (4) A public accommodation shall respond to maximum extent possible, individuals with dis- telephone calls from a telecommunications relay abilities receive the goods, services, facilities, service established under title IV of the ADA in privileges, advantages, or accommodations of- the same manner that it responds to other tele- fered by the public accommodation. phone calls. (5) This part does not require a public accom- § 36.304 Removal of barriers. modation to use a TTY for receiving or making (a) General. A public accommodation shall re- telephone calls incident to its operations. move architectural barriers in existing facilities, (e) Closed caption decoders. Places of lodging including communication barriers that are struc- that provide televisions in five or more guest tural in nature, where such removal is readily rooms and hospitals that provide televisions for achievable, i.e., easily accomplishable and able to patient use shall provide, upon request, a means be carried out without much difficulty or expense. for decoding captions for use by an individual (b) Examples. Examples of steps to remove bar- with impaired hearing. riers include, but are not limited to, the following (f) Video remote interpreting (VRI) services. A actions – public accommodation that chooses to provide (1) Installing ramps; qualified interpreters via VRI service shall ensure (2) Making curb cuts in sidewalks and en- that it provides – trances; (1) Real-time, full-motion video and audio (3) Repositioning shelves; over a dedicated high-speed, wide-bandwidth (4) Rearranging tables, chairs, vending ma- video connection or wireless connection that chines, display racks, and other furniture; delivers high-quality video images that do not (5) Repositioning telephones;

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(6) Adding raised markings on elevator control (3) Third, a public accommodation should take buttons; measures to provide access to restroom facilities. (7) Installing flashing alarm lights; These measures include, for example, removal (8) Widening doors; of obstructing furniture or vending machines, (9) Installing offset hinges to widen doorways; widening of doors, installation of ramps, provid- (10) Eliminating a turnstile or providing an al- ing accessible signage, widening of toilet stalls, ternative accessible path; and installation of grab bars. (11) Installing accessible door hardware; (4) Fourth, a public accommodation should (12) Installing grab bars in toilet stalls; take any other measures necessary to provide ac- (13) Rearranging toilet partitions to increase cess to the goods, services, facilities, privileges, maneuvering space; advantages, or accommodations of a place of (14) Insulating lavatory pipes under sinks to public accommodation. prevent burns; (d) Relationship to alterations requirements of (15) Installing a raised toilet seat; subpart D of this part. (16) Installing a full-length bathroom mirror; (1) Except as provided in paragraph (d)(3) of (17) Repositioning the paper towel dispenser in this section, measures taken to comply with the a bathroom; barrier removal requirements of this section shall (18) Creating designated accessible parking comply with the applicable requirements for spaces; alterations in § 36.402 and §§ 36.404 through (19) Installing an accessible paper cup dispens- 36.406 of this part for the element being altered. er at an existing inaccessible water fountain; The path of travel requirements of §36.403 shall (20) Removing high pile, low density carpet- not apply to measures taken solely to comply ing; or with the barrier removal requirements of this (21) Installing vehicle hand controls. section. (c) Priorities. A public accommodation is urged to (2) take measures to comply with the barrier removal (i) Safe harbor. Elements that have not been requirements of this section in accordance with altered in existing facilities on or after March the following order of priorities. 15, 2012, and that comply with the correspond- (1) First, a public accommodation should take ing technical and scoping specifications for measures to provide access to a place of public those elements in the 1991 Standards are not accommodation from public sidewalks, parking, required to be modified in order to comply or public transportation. These measures include, with the requirements set forth in the 2010 for example, installing an entrance ramp, widen- Standards. ing entrances, and providing accessible parking (ii) spaces. (A) Before March 15, 2012, elements in (2) Second, a public accommodation should existing facilities that do not comply with take measures to provide access to those areas of the corresponding technical and scoping a place of public accommodation where goods specifications for those elements in the and services are made available to the public. 1991 Standards must be modified to the These measures include, for example, adjusting extent readily achievable to comply with the layout of display racks, rearranging tables, either the 1991 Standards or the 2010 providing Brailled and raised character signage, Standards. Noncomplying newly con- widening doors, providing visual alarms, and structed and altered elements may also be installing ramps.

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subject to the requirements of (I) Saunas and steam rooms, sections 241 § 36.406(a)(5). and 612. (B) On or after March 15, 2012, elements (J) Swimming pools, wading pools, and in existing facilities that do not comply spas, sections 242 and 1009. with the corresponding technical and (K) Shooting facilities with firing posi- scoping specifications for those elements tions, sections 243 and 1010. in the 1991 Standards must be modified (L) Miscellaneous. to the extent readily achievable to com- (1) Team or player seating, section ply with the requirements set forth in the 221.2.1.4. 2010 Standards. Noncomplying newly (2) Accessible route to bowling lanes, constructed and altered elements may section 206.2.11. also be subject to the requirements of (3) Accessible route in court sports § 36.406(a)(5). facilities, section 206.2.12. (iii) The safe harbor provided in § 36.304(d)(2)(i) does not apply to those ele- (3) If, as a result of compliance with the altera- ments in existing facilities that are subject to tions requirements specified in paragraph (d) supplemental requirements (i.e., elements for (1) and (d)(2) of this section, the measures re- which there are neither technical nor scop- quired to remove a barrier would not be readily ing specifications in the 1991 Standards), and achievable, a public accommodation may take therefore those elements must be modified to other readily achievable measures to remove the the extent readily achievable to comply with barrier that do not fully comply with the speci- the 2010 Standards. Noncomplying newly fied requirements. Such measures include, for constructed and altered elements may also be example, providing a ramp with a steeper slope subject to the requirements of § 36.406(a)(5). or widening a doorway to a narrower width than Elements in the 2010 Standards not eligible for that mandated by the alterations requirements. the element-by-element safe harbor are identi- No measure shall be taken, however, that poses fied as follows – a significant risk to the health or safety of indi- (A) Residential facilities and dwelling viduals with disabilities or others. units, sections 233 and 809. (e) Portable ramps. Portable ramps should be used (B) Amusement rides, sections 234 and to comply with this section only when installation 1002; 206.2.9; 216.12. of a permanent ramp is not readily achievable. In (C) Recreational boating facilities, sec- order to avoid any significant risk to the health or tions 235 and 1003; 206.2.10. safety of individuals with disabilities or others in (D) Exercise machines and equipment, using portable ramps, due consideration shall be sections 236 and 1004; 206.2.13. given to safety features such as nonslip surfaces, (E) Fishing piers and platforms, sections railings, anchoring, and strength of materials. 237 and 1005; 206.2.14. (f) Selling or serving space. The rearrangement (F) Golf facilities, sections 238 and 1006; of temporary or movable structures, such as fur- 206.2.15. niture, equipment, and display racks is not readily (G) Miniature golf facilities, sections 239 achievable to the extent that it results in a signifi- and 1007; 206.2.16. cant loss of selling or serving space. (H) Play areas, sections 240 and 1008; 206.2.17.

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Appendix to § 36.304(d) Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor Date Requirement Applicable Standards Before March 15, 2012 Elements that do not comply with 1991 Standards or the requirements for those ele- 2010 Standards ments in the 1991 Standards must be modified to the extent readily achievable.

Note: Noncomplying newly con- structed and altered elements may also be subject to the requirements of § 36.406(a)(5).

On or after March 15, 2012 Elements that do not comply with 2010 Standards the requirements for those elements in the 1991 Standards or that do not comply with the supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards) must be modified to the extent readily achievable.

Note: Noncomplying newly con- structed and altered elements may also be subject to the requirements of § 36.406(a)(5).

Elements not altered after Elements that comply with the Safe Harbor March 15, 2012 requirements for those elements in the 1991 Standards do not need to be modified.

(g) Limitation on barrier removal obligations. lodging where the guest rooms are not owned by (1) The requirements for barrier removal under the entity that owns, leases, or operates the over- § 36.304 shall not be interpreted to exceed the all facility and the physical features of the guest standards for alterations in subpart D of this part. room interiors are controlled by their individual (2) To the extent that relevant standards for owners. alterations are not provided in subpart D of this part, then the requirements of § 36.304 shall not § 36.305 Alternatives to barrier removal. be interpreted to exceed the standards for new (a) General. Where a public accommodation can construction in subpart D of this part. demonstrate that barrier removal is not readily (3) This section does not apply to rolling achievable, the public accommodation shall not stock and other conveyances to the extent that fail to make its goods, services, facilities, privi- § 36.310 applies to rolling stock and other con- leges, advantages, or accommodations available veyances. through alternative methods, if those methods are (4) This requirement does not apply to guest readily achievable. rooms in existing facilities that are places of (b) Examples. Examples of alternatives to barrier

Department of Justice Title III Regulations - 47 28 CFR Part 36 removal include, but are not limited to, the follow- § 36.308 Seating in assembly areas. ing actions – A public accommodation shall ensure that wheel- (1) Providing curb service or home delivery; chair spaces and companion seats are provided in (2) Retrieving merchandise from inaccessible each specialty seating area that provides spectators shelves or racks; with distinct services or amenities that generally (3) Relocating activities to accessible loca- are not available to other spectators. If it is not tions; readily achievable for a public accommodation to (c) Multiscreen cinemas. If it is not readily achiev- place wheelchair spaces and companion seats in able to remove barriers to provide access by each such specialty seating area, it shall provide persons with mobility impairments to all of the those services or amenities to individuals with theaters of a multiscreen cinema, the cinema shall disabilities and their companions at other desig- establish a film rotation schedule that provides nated accessible locations at no additional cost. reasonable access for individuals who use wheel- The number of wheelchair spaces and companion chairs to all films. Reasonable notice shall be pro- seats provided in specialty seating areas shall be vided to the public as to the location and time of included in, rather than in addition to, wheelchair accessible showings. space requirements set forth in table 221.2.1.1 in the 2010 Standards. § 36.306 Personal devices and services. This part does not require a public accommoda- § 36.309 Examinations and courses. tion to provide its customers, clients, or partici- (a) General. Any private entity that offers exami- pants with personal devices, such as wheelchairs; nations or courses related to applications, licens- individually prescribed devices, such as prescrip- ing, certification, or credentialing for secondary tion eyeglasses or hearing aids; or services of a or postsecondary education, professional, or trade personal nature including assistance in eating, purposes shall offer such examinations or courses toileting, or dressing. in a place and manner accessible to persons with disabilities or offer alternative accessible arrange- § 36.307 Accessible or special goods. ments for such individuals. (a) This part does not require a public accommo- (b) Examinations. dation to alter its inventory to include accessible (1) Any private entity offering an examination or special goods that are designed for, or facilitate covered by this section must assure that – use by, individuals with disabilities. (i) The examination is selected and ad- (b) A public accommodation shall order accessible ministered so as to best ensure that, when the or special goods at the request of an individual examination is administered to an individual with disabilities, if, in the normal course of its with a disability that impairs sensory, manual, operation, it makes special orders on request for or speaking skills, the examination results ac- unstocked goods, and if the accessible or special curately reflect the individual´s aptitude or goods can be obtained from a supplier with whom achievement level or whatever other factor the the public accommodation customarily does busi- examination purports to measure, rather than ness. reflecting the individual´s impaired sensory, (c) Examples of accessible or special goods in- manual, or speaking skills (except where those clude items such as Brailled versions of books, skills are the factors that the examination pur- books on audio cassettes, closed-captioned video ports to measure); tapes, special sizes or lines of clothing, and special (ii) An examination that is designed for foods to meet particular dietary needs. individuals with impaired sensory, manual, or

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speaking skills is offered at equally convenient quired by this section may include taped exami- locations, as often, and in as timely a manner nations, interpreters or other effective methods as are other examinations; and of making orally delivered materials available to (iii) The examination is administered in individuals with hearing impairments, Brailled facilities that are accessible to individuals with or large print examinations and answer sheets disabilities or alternative accessible arrange- or qualified readers for individuals with visual ments are made. impairments or learning disabilities, transcribers (iv) Any request for documentation, if such for individuals with manual impairments, and documentation is required, is reasonable and other similar services and actions. limited to the need for the modification, ac- (4) Alternative accessible arrangements may commodation, or auxiliary aid or service re- include, for example, provision of an examina- quested. tion at an individual´s home with a proctor if ac- (v) When considering requests for modifi- cessible facilities or equipment are unavailable. cations, accommodations, or auxiliary aids or Alternative arrangements must provide compara- services, the entity gives considerable weight ble conditions to those provided for nondisabled to documentation of past modifications, ac- individuals. commodations, or auxiliary aids or services (c) Courses. received in similar testing situations, as well (1) Any private entity that offers a course cov- as such modifications, accommodations, or ered by this section must make such modifica- related aids and services provided in response tions to that course as are necessary to ensure to an Individualized Education Program (IEP) that the place and manner in which the course provided under the Individuals with Disabili- is given are accessible to individuals with dis- ties Education Act or a plan describing ser- abilities. vices provided pursuant to section 504 of the (2) Required modifications may include Rehabilitation Act of 1973, as amended (often changes in the length of time permitted for the referred as a Section 504 Plan). completion of the course, substitution of specific (vi) The entity responds in a timely manner requirements, or adaptation of the manner in to requests for modifications, accommodations, which the course is conducted or course materi- or aids to ensure equal opportunity for indi- als are distributed. viduals with disabilities. (3) A private entity that offers a course covered (2) Required modifications to an examination by this section shall provide appropriate auxil- may include changes in the length of time per- iary aids and services for persons with impaired mitted for completion of the examination and sensory, manual, or speaking skills, unless the adaptation of the manner in which the examina- private entity can demonstrate that offering a tion is given. particular auxiliary aid or service would fun- (3) A private entity offering an examination damentally alter the course or would result in covered by this section shall provide appropriate an undue burden. Auxiliary aids and services auxiliary aids for persons with impaired sensory, required by this section may include taped texts, manual, or speaking skills, unless that private interpreters or other effective methods of making entity can demonstrate that offering a particu- orally delivered materials available to individu- lar auxiliary aid would fundamentally alter the als with hearing impairments, Brailled or large measurement of the skills or knowledge the ex- print texts or qualified readers for individuals amination is intended to test or would result in with visual impairments and learning disabili- an undue burden. Auxiliary aids and services re- ties, classroom equipment adapted for use by

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individuals with manual impairments, and other issued by the Secretary of Transportation pursuant similar services and actions. to section 306 of the Act. (4) Courses must be administered in facilities that are accessible to individuals with disabilities § 36.311 Mobility devices. or alternative accessible arrangements must be (a) Use of wheelchairs and manually-powered made. mobility aids. A public accommodation shall per- (5) Alternative accessible arrangements may mit individuals with mobility disabilities to use include, for example, provision of the course wheelchairs and manually-powered mobility aids, through videotape, cassettes, or prepared notes. such as walkers, crutches, canes, braces, or other Alternative arrangements must provide compara- similar devices designed for use by individuals ble conditions to those provided for nondisabled with mobility disabilities in any areas open to pe- individuals. destrian use. (b) § 36.310 Transportation provided by public (1) Use of other power-driven mobility devices. accommodations. A public accommodation shall make reasonable (a) General. modifications in its policies, practices, or pro- (1) A public accommodation that provides cedures to permit the use of other power-driven transportation services, but that is not primarily mobility devices by individuals with mobility engaged in the business of transporting people, disabilities, unless the public accommodation is subject to the general and specific provisions can demonstrate that the class of other power- in subparts B, C, and D of this part for its trans- driven mobility devices cannot be operated in portation operations, except as provided in this accordance with legitimate safety requirements section. that the public accommodation has adopted pur- (2) Examples. Transportation services subject suant to § 36.301(b). to this section include, but are not limited to, (2) Assessment factors. In determining whether shuttle services operated between transportation a particular other power-driven mobility device terminals and places of public accommodation, can be allowed in a specific facility as a reason- customer shuttle bus services operated by private able modification under paragraph (b)(1) of this companies and shopping centers, student trans- section, a public accommodation shall consider – portation systems, and transportation provided (i) The type, size, weight, dimensions, and within recreational facilities such as stadiums, speed of the device; zoos, amusement parks, and ski resorts. (ii) The facility´s volume of pedestrian traf- (b) Barrier removal. A public accommodation fic (which may vary at different times of the subject to this section shall remove transportation day, week, month, or year); barriers in existing vehicles and rail passenger (iii) The facility´s design and operational cars used for transporting individuals (not includ- characteristics (e.g., whether its business is ing barriers that can only be removed through the conducted indoors, its square footage, the den- retrofitting of vehicles or rail passenger cars by sity and placement of stationary devices, and the installation of a hydraulic or other lift) where the availability of storage for the device, if re- such removal is readily achievable. quested by the user); (c) Requirements for vehicles and systems. A pub- (iv) Whether legitimate safety requirements lic accommodation subject to this section shall can be established to permit the safe operation comply with the requirements pertaining to vehi- of the other power-driven mobility device in cles and transportation systems in the regulations the specific facility; and

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(v) Whether the use of the other power- Subpart D – New Construction and Altera- driven mobility device creates a substantial tions risk of serious harm to the immediate environ- ment or natural or cultural resources, or poses § 36.401 New construction. a conflict with Federal land management laws (a) General. and regulations. (1) Except as provided in paragraphs (b) and (c) (c) of this section, discrimination for purposes (1) Inquiry about disability. A public accom- of this part includes a failure to design and con- modation shall not ask an individual using a struct facilities for first occupancy after January wheelchair or other power-driven mobility de- 26, 1993, that are readily accessible to and us- vice questions about the nature and extent of the able by individuals with disabilities. individual´s disability. (2) For purposes of this section, a facility is (2) Inquiry into use of other power-driven mo- designed and constructed for first occupancy bility device. A public accommodation may ask a after January 26, 1993, only – person using an other power-driven mobility de- (i) If the last application for a building vice to provide a credible assurance that the mo- permit or permit extension for the facility is bility device is required because of the person´s certified to be complete, by a State, County, or disability. A public accommodation that permits local government after January 26, 1992 (or, in the use of an other power-driven mobility device those jurisdictions where the government does by an individual with a mobility disability shall not certify completion of applications, if the accept the presentation of a valid, State-issued last application for a building permit or permit disability parking placard or card, or State- extension for the facility is received by the issued proof of disability, as a credible assurance State, County, or local government after Janu- that the use of the other power-driven mobility ary 26, 1992); and device is for the individual´s mobility disability. (ii) If the first certificate of occupancy for In lieu of a valid, State-issued disability parking the facility is issued after January 26, 1993. placard or card, or State-issued proof of dis- (b) Commercial facilities located in private resi- ability, a public accommodation shall accept as dences. a credible assurance a verbal representation, not (1) When a commercial facility is located in contradicted by observable fact, that the other a private residence, the portion of the residence power-driven mobility device is being used for used exclusively as a residence is not covered by a mobility disability. A "valid" disability placard this subpart, but that portion used exclusively in or card is one that is presented by the individual the operation of the commercial facility or that to whom it was issued and is otherwise in com- portion used both for the commercial facility and pliance with the State of issuance´s requirements for residential purposes is covered by the new for disability placards or cards. construction and alterations requirements of this subpart. §§ 36.312 – 36.399 [Reserved] (2) The portion of the residence covered under paragraph (b)(1) of this section extends to those elements used to enter the commercial facility, including the homeowner´s front sidewalk, if any, the door or entryway, and hallways; and those portions of the residence, interior or exteri- or, available to or used by employees or visitors

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of the commercial facility, including restrooms. site, either under common ownership (c) Exception for structural impracticability. or common control or developed either (1) Full compliance with the requirements of as one project or as a series of related this section is not required where an entity can projects, housing five or more sales or demonstrate that it is structurally impracticable rental establishments. For purposes of to meet the requirements. Full compliance will this section, places of public accommo- be considered structurally impracticable only in dation of the types listed in paragraph those rare circumstances when the unique char- (5) of the definition of "place of public acteristics of terrain prevent the incorporation of accommodation" in section § 36.104 are accessibility features. considered sales or rental establishments. (2) If full compliance with this section would The facility housing a "shopping center be structurally impracticable, compliance with or shopping mall" only includes floor this section is required to the extent that it is not levels housing at least one sales or rental structurally impracticable. In that case, any por- establishment, or any floor level designed tion of the facility that can be made accessible or intended for use by at least one sales shall be made accessible to the extent that it is or rental establishment. not structurally impracticable. (2) This section does not require the installa- (3) If providing accessibility in conformance tion of an elevator in a facility that is less than with this section to individuals with certain dis- three stories or has less than 3000 square feet abilities (e.g., those who use wheelchairs) would per story, except with respect to any facility that be structurally impracticable, accessibility shall houses one or more of the following: nonetheless be ensured to persons with other (i) A shopping center or shopping mall, or a types of disabilities (e.g., those who use crutches professional office of a health care provider. or who have sight, hearing, or mental impair- (ii) A terminal, depot, or other station used ments) in accordance with this section. for specified public transportation, or an airport (d) Elevator exemption. passenger terminal. In such a facility, any area (1) For purposes of this paragraph (d) – housing passenger services, including boarding (i) Professional office of a health care pro- and debarking, loading and unloading, baggage vider means a location where a person or entity claim, dining facilities, and other common regulated by a State to provide professional areas open to the public, must be on an acces- services related to the physical or mental health sible route from an accessible entrance. of an individual makes such services available (3) The elevator exemption set forth in this to the public. The facility housing the "profes- paragraph (d) does not obviate or limit, in any sional office of a health care provider" only way the obligation to comply with the other ac- includes floor levels housing at least one health cessibility requirements established in paragraph care provider, or any floor level designed or (a) of this section. For example, in a facility that intended for use by at least one health care houses a shopping center or shopping mall, or provider. a professional office of a health care provider, (ii) Shopping center or shopping mall the floors that are above or below an accessible means – ground floor and that do not house sales or rental (A) A building housing five or more sales establishments or a professional office of a or rental establishments; or health care provider, must meet the requirements (B) A series of buildings on a common of this section but for the elevator.

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§ 36.402 Alterations. individuals with certain disabilities (e.g., those (a) General. who use wheelchairs) would not be feasible, the (1) Any alteration to a place of public accom- facility shall be made accessible to persons with modation or a commercial facility, after January other types of disabilities (e.g., those who use 26, 1992, shall be made so as to ensure that, to crutches, those who have impaired vision or hear- the maximum extent feasible, the altered por- ing, or those who have other impairments). tions of the facility are readily accessible to and usable by individuals with disabilities, including § 36.403 Alterations: Path of travel. individuals who use wheelchairs. (a) General. (2) An alteration is deemed to be undertaken (1) An alteration that affects or could affect the after January 26, 1992, if the physical alteration usability of or access to an area of a facility that of the property begins after that date. contains a primary function shall be made so as (b) Alteration. For the purposes of this part, an to ensure that, to the maximum extent feasible, alteration is a change to a place of public accom- the path of travel to the altered area and the rest- modation or a commercial facility that affects or rooms, telephones, and drinking fountains serv- could affect the usability of the building or facility ing the altered area, are readily accessible to and or any part thereof. usable by individuals with disabilities, including (1) Alterations include, but are not limited to, individuals who use wheelchairs, unless the cost remodeling, renovation, rehabilitation, recon- and scope of such alterations is disproportionate struction, historic restoration, changes or rear- to the cost of the overall alteration. rangement in structural parts or elements, and (2) If a private entity has constructed or altered changes or rearrangement in the plan configura- required elements of a path of travel at a place tion of walls and full-height partitions. Normal of public accommodation or commercial facility maintenance, reroofing, painting or wallpaper- in accordance with the specifications in the 1991 ing, asbestos removal, or changes to mechanical Standards, the private entity is not required to and electrical systems are not alterations unless retrofit such elements to reflect the incremental they affect the usability of the building or facil- changes in the 2010 Standards solely because of ity. an alteration to a primary function area served (2) If existing elements, spaces, or common by that path of travel. areas are altered, then each such altered element, (b) Primary function. A "primary function" is a space, or area shall comply with the applicable major activity for which the facility is intended. provisions of appendix A to this part. Areas that contain a primary function include, but (c) To the maximum extent feasible. The phrase are not limited to, the customer services lobby of "to the maximum extent feasible," as used in this a bank, the dining area of a cafeteria, the meeting section, applies to the occasional case where the rooms in a conference center, as well as offices nature of an existing facility makes it virtually and other work areas in which the activities of the impossible to comply fully with applicable acces- public accommodation or other private entity us- sibility standards through a planned alteration. In ing the facility are carried out. Mechanical rooms, these circumstances, the alteration shall provide boiler rooms, supply storage rooms, employee the maximum physical accessibility feasible. Any lounges or locker rooms, janitorial closets, en- altered features of the facility that can be made trances, corridors, and restrooms are not areas accessible shall be made accessible. If providing containing a primary function. accessibility in conformance with this section to

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(c) Alterations to an area containing a primary (3) For the purposes of this part, the term function. "path of travel" also includes the restrooms, (1) Alterations that affect the usability of or telephones, and drinking fountains serving the access to an area containing a primary function altered area. include, but are not limited to – (f) Disproportionality. (i) Remodeling merchandise display areas (1) Alterations made to provide an accessible or employee work areas in a department store; path of travel to the altered area will be deemed (ii) Replacing an inaccessible floor surface disproportionate to the overall alteration when in the customer service or employee work ar- the cost exceeds 20% of the cost of the alteration eas of a bank; to the primary function area. (iii) Redesigning the assembly line area of a (2) Costs that may be counted as expenditures factory; or required to provide an accessible path of travel (iv) Installing a computer center in an ac- may include: counting firm. (i) Costs associated with providing an ac- (2) For the purposes of this section, altera- cessible entrance and an accessible route to the tions to windows, hardware, controls, electrical altered area, for example, the cost of widening outlets, and signage shall not be deemed to be doorways or installing ramps; alterations that affect the usability of or access to (ii) Costs associated with making restrooms an area containing a primary function. accessible, such as installing grab bars, enlarg- (d) Landlord/tenant: If a tenant is making altera- ing toilet stalls, insulating pipes, or installing tions as defined in § 36.402 that would trigger the accessible faucet controls; requirements of this section, those alterations by (iii) Costs associated with providing ac- the tenant in areas that only the tenant occupies cessible telephones, such as relocating the do not trigger a path of travel obligation upon the telephone to an accessible height, installing landlord with respect to areas of the facility under amplification devices, or installing a text tele- the landlord´s authority, if those areas are not oth- phone (TTY); erwise being altered. (iv) Costs associated with relocating an in- (e) Path of travel. accessible drinking fountain. (1) A "path of travel" includes a continuous, (g) Duty to provide accessible features in the event unobstructed way of pedestrian passage by of disproportionality. means of which the altered area may be ap- (1) When the cost of alterations necessary to proached, entered, and exited, and which con- make the path of travel to the altered area fully nects the altered area with an exterior approach accessible is disproportionate to the cost of the (including sidewalks, streets, and parking areas), overall alteration, the path of travel shall be an entrance to the facility, and other parts of the made accessible to the extent that it can be made facility. accessible without incurring disproportionate (2) An accessible path of travel may consist costs. of walks and sidewalks, curb ramps and other (2) In choosing which accessible elements to interior or exterior pedestrian ramps; clear floor provide, priority should be given to those ele- paths through lobbies, corridors, rooms, and ments that will provide the greatest access, in the other improved areas; parking access aisles; following order: elevators and lifts; or a combination of these ele- (i) An accessible entrance; ments. (ii) An accessible route to the altered area;

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(iii) At least one accessible restroom for makes such services available to the public. The each sex or a single unisex restroom; facility that houses a "professional office of a (iv) Accessible telephones; health care provider" only includes floor levels (v) Accessible drinking fountains; and housing by at least one health care provider, or (vi) When possible, additional accessible any floor level designed or intended for use by at elements such as parking, storage, and alarms. least one health care provider. (h) Series of smaller alterations. (2) For the purposes of this section, shopping (1) The obligation to provide an accessible center or shopping mall means – path of travel may not be evaded by performing (i) A building housing five or more sales or a series of small alterations to the area served by rental establishments; or a single path of travel if those alterations could (ii) A series of buildings on a common site, have been performed as a single undertaking. connected by a common pedestrian access (2) route above or below the ground floor, that is (i) If an area containing a primary function either under common ownership or common has been altered without providing an acces- control or developed either as one project or sible path of travel to that area, and subsequent as a series of related projects, housing five or alterations of that area, or a different area on more sales or rental establishments. For pur- the same path of travel, are undertaken within poses of this section, places of public accom- three years of the original alteration, the total modation of the types listed in paragraph (5) of cost of alterations to the primary function ar- the definition of "place of public accommoda- eas on that path of travel during the preceding tion" in § 36.104 are considered sales or rental three year period shall be considered in deter- establishments. The facility housing a "shop- mining whether the cost of making that path of ping center or shopping mall" only includes travel accessible is disproportionate. floor levels housing at least one sales or rental (ii) Only alterations undertaken after Janu- establishment, or any floor level designed or ary 26, 1992, shall be considered in determin- intended for use by at least one sales or rental ing if the cost of providing an accessible path establishment. of travel is disproportionate to the overall cost (b) The exemption provided in paragraph (a) of of the alterations. this section does not obviate or limit in any way the obligation to comply with the other accessibil- § 36.404 Alterations: Elevator exemption. ity requirements established in this subpart. For (a) This section does not require the installation of example, alterations to floors above or below the an elevator in an altered facility that is less than accessible ground floor must be accessible regard- three stories or has less than 3,000 square feet per less of whether the altered facility has an elevator. story, except with respect to any facility that hous- es a shopping center, a shopping mall, the profes- § 36.405 Alterations: Historic preservation. sional office of a health care provider, a terminal, (a) Alterations to buildings or facilities that are depot, or other station used for specified public eligible for listing in the National Register of His- transportation, or an airport passenger terminal. toric Places under the National Historic Preserva- (1) For the purposes of this section, "profes- tion Act (16 U.S.C. 470 et seq.) or are designated sional office of a health care provider" means a as historic under State or local law, shall comply location where a person or entity regulated by to the maximum extent feasible with this part. a State to provide professional services related (b) If it is determined that it is not feasible to pro- to the physical or mental health of an individual vide physical access to an historic property that

Department of Justice Title III Regulations - 55 28 CFR Part 36 is a place of public accommodation in a manner plications, if the date when the last application that will not threaten or destroy the historic sig- for a building permit or permit extension is re- nificance of the building or the facility, alternative ceived by the State, county, or local government) methods of access shall be provided pursuant to is on or after March 15, 2012, or if no permit is the requirements of subpart C of this part. required, if the start of physical construction or alterations occurs on or after March 15, 2012. § 36.406 Standards for new construction and (4) For the purposes of this section, "start of phys- alterations. ical construction or alterations" does not mean (a) Accessibility standards and compliance date. ceremonial groundbreaking or razing of structures (1) New construction and alterations subject to prior to site preparation. §§ 36.401 or 36.402 shall comply with the 1991 (5) Noncomplying new construction and altera- Standards if the date when the last application tions. (i) Newly constructed or altered facili- for a building permit or permit extension is certi- ties or elements covered by §§ 36.401 or 36.402 fied to be complete by a State, county, or local that were constructed or altered before March government (or, in those jurisdictions where the 15, 2012, and that do not comply with the 1991 government does not certify completion of ap- Standards shall, before March 15, 2012, be made plications, if the date when the last application accessible in accordance with either the 1991 for a building permit or permit extension is re- Standards or the 2010 Standards. ceived by the State, county, or local government) (ii) Newly constructed or altered facilities is before September 15, 2010, or if no permit is or elements covered by §§ 36.401 or 36.402 required, if the start of physical construction or that were constructed or altered before alterations occurs before September 15, 2010. March 15, 2012 and that do not comply with the (2) New construction and alterations subject 1991 Standards shall, on or after March 15, to §§ 36.401 or 36.402 shall comply either with 2012, be made accessible in accordance with the 1991 Standards or with the 2010 Standards the 2010 Standards. if the date when the last application for a build- ing permit or permit extension is certified to be Appendix to § 36.406(a) complete by a State, county, or local government (or, in those jurisdictions where the government Compliance Dates for Applicable Standards does not certify completion of applications, if New Construction and the date when the last application for a building Alterations permit or permit extension is received by the State, county, or local government) is on or after On or after 1991 Standards January 26, 1993 and be- September 15, 2010, and before March 15, 2012, fore September 15, 2010 or if no permit is required, if the start of physi- cal construction or alterations occurs on or after September 15, 2010, and before March 15, 2012. On or after 1991 Standards or (3) New construction and alterations subject to September 15, 2010 and 2010 Standards before March 15, 2012 §§ 36.401 or 36.402 shall comply with the 2010 Standards if the date when the last application for a building permit or permit extension is certi- On or after 2010 Standards fied to be complete by a State, county, or local March 15, 2012 government (or, in those jurisdictions where the government does not certify completion of ap-

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(b) Scope of coverage. The 1991 Standards and (3) Facilities with residential units and tran- the 2010 Standards apply to fixed or built-in ele- sient lodging units. Residential dwelling units ments of buildings, structures, site improvements, that are designed and constructed for residential and pedestrian routes or vehicular ways located on use exclusively are not subject to the transient a site. Unless specifically stated otherwise, advi- lodging standards. sory notes, appendix notes, and figures contained (d) Social service center establishments. Group in the 1991 Standards and 2010 Standards explain homes, halfway houses, shelters, or similar social or illustrate the requirements of the rule; they do service center establishments that provide either not establish enforceable requirements. temporary sleeping accommodations or residential (c) Places of lodging. Places of lodging subject to dwelling units that are subject to this part shall this part shall comply with the provisions of the comply with the provisions of the 2010 Standards 2010 Standards applicable to transient lodging, applicable to residential facilities, including, but including, but not limited to, the requirements for not limited to, the provisions in sections 233 and transient lodging guest rooms in sections 224 and 809. 806 of the 2010 Standards. (1) In sleeping rooms with more than 25 beds (1) Guest rooms. Guest rooms with mobility covered by this part, a minimum of 5% of the features in places of lodging subject to the tran- beds shall have clear floor space complying with sient lodging requirements of 2010 Standards section 806.2.3 of the 2010 Standards. shall be provided as follows – (2) Facilities with more than 50 beds covered (i) Facilities that are subject to the same by this part that provide common use bathing permit application on a common site that facilities shall provide at least one roll-in shower each have 50 or fewer guest rooms may be with a seat that complies with the relevant pro- combined for the purposes of determining the visions of section 608 of the 2010 Standards. required number of accessible rooms and type Transfer-type showers are not permitted in lieu of accessible bathing facility in accordance of a roll-in shower with a seat, and the excep- with table 224.2 to section 224.2 of the 2010 tions in sections 608.3 and 608.4 for residential Standards. dwelling units are not permitted. When separate (ii) Facilities with more than 50 guest shower facilities are provided for men and for rooms shall be treated separately for the pur- women, at least one roll-in shower shall be pro- poses of determining the required number of vided for each group. accessible rooms and type of accessible bath- (e) Housing at a place of education. Housing at a ing facility in accordance with table 224.2 to place of education that is subject to this part shall section 224.2 of the 2010 Standards. comply with the provisions of the 2010 Standards (2) Exception. Alterations to guest rooms in applicable to transient lodging, including, but not places of lodging where the guest rooms are not limited to, the requirements for transient lodg- owned or substantially controlled by the entity ing guest rooms in sections 224 and 806, subject that owns, leases, or operates the overall facility to the following exceptions. For the purposes of and the physical features of the guest room in- the application of this section, the term "sleeping teriors are controlled by their individual owners room" is intended to be used interchangeably with are not required to comply with § 36.402 or the the term "guest room" as it is used in the transient alterations requirements in section 224.1.1 of the lodging standards. 2010 Standards. (1) Kitchens within housing units containing accessible sleeping rooms with mobility features (including suites and clustered sleeping rooms)

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or on floors containing accessible sleeping in an area where fixed seating is not provided, in rooms with mobility features shall provide turn- order to increase seating for an event, wheelchair ing spaces that comply with section 809.2.2 of spaces and companion seats may be placed in the 2010 Standards and kitchen work surfaces that section. When wheelchair spaces and com- that comply with section 804.3 of the 2010 Stan- panion seats are not required to accommodate dards. persons eligible for those spaces and seats, indi- (2) Multi-bedroom housing units containing vidual, removable seats may be placed in those accessible sleeping rooms with mobility fea- spaces and seats; tures shall have an accessible route throughout (4) In stadium-style movie theaters, wheelchair the unit in accordance with section 809.2 of the spaces and companion seats are located on a 2010 Standards. riser or cross-aisle in the stadium section that (3) Apartments or townhouse facilities that satisfies at least one of the following criteria – are provided by or on behalf of a place of edu- (i) It is located within the rear 60% of the cation, which are leased on a year-round basis seats provided in an auditorium; or exclusively to graduate students or faculty and (ii) It is located within the area of an audi- do not contain any public use or common use torium in which the vertical viewing angles (as areas available for educational programming, are measured to the top of the screen) are from the not subject to the transient lodging standards and 40th to the 100th percentile of vertical viewing shall comply with the requirements for residen- angles for all seats as ranked from the seats in tial facilities in sections 233 and 809 of the 2010 the first row (1st percentile) to seats in the back Standards. row (100th percentile). (f) Assembly areas. Assembly areas that are sub- (g) Medical care facilities. Medical care facilities ject to this part shall comply with the provisions that are subject to this part shall comply with the of the 2010 Standards applicable to assembly provisions of the 2010 Standards applicable to areas, including, but not limited to, sections 221 medical care facilities, including, but not limited and 802. In addition, assembly areas shall ensure to, sections 223 and 805. In addition, medical care that – facilities that do not specialize in the treatment of (1) In stadiums, arenas, and grandstands, conditions that affect mobility shall disperse the wheelchair spaces and companion seats are dis- accessible patient bedrooms required by section persed to all levels that include seating served by 223.2.1 of the 2010 Standards in a manner that is an accessible route; proportionate by type of medical specialty. (2) In assembly areas that are required to hori- zontally disperse wheelchair spaces and com- § §36.407 – 36.499 [Reserved] panion seats by section 221.2.3.1 of the 2010 Standards and that have seating encircling, in Subpart E – Enforcement whole or in part, a field of play or performance, § 36.501 Private suits. wheelchair spaces and companion seats are dis- (a) General. Any person who is being subjected to persed around that field of play or performance discrimination on the basis of disability in viola- area; tion of the Act or this part or who has reasonable (3) Wheelchair spaces and companion seats grounds for believing that such person is about to are not located on (or obstructed by) temporary be subjected to discrimination in violation of sec- platforms or other movable structures, except tion 303 of the Act or subpart D of this part may that when an entire seating section is placed on institute a civil action for preventive relief, includ- temporary platforms or other movable structures

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ing an application for a permanent or temporary discretion, the Attorney General may commence injunction, restraining order, or other order. Upon a civil action in any appropriate United States dis- timely application, the court may, in its discretion, trict court if the Attorney General has reasonable permit the Attorney General to intervene in the cause to believe that – civil action if the Attorney General or his or her (a) Any person or group of persons is engaged in a designee certifies that the case is of general public pattern or practice of discrimination in violation of importance. Upon application by the complainant the Act or this part; or and in such circumstances as the court may deem (b) Any person or group of persons has been dis- just, the court may appoint an attorney for such criminated against in violation of the Act or this complainant and may authorize the commence- part and the discrimination raises an issue of gen- ment of the civil action without the payment of eral public importance. fees, costs, or security. Nothing in this section shall require a person with a disability to engage § 36.504 Relief. in a futile gesture if the person has actual notice (a) Authority of court. In a civil action under that a person or organization covered by title III of § 36.503, the court – the Act or this part does not intend to comply with (1) May grant any equitable relief that such its provisions. court considers to be appropriate, including, to (b) Injunctive relief. In the case of violations of the extent required by the Act or this part – § 36.304, §§ 36.308, 36.310(b), 36.401, 36.402, (i) Granting temporary, preliminary, or per- 36.403, and 36.405 of this part, injunctive relief manent relief; shall include an order to alter facilities to make (ii) Providing an auxiliary aid or service, such facilities readily accessible to and usable by modification of policy, practice, or procedure, individuals with disabilities to the extent required or alternative method; and by the Act or this part. Where appropriate, injunc- (iii) Making facilities readily accessible to tive relief shall also include requiring the provi- and usable by individuals with disabilities; sion of an auxiliary aid or service, modification (2) May award other relief as the court consid- of a policy, or provision of alternative methods, to ers to be appropriate, including monetary dam- the extent required by the Act or this part. ages to persons aggrieved when requested by the Attorney General; and § 36.502 Investigations and compliance reviews. (3) May, to vindicate the public interest, assess (a) The Attorney General shall investigate alleged a civil penalty against the entity in an amount violations of the Act or this part. (i) Not exceeding $50,000 for a first viola- (b) Any individual who believes that he or she or tion occurring before September 29, 1999, and a specific class of persons has been subjected to not exceeding $55,000 for a first violation oc- discrimination prohibited by the Act or this part curring on or after September 29, 1999; and may request the Department to institute an inves- (ii) Not exceeding $100,000 for any sub- tigation. sequent violation occurring before September (c) Where the Attorney General has reason to be- 29, 1999, and not exceeding $110,000 for any lieve that there may be a violation of this part, he subsequent violation occurring on or after Sep- or she may initiate a compliance review. tember 29, 1999. (b) Single violation. For purposes of paragraph (a) § 36.503 Suit by the Attorney General. (3) of this section, in determining whether a first Following a compliance review or investigation or subsequent violation has occurred, a determina- under § 36.502, or at any other time in his or her tion in a single action, by judgment or settlement,

Department of Justice Title III Regulations - 59 28 CFR Part 36 that the covered entity has engaged in more than § 36.508 Effective date. one discriminatory act shall be counted as a single (a) General. Except as otherwise provided in this violation. section and in this part, this part shall become ef- (c) Punitive damages. For purposes of paragraph fective on January 26, 1992. (a)(2) of this section, the terms "monetary dam- (b) Civil actions. Except for any civil action ages" and "such other relief" do not include puni- brought for a violation of section 303 of the Act, tive damages. no civil action shall be brought for any act or (d) Judicial consideration. In a civil action under omission described in section 302 of the Act that § 36.503, the court, when considering what occurs – amount of civil penalty, if any, is appropriate, (1) Before July 26, 1992, against businesses shall give consideration to any good faith effort with 25 or fewer employees and gross receipts of or attempt to comply with this part by the entity. $1,000,000 or less. In evaluating good faith, the court shall consider, (2) Before January 26, 1993, against business- among other factors it deems relevant, whether the es with 10 or fewer employees and gross receipts entity could have reasonably anticipated the need of $500,000 or less. for an appropriate type of auxiliary aid needed to (c) Transportation services provided by public accommodate the unique needs of a particular in- accommodations. Newly purchased or leased ve- dividual with a disability. hicles required to be accessible by § 36.310 must be readily accessible to and usable by individuals § 36.505 Attorneys fees. with disabilities, including individuals who use In any action or administrative proceeding com- wheelchairs, if the solicitation for the vehicle is menced pursuant to the Act or this part, the court made after August 25, 1990. or agency, in its discretion, may allow the prevail- ing party, other than the United States, a reason- §§ 36.509 – 36.599 [Reserved] able attorney´s fee, including litigation expenses, and costs, and the United States shall be liable for Subpart F – Certification of State Laws or the foregoing the same as a private individual. Local Building Codes

§ 36.506 Alternative means of dispute resolu- § 36.601 Definitions. tion. Assistant Attorney General means the Assistant Where appropriate and to the extent authorized by Attorney General for Civil Rights or his or her law, the use of alternative means of dispute resolu- designee. tion, including settlement negotiations, concilia- tion, facilitation, mediation, factfinding, minitrials, Certification of equivalency means a final certifi- and arbitration, is encouraged to resolve disputes cation that a code meets or exceeds the minimum arising under the Act and this part. requirements of title III of the Act for accessibility and usability of facilities covered by that title. § 36.507 Effect of unavailability of technical assistance. Code means a State law or local building code or A public accommodation or other private entity similar ordinance, or part thereof, that establishes shall not be excused from compliance with the accessibility requirements. requirements of this part because of any failure to receive technical assistance, including any failure Model code means a nationally recognized docu- in the development or dissemination of any tech- ment developed by a private entity for use by nical assistance manual authorized by the Act. State or local jurisdictions in developing codes as 60 - Title III Regulations Department of Justice 28 CFR Part 36

defined in this section. A model code is intended § 36.604 Procedure following preliminary de- for incorporation by reference or adoption in termination of equivalency. (Redesignated from whole or in part, with or without amendment, by Section 36.605) State or local jurisdictions. (a) If the Assistant Attorney General makes a preliminary determination of equivalency under Preliminary determination of equivalency means § 36.603, he or she shall inform the submitting a preliminary determination that a code appears official, in writing, of that preliminary determina- to meet or exceed the minimum requirements of tion. The Assistant Attorney General also shall – title III of the Act for accessibility and usability of (1) Publish a notice in the Federal Register facilities covered by that title. that advises the public of the preliminary de- termination of equivalency with respect to the Submitting official means the State or local offi- particular code, and invite interested persons and cial who – organizations, including individuals with dis- (1) Has principal responsibility for administra- abilities, during a period of at least 60 days fol- tion of a code, or is authorized to submit a code lowing publication of the notice, to file written on behalf of a jurisdiction; and comments relevant to whether a final certifica- (2) Files a request for certification under this tion of equivalency should be issued; subpart. (2) After considering the information received in response to the notice described in paragraph § 36.602 General rule. (a) of this section, and after publishing a sepa- On the application of a State or local government, rate notice in the Federal Register, hold an in- the Assistant Attorney General may certify that a formal hearing, in the State or local jurisdiction code meets or exceeds the minimum requirements charged with administration and enforcement of of the Act for the accessibility and usability of the code, at which interested individuals, includ- places of public accommodation and commercial ing individuals with disabilities, are provided an facilities under this part by issuing a certification opportunity to express their views with respect of equivalency. At any enforcement proceeding to the preliminary determination of equivalency; under title III of the Act, such certification shall and be rebuttable evidence that such State law or lo- (b) The Assistant Attorney General, after consul- cal ordinance does meet or exceed the minimum tation with the Architectural and Transportation requirements of title III. Barriers Compliance Board and consideration of the materials and information submitted pursuant § 36.603 Preliminary determination. (Redesig- to this section, as well as information provided nated from Section 36.604) previously by the submitting official, shall issue Upon receipt and review of all information rel- either a certification of equivalency or a final de- evant to a request filed by a submitting official termination to deny the request for certification. for certification of a code, and after consultation The Assistant Attorney General shall publish no- with the Architectural and Transportation Bar- tice of the certification of equivalency or denial of riers Compliance Board, the Assistant Attorney certification in the Federal Register. General shall make a preliminary determination of equivalency or a preliminary determination to deny certification.

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§ 36.605 Procedure following preliminary de- of the certified edition are not considered part of nial of certification. (Redesignated from Section the certification. 36.606) (c) A submitting official may reapply for certifica- (a) If the Assistant Attorney General makes a tion of amendments or other changes to a code preliminary determination to deny certification of that has already received certification. a code under § 36.603, he or she shall notify the (d) When the standards of the Act against which a submitting official of the determination. code is deemed equivalent are revised or amended (b) The Assistant Attorney General shall allow the substantially, a certification of equivalency issued submitting official not less than 15 days to submit under the preexisting standards is no longer ef- data, views, and arguments in opposition to the fective, as of the date the revised standards take preliminary determination to deny certification. effect. However, construction in compliance with If the submitting official does not submit materi- a certified code during the period when a certifi- als, the Assistant Attorney General shall not be cation of equivalency was effective shall be con- required to take any further action. If the submit- sidered rebuttable evidence of compliance with ting official submits materials, the Assistant At- the Standards then in effect as to those elements torney General shall evaluate those materials and of buildings and facilities that comply with the any other relevant information. After evaluation certified code. A submitting official may reapply of any newly submitted materials, the Assistant for certification pursuant to the Act´s revised stan- Attorney General shall make either a final denial dards, and, to the extent possible, priority will be of certification or a preliminary determination of afforded the request in the review process. equivalency. § 36.607 Guidance concerning model codes. § 36.606 Effect of certification. (Redesignated (Redesignated from Section 36.608) from Section 36.607) Upon application by an authorized representative (a) of a private entity responsible for developing a (1) A certification shall be considered a certifi- model code, the Assistant Attorney General may cation of equivalency only with respect to those review the relevant model code and issue guid- features or elements that are both covered by the ance concerning whether and in what respects certified code and addressed by the standards the model code is consistent with the minimum against which equivalency is measured. requirements of the Act for the accessibility and (2) For example, if certain equipment is not usability of places of public accommodation and covered by the code, the determination of equiv- commercial facilities under this part. alency cannot be used as evidence with respect to the question of whether equipment in a build- ing built according to the code satisfies the Act´s requirements with respect to such equipment. By the same token, certification would not be relevant to construction of a facility for children, if the regulations against which equivalency is measured do not address children´s facilities. (b) A certification of equivalency is effective only with respect to the particular edition of the code for which certification is granted. Any amend- ments or other changes to the code after the date

62 - Title III Regulations Department of Justice TitleTitle III IIIRegulations Regulations 2010 Guidance and Section-by-Section Analysis

Department of Justice This revised title III regulation integrates the Department’s new regulatory provisions with the text of the existing title III regulation that was unchanged by the 2010 revisions.

64 Department of Justice 28 CFR Part 36

Appendix A to Part 36—Guidance on Revisions ‘‘2010 Standards’’ to ADA Regulation on Nondiscrimination on The Department has added to the final rule a defi- the Basis of Disability by Public Accommoda- nition of the term ‘‘2010 Standards.’’ The term tions and Commercial Facilities ‘‘2010 Standards’’ refers to the 2010 ADA Stan- dards for Accessible Design, which consist of the Note: This Appendix contains guidance provid- 2004 ADAAG and the requirements contained in ing a section-by-section analysis of the revisions subpart D of 28 CFR part 36. to 28 CFR part 36 published on September 15, 2010. ‘‘Direct Threat’’ The final rule moves the definition of direct threat Section-By-Section Analysis and Response to from § 36.208(b) to the definitions section at Public Comments §36.104. This is an editorial change. Consequent- This section provides a detailed description of ly, § 36.208(c) becomes § 36.208(b) in the final the Department’s changes to the title III regula- rule. tion, the reasoning behind those changes, and responses to public comments received on these ‘‘Existing Facility’’ topics. The Section-by-Section Analysis follows The 1991 title III regulation provided definitions the order of the title III regulation itself, except for ‘‘new construction’’ at § 36.401(a) and ‘‘altera- that if the Department has not changed a regula- tions’’ at § 36.402(b). In contrast, the term ‘‘exist- tory section, the unchanged section has not been ing facility’’ was not explicitly defined, although mentioned. it is used in the statute and regulations for titles II and III. See, e.g., 42 U.S.C. 12182(b)(2)(A)(iv); Subpart A—General 28 CFR 35.150. It has been the Department’s view that newly constructed or altered facilities are also Section 36.104 Definitions existing facilities subject to title III’s continuing barrier removal obligation, and that view is made ‘‘1991 Standards’’ and ‘‘2004 ADAAG’’ explicit in this rule. The Department has included in the final rule new The classification of facilities under the ADA is definitions of both the ‘‘1991 Standards’’ and the neither static nor mutually exclusive. Newly con- ‘‘2004 ADAAG.’’ The term ‘‘1991 Standards’’ re- structed or altered facilities are also existing facili- fers to the ADA Standards for Accessible Design, ties. A newly constructed facility remains subject originally published on July 26, 1991, and re- to the accessibility standards in effect at the time published as Appendix D to 28 CFR part 36. The of design and construction, with respect to those term ‘‘2004 ADAAG’’ refers to ADA Chapter 1, elements for which, at that time, there were ap- ADA Chapter 2, and Chapters 3 through 10 of the plicable ADA Standards. That same facility, how- Americans with Disabilities Act and the Architec- ever, after construction, is also an existing facility, tural Barriers Act Accessibility Guidelines, which and subject to the public accommodation’s con- were issued by the Access Board on July 23, 2004, tinuing obligation to remove barriers where it is codified at 36 CFR 1191, app. B and D (2009), readily achievable to do so. The fact that the facil- and which the Department has adopted in this ity is also an existing facility does not relieve the final rule. These terms are included in the defini- public accommodation of its obligations under the tions section for ease of reference. new construction requirements of this part. Rather, it means that in addition to the new construction

Department of Justice Guidance and Analysis - 65 28 CFR Part 36 requirements, the public accommodation has a misapplication of the rule in practice. continuing obligation to remove barriers that arise, The Department received a number of com- or are deemed barriers, only after construction. ments on this issue. The commenters urged the Such barriers include but are not limited to the Department to clarify that all buildings remain elements that are first covered in the 2010 Stan- subject to the standards in effect at the time of dards, as that term is defined in § 36.104. their construction, that is, that a facility designed At some point, the same facility may undergo and constructed for first occupancy between Janu- alterations, which are subject to the alterations ary 26, 1993, and the effective date of the final requirements in effect at that time. This facility rule is still considered ‘‘new construction’’ and remains subject to its original new construction that alterations occurring between January 26, standards for elements and spaces not affected by 1993, and the effective date of the final rule are the alterations; the facility is subject to the altera- still considered ‘‘alterations.’’ tions requirements and standards in effect at the The final rule includes clarifying language to time of the alteration for the elements and spaces ensure that the Department’s interpretation is ac- affected by the alteration; and, throughout, the curately reflected. As established by this rule, facility remains subject to the continuing barrier existing facility means a facility in existence on removal obligation. any given date, without regard to whether the fa- The Department’s enforcement of the ADA is cility may also be considered newly constructed premised on a broad understanding of ‘‘existing or altered under this part. Thus, this definition facility.’’ The ADA contemplates that as the De- reflects the Department’s longstanding interpreta- partment’s knowledge and understanding of acces- tion that public accommodations have obligations sibility advances and evolves, this knowledge will in existing facilities that are independent of but be incorporated into and result in increased acces- may coexist with requirements imposed by new sibility in the built environment. Title III’s barrier construction or alteration requirements in those removal provisions strike the appropriate balance same facilities. between ensuring that accessibility advances are reflected in the built environment and mitigating ‘‘Housing at a Place of Education’’ the costs of those advances to public accommo- The Department has added a new definition to dations. With adoption of the final rule, public § 36.104, ‘‘housing at a place of education,’’ to accommodations engaged in barrier removal clarify the types of educational housing programs measures will now be guided by the 2010 Stan- that are covered by this title. This section defines dards, defined in § 36.104, and the safe harbor in ‘‘housing at a place of education’’ as ‘‘housing § 36.304(d)(2). operated by or on behalf of an elementary, sec- The NPRM included the following proposed ondary, undergraduate, or postgraduate school, or definition of ‘‘existing facility’’: ‘‘[A] facility that other place of education, including dormitories, has been constructed and remains in existence on suites, apartments, or other places of residence.’’ any given date.’’ 73 FR 34508, 34552 (June 17, This definition does not apply to social service 2008). While the Department intended the pro- programs that combine residential housing with posed definition to provide clarity with respect social services, such as a residential job training to public accommodations’ continuing obligation program. to remove barriers where it is readily achievable to do so, some commenters pointed out arguable ‘‘Other Power-Driven Mobility Device’’ and ambiguity in the language and the potential for ‘‘Wheelchair’’ Because relatively few individuals with disabili-

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ties were using nontraditional mobility devices in July 26, 2005, available at http://www.wate.com/ 1991, there was no pressing need for the 1991 title Global/ story.asp?s=3643674 (last visited June III regulation to define the terms ‘‘wheelchair’’ or 24, 2010). ‘‘other power-driven mobility device,’’ to expound In response to questions and complaints from on what would constitute a reasonable modifica- individuals with disabilities and covered entities tion in policies, practices, or procedures under § concerning which mobility devices must be ac- 36.302, or to set forth within that section specific commodated and under what circumstances, the requirements for the accommodation of mobil- Department began developing a framework to ity devices. Since the issuance of the 1991 title address the use of unique mobility devices, con- III regulation, however, the choices of mobility cerns about their safety, and the parameters for devices available to individuals with disabilities the circumstances under which these devices must have increased dramatically. The Department be accommodated. As a result, the Department’s has received complaints about and has become NPRM proposed two new approaches to mobility aware of situations where individuals with mobil- devices. First, the Department proposed a two- ity disabilities have utilized devices that are not tiered mobility device definition that defined the designed primarily for use by an individual with a term ‘‘wheelchair’’ separately from ‘‘other power- mobility disability, including the Segway® Person- driven mobility device.’’ Second, the Department al Transporter (Segway® PT), golf cars, all-terrain proposed requirements to allow the use of devices vehicles (ATVs), and other locomotion devices. in each definitional category. In § 36.311(a), the The Department also has received questions NPRM proposed that wheelchairs and manually- from public accommodations and individuals with powered mobility aids used by individuals with mobility disabilities concerning which mobility mobility disabilities shall be permitted in any devices must be accommodated and under what areas open to pedestrian use. Section 36.311(b) of circumstances. Indeed, there has been litigation the NPRM proposed that a public accommodation concerning the legal obligations of covered enti- ‘‘shall make reasonable modifications in its poli- ties to accommodate individuals with mobility cies, practices, and procedures to permit the use of disabilities who wish to use an electronic personal other power-driven mobility devices by individu- assistance mobility device (EPAMD), such as the als with disabilities, unless the public accommo- Segway® PT, as a mobility device. The Depart- dation can demonstrate that the use of the device ment has participated in such litigation as amicus is not reasonable or that its use will result in a curiae. See Ault v. Walt Disney World Co., No. fundamental alteration in the nature of the public 6:07–cv–1785–Orl–31KRS, 2009 WL 3242028 accommodation’s goods, services, facilities, privi- (M.D. Fla. Oct. 6, 2009). Much of the litigation leges, advantages, or accommodations.’’ 73 FR has involved shopping malls where businesses 34508, 34556 (June 17, 2008). have refused to allow persons with disabilities to The Department sought public comment with use EPAMDs. See, e.g., McElroy v. Simon Prop- regard to whether these steps would, in fact, erty Group, No. 08– 404 RDR, 2008 WL 4277716 achieve clarity on these issues. Toward this end, (D. Kan. Sept. 15, 2008) (enjoining mall from the Department’s NPRM asked several questions prohibiting the use of a Segway® PT as a mobil- relating to the definitions of ‘‘wheelchair,’’ ‘‘other ity device where an individual agrees to all of a power-driven mobility device,’’ and ‘‘manually- mall’s policies for use of the device, except in- powered mobility aids’’; the best way to catego- demnification); Shasta Clark, Local Man Fighting rize different classes of mobility devices, the types Mall Over Right to Use Segway, WATE 6 News, of devices that should be included in each cat- egory; and the circumstances under which certain

Department of Justice Guidance and Analysis - 67 28 CFR Part 36 types of mobility devices must be accommodated maintain existing legal protections for wheelchairs or may be excluded pursuant to the policy adopted while recognizing that some devices that are not by the public accommodation. designed primarily for individuals with mobility Because the questions in the NPRM that con- disabilities have beneficial uses for individuals cerned mobility devices and their accommoda- with mobility disabilities. They also favored this tion were interrelated, many of the commenters’ concept because it recognizes technological devel- responses did not identify the specific question to opments and that innovative uses of varying de- which they were responding. Instead, commenters vices may provide increased access to individuals grouped the questions together and provided com- with mobility disabilities. ments accordingly. Most commenters spoke to the While two business associations indicated that issues addressed in the Department’s questions in they opposed the concept of ‘‘other power-driven broad terms and using general concepts. As a re- mobility device’’ in its entirety, other business sult, the responses to the questions posed are dis- commenters expressed general and industry- cussed below in broadly grouped issue categories specific concerns about permitting their use. They rather than on a question-by-question basis. indicated that such devices create a host of safety, Two-tiered definitional approach. Commenters cost, and fraud issues that do not exist with wheel- supported the Department’s proposal to use a two- chairs. On balance, however, business comment- tiered definition of mobility device. Commenters ers indicated that they support the establishment nearly universally said that wheelchairs always of a two-tiered regulatory approach because defin- should be accommodated and that they should ing ‘‘other power-driven mobility device’’ sepa- never be subject to an assessment with regard to rately from ‘‘wheelchair’’ means that businesses their admission to a particular public accommoda- will be able to maintain some measure of control tion. In contrast, the vast majority of commenters over the admission of the former. Virtually all of indicated they were in favor of allowing public these commenters indicated that their support for accommodations to conduct an assessment as to the dual approach and the concept of other power- whether, and under which circumstances, other driven mobility devices was, in large measure, due power-driven mobility devices will be allowed to the other power-driven mobility device assess- onsite. ment factors in § 36.311(c) of the NPRM. Many commenters also indicated their support By maintaining the two-tiered approach to for the two-tiered approach in responding to ques- mobility devices and defining ‘‘wheelchair’’ sepa- tions concerning the definition of ‘‘wheelchair’’ rately from ‘‘other power-driven mobility device,’’ and ‘‘other power-driven mobility device.’’ Nearly the Department is able to preserve the protection every disability advocacy group said that the De- users of traditional wheelchairs and other manual- partment’s two-tiered approach strikes the proper ly-powered mobility aids have had since the ADA balance between ensuring access for individu- was enacted, while also recognizing that human als with disabilities and addressing fundamental ingenuity, personal choice, and new technologies alteration and safety concerns held by public have led to the use of devices that may be more accommodations; however, a minority of disabil- beneficial for individuals with certain mobility ity advocacy groups wanted other power-driven disabilities. mobility devices to be included in the definition Moreover, the Department believes the two- of ‘‘wheelchair.’’ Most advocacy, nonprofit, and tiered approach gives public accommodations individual commenters supported the concept of a guidance to follow in assessing whether reason- separate definition for ‘‘other power-driven mobil- able modifications can be made to permit the use ity device’’ because a separate definition would of other power-driven mobility devices on-site

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and to aid in the development of policies describ- ‘‘common wheelchair’’ to designate the mobility ing the circumstances under which persons with device’s appropriate category. Business comment- disabilities may use such devices. The two-tiered ers who generally supported using weight and size approach neither mandates that all other power- as the method of categorization did so because driven mobility devices be accommodated in ev- of their concerns about having to make physical ery circumstance, nor excludes these devices from changes to their facilities to accommodate over- all protection. This approach, in conjunction with sized devices. The vast majority of business com- the factor assessment provisions in § 36.311(b) menters also favored using the device’s intended (2), will serve as a mechanism by which public use to categorize which devices constitute wheel- accommodations can evaluate their ability to ac- chairs and which are other power-driven mobility commodate other power-driven mobility devices. devices. Furthermore, the intended-use deter- As will be discussed in more detail below, the as- minant received a fair amount of support from sessment factors in § 36.311(b)(2) are specifically advocacy, nonprofit, and individual commenters, designed to provide guidance to public accommo- either because they sought to preserve the broad dations regarding whether it is permissible to bar accommodation of wheelchairs or because they the use of a specific other power-driven mobility sympathized with concerns about individuals device in a specific facility. In making such a without mobility disabilities fraudulently bringing determination, a public accommodation must con- other power-driven mobility devices into places of sider the device’s type, size, weight dimensions, public accommodation. and speed; the facility’s volume of pedestrian traf- Commenters seeking to have the Segway® PT fic; the facility’s design and operational character- included in the definition of ‘‘wheelchair’’ ob- istics; whether the device conflicts with legitimate jected to classifying mobility devices on the basis safety requirements; and whether the device poses of their intended use because they felt that such a substantial risk of serious harm to the immediate a classification would be unfair and prejudicial environment or natural or cultural resources, or to Segway® PT users and would stifle personal conflicts with Federal land management laws or choice, creativity, and innovation. Other advocacy regulations. In addition, under § 36.311(b)(i) if the and nonprofit commenters objected to employing public accommodation claims that it cannot make an intended-use approach because of concerns reasonable modifications to its policies, practices, that the focus would shift to an assessment of the or procedures to permit the use of other power- device, rather than the needs or benefits to the driven mobility devices by individuals with dis- individual with the mobility disability. They were abilities, the burden of proof to demonstrate that of the view that the mobility-device classification such devices cannot be operated in accordance should be based on its function—whether it is with legitimate safety requirements rests upon the used to address a mobility disability. A few com- public accommodation. menters raised the concern that an intended-use Categorization of wheelchair versus other approach might embolden public accommodations power-driven mobility devices. Implicit in the cre- to assess whether an individual with a mobility ation of the two-tiered mobility device concept is disability really needs to use the other power- the question of how to categorize which devices driven mobility device at issue or to question why are wheelchairs and which are other power-driven a wheelchair would not provide sufficient mobil- mobility devices. Finding weight and size to be ity. Those citing objections to the intended-use too restrictive, the vast majority of advocacy, non- determinant indicated it would be more appropri- profit, and individual commenters opposed using ate to make the categorization determination based the Department of Transportation’s definition of on whether the device is being used for a mobility

Department of Justice Guidance and Analysis - 69 28 CFR Part 36 disability in the context of the impact of its use in concerns because they were not designed to have a specific environment. Some of these comment- a recreational component. Consequently, rarely, if ers preferred this approach because it would allow ever, is any inquiry or assessment as to their ap- the Segway® PT to be included in the definition of propriateness for use in a public accommodation ‘‘wheelchair.’’ necessary. Some commenters were inclined to categorize Definition of ‘‘wheelchair.’’ In seeking public mobility devices by the way in which they are feedback on the NPRM’s definition of ‘‘wheel- powered, such as battery-powered engines versus chair,’’ the Department explained its concern that fuel or combustion engines. One commenter sug- the definition of ‘‘wheelchair’’ in section 508(c) gested using exhaust level as the determinant. (2) of the ADA (formerly section 507(c)(2), July Although there were only a few commenters who 26, 1990, 104 Stat. 372, 42 U.S.C. 12207, renum- would make the determination based on indoor or bered section 508(c)(2), Public Law 110–325 outdoor use, there was nearly universal support for section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), banning from indoor use devices that are powered which pertains to Federal wilderness areas, is by fuel or combustion engines. not specific enough to provide clear guidance in A few commenters thought it would be ap- the array of settings covered by title III and that propriate to categorize the devices based on their the stringent size and weight requirements for maximum speed. Others objected to this approach, the Department of Transportation’s definition of stating that circumstances should dictate the ap- ‘‘common wheelchair’’ are not a good fit in the propriate speed at which mobility devices should context of most public accommodations. The be operated— for example, a faster speed may be Department noted in the NPRM that it sought a safer when crossing streets than it would be for definition of ‘‘wheelchair’’ that would include sidewalk use—and merely because a device can manually-operated and power-driven wheelchairs go a certain speed does not mean it will be oper- and mobility scooters (i.e., those that typically are ated at that speed. single-user, have three to four wheels, and are ap- The Department has decided to maintain the propriate for both indoor and outdoor pedestrian device’s intended use as the appropriate deter- areas), as well as a variety of types of wheelchairs minant for which devices are categorized as and mobility scooters with individualized or ‘‘wheelchairs.’’ However, because wheelchairs unique features or models with different numbers may be intended for use by individuals who have of wheels. The NPRM defined a wheelchair as ‘‘a temporary conditions affecting mobility, the De- device designed solely for use by an individual partment has decided that it is more appropriate with a mobility impairment for the primary pur- to use the phrase ‘‘primarily designed’’ rather pose of locomotion in typical indoor and outdoor than ‘‘solely designed’’ in making such catego- pedestrian areas. A wheelchair may be manually- rizations. The Department will not foreclose any operated or power-driven.’’ 73 FR 34508, 34553 future technological developments by identifying (June 17, 2008). or banning specific devices or setting restric- Although the NPRM’s definition of ‘‘wheel- tions on size, weight, or dimensions. Moreover, chair’’ excluded mobility devices that are not de- devices designed primarily for use by individuals signed solely for use by individuals with mobility with mobility disabilities often are considered to disabilities, the Department, noting that the use of be medical devices and are generally eligible for the Segway® PT by individuals with mobility dis- insurance reimbursement on this basis. Finally, abilities is on the upswing, inquired as to whether devices designed primarily for use by individuals this device should be included in the definition of with mobility disabilities are less subject to fraud

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‘‘wheelchair.’’ definition of ‘‘wheelchair’’ contained in section Most business commenters wished the defini- 508(c)(2) applicable only to the specific context of tion of ‘‘wheelchair’’ had included size, weight, uses in designated wilderness areas, and therefore and dimension maximums. Ultimately, however, does not compel the use of that definition for any they supported the definition because it excludes other purpose. Moreover, the Department main- other power-driven mobility devices and enables tains that limiting the definition to devices suitable them to engage in an assessment to determine for use in an ‘‘indoor pedestrian area’’ as provided whether a particular device can be allowed as a for in section 508(c)(2) of the ADA would ignore reasonable modification. These commenters felt the technological advances in wheelchair design this approach gave them some measure of con- that have occurred since the ADA went into ef- trol over whether, and under what circumstances, fect and that the inclusion of the phrase‘‘indoor other power-driven mobility devices may be used pedestrian area’’ in the definition of ‘‘wheelchair’’ in their facilities by individuals with mobility would set back progress made by individuals with disabilities. Two commenters noted that because mobility disabilities who, for many years now, many mobility scooters are oversized, they are have been using devices designed for locomotion misplaced in the definition of ‘‘wheelchair’’ and in indoor and outdoor settings. The Department belong with other power-driven mobility devices. has concluded that same rationale applies to plac- Another commenter suggested using maximum ing limits on the size, weight, and dimensions of size and weight requirements to allocate which wheelchairs. mobility scooters should be categorized as wheel- With regard to the term ‘‘mobility impair- chairs, and which should be categorized as other ments,’’ the Department intended a broad read- power-driven mobility devices. ing so that a wide range of disabilities, including Many advocacy, nonprofit, and individual com- circulatory and respiratory disabilities, that make menters indicated that as long as the Department walking difficult or impossible, would be in- intends the scope of the term ‘‘mobility impair- cluded. In response to comments on this issue, the ments’’ to include other disabilities that cause Department has revisited the issue and has con- mobility impairments (e.g., respiratory, circula- cluded that the most apt term to achieve this intent tory, stamina, etc.), they were in support of the is ‘‘mobility disability.’’ language. Several commenters indicated a prefer- In addition, the Department has decided that it ence for the definition of ‘‘wheelchair’’ in section is more appropriate to use the phrase, ‘‘primarily’’ 508(c)(2) of the ADA. One commenter indicated a designed for use by individuals with disabilities in preference for the term ‘‘assistive device,’’ as it is the final rule, rather than, ‘‘solely’’ designed for defined in the Rehabilitation Act of 1973, over the use by individuals with disabilities—the phrase, term ‘‘wheelchair.’’ A few commenters indicated proposed in the NPRM. The Department believes that strollers should be added to the preamble’s that this phrase more accurately covers the range list of examples of wheelchairs because parents of of devices the Department intends to fall within children with disabilities frequently use strollers the definition of ‘‘wheelchair.’’ as mobility devices until their children get older. After receiving comments that the word ‘‘typi- In the final rule, the Department has rearranged cal’’ is vague and the phrase ‘‘pedestrian areas’’ is some wording and has made some changes in the confusing to apply, particularly in the context of terminology used in the definition of ‘‘wheel- similar, but not identical, terms used in the pro- chair,’’ but essentially has retained the definition, posed Standards, the Department decided to delete and therefore the rationale, that was set forth in the term ‘‘typical indoor and outdoor pedestrian the NPRM. Again, the text of the ADA makes the areas’’ from the final rule. Instead, the final rule

Department of Justice Guidance and Analysis - 71 28 CFR Part 36 references ‘‘indoor or * * * both indoor and out- designed primarily for use by individuals with dis- door locomotion,’’ to make clear that the devices abilities, nor used primarily by persons with dis- that fall within the definition of ‘‘wheelchair’’ are abilities, complicates the question of to what ex- those that are used for locomotion on indoor and tent individuals with disabilities should be allowed outdoor pedestrian paths or routes and not those to operate them in areas and facilities where other that are intended exclusively for traversing unde- power-driven mobility devices are not allowed. fined, unprepared, or unimproved paths or routes. Those who question the use of the Segway® PT Thus, the final rule defines the term ‘‘wheelchair’’ in pedestrian areas argue that the speed, size, and to mean ‘‘a manually operated or power-driven operating features of the devices make them too device designed primarily for use by an individual dangerous to operate alongside pedestrians and with a mobility disability for the main purpose of wheelchair users. indoor or of both indoor and outdoor locomotion.’’ Comments regarding whether to include the Whether the definition of ‘‘wheelchair’’ includes Segway® PT in the definition of ‘‘wheelchair’’ the Segway® PT. As discussed above, because were, by far, the most numerous received in the individuals with mobility disabilities are using category of comments regarding wheelchairs and the Segway® PT as a mobility device, the Depart- other power-driven mobility devices. Significant ment asked whether it should be included in the numbers of veterans with disabilities, individuals definition of ‘‘wheelchair.’’ The basic Segway® PT with multiple sclerosis, and those advocating on model is a two-wheeled, gyroscopically-stabilized, their behalf made concise statements of general battery-powered personal transportation device. support for the inclusion of the Segway® PT in the The user stands on a platform suspended three definition of ‘‘wheelchair.’’ Two veterans offered inches off the ground by wheels on each side, extensive comments on the topic, along with a few grasps a T-shaped handle, and steers the device advocacy and nonprofit groups and individuals similarly to a bicycle. Most Segway® PTs can with disabilities for whom sitting is uncomfortable travel up to 121⁄2 miles per hour, compared to the or impossible. average pedestrian walking speed of 3 to 4 miles While there may be legitimate safety issues for per hour and the approximate maximum speed for EPAMD users and bystanders in some circum- power-operated wheelchairs of 6 miles per hour. stances, EPAMDs and other nontraditional mobil- In a study of trail and other non-motorized trans- ity devices can deliver real benefits to individuals portation users including EPAMDs, the Federal with disabilities. Among the reasons given by Highway Administration (FHWA) found that the commenters to include the Segway® PT in the eye height of individuals using EPAMDs ranged definition of ‘‘wheelchair’’ were that the Segway® from approximately 69 to 80 inches. See Fed- PT is well-suited for individuals with particular eral Highway Administration, Characteristics of conditions that affect mobility including multiple Emerging Road and Trail Users and Their Safety sclerosis, Parkinson’s disease, chronic obstructive (Oct. 14, 2004), available at http://www.tfhrc.gov/ pulmonary disease, amputations, spinal cord in- safety/pubs/04103 (last visited June 24, 2010). juries, and other neurological disabilities, as well Thus, the Segway® PT can operate at much greater as functional limitations, such as gait limitation, speeds than wheelchairs, and the average user inability to sit or discomfort in sitting, and dimin- stands much taller than most wheelchair users. ished stamina issues. Such individuals often find The Segway® PT has been the subject of debate that EPAMDs are more comfortable and easier among users, pedestrians, disability advocates, to use than more traditional mobility devices and State and local governments, businesses, and assist with balance, circulation, and digestion in bicyclists. The fact that the Segway® PT is not ways that wheelchairs do not. See Rachel Metz,

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Disabled Embrace Segway, New York Times, Oct. some stores. Nearly all business commenters ex- 14, 2004. Commenters specifically cited pressure pressed concern—and perceived liability issues— relief, reduced spasticity, increased stamina, and related to having to store or stow the Segway® PT, improved respiratory, neurologic, and muscular particularly if it could not be stored in an upright health as secondary medical benefits from being position. These commenters cited concerns about able to stand. possible damage to the device, injury to customers Other arguments for including the Segway® PT who may trip over it, and theft of the device as a in the definition of ‘‘wheelchair’’ were based on result of not being able to stow the Segway® PT commenters’ views that the Segway® PT offers securely. benefits not provided by wheelchairs and mobil- Virtually every business commenter mentioned ity scooters, including its intuitive response to concerns about rider safety, as well as concerns body movement, ability to operate with less coor- for pedestrians unexpectedly encountering these dination and dexterity than is required for many devices or being hit or run over by these devices wheelchairs and mobility scooters, and smaller in crowded venues where maneuvering space is footprint and turning radius as compared to most limited. Their main safety objection to the in- wheelchairs and mobility scooters. Several com- clusion of the Segway® PT in the definition of menters mentioned improved visibility, either due ‘‘wheelchair’’ was that the maximum speed at to the Segway® PT’s raised platform or simply by which the Segway® PT can operate is far faster virtue of being in a standing position. And finally, than that of motorized wheelchairs. There was a some commenters advocated for the inclusion universal unease among these commenters with of the Segway® PT simply based on civil rights regard to relying on the judgment of the Segway® arguments and the empowerment and self-esteem PT user to exercise caution because its top speed obtained from having the power to select the mo- is far in excess of a wheelchair’s top speed. Many bility device of choice. other safety concerns were industry-specific. For Many commenters, regardless of their position example, amusement parks were concerned that on whether to include the Segway® PT in the defi- the Segway® PT is much taller than children; that nition of ‘‘wheelchair,’’ noted that the Segway® it is too quiet to warn pedestrians, particularly PT’s safety record is as good as, if not better, than those with low vision or who are blind, of their the record for wheelchairs and mobility scooters. presence; that it may keep moving after a rider has Most business commenters were opposed to fallen off or power system fails; and that it has a the inclusion of the Segway® PT in the definition full-power override which automatically engages of ‘‘wheelchair’’ but were supportive of its inclu- when an obstacle is encountered. Hotels and retail sion as an ‘‘other power-driven mobility device.’’ stores mentioned that maneuvering the Segway® They raised industry- or venue-specific concerns PT through their tight quarters would create safety about including the Segway® PT in the definition hazards. of ‘‘wheelchair.’’ For example, civic centers, are- Business commenters also expressed concern nas, and theaters were concerned about the impact that if the Segway® PT were included in the defi- on sight-line requirements if Segway® PT users nition of ‘‘wheelchair’’ they would have to make remain on their devices in a designated wheelchair physical changes to their facilities to accommo- seating area; amusement parks expressed concern date Segway® PT riders who stand much taller in that rides have been designed, purchased, and in- these devices than do users of wheelchairs. They stalled to enable wheelchair users to transfer eas- also were concerned that if the Segway® 7 PT was ily or to accommodate wheelchairs on the ride it- included in the definition of ‘‘wheelchair,’’ they self; and retail stores mentioned size constraints in would have no ability to assess whether it is ap-

Department of Justice Guidance and Analysis - 73 28 CFR Part 36 propriate to allow the entry of the Segway® PT for use by individuals with mobility disabilities, into their facilities the way they would have if the the Department has decided to continue its ap- device is categorized as an ‘‘other power-driven proach of excluding EPAMDs from the definition mobility device.’’ of ‘‘wheelchair’’ and including them in the defini- Many disability advocacy and nonprofit com- tion of ‘‘other power-driven mobility device.’’ Al- menters did not support the inclusion of the though EPAMDs, such as the Segway® PT, are not Segway® PT in the definition of ‘‘wheelchair.’’ included in the definition of a ‘‘wheelchair,’’ pub- Paramount to these commenters was the mainte- lic accommodations must assess whether they can nance of existing protections for wheelchair us- make reasonable modifications to permit individu- ers. Because there was unanimous agreement that als with mobility disabilities to use such devices wheelchair use rarely, if ever, may be restricted, on their premises. The Department recognizes that these commenters strongly favored categorizing the Segway® PT provides many benefits to those wheelchairs separately from the Segway® PT and who use them as mobility devices, including a other power-driven mobility devices and applying measure of privacy with regard to the nature of the intended-use determinant to assign the devices one’s particular disability, and believes that in the to either category. They indicated that while they vast majority of circumstances, the application of support the greatest degree of access in public the factors described in § 36.311 for providing ac- accommodations for all persons with disabilities cess to other powered mobility devices will result who require the use of mobility devices, they rec- in the admission of the Segway® PT. ognize that under certain circumstances allowing Treatment of ‘‘manually-powered mobility the use of other power-driven mobility devices aids.’’ The Department’s NPRM did not define the would result in a fundamental alteration or run term ‘‘manually-powered mobility aids.’’ Instead, counter to legitimate safety requirements neces- the NPRM included a non-exhaustive list of ex- sary for the safe operation of a public accommo- amples in § 36.311(a). The NPRM queried wheth- dation. While these groups supported categorizing er the Department should maintain this approach the Segway® PT as an ‘‘other power-driven mobil- to manually-powered mobility aids or whether it ity device,’’ they universally noted that because should adopt a more formal definition. the Segway® PT does not present environmental Only a few commenters addressed ‘‘manually- concerns and is as safe to use as, if not safer than, powered mobility aids.’’ Virtually all commenters a wheelchair, it should be accommodated in most were in favor of maintaining a non-exhaustive circumstances. list of examples of ‘‘manually-powered mobility The Department has considered all the com- aids’’ rather than adopting a definition of the term. ments and has concluded that it should not include Of those who commented, a couple sought clari- the Segway® PT in the definition of ‘‘wheelchair.’’ fication of the term ‘‘manually-powered.’’ One The final rule provides that the test for categoriz- commenter suggested that the term be changed to ing a device as a wheelchair or an other power- ‘‘human-powered.’’ Other commenters requested driven mobility device is whether the device is that the Department include ordinary strollers designed primarily for use by individuals with in the non-exhaustive list of manually-powered mobility disabilities. Mobility scooters are includ- mobility aids. Since strollers are not devices de- ed in the definition of ‘‘wheelchair’’ because they signed primarily for individuals with mobility dis- are designed primarily for users with mobility abilities, the Department does not consider them disabilities. However, because the current genera- to be manually-powered mobility aids; however, tion of EPAMDs, including the Segway® PT, was strollers used in the context of transporting indi- designed for recreational users and not primarily viduals with disabilities are subject to the same

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assessment required by the ADA’s reasonable device’’ would violate basic civil rights concepts, modification standards at § 36.302. The Depart- they also specifically stated that certain devices, ment believes that because the existing approach particularly off-highway vehicles, cannot be per- is clear and understood easily by the public, no mitted in certain circumstances. They also made formal definition of the term ‘‘manually-powered a distinction between the Segway® PT and other mobility aids’’ is required. power-driven mobility devices, noting that the Definition of ‘‘other power-driven mobility de- Segway® PT should be accommodated in most cir- vice.’’ The Department’s NPRM defined the term cumstances because it satisfies the safety and en- ‘‘other power-driven mobility device’’ in § 36.104 vironmental elements of the policy analysis. These as ‘‘any of a large range of devices powered by commenters indicated that they agree that other batteries, fuel, or other engines— whether or not power-driven mobility devices must be assessed, designed solely for use by individuals with mo- particularly as to their environmental impact, be- bility impairments—that are used by individuals fore they are accommodated. with mobility impairments for the purpose of lo- Business commenters were even less supportive comotion, including golf cars, bicycles, electronic of the inclusion of fuel-powered devices in the personal assistance mobility devices (EPAMDs), other power-driven mobility devices category. or any mobility aid designed to operate in areas They sought a complete ban on fuel-powered without defined pedestrian routes.’’ 73 FR 34508, devices because they believe they are inherently 34552 (June 17, 2008). dangerous and pose environmental and safety con- Business commenters mostly were supportive cerns. of the definition of ‘‘other power-driven mobility Although many commenters had reservations device’’ because it gave them the ability to de- about the inclusion of fuel-powered devices in the velop policies pertaining to the admission of these definition of other power-driven mobility devices, devices, but they expressed concern that individu- the Department does not want the definition to be als will feign mobility disabilities so that they can so narrow that it would foreclose the inclusion of use devices that are otherwise banned in public ac- new technological developments, whether pow- commodations. Advocacy, nonprofit, and several ered by fuel or by some other means. It is for this individual commenters supported the definition of reason that the Department has maintained the ‘‘other power-driven mobility device’’ because it phrase ‘‘any mobility device designed to operate allows new technologies to be added in the future, in areas without defined pedestrian routes’’ in the maintains the existing legal protections for wheel- final rule’s definition of other power-driven mo- chairs, and recognizes that some devices, par- bility devices. The Department believes that the ticularly the Segway® PT, which are not designed limitations provided by ‘‘fundamental alteration’’ primarily for individuals with mobility disabilities, and the ability to impose legitimate safety re- have beneficial uses for individuals with mobility quirements will likely prevent the use of fuel and disabilities. combustion engine-driven devices indoors, as well Despite support for the definition of ‘‘other as in outdoor areas with heavy pedestrian traffic. power-driven mobility device,’’ however, most The Department notes, however, that in the future advocacy and nonprofit commenters expressed technological developments may result in the pro- at least some hesitation about the inclusion of duction of safe fuel-powered mobility devices that fuel-powered mobility devices in the definition. do not pose environmental and safety concerns. While virtually all of these commenters noted that The final rule allows consideration to be given as a blanket exclusion of any device that falls under to whether the use of a fuel-powered device would the definition of ‘‘other power-driven mobility create a substantial risk of serious harm to the

Department of Justice Guidance and Analysis - 75 28 CFR Part 36 environment or natural or cultural resources, and by the Department supported the use of a 30-day to whether the use of such a device conflicts with limitation on places of lodging as more consistent Federal land management laws or regulations; this with building codes, local laws, and common real aspect of the final rule will further limit the inclu- estate practices that treat stays of 30 days or less sion of fuel-powered devices where they are not as transient rather than residential use. One com- appropriate. Consequently, the Department has menter recommended using the phrase ‘‘fourteen maintained fuel-powered devices in the definition days or less.’’ Another commenter objected to any of ‘‘other power-driven mobility devices.’’ The bright line standard, stating that the difference be- Department has also added language to the defi- tween two weeks and 30 days for purposes of title nition of ‘‘other power-driven mobility device’’ III is arbitrary, viewed in light of conflicting regu- to reiterate that the definition does not apply to lations by the States. This commenter argued the Federal wilderness areas, which are not covered Department should continue its existing practice by title II of the ADA; the use of wheelchairs in under title III of looking to State law as one factor such areas is governed by section 508(c)(2) of the in determining whether a facility is used for stays ADA, 42 U.S.C. 12207(c)(2). that primarily are short-term in nature. The Department is persuaded by the majority ‘‘Place of Public Accommodation’’ of commenters to adopt a 30-day guideline for the Definition of ‘‘place of lodging.’’ The NPRM purposes of identifying facilities that primarily are stated that a covered ‘‘place of lodging’’ is a facil- short-term in nature and has modified the section ity that provides guest rooms for sleeping for stays accordingly. The 30-day guideline is intended only that are primarily short-term in nature (generally to determine when the final rule’s transient lodg- two weeks or less), to which the occupant does not ing provisions apply to a facility. It does not alter have the right or intent to return to a specific room an entity’s obligations under any other applicable or unit after the conclusion of his or her stay, and statute. For example, the Department recognizes which operates under conditions and with ameni- that the FHAct does not employ a bright line stan- ties similar to a hotel, motel, or inn, particularly dard for determining which facilities qualify as including factors such as: (1) An on-site proprietor residential facilities under that Act and that there and reservations desk; (2) rooms available on a are circumstances where units in facilities that walk-up basis; (3) linen service; and (4) a policy meet the definition of places of lodging will be of accepting reservations for a room type without covered under both the ADA and the FHAct and guaranteeing a particular unit or room until check- will have to comply with the requirements of both in, without a prior lease or security deposit. The laws. NPRM stated that timeshares and condominiums The Department also received comments about or corporate hotels that did not meet this defini- the factors used in the NPRM’s definition of tion would not be covered by § 36.406(c) of the ‘‘place of lodging.’’ One commenter proposed proposed regulation, but may be covered by the modifications to the definition as follows: chang- requirements of the Fair Housing Act (FHAct). ing the words ‘‘guest rooms’’ to ‘‘accommodations In the NPRM, the Department sought comment for sleeping’’; and adding a fifth factor that states on its definition of ‘‘place of lodging,’’ specifi- that ‘‘the in-room decor, furnishings and equip- cally seeking public input on whether the most ment being specified by the owner or operator of appropriate time period for identifying facilities the lodging operation rather than generally being used for stays that primarily are short-term in na- determined by the owner of the individual unit ture should be set at 2 weeks or 30 days. or room.’’ The Department does not believe that The vast majority of the comments received ‘‘guest room’’ should be changed to ‘‘accommoda-

76 - Guidance and Analysis Department of Justice 28 CFR Part 36 tions for sleeping.’’ Such a change would create resorts as a subcategory of place of lodging. The confusion because the transient lodging provisions commenter proposed defining timeshare resorts in the 2004 ADAAG use the term ‘‘guest rooms’’ as facilities that provide the recurring right to oc- and not ‘‘accommodations for sleeping.’’ In addi- cupancy for overnight accommodations for the tion, the Department believes that it would be con- owners of the accommodations, and other occu- fusing to add a factor relating to who dictates the pancy rights for owners exchanging their interests in-room decor and furnishings in a unit or room, or members of the public for stays that primarily because there may be circumstances where par- are short-term in nature (generally 30 consecutive ticular rental programs require individual owners days or less), where neither the owner nor any to use certain decor and furnishings as a condition other occupant has the right or intent to use the of participating in that program. unit or room on other than a temporary basis for One commenter stated that the factors the De- vacation or leisure purposes. This proposed defini- partment has included for determining whether a tion also would describe factors for determining rental unit is a place of lodging for the purposes when a timeshare resort is operating in a manner of title III, and therefore a ‘‘place of public ac- similar to a hotel, motel, or inn, including some commodation’’ under the ADA, address only the or all of the following: rooms being available on way an establishment appears to the public. This a walk-in or call-in basis; housekeeping or linen commenter recommended that the Department services being available; on-site management; also consider the economic relationships among and reservations being accepted for a room type the unit owners, rental managers, and homeown- without guaranteeing any guest or owner use of a ers’ associations, noting that where revenues are particular unit or room until check-in, without a not pooled (as they are in a hotel), the economic prior lease or security deposit. Timeshares that do relationships do not make it possible to spread the not meet this definition would not be subject to cost of providing accessibility features over the the transient lodging standards. entire business enterprise. Another commenter The Department has considered these com- argued that private ownership of sleeping ac- ments and has revised the definition of ‘‘place of commodations sets certain facilities apart from accommodation’’ in § 36.104 to include a revised traditional hotels, motels, and inns, and that the subcategory (B), which more clearly defines the Department should revise the definition of places factors that must be present for a facility that is of lodging to exempt existing places of lodging not an inn, motel, or hotel to qualify as a place that have sleeping accommodations separately of lodging. These factors include conditions and owned by individual owners (e.g., condominiums) amenities similar to an inn, motel, or hotel, includ- from the accessible transient lodging guest room ing on- or off-site management and reservations requirements in sections 224 and 806 of the 2004 service, rooms available on a walk-up or call-in ADAAG, although the commenter agreed that basis, availability of housekeeping or linen ser- newly constructed places of lodging should meet vice, and accepting reservations for a room type those standards. without guaranteeing a particular unit or room One commenter argued that the Department’s until check-in without a prior lease or security proposed definition of place of lodging does not deposit. reflect fully the nature of a timeshare facility Although the Department understands some and one single definition does not fit timeshares, of the concerns about the application of the ADA condo hotels, and other types of rental accom- requirements to places of lodging that have own- modations. This commenter proposed that the De- ership structures that involve individually owned partment adopt a separate definition for timeshare units, the Department does not believe that the

Department of Justice Guidance and Analysis - 77 28 CFR Part 36 definitional section of the regulation is the place to licenses or certifies interpreters. Other comment- address these concerns and has addressed them in ers opposed a certification requirement as unduly § 36.406(c)(2) and the accompanying discussion limiting, noting that an interpreter may well be in Appendix A. qualified even if that same interpreter is not certi- fied. These commenters noted the absence of na- ‘‘Qualified Interpreter’’ tionwide standards or universally accepted criteria In the NPRM, the Department proposed adding for certification. language to the definition of ‘‘qualified inter- On review of this issue, the Department has de- preter’’ to clarify that the term includes, but is cided against imposing a certification requirement not limited to, sign language interpreters, oral under the ADA. It is sufficient under the ADA that interpreters, and cued-speech interpreters. As the the interpreter be qualified. With respect to the Department explained, not all interpreters are proposed additions to the rule, most commenters qualified for all situations. For example, a quali- supported the expansion of the list of qualified in- fied interpreter who uses American Sign Language terpreters, and some advocated for the inclusion of (ASL) is not necessarily qualified to interpret oral- other types of interpreters on the list as well, such ly. In addition, someone with only a rudimentary as deaf-blind interpreters, certified deaf interpret- familiarity with sign language or finger spelling is ers, and speech-to-speech interpreters. As these not qualified, nor is someone who is fluent in sign commenters explained, deaf-blind interpreters language but unable to translate spoken communi- are interpreters who have specialized skills and cation into ASL or to translate signed communica- training to interpret for individuals who are deaf tion into spoken words. and blind. Certified deaf interpreters are deaf or As further explained, different situations will hard of hearing interpreters who work with hear- require different types of interpreters . For exam- ing sign language interpreters to meet the specific ple, an oral interpreter who has special skill and communication needs of deaf individuals. Speech- training to mouth a speaker’s words silently for to-speech interpreters have special skill and train- individuals who are deaf or hard of hearing may ing to interpret for individuals who have speech be necessary for an individual who was raised disabilities. orally and taught to read lips or was diagnosed The list of interpreters in the definition of with hearing loss later in life and does not know ‘‘qualified interpreter’’ is illustrative, and the sign language. An individual who is deaf or hard Department does not believe it is necessary or ap- of hearing may need an oral interpreter if the propriate to attempt to provide an exhaustive list speaker’s voice is unclear, if there is a quick-paced of qualified interpreters. Accordingly, the Depart- exchange of communication (e.g., in a meeting), ment has decided not to expand the proposed list. or when the speaker does not directly face the However, if a deaf and blind individual needs in- individual who is deaf or hard of hearing. A cued- terpreting services, an interpreter who is qualified speech interpreter functions in the same manner as to handle the interpreting needs of that individual an oral interpreter except that he or she also uses a may be required. The guiding criterion is that the hand code or cue to represent each speech sound. public accommodation must provide appropri- The Department received many comments re- ate auxiliary aids and services to ensure effective garding the proposed modifications to the defini- communication with the individual. tion of ‘‘qualified interpreter.’’ Many commenters Commenters also suggested various definitions requested that the Department include within for the term ‘‘cued-speech interpreters,’’ and dif- the definition a requirement that interpreters be ferent descriptions of the tasks they performed. certified, particularly if they reside in a State that After reviewing the various comments, the De-

78 - Guidance and Analysis Department of Justice 28 CFR Part 36 partment has determined that it is more accurate in ASL (expressive skills). The Department agrees and appropriate to refer to such individuals as and has put the phrase ‘‘both receptively and ex- ‘‘cued-language transliterators.’’ Likewise, the De- pressively’’ back in the definition. partment has changed the term ‘‘oral interpreters’’ Several advocacy groups suggested that the De- to ‘‘oral transliterators.’’ These two changes have partment make clear in the definition of qualified been made to distinguish between sign language interpreter that the interpreter may appear either interpreters, who translate one language into an- on-site or remotely using a video remote inter- other language (e.g., ASL to English and English preting (VRI) service. Given that the Department to ASL), from transliterators, who interpret within has included in this rule both a definition of VRI the same language between deaf and hearing services and standards that such services must sat- individuals. A cued-language transliterator is an isfy, such an addition to the definition of qualified interpreter who has special skill and training in interpreter is appropriate. the use of the Cued Speech system of handshapes After consideration of all relevant information and placements, along with non-manual informa- submitted during the public comment period, the tion, such as facial expression and body language, Department has modified the definition from that to show auditory information visually, including initially proposed in the NPRM. The final defini- speech and environmental sounds. An oral trans- tion now states that ‘‘[q]ualified interpreter means literator is an interpreter who has special skill and an interpreter who, via a video remote interpreting training to mouth a speaker’s words silently for (VRI) service or an on-site appearance, is able to individuals who are deaf or hard of hearing. While interpret effectively, accurately, and impartially, the Department included definitions for ‘‘cued both receptively and expressively, using any speech interpreter’’ and ‘‘oral interpreter’’ in the necessary specialized vocabulary. Qualified in- regulatory text proposed in the NPRM, the De- terpreters include, for example, sign language in- partment has decided that it is unnecessary to in- terpreters, oral transliterators, and cued-language clude such definitions in the text of the final rule. transliterators.’’ Many commenters questioned the proposed deletion of the requirement that a qualified inter- ‘‘Qualified Reader’’ preter be able to interpret both receptively and The 1991 title III regulation identified a qualified expressively, noting the importance of both these reader as an auxiliary aid, but did not define the skills. Commenters noted that this phrase was term. Based upon the Department’s investigation carefully crafted in the original regulation to make of complaints alleging that some entities have certain that interpreters both (1) are capable of provided ineffective readers, the Department pro- understanding what a person with a disability is posed in the NPRM to define ‘‘qualified reader’’ saying and (2) have the skills needed to convey similarly to ‘‘qualified interpreter’’ to ensure that information back to that individual. These are public accommodations select qualified individu- two very different skill sets and both are equally als to read an examination or other written infor- important to achieve effective communication. mation in an effective, accurate, and impartial For example, in a medical setting, a sign language manner. This proposal was suggested in order to interpreter must have the necessary skills to un- make clear to public accommodations that a fail- derstand the grammar and syntax used by an ASL ure to provide a qualified reader to a person with a user (receptive skills) and the ability to interpret disability may constitute a violation of the require- complicated medical information—presented by ment to provide appropriate auxiliary aids and medical staff in English—back to that individual services. The Department received comments supporting

Department of Justice Guidance and Analysis - 79 28 CFR Part 36 the inclusion in the regulation of a definition of a individual with a disability, including, but not ‘‘qualified reader.’’ Some commenters suggested limited to, guiding individuals with impaired vi- the Department add to the definition a requirement sion, alerting individuals with impaired hearing to prohibiting the use of a reader whose accent, dic- intruders or sounds, providing minimal protection tion, or pronunciation makes full comprehension or rescue work, pulling a wheelchair, or fetching of material being read difficult. Another com- dropped items.’’ Section 36.302(c)(1) of the 1991 menter requested that the Department include title III regulation requires that ‘‘[g]enerally, a a requirement that the reader ‘‘will follow the public accommodation shall modify policies, prac- directions of the person for whom he or she is tices, or procedures to permit the use of a service reading.’’ Commenters also requested that the De- animal by an individual with a disability.’’ Section partment define ‘‘accurately’’ and ‘‘effectively’’ as 36.302(c)(2) of the 1991 title III regulation states used in this definition. that ‘‘a public accommodation [is not required] to While the Department believes that the regula- supervise or care for a service animal.’’ tory definition proposed in the NPRM adequately The Department has issued guidance and pro- addresses these concerns, the Department empha- vided technical assistance and publications con- sizes that a reader, in order to be ‘‘qualified,’’ must cerning service animals since the 1991 regulations be skilled in reading the language and subject became effective. In the NPRM, the Department matter and must be able to be easily understood proposed to modify the definition of service ani- by the individual with the disability. For example, mal and asked for public input on several issues if a reader is reading aloud the questions for a bar related to the service animal provisions of the examination, that reader, in order to be qualified, 1991 title III regulation: whether the Department must know the proper pronunciation of all legal should clarify the phrase ‘‘providing minimal terminology used and must be sufficiently articu- protection’’ in the definition or remove it; whether late to be easily understood by the individual with there are any circumstances where a service ani- a disability for whom he or she is reading. In ad- mal ‘‘providing minimal protection’’ would be dition, the terms ‘‘effectively’’ and ‘‘accurately’’ appropriate or expected; whether certain species have been successfully used and understood in should be eliminated from the definition of ‘‘ser- the Department’s existing definition of ‘‘qualified vice animal,’’ and, if so, which types of animals interpreter’’ since 1991 without specific regulatory should be excluded; whether ‘‘common domes- definitions. Instead, the Department has relied tic animal’’ should be part of the definition; and upon the common use and understanding of those whether a size or weight limitation should be im- terms from standard English dictionaries. Thus, posed for common domestic animals, even if the the definition of ‘‘qualified reader’’ has not been animal satisfies the ‘‘common domestic animal’’ changed from that contained in the NPRM. The part of the NPRM definition. final rule defines a ‘‘qualified reader’’ to mean ‘‘a The Department received extensive comments person who is able to read effectively, accurately, on these issues, as well as requests to clarify the and impartially using any necessary specialized obligations of public accommodations to accom- vocabulary.’’ modate individuals with disabilities who use service animals, and has modified the final rule in ‘‘Service Animal’’ response. In the interests of avoiding unnecessary Section 36.104 of the 1991 title III regulation repetition, the Department has elected to discuss defines a ‘‘service animal’’ as ‘‘any guide dog, the issues raised in the NPRM questions about ser- signal dog, or other animal individually trained vice animals and the corresponding public com- to do work or perform tasks for the benefit of an ments in the following discussion of the definition

80 - Guidance and Analysis Department of Justice 28 CFR Part 36 of ‘‘service animal.’’ gain access to hotels, restaurants, and other places The Department’s final rule defines ‘‘service of public accommodation. The increasing use of animal’’ as ‘‘any dog that is individually trained wild, exotic, or unusual species, many of which to do work or perform tasks for the benefit of an are untrained, as service animals has also added to individual with a disability, including a physical, the confusion. sensory, psychiatric, intellectual, or other mental Finally, individuals with disabilities who disability. Other species of animals, whether wild have the legal right under the Fair Housing Act or domestic, trained or untrained, are not service (FHAct) to use certain animals in their homes as animals for the purposes of this definition. The a reasonable accommodation to their disabilities work or tasks performed by a service animal must have assumed that their animals also qualify under be directly related to the individual’s disability. the ADA. This is not necessarily the case, as dis- Examples of work or tasks include, but are not cussed below. limited to, assisting individuals who are blind The Department recognizes the diverse needs or have low vision with navigation and other and preferences of individuals with disabilities tasks, alerting individuals who are deaf or hard protected under the ADA, and does not wish to of hearing to the presence of people or sounds, unnecessarily impede individual choice. Service providing non-violent protection or rescue work, animals play an integral role in the lives of many pulling a wheelchair, assisting an individual dur- individuals with disabilities, and with the clarifi- ing a seizure, alerting individuals to the presence cation provided by the final rule, individuals with of allergens, retrieving items such as medicine disabilities will continue to be able to use their or the telephone, providing physical support and service animals as they go about their daily activi- assistance with balance and stability to individu- ties. The clarification will also help to ensure that als with mobility disabilities, and helping persons the fraudulent or mistaken use of other animals with psychiatric and neurological disabilities by not qualified as service animals under the ADA preventing or interrupting impulsive or destruc- will be deterred. A more detailed analysis of the tive behaviors. The crime deterrent effects of an elements of the definition and the comments re- animal’s presence and the provision of emotional sponsive to the service animal provisions of the support, well-being, comfort, or companionship NPRM follows. do not constitute work or tasks for the purposes of Providing minimal protection. The 1991 title III this definition.’’ regulation included language stating that ‘‘mini- This definition has been designed to clarify a mal protection’’ was a task that could be per- key provision of the ADA. Many covered entities formed by an individually trained service animal indicated that they are confused regarding their for the benefit of an individual with a disability. obligations under the ADA with regard to indi- In the Department’s ‘‘ADA Business Brief on Ser- viduals with disabilities who use service animals. vice Animals’’ (2002), the Department interpreted Individuals with disabilities who use trained guide the ‘‘minimal protection’’ language within the or service dogs are concerned that if untrained or context of a seizure (i.e., alerting and protecting unusual animals are termed ‘‘service animals,’’ a person who is having a seizure). The Depart- their own right to use guide or service dogs may ment received many comments in response to the become unnecessarily restricted or questioned. question of whether the ‘‘minimal protection’’ Some individuals who are not individuals with language should be clarified. Many commenters disabilities have claimed, whether fraudulently or urged the removal of the ‘‘minimal protection’’ sincerely (albeit mistakenly), that their animals are language from the service animal definition for service animals covered by the ADA, in order to two reasons: (1) The phrase can be interpreted to

Department of Justice Guidance and Analysis - 81 28 CFR Part 36 allow any dog that is trained to be aggressive to mals are appropriate service animals for persons qualify as a service animal simply by pairing the with post traumatic stress disorder (PTSD). While animal with a person with a disability; and (2) The many individuals with PTSD may benefit by using phrase can be interpreted to allow any untrained a service animal, the work or tasks performed ap- pet dog to qualify as a service animal, since many propriately by such an animal would not involve consider the mere presence of a dog to be a crime unprovoked aggression, but could include actively deterrent, and thus sufficient to meet the minimal cuing the individual by nudging or pawing the in- protection standard. These commenters argued, dividual to alert to the onset of an episode and re- and the Department agrees, that these interpreta- moving the individual from the anxiety-provoking tions were not contemplated under the original environment. title III regulation. The Department recognizes that despite its While many commenters stated that they be- best efforts to provide clarification, the ‘‘minimal lieve that the ‘‘minimal protection’’ language protection’’ language appears to have been mis- should be eliminated, other commenters recom- interpreted. While the Department maintains that mended that the language be clarified, but re- protection from danger is one of the key functions tained. Commenters favoring clarification of the that service animals perform for the benefit of term suggested that the Department explicitly persons with disabilities, the Department recog- exclude the function of attack or exclude those nizes that an animal individually trained to pro- animals that are trained solely to be aggressive vide aggressive protection, such as an attack dog, or protective. Other commenters identified non- is not appropriately considered a service animal. violent behavioral tasks that could be construed Therefore, the Department has decided to modify as minimally protective, such as interrupting the ‘‘minimal protection’’ language to read ‘‘non- self-mutilation, providing safety checks and room violent protection,’’ thereby excluding so-called searches, reminding the individual to take medica- ‘attack dogs’’ or dogs with traditional ‘‘protection tions, and protecting the individual from injury training’’ as service animals. The Department resulting from seizures or unconsciousness. believes that this modification to the service ani- Several commenters noted that the existing mal definition will eliminate confusion, without direct threat defense, which allows the exclusion restricting unnecessarily the type of work or tasks of a service animal if the animal exhibits unwar- that service animals may perform. The Depart- ranted or unprovoked violent behavior or poses ment’s modification also clarifies that the crime- a direct threat, prevents the use of ‘‘attack dogs’’ deterrent effect of a dog’s presence, by itself, does as service animals. One commenter noted that the not qualify as work or tasks for purposes of the use of a service animal trained to provide ‘‘mini- service animal definition. mal protection’’ may impede access to care in an Alerting to intruders. The phrase ‘‘alerting emergency, for example, where the first responder to intruders’’ is related to the issues of minimal is unable or reluctant to approach a person with a protection and the work or tasks an animal may disability because the individual’s service animal perform to meet the definition of a service animal. is in a protective posture suggestive of aggression. In the original 1991 regulatory text, this phrase Many organizations and individuals stated that was intended to identify service animals that alert in the general dog training community, ‘‘protec- individuals who are deaf or hard of hearing to tion’’ is code for attack or aggression training and the presence of others. This language has been should be removed from the definition. Com- misinterpreted by some to apply to dogs that are menters stated that there appears to be a broadly trained specifically to provide aggressive protec- held misconception that aggression-trained ani- tion, resulting in the assertion that such training

82 - Guidance and Analysis Department of Justice 28 CFR Part 36 qualifies a dog as a service animal under the ADA. includes the performance of tasks, the definition The Department reiterates that public accom- of work is somewhat broader, encompassing activ- modations are not required to admit any animal ities that do not appear to involve physical action. whose use poses a direct threat. In addition, the One service dog user stated that, in some cases, Department has decided to remove the word ‘‘in- ‘‘critical forms of assistance can’t be construed truders’’ from the service animal definition and as physical tasks,’’ noting that the manifestations replace it with the phrase ‘‘the presence of people of ‘‘brain-based disabilities,’’ such as psychiatric or sounds.’’ The Department believes this clarifies disorders and autism, are as varied as their physi- that so-called ‘‘attack training’’ or other aggressive cal counterparts. The Department agrees with this response types of training that cause a dog to pro- statement but cautions that unless the animal is vide an aggressive response do not qualify a dog individually trained to do something that qualifies as a service animal under the ADA. as work or a task, the animal is a pet or support Conversely, if an individual uses a breed of animal and does not qualify for coverage as a ser- dog that is perceived to be aggressive because of vice animal. A pet or support animal may be able breed reputation, stereotype, or the history or ex- to discern that the individual is in distress, but it is perience the observer may have with other dogs, what the animal is trained to do in response to this but the dog is under the control of the individual awareness that distinguishes a service animal from with a disability and does not exhibit aggressive an observant pet or support animal. behavior, the public accommodation cannot ex- The NPRM contained an example of ‘‘doing clude the individual or the animal from the place work’’ that stated ‘‘a psychiatric service dog can of public accommodation. The animal can only be help some individuals with dissociative identity removed if it engages in the behaviors mentioned disorder to remain grounded in time or place.’’ 73 in § 36.302(c) (as revised in the final rule) or if FR 34508, 34521 (June 17, 2008). Several com- the presence of the animal constitutes a fundamen- menters objected to the use of this example, argu- tal alteration to the nature of the goods, services, ing that grounding was not a ‘‘task’’ and therefore facilities, and activities of the place of public ac- the example inherently contradicted the basic commodation. premise that a service animal must perform a task ‘‘Doing work’’ or ‘‘performing tasks.’’ The in order to mitigate a disability. Other commenters NPRM proposed that the Department maintain stated that ‘‘grounding’’ should not be included the requirement first articulated in the 1991 title as an example of ‘‘work’’ because it could lead III regulation that in order to qualify as a service to some individuals claiming that they should be animal, the animal must ‘‘perform tasks’’ or ‘‘do able to use emotional support animals in public work’’ for the individual with a disability. The because the dog makes them feel calm or safe. By phrases ‘‘perform tasks’’ and ‘‘do work’’ describe contrast, one commenter with experience in train- what an animal must do for the benefit of an in- ing service animals explained that grounding is a dividual with a disability in order to qualify as a trained task based upon very specific behavioral service animal. indicators that can be observed and measured. The Department received a number of com- These tasks are based upon input from mental ments in response to the NPRM proposal urg- health practitioners, dog trainers, and individuals ing the removal of the term ‘‘do work’’ from the with a history of working with psychiatric service definition of a service animal. These commenters dogs. argued that the Department should emphasize the It is the Department’s view that an animal that performance of tasks instead. The Department dis- is trained to ‘‘ground’’ a person with a psychiatric agrees. Although the common definition of work disorder does work or performs a task that would

Department of Justice Guidance and Analysis - 83 28 CFR Part 36 qualify it as a service animal as compared to an of the service animal definition in the final rule. untrained emotional support animal whose pres- The Department received many comments from ence affects a person’s disability. It is the fact that individuals and organizations recommending the animal is trained to respond to the individual’s species limitations. Several of these commenters needs that distinguishes an animal as a service asserted that limiting the number of allowable spe- animal. The process must have two steps: Rec- cies would help stop erosion of the public’s trust, ognition and response. For example, if a service which has resulted in reduced access for many in- animal senses that a person is about to have a dividuals with disabilities who use trained service psychiatric episode and it is trained to respond, for animals that adhere to high behavioral standards. example, by nudging, barking, or removing the Several commenters suggested that other species individual to a safe location until the episode sub- would be acceptable if those animals could meet sides, then the animal has indeed performed a task nationally recognized behavioral standards for or done work on behalf of the individual with the trained service dogs. Other commenters asserted disability, as opposed to merely sensing an event. that certain species of animals (e.g., reptiles) can- One commenter suggested defining the term not be trained to do work or perform tasks, so ‘‘task,’’ presumably to improve the understanding these animals would not be covered. of the types of services performed by an animal In the NPRM, the Department used the term that would be sufficient to qualify the animal for ‘‘common domestic animal’’ in the service animal coverage. The Department believes that the com- definition and excluded reptiles, rabbits, farm ani- mon definition of the word ‘‘task’’ is sufficiently mals (including horses, miniature horses, ponies, clear and that it is not necessary to add to the pigs, and goats), ferrets, amphibians, and rodents definitions section. However, the Department has from the service animal definition. 73 FR 34508, added examples of other kinds of work or tasks to 34553 (June 17, 2008). However, the term ‘‘com- help illustrate and provide clarity to the definition. mon domestic animal’’ is difficult to define with After careful evaluation of this issue, the Depart- precision due to the increase in the number of ment has concluded that the phrases ‘‘do work’’ domesticated species. Also, several State and local and ‘‘perform tasks’’ have been effective during laws define a ‘‘domestic’’ animal as an animal that the past two decades to illustrate the varied servic- is not wild. es provided by service animals for the benefit of The Department is compelled to take into ac- individuals with all types of disabilities. Thus, the count the practical considerations of certain Department declines to depart from its longstand- animals and to contemplate their suitability in a ing approach at this time. variety of public contexts, such as restaurants, Species limitations. When the Department grocery stores, hospitals, and performing arts ven- originally issued its title III regulation in the early ues, as well as suitability for urban environments. 1990s, the Department did not define the parame- The Department agrees with commenters’ views ters of acceptable animal species. At that time, few that limiting the number and types of species rec- anticipated the variety of animals that would be ognized as service animals will provide greater promoted as service animals in the years to come, predictability for public accommodations as well which ranged from pigs and miniature horses to as added assurance of access for individuals with snakes, iguanas, and parrots. The Department has disabilities who use dogs as service animals. As a followed this particular issue closely, keeping consequence, the Department has decided to limit current with the many unusual species of animals this rule’s coverage of service animals to dogs, represented to be service animals. Thus, the De- which are the most common service animals used partment has decided to refine further this aspect by individuals with disabilities.

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edged that the capuchin monkeys it trains are not Wild animals, monkeys, and other nonhuman necessarily suitable for use in a place of public primates. Numerous business entities endorsed accommodation but noted that the monkeys may a narrow definition of acceptable service animal need to be used in circumstances that implicate species, and asserted that there are certain animals title III coverage, e.g., in the event the handler had (e.g., reptiles) that cannot be trained to do work to leave home due to an emergency, to visit a vet- or perform tasks. Other commenters suggested erinarian, or for the initial delivery of the monkey that the Department should identify excluded ani- to the individual with a disability. The organiza- mals, such as birds and llamas, in the final rule. tion noted that several State and local government Although one commenter noted that wild animals entities have local zoning, licensing, health, and bred in captivity should be permitted to be service safety laws that prohibit non-human primates, and animals, the Department has decided to make that these prohibitions would prevent individuals clear that all wild animals, whether born or bred in with disabilities from using these animals even in captivity or in the wild, are eliminated from cover- their homes. age as service animals. The Department believes The organization argued that including capuchin that this approach reduces risks to health or safety monkeys under the service animal umbrella would attendant with wild animals. Some animals, such make it easier for individuals with disabilities to as certain nonhuman primates, including certain obtain reasonable modifications of State and lo- monkeys, pose a direct threat; their behavior can cal licensing, health, and safety laws that would be unpredictably aggressive and violent without permit the use of these monkeys. The organization notice or provocation. The American Veterinary argued that this limited modification to the service Medical Association (AVMA) issued a position animal definition was warranted in view of the statement advising against the use of monkeys services these monkeys perform, which enable as service animals, stating that ‘‘[t]he AVMA many individuals with paraplegia and quadriplegia does not support the use of nonhuman primates to live and function with increased independence. as assistance animals because of animal welfare The Department has carefully considered the concerns, and the potential for serious injury and potential risks associated with the use of nonhu- zoonotic [animal to human disease transmission] man primates as service animals in places of risks.’’ AVMA Position Statement, Nonhuman public accommodation, as well as the information Primates as Assistance Animals (2005), available provided to the Department about the significant at http://www.avma.org/issues/policy/ nonhuman_ benefits that trained capuchin monkeys provide to primates.asp (last visited June 24, 2010). certain individuals with disabilities in residential An organization that trains capuchin monkeys settings. The Department has determined, how- to provide in-home services to individuals with ever, that nonhuman primates, including capuchin paraplegia and quadriplegia was in substantial monkeys, will not be recognized as service ani- agreement with the AVMA’s views but requested mals for purposes of this rule because of their po- a limited recognition in the service animal defini- tential for disease transmission and unpredictable tion for the capuchin monkeys it trains to provide aggressive behavior. The Department believes that assistance for persons with disabilities. The orga- these characteristics make nonhuman primates nization commented that its trained capuchin mon- unsuitable for use as service animals in the con- keys undergo scrupulous veterinary examinations text of the wide variety of public settings subject to ensure that the animals pose no health risks, to this rule. As the organization advocating the and are used by individuals with disabilities exclu- inclusion of capuchin monkeys acknowledges, ca- sively in their homes. The organization acknowl- puchin monkeys are not suitable for use in public

Department of Justice Guidance and Analysis - 85 28 CFR Part 36 facilities. service animal. Others were concerned that adding The Department emphasizes that it has decided a size and weight limit would further complicate only that capuchin monkeys will not be included the difficult process of finding an appropriate in the definition of service animals for purposes service animal. One commenter noted that there of its regulation implementing the ADA. This is no need for a limit because ‘‘if, as a practical decision does not have any effect on the extent to matter, the size or weight of an individual’s ser- which public accommodations are required to al- vice animal creates a direct threat or fundamental low the use of such monkeys under other Federal alteration to a particular public entity or accom- statutes, like the FHAct or the Air Carrier Access modation, there are provisions that allow for the Act (ACAA). For example, a public accommoda- animal’s exclusion or removal.’’ Some common tion that also is considered to be a ‘‘dwelling’’ concerns among commenters in support of a size may be covered under both the ADA and the and weight limit were that a larger animal may be FHAct. While the ADA does not require such a less able to fit in various areas with its handler, public accommodation to admit people with ser- such as toilet rooms and public seating areas, and vice monkeys, the FHAct may. Under the FHAct that larger animals are more difficult to control. an individual with a disability may have the right Balancing concerns expressed in favor of and to have an animal other than a dog in his or her against size and weight limitations, the Depart- home if the animal qualifies as a ‘‘reasonable ment has determined that such limitations would accommodation’’ that is necessary to afford the not be appropriate. Many individuals of larger individual equal opportunity to use and enjoy a stature require larger dogs. The Department be- dwelling, assuming that the use of the animal does lieves it would be inappropriate to deprive these not pose a direct threat. In some cases, the right of individuals of the option of using a service dog of an individual to have an animal under the FHAct the size required to provide the physical support may conflict with State or local laws that prohibit and stability these individuals may need to func- all individuals, with or without disabilities, from tion independently. Since large dogs have always owning a particular species. However, in this cir- served as service animals, continuing their use cumstance, an individual who wishes to request a should not constitute fundamental alterations or reasonable modification of the State or local law impose undue burdens on public accommodations. must do so under the FHAct, not the ADA. Breed limitations. A few commenters suggested Having considered all of the comments about that certain breeds of dogs should not be allowed which species should qualify as service animals to be used as service animals. Some suggested that under the ADA, the Department has determined the Department should defer to local laws restrict- the most reasonable approach is to limit accept- ing the breeds of dogs that individuals who reside able species to dogs. in a community may own. Other commenters op- Size or weight limitations. The vast majority of posed breed restrictions, stating that the breed of a commenters did not support a size or weight limi- dog does not determine its propensity for aggres- tation. Commenters were typically opposed to a sion and that aggressive and non-aggressive dogs size or weight limit because many tasks performed exist in all breeds. by service animals require large, strong dogs. For The Department does not believe that it is ei- instance, service animals may perform tasks such ther appropriate or consistent with the ADA to as providing balance and support or pulling a defer to local laws that prohibit certain breeds of wheelchair. Small animals may not be suitable for dogs based on local concerns that these breeds large adults. The weight of the service animal user may have a history of unprovoked aggression or is often correlated with the size and weight of the attacks. Such deference would have the effect

86 - Guidance and Analysis Department of Justice 28 CFR Part 36 of limiting the rights of persons with disabilities and emotional support animals. Others have been under the ADA who use certain service animals more specific, stating that individuals with dis- based on where they live rather than on whether abilities may need their emotional support animals the use of a particular animal poses a direct threat in order to have equal access. Some commenters to the health and safety of others. Breed restric- noted that individuals with disabilities use animals tions differ significantly from jurisdiction to juris- that have not been trained to perform tasks direct- diction. Some jurisdictions have no breed restric- ly related to their disability. These animals do not tions. Others have restrictions that, while well- qualify as service animals under the ADA. These meaning, have the unintended effect of screening are emotional support or comfort animals. out the very breeds of dogs that have successfully Commenters asserted that excluding categories served as service animals for decades without such as ‘‘comfort’’ and ‘‘emotional support’’ ani- a history of the type of unprovoked aggression mals recognized by laws such as the FHAct or the or attacks that would pose a direct threat, e.g., ACAA is confusing and burdensome. Other com- German Shepherds. Other jurisdictions prohibit menters noted that emotional support and comfort animals over a certain weight, thereby restricting animals perform an important function, asserting breeds without invoking an express breed ban. In that animal companionship helps individuals who addition, deference to breed restrictions contained experience depression resulting from multiple in local laws would have the unacceptable conse- sclerosis. quence of restricting travel by an individual with a Some commenters explained the benefits disability who uses a breed that is acceptable and emotional support animals provide, including poses no safety hazards in the individual’s home emotional support, comfort, therapy, companion- jurisdiction but is nonetheless banned by other ju- ship, therapeutic benefits, and the promotion of risdictions. Public accommodations have the abil- emotional well-being. They contended that with- ity to determine, on a case-by-case basis, whether out the presence of an emotional support animal a particular service animal can be excluded based in their lives they would be disadvantaged and on that particular animal’s actual behavior or his- unable to participate in society. These comment- tory—not based on fears or generalizations about ers were concerned that excluding this category how an animal or breed might behave. This ability of animals will lead to discrimination against and to exclude an animal whose behavior or history excessive questioning of individuals with non- evidences a direct threat is sufficient to protect visible or non-apparent disabilities. Other com- health and safety. menters expressing opposition to the exclusion Recognition of psychiatric service animals, but of individually trained ‘‘comfort’’ or ‘‘emotional not ‘‘emotional support animals.’’ The definition support’’ animals asserted that the ability to soothe of ‘‘service animal’’ in the NPRM stated the De- or de-escalate and control emotion is ‘‘work’’ that partment’s longstanding position that emotional benefits the individual with the disability. support animals are not included in the definition Many commenters requested that the Depart- of ‘‘service animal.’’ The proposed text provided ment carve out an exception that permits current that ‘‘[a]nimals whose sole function is to provide or former members of the military to use emotion- emotional support, comfort, therapy, companion- al support animals. They asserted that a significant ship, therapeutic benefits, or to promote emotional number of service members returning from active well-being are not service animals.’’ 73 FR 34508, combat duty have adjustment difficulties due to 34553 (June 17, 2008). combat, sexual assault, or other traumatic experi- Many advocacy organizations expressed con- ences while on active duty. Commenters noted cern and disagreed with the exclusion of comfort that some current or former members of the mili-

Department of Justice Guidance and Analysis - 87 28 CFR Part 36 tary service have been prescribed animals for con- framework, some individuals and entities assumed ditions such as PTSD. One commenter stated that that the requirement that service animals must be service women who were sexually assaulted while individually trained to do work or perform tasks in the military use emotional support animals to excluded all individuals with mental disabilities help them feel safe enough to step outside their from having service animals. Others assumed that homes. The Department recognizes that many cur- any person with a psychiatric condition whose rent and former members of the military have dis- pet provided comfort to them was covered by the abilities as a result of service-related injuries that 1991 title III regulation. The Department reiterates may require emotional support and that such indi- that psychiatric service animals that are trained to viduals can benefit from the use of an emotional do work or perform a task for individuals whose support animal and could use such animal in their disability is covered by the ADA are protected home under the FHAct. However, having care- by the Department’s present regulatory approach. fully weighed the issues, the Department believes Psychiatric service animals can be trained to that its final rule appropriately addresses the bal- perform a variety of tasks that assist individuals ance of issues and concerns of both the individual with disabilities to detect the onset of psychiat- with a disability and the public accommodation. ric episodes and ameliorate their effects. Tasks The Department also notes that nothing in this part performed by psychiatric service animals may prohibits a public entity from allowing current or include reminding the individual to take medicine, former military members or anyone else with dis- providing safety checks or room searches for in- abilities to utilize emotional support animals if it dividuals with PTSD, interrupting self-mutilation, wants to do so. and removing disoriented individuals from dan- Commenters asserted the view that if an ani- gerous situations. mal’s ‘‘mere presence’’ legitimately provides such The difference between an emotional support benefits to an individual with a disability and if animal and a psychiatric service animal is the those benefits are necessary to provide equal op- work or tasks that the animal performs. Tradition- portunity given the facts of the particular disabil- ally, service dogs worked as guides for individuals ity, then such an animal should qualify as a ‘‘ser- who were blind or had low vision. Since the origi- vice animal.’’ Commenters noted that the focus nal regulation was promulgated, service animals should be on the nature of a person’s disability, the have been trained to assist individuals with many difficulties the disability may impose and whether different types of disabilities. the requested accommodation would legitimately In the final rule, the Department has retained its address those difficulties, not on evaluating the position on the exclusion of emotional support an- animal involved. The Department understands this imals from the definition of ‘‘service animal.’’ The approach has benefitted many individuals under definition states that ‘‘[t]he provision of emotional the FHAct and analogous State law provisions, support, well-being, comfort, or companionship * where the presence of animals poses fewer health * * do[es] not constitute work or tasks for the pur- and safety issues and where emotional support an- poses of this definition.’’ The Department notes, imals provide assistance that is unique to residen- however, that the exclusion of emotional support tial settings. The Department believes, however, animals from coverage in the final rule does not that the presence of such animals is not required mean that individuals with psychiatric or mental in the context of public accommodations, such as disabilities cannot use service animals that meet restaurants, hospitals, hotels, retail establishments, the regulatory definition. The final rule defines and assembly areas. service animal as follows: ‘‘Service animal means Under the Department’s previous regulatory any dog that is individually trained to do work or

88 - Guidance and Analysis Department of Justice 28 CFR Part 36 perform tasks for the benefit of an individual with sion, particularly in view of the broader parame- a disability, including a physical, sensory, psychi- ters for coverage under the FHAct, cf. Preamble to atric, intellectual, or other mental disability.’’ This HUD’s Final Rule for Pet Ownership for the El- language simply clarifies the Department’s long- derly and Persons with Disabilities, 73 FR 63834– standing position. 38 (Oct. 27, 2008); HUD Handbook No. 4350.3 The Department’s position is based on the fact Rev–1, Chapter 2, Occupancy Requirements of that the title II and title III regulations govern a Subsidized Multifamily Housing Programs (June wider range of public settings than the housing 2007), available at http://www.hud.gov/offices/ and transportation settings for which the Depart- adm/ hudclips/handbooks/hsgh/4350.3 (last visited ment of Housing and Urban Development (HUD) June 24, 2010). Moreover, as discussed above, the and the DOT regulations allow emotional support Department’s definition of ‘‘service animal’’ in the animals or comfort animals. The Department rec- final rule does not affect the rights of individuals ognizes that there are situations not governed by with disabilities who use assistance animals in the title II and title III regulations, particularly in their homes under the FHAct or who use ‘‘emo- the context of residential settings and transporta- tional support animals’’ that are covered under the tion, where there may be a legal obligation to per- ACAA and its implementing regulations. See 14 mit the use of animals that do not qualify as ser- CFR 382.7 et seq.; see also Department of Trans- vice animals under the ADA, but whose presence portation, Guidance Concerning Service Animals nonetheless provides necessary emotional support in Air Transportation, 68 FR 24874, 24877 (May to persons with disabilities. Accordingly, other 9, 2003) (discussing accommodation of service Federal agency regulations, case law, and possibly animals and emotional support animals on air- State or local laws governing those situations may craft). provide appropriately for increased access for ani- mals other than service animals as defined under ‘‘Video Remote Interpreting (VRI) Services’’ the ADA. Public officials, housing providers, and In the NPRM, the Department proposed adding others who make decisions relating to animals in ‘‘Video Interpreting Services (VIS)’’ to the list residential and transportation settings should con- of auxiliary aids available to provide effective sult the Federal, State, and local laws that apply in communication. In the preamble to the NPRM, those areas (e.g., the FHAct regulations of HUD VIS was defined as ‘‘a technology composed of and the ACAA) and not rely on the ADA as a ba- a video phone, video monitors, cameras, a high- sis for reducing those obligations. speed Internet connection, and an interpreter. Retain term ‘‘service animal.’’ Some comment- The video phone provides video transmission to ers asserted that the term ‘‘assistance animal’’ is a a video monitor that permits the individual who term of art and should replace the term ‘‘service is deaf or hard of hearing to view and sign to a animal’’; however, the majority of commenters video interpreter (i.e., a live interpreter in another preferred the term ‘‘service animal’’ because it location), who can see and sign to the individual is more specific. The Department has decided to through a camera located on or near the monitor, retain the term ‘‘service animal’’ in the final rule. while others can communicate by speaking. The While some agencies, like HUD, use the terms video monitor can display a split screen of two ‘‘assistance animal, ‘‘assistive animal,’’ or ‘‘sup- live images, with the interpreter in one image and port animal,’’ these terms are used to denote a the individual who is deaf or hard of hearing in broader category of animals than is covered by the the other image.’’ 73 FR 34508, 34522 (June 17, ADA. The Department has decided that changing 2008). Comments from advocacy organizations the term used in the final rule would create confu- and individuals unanimously requested that the

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Department use the term ‘‘video remote interpret- not intended to be used for interpreting services ing (VRI),’’ instead of VIS, for consistency with where both parties are in the same room; the latter Federal Communications Commission (FCC) reg- is reserved for VRI. The Department agrees that ulations, FCC Public Notice, DA–0502417 (Sept. VRS cannot be used as a substitute for in-person 7, 2005), and with common usage by consumers. interpreters or for VRI in situations that would The Department has made that change throughout not, absent one party’s disability, entail use of the the regulation to avoid confusion and to make the telephone. regulation more consistent with existing regula- Many commenters strongly recommended tions. limiting the use of VRI to circumstances where Many commenters also requested that the De- it will provide effective communication. Com- partment distinguish between VRI and ‘‘video menters from advocacy groups and persons with relay service (VRS).’’ Both VRI and VRS use a disabilities expressed concern that VRI may not remote interpreter who is able to see and com- always be appropriate to provide effective com- municate with a deaf person and a hearing person, munication, especially in hospitals and emergency and all three individuals may be connected by a rooms. Examples were provided of patients who video link. VRI is a fee-based interpreting ser- are unable to see the video monitor because they vice conveyed via videoconferencing where at are semi-conscious or unable to focus on the least one person, typically the interpreter, is at a video screen; other examples were given of cases separate location. VRI can be provided as an on- where the video monitor is out of the sightline of demand service or by appointment. VRI normally the patient or the image is out of focus; still other involves a contract in advance for the interpreter examples were given of patients who could not who is usually paid by the covered entity. see the image because the signal was interrupted, VRS is a telephone service that enables persons causing unnatural pauses in the communication, or with disabilities to use the telephone to com- the image was grainy or otherwise unclear. Many municate using video connections and is a more commenters requested more explicit guidelines on advanced form of relay service than the traditional the use of VRI and some recommended require- voice to text telephones (TTY) relay systems that ments for equipment maintenance, high-speed, were recognized in the 1991 title III regulation. wide-bandwidth video links using dedicated lines More specifically, VRS is a video relay service or wireless systems, and training of staff using using interpreters connected to callers by video VRI, especially in hospital and health care situ- hook-up and is designed to provide telephone ser- ations. Several major organizations requested a vices to persons who are deaf and use American requirement to include the interpreter’s face, head, Sign Language that are functionally equivalent to arms, hands, and eyes in all transmissions. those services provided to users who are hearing. After consideration of the comments and the VRS is funded through the Interstate Telecom- Department’s own research and experience, the munications Relay Services Fund and overseen by Department has determined that VRI can be an ef- the FCC. See 47 CFR 64.601(a)(26). There are no fective method of providing interpreting services fees for callers to use the VRS interpreters and the in certain circumstances, but not in others. For ex- video connection, although there may be relatively ample, VRI should be effective in many situations inexpensive initial costs to the title III entities to involving routine medical care, as well as in the purchase the videophone or camera for on-line emergency room where urgent care is important, video connection, or other equipment to con- but no in-person interpreter is available; however, nect to the VRS service. The FCC has made clear VRI may not be effective in situations involving that VRS functions as a telephone service and is surgery or other medical procedures where the

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patient is limited in his or her ability to see the ing requirements provided in the 2010 Standards video screen. Similarly, VRI may not be effective reduce the number of required elements below the in situations where there are multiple people in requirements of the 1991 Standards. In that dis- a room and the information exchanged is highly crete event, a public accommodation may reduce complex and fast paced. The Department recog- such accessible features in accordance with the nizes that in these and other situations, such as requirements in the 2010 Standards. where communication is needed for persons who The Department received only four comments are deaf-blind, it may be necessary to summon an on this proposed amendment. None of the com- in-person interpreter to assist certain individuals. menters opposed the change. In the final rule, the To ensure that VRI is effective in situations where Department has revised the section to make it it is appropriate, the Department has established clear that if the 2010 Standards reduce either the performance standards in § 36.303(f). technical requirements or the number of required accessible elements below that required by the Subpart B—General Requirements 1991 Standards, then the public accommodation may reduce the technical requirements or the Section 36.208(b) Direct Threat number of accessible elements in a covered facili- ty in accordance with the requirements of the 2010 The Department has revised the language of § Standards. One commenter, an association of con- 36.208(b) (formerly § 36.208(c) in the 1991 title venience stores, urged the Department to expand III regulation) to include consideration of whether the language of the section to include restocking the provision of auxiliary aids or services will mit- of shelves as a permissible activity for isolated igate the risk that an individual will pose a direct or temporary interruptions in service or access. threat to the health or safety of others. Originally, It is the Department’s position that a temporary the reference to auxiliary aids or services as a mit- interruption that blocks an accessible route, such igating factor was part of § 36.208. However, that as restocking of shelves, is already permitted by reference was removed from the section when, for existing § 36.211(b), which clarifies that ‘‘isolated editorial purposes, the Department removed the or temporary interruptions in service or access due definition of ‘‘direct threat’’ from § 36.208 and to maintenance or repairs’’ are permitted. There- placed it in § 36.104. The Department has put the fore, the Department will not make any additional reference to auxiliary aids or services as a mitigat- changes in the language of § 36.211 other than ing factor back into § 36.208(b) in order to main- those discussed in the preceding paragraph. tain consistency with the current regulation. Subpart C—Specific Requirements Section 36.211 Maintenance of Accessible Fea- tures Section 36.302 Modifications in Policies, Prac- tices, or Procedures Section 36.211 of the 1991 title III regulation provides that a public accommodation must main- Section 36.302(c) Service Animals Section tain in operable working condition those features 36.302(c)(1) of the 1991 title III regulation states of facilities and equipment that are required to be that ‘‘[g]enerally, a public accommodation shall readily accessible to and usable by individuals modify [its] policies, practices, or procedures to with disabilities. 28 CFR 36.211. In the NPRM, permit the use of service animals by an individual the Department clarified the application of this with a disability.’’ Section 36.302(c)(2) of the provision and proposed one change to the section 1991 title III regulation states that ‘‘[n]othing in to address the discrete situation in which the scop-

Department of Justice Guidance and Analysis - 91 28 CFR Part 36 this part requires a public accommodation to su- service dog is taunted or pinched. While all ser- pervise or care for a service animal.’’ The Depart- vice animals are trained to ignore and overcome ment has decided to retain the scope of the 1991 these types of incidents, misbehavior in response title III regulation while clarifying the Depart- to provocation is not always unreasonable. In cir- ment’s longstanding policies and interpretations. cumstances where a service animal misbehaves Toward that end, the final rule has been revised to or responds reasonably to a provocation or injury, include the Department’s policy interpretations as the public accommodation must give the handler outlined in published technical assistance, Com- a reasonable opportunity to gain control of the monly Asked Questions about Service Animals in animal. Further, if the individual with a disability Places of Business (1996), available at http://www. asserts that the animal was provoked or injured, ada.gov/qasrvc.htm,and ADA Guide for Small or if the public accommodation otherwise has Businesses (1999), available at http://www.ada. reason to suspect that provocation or injury has gov/smbustxt.htm, and to add that a public accom- occurred, the public accommodation should seek modation may exclude a service animal in certain to determine the facts and, if provocation or injury circumstances where the service animal fails to occurred, the public accommodation should take meet certain behavioral standards. The Depart- effective steps to prevent further provocation or ment received extensive comments in response to injury, which may include asking the provocateur proposed § 36.302(c) from individuals, disability to leave the place of public accommodation. This advocacy groups, organizations involved in train- language is unchanged in the final rule. ing service animals, and public accommodations. The NPRM also proposed language at § Those comments and the Department’s response 36.302(c)(2)(ii) to permit a public accommodation are discussed below. to exclude a service animal if the animal is not Exclusion of service animals. The 1991 regula- housebroken (i.e., trained so that, absent illness tory provision in § 36.302(c) addresses reasonable or accident, the animal controls its waste elimina- modification and remains unchanged in the final tion) or the animal’s presence or behavior funda- rule. However, based on comments received and mentally alters the nature of the service the public the Department’s analysis, the Department has accommodation provides (e.g., repeated barking decided to clarify those circumstances where oth- during a live performance). Several comment- erwise eligible service animals may be excluded ers were supportive of this NPRM language, but by public accommodations. cautioned against overreaction by the public ac- In the NPRM, in § 36.302(c)(2)(i), the Depart- commodation in these instances. One commenter ment proposed that a public accommodation may noted that animals get sick, too, and that accidents ask an individual with a disability to remove a occasionally happen. In these circumstances, service animal from the place of public accom- simple clean up typically addresses the incident. modation if ‘‘[t]he animal is out of control and the Commenters noted that the public accommodation animal’s handler does not take effective action to must be careful when it excludes a service animal control it.’’ 73 FR 34508, 34553 (June 17, 2008). on the basis of ‘‘fundamental alteration,’’ asserting The Department has long held that a service ani- for example, that a public accommodation should mal must be under the control of the handler at all not exclude a service animal for barking in an times. Commenters overwhelmingly were in favor environment where other types of noise, such as of this language, but noted that there are occasions loud cheering or a child crying, is tolerated. The when service animals are provoked to disruptive Department maintains that the appropriateness of or aggressive behavior by agitators or trouble- an exclusion can be assessed by reviewing how a makers, as in the case of a blind individual whose public accommodation addresses comparable situ-

92 - Guidance and Analysis Department of Justice 28 CFR Part 36 ations that do not involve a service animal. The 36.302(c)(2). Department has retained in § 36.302(c)(2) of the Other requirements. The NPRM also proposed final rule the exception requiring animals to be that the regulation include the following require- housebroken. The Department has not retained the ments: that the work or tasks performed by the specific NPRM language stating that animals can service animal must be directly related to the be excluded if their presence or behavior funda- handler’s disability; that a service animal must mentally alters the nature of the service provided be individually trained to do work or perform a by the public accommodation, because the Depart- task, be housebroken, and be under the control ment believes that this exception is covered by of the handler; and that a service animal must the general reasonable modification requirement have a harness, leash, or other tether. Most com- contained in § 36.302(c)(1). menters addressed at least one of these issues in The NPRM also proposed in § 36.302(c)(2) their responses. Most agreed that these provisions (iii) that a service animal can be excluded where are important to clarify further the 1991 service ‘‘[t]he animal poses a direct threat to the health animal regulation. The Department has moved the or safety of others that cannot be eliminated by requirement that the work or tasks performed by reasonable modifications.’’ 73 FR 34508, 34553 the service animal must be related directly to the (June 17, 2008). Commenters were universally individual’s disability to the definition of ‘‘service supportive of this provision as it makes express animal’’ in § 36.104. In addition, the Department the discretion of a public accommodation to ex- has modified the proposed language relating to clude a service animal that poses a direct threat. the handler’s control of the animal with a harness, Several commenters cautioned against the overuse leash, or other tether to state that ‘‘[a] service of this provision and suggested that the Depart- animal shall have a harness, leash, or other tether, ment provide an example of the rule’s application. unless either the handler is unable because of a The Department has decided not to include regu- disability to use a harness, leash, or other tether, or latory language specifically stating that a service the use of a harness, leash, or other tether would animal can be excluded if it poses a direct threat. interfere with the service animal’s safe, effective The Department believes that the direct threat pro- performance of work or tasks, in which case the vision in § 36.208 already provides this exception service animal must be otherwise under the han- to public accommodations. dler’s control (e.g., voice control, signals, or other Access to a public accommodation following effective means).’’ The Department has retained the proper exclusion of a service animal. The the requirement that the service animal must be in- NPRM proposed that in the event a public accom- dividually trained, as well as the requirement that modation properly excludes a service animal, the the service animal be housebroken. public accommodation must give the individual Responsibility for supervision and care of a ser- with a disability the opportunity to obtain the vice animal. The 1991 title III regulation, in goods and services of the public accommodation § 36.302(c)(2), states that ‘‘[n]othing in this part without having the service animal on the prem- requires a public accommodation to supervise or ises. Most commenters welcomed this provision care for a service animal.’’ The NPRM modified as a common sense approach. These commenters this language to state that ‘‘[a] public accommoda- noted that they do not wish to preclude individuals tion is not responsible for caring for or supervising with disabilities from the full and equal enjoyment a service animal.’’ 73 FR 34508, 34553 (June 17, of the goods and services simply because of an 2008). Most commenters did not address this par- isolated problem with a service animal. The De- ticular provision. The Department notes that there partment has elected to retain this provision in § are occasions when a person with a disability is

Department of Justice Guidance and Analysis - 93 28 CFR Part 36 confined to bed in a hospital for a period of time. the permissible questions into the final rule. In such an instance, the individual may not be able Some commenters suggested that a title III en- to walk or feed the service animal. In such cases, tity be allowed to require current documentation, if the individual has a family member, friend, or no more than one year old, on letterhead from a other person willing to take on these responsibili- mental health professional stating the following: ties in the place of the individual with a disability, (1) That the individual seeking to use the animal the individual’s obligation to be responsible for has a mental health-related disability; (2) that hav- the care and supervision of the service animal ing the animal accompany the individual is neces- would be satisfied. The language of this section is sary to the individual’s mental health or treatment retained, with minor modifications, in § 36.302(c) or to assist the person otherwise; and (3) that the (5) of the final rule. person providing the assessment of the individual Inquiries about service animals. The NPRM is a licensed mental health professional and the proposed language at § 36.302(c)(6) setting forth individual seeking to use the animal is under that parameters about how a public accommodation individual’s professional care. These commenters may determine whether an animal qualifies as a asserted that this will prevent abuse and ensure service animal. The proposed section stated that that individuals with legitimate needs for psychiat- a public accommodation may ask if the animal is ric service animals may use them. The Department required because of a disability and what task or believes that this proposal would treat persons work the animal has been trained to do but may with psychiatric, intellectual, and other mental dis- not require proof of service animal certification abilities less favorably than persons with physical or licensing. Such inquiries are limited to elicit- or sensory disabilities. The proposal would also ing the information necessary to make a deci- require persons with disabilities to obtain medical sion without requiring disclosure of confidential documentation and carry it with them any time disability-related information that a public accom- they seek to engage in ordinary activities of daily modation does not need. life in their communities— something individuals This language is consistent with the policy without disabilities have not been required to do. guidance outlined in two Department publica- Accordingly, the Department has concluded that tions, Commonly Asked Questions about Service a documentation requirement of this kind would Animals in Places of Business (1996), available at be unnecessary, burdensome, and contrary to the http://www.ada.gov/ qasrvc.htm, and ADA Guide spirit, intent, and mandates of the ADA. for Small Businesses (1999), available at http:// Service animal access to areas of a public ac- www.ada.gov/smbustxt.htm. commodation. The NPRM proposed at § 36.302(c) Although some commenters contended that (7) that an individual with a disability who uses a the NPRM service animal provisions leave unad- service animal has the same right of access to ar- dressed the issue of how a public accommodation eas of a public accommodation as members of the can distinguish between a psychiatric service ani- public, program participants, and invitees. Com- mal, which is covered under the final rule, and a menters indicated that allowing individuals with comfort animal, which is not, other commenters disabilities to go with their service animals into noted that the Department’s published guidance the same areas as members of the public, program has helped public accommodations to distinguish participants, clients, customers, patrons, or invi- between service animals and pets on the basis of tees is accepted practice by most places of public an individual’s response to these questions. Ac- accommodation. The Department has included cordingly, the Department has retained the NPRM a slightly modified version of this provision in language incorporating its guidance concerning § 36.302(c)(7) of the final rule. The Department

94 - Guidance and Analysis Department of Justice 28 CFR Part 36 notes that under the final rule, a healthcare facility the service animal user. Commenters also noted must also permit a person with a disability to be that service animal users cannot be required to accompanied by a service animal in all areas of comply with other requirements that are not gen- the facility in which that person would otherwise erally applicable to other persons. If a public ac- be allowed. There are some exceptions, however. commodation normally charges individuals for the The Department follows the guidance of the Cen- damage they cause, an individual with a disability ters for Disease Control and Prevention (CDC) may be charged for damage caused by his or her on the use of service animals in a hospital setting. service animals. The Department has retained this Zoonotic diseases can be transmitted to humans language, with minor modifications, in the final through bites, scratches, direct contact, arthropod rule at § 36.302(c)(8). vectors, or aerosols. Training requirement. Certain commenters Consistent with CDC guidance, it is generally recommended the adoption of formal training re- appropriate to exclude a service animal from lim- quirements for service animals. The Department ited-access areas that employ general infection- has rejected this approach and will not impose control measures, such as operating rooms and any type of formal training requirements or certi- burn units. See Centers for Disease Control and fication process, but will continue to require that Prevention, Guidelines for Environmental Infec- service animals be individually trained to do work tion Control in Health-Care Facilities: Recom- or perform tasks for the benefit of an individual mendations of CDC and the Healthcare Infection with a disability. While some groups have urged Control Practices Advisory Committee (June the Department to modify this position, the De- 2003), available at http://www.cdc.gov/hicpac/pdf/ partment has determined that such a modification guidelines/ eic_in_HCF_03.pdf (last visited June would not serve the full array of individuals with 24, 2010). A service animal may accompany its disabilities who use service animals, since indi- handler to such areas as admissions and discharge viduals with disabilities may be capable of train- offices, the emergency room, inpatient and out- ing, and some have trained, their service animal patient rooms, examining and diagnostic rooms, to perform tasks or do work to accommodate their clinics, rehabilitation therapy areas, the cafeteria disability. A training and certification requirement and vending areas, the pharmacy, restrooms, and would increase the expense of acquiring a service all other areas of the facility where healthcare per- animal and might limit access to service animals sonnel, patients, and visitors are permitted without for individuals with limited financial resources. taking added precautions. Some commenters proposed specific behavior Prohibition against surcharges for use of a or training standards for service animals, argu- service animal. In the NPRM, the Department ing that without such standards, the public has no proposed to incorporate the previously mentioned way to differentiate between untrained pets and policy guidance, which prohibits the assessment service animals. Many of the suggested behavior of a surcharge for the use of a service animal, or training standards were lengthy and detailed. into proposed § 36.302(c)(8). Several comment- The Department believes that this rule addresses ers agreed that this provision makes clear the service animal behavior sufficiently by includ- obligation of a place of public accommodation to ing provisions that address the obligations of the admit an individual with a service animal without service animal user and the circumstances under surcharges, and that any additional costs imposed which a service animal may be excluded, such as should be factored into the overall cost of doing the requirements that an animal be housebroken business and passed on as a charge to all partici- and under the control of its handler. pants, rather than an individualized surcharge to Miniature horses. The Department has been

Department of Justice Guidance and Analysis - 95 28 CFR Part 36 persuaded by commenters and the available re- between 70 and 100 pounds. These characteristics search to include a provision that would require are similar to those of large breed dogs, such as public accommodations to make reasonable modi- Labrador Retrievers, Great Danes, and Mastiffs. fications to policies, practices, or procedures to Similar to dogs, miniature horses can be trained permit the use of a miniature horse by a person through behavioral reinforcement to be ‘‘house- with a disability if the miniature horse has been broken.’’ Most miniature service horse handlers individually trained to do work or perform tasks and organizations recommend that when the ani- for the benefit of the individual with a disability. mals are not doing work or performing tasks, the The traditional service animal is a dog, which miniature horses should be kept outside in a desig- has a long history of guiding individuals who are nated area instead of indoors in a house. blind or have low vision, and over time dogs have According to information provided by an orga- been trained to perform an even wider variety of nization that trains service horses, these miniature services for individuals with all types of disabili- horses are trained to provide a wide array of ser- ties. However, an organization that developed a vices to their handlers, primarily guiding indi- program to train miniature horses, modeled on the viduals who are blind or have low vision, pulling program used for guide dogs, began training min- wheelchairs, providing stability and balance for iature horses in 1991. individuals with disabilities that impair the ability Although commenters generally supported the to walk, and supplying leverage that enables a per- species limitations proposed in the NPRM, some son with a mobility disability to get up after a fall. were opposed to the exclusion of miniature horses According to the commenter, miniature horses are from the definition of a service animal. These particularly effective for large stature individuals. commenters noted that these animals have been The animal can be trained to stand (and in some providing assistance to persons with disabilities cases, lie down) at the handler’s feet in venues for many years. Miniature horses were suggested where space is at a premium, such as assembly by some commenters as viable alternatives to areas or inside some vehicles that provide public dogs for individuals with allergies, or for those transportation. Some individuals with disabilities whose religious beliefs preclude the use of dogs. have traveled by train and have flown commer- Another consideration mentioned in favor of the cially with their miniature horses. use of miniature horses is the longer life span and The miniature horse is not included in the defi- strength of miniature horses in comparison to nition of service animal, which is limited to dogs. dogs. Specifically, miniature horses can provide However, the Department has added a specific service for more than 25 years while dogs can provision at § 36.302(c)(9) of the final rule cover- provide service for approximately seven years, ing miniature horses. Under this provision, public and, because of their strength, miniature horses accommodations must make reasonable modifica- can provide services that dogs cannot provide. Ac- tions in policies, practices, or procedures to per- cordingly, use of miniature horses reduces the cost mit the use of a miniature horse by an individual involved to retire, replace, and train replacement with a disability if the miniature horse has been service animals. individually trained to do work or perform tasks The miniature horse is not one specific breed, for the benefit of the individual with a disability. but may be one of several breeds, with distinct The public accommodation may take into ac- characteristics that produce animals suited to ser- count a series of assessment factors in determining vice animal work. These animals generally range whether to allow a miniature horse into a specific in height from 24 inches to 34 inches measured facility. These include the type, size, and weight to the withers, or shoulders, and generally weigh of the miniature horse, whether the handler has

96 - Guidance and Analysis Department of Justice 28 CFR Part 36 sufficient control of the miniature horse, whether an ongoing problem with hotel reservations and the miniature horse is housebroken, and whether urged the Department to provide regulatory guid- the miniature horse’s presence in a specific facil- ance. In response, the Department proposed spe- ity compromises legitimate safety requirements cific language in the NPRM to address hotel reser- that are necessary for safe operation. In addition, vations. In addition, the Department posed several paragraphs (c)(3)B–(8) of this section, which are questions regarding the current practices of hotels applicable to dogs, also apply to miniature horses. and other reservations services including ques- Ponies and full-size horses are not covered by tions about room guarantees and the holding and § 36.302(c)(9). Also, because miniature horses release of accessible rooms. The Department also can vary in size and can be larger and less flexible questioned whether public accommodations that than dogs, covered entities may exclude this type provide reservations services for a place or places of service animal if the presence of the miniature of lodging but do not own, lease (or lease to), or horse, because of its larger size and lower level of operate a place of lodging—referred to in this dis- flexibility, results in a fundamental alteration to cussion as ‘‘third-party reservations services’’— the nature of the services provided. should also be subject to the NPRM’s proposals concerning hotel reservations. Section 36.302(e) Hotel Reservations Although reservations issues were discussed primarily in the context of traditional hotels, the Section 36.302 of the 1991 title III regulation new rule modifies the definition of ‘‘places of requires public accommodations to make reason- lodging’’ to clarify the scope of the rule’s cover- able modifications in policies, practices, or pro- age of rental accommodations in timeshare prop- cedures when such modifications are necessary erties, condominium hotels, and mixed-use and to afford access to any goods, services, facilities, corporate hotel facilities that operate as places of privileges, advantages, or accommodations, un- public accommodation (as that term is now de- less the entity can demonstrate that making such fined in § 36.104), and the Department received modifications would fundamentally alter the na- detailed comments, discussed below, regarding ture of such goods, services, facilities, privileges, the application of reservations requirements to this advantages, or accommodations. Hotels, timeshare category of rental accommodations. resorts, and other places of lodging are subject to General rule on reservations. Section 36.302(e) this requirement and must make reasonable modi- (1) of the NPRM required a public accommoda- fications to reservations policies, practices, or pro- tion that owns, leases (or leases to), or operates a cedures when necessary to ensure that individuals place of lodging to: with disabilities are able to reserve accessible Modify its policies, practices, or procedures to hotel rooms with the same efficiency, immediacy, ensure that individuals with disabilities can make and convenience as those who do not need acces- reservations, including reservations made by tele- sible guest rooms. phone, in-person, or through a third party, for ac- Each year the Department receives many com- cessible guest rooms during the same hours and in plaints concerning failed reservations. Most of the same manner as individuals who do not need these complaints involve individuals who have accessible rooms. 73 FR 34508, 34553 (June 17, reserved an accessible hotel room only to discover 2008). upon arrival that the room they reserved is either Most individual commenters and organizations not available or not accessible. Although problems that represent individuals with disabilities strongly with reservations services were not addressed in supported the requirement that individuals with the ANPRM, commenters independently noted disabilities should be able to make reservations

Department of Justice Guidance and Analysis - 97 28 CFR Part 36 for accessible guest rooms during the same hours ing reservations. This information is transmitted to and in the same manner as individuals who do not the hotel’s reservations staff, who then contact the need accessible rooms. In many cases individuals individual to verify the guest’s accessibility needs. with disabilities expressed frustration because, Only when such verification occurs will the acces- while they are aware of improvements in archi- sible room be booked. tectural access brought about as a result of the The Department is not persuaded that individu- ADA, they are unable to take advantage of these als who need to reserve accessible rooms cannot improvements because of shortcomings in cur- be served in the same manner as those who do not, rent hotel reservations systems. A number of these and it appears that there are hotels of all types and commenters pointed out that it can be difficult sizes that already meet this requirement. Further, or impossible to obtain information about acces- the Department has been able to accomplish this sible rooms and hotel features and that even when goal in settlement agreements resolving com- information is provided it often is found to be plaints about this issue. As stated in the preamble incorrect upon arrival. They also noted difficulty to the NPRM, basic nondiscrimination principles reserving accessible rooms and the inability to mandate that individuals with disabilities should guarantee or otherwise ensure that the appropriate be able to reserve hotel rooms with the same ef- accessible room is available when the guest ar- ficiency, immediacy, and convenience as those rives. The ability to obtain information about ac- who do not need accessible guest rooms. The cessible guest rooms, to make reservations for ac- regulation does not require reservations services cessible guest rooms in the same manner as other to create new methods for reserving hotel rooms guests, and to be assured of an accessible room or available timeshare units; instead, covered enti- upon arrival was of critical importance to these ties must make the modifications needed to ensure commenters. that individuals who need accessible rooms are Other commenters, primarily hotels, resort able to reserve them in the same manner as other developers, travel agencies, and organizations guests. If, for example, hotel reservations are not commenting on their behalf, did not oppose the final until all hotel guests have been contacted by general rule on reservations, but recommended the hotel to discuss the guest’s needs, a hotel may that the language requiring that reservations be follow the same process when reserving acces- made ‘‘in the same manner’’ be changed to require sible rooms. Therefore, the Department declines to that reservations be made ‘‘in a substantially simi- change this language, which has been moved to § lar manner.’’ These commenters argued that hotel 36.302(e)(1)(i). However, in response to the com- reservations are made in many different ways menters who recommended a transition period that and through a variety of systems. In general, they would allow reservations services time to modify argued that current reservations database systems existing reservations systems to meet the require- may not contain s guests, travel agents, or other ments of this rule, § 36.302(e)(3) now provides third-party reservations services to select the most a 18-month transition period before the require- appropriate room without consulting directly with ments of § 36.302(e)(1) will be enforced. the hotel, and that updating these systems might Hotels and organizations commenting on their be expensive and time consuming. They also behalf also requested that the language be changed noted that in some cases, hotels do not always au- to eliminate any liability for reservations made tomatically book accessible rooms when requested through third parties, arguing that they are unable to do so. Instead, guests may select from a menu to control the actions of unrelated parties. The of accessibility and other room options when mak- rule, both as proposed and as adopted, requires

98 - Guidance and Analysis Department of Justice 28 CFR Part 36 covered public accommodations to ensure that res- features such as these may be the difference be- ervations made on their behalf by third parties are tween a room that is usable by a particular person made in a manner that results in parity between with a disability and one that is not. those who need accessible rooms and those who Individuals with disabilities strongly supported do not. this requirement. In addition to the importance of Hotels and other places of lodging that use information about specific access features, several third-party reservations services must make rea- commenters pointed out the importance of know- sonable efforts to make accessible rooms available ing the size and number of beds in a room. Many through at least some of these services and must individuals with disabilities travel with family provide these third-party services with informa- members, personal care assistants, or other com- tion concerning the accessible features of the hotel panions and require rooms with at least two beds. and the accessible rooms. To the extent a hotel Although most hotels provide this information or other place of lodging makes available such when generally categorizing the type or class of rooms and information to a third-party reservation room (e.g., deluxe suite with king bed), as de- provider, but the third party fails to provide the scribed below, all hotels should consider the size information or rooms to people with disabilities and number of beds to be part of the basic infor- in accordance with this section, the hotel or other mation they are required to provide. place of lodging will not be responsible. Comments made on behalf of reservations Identification of accessible features in hotels services expressed concern that unless the word and guest rooms. NPRM § 36.302(e)(2) required ‘‘hotels’’ is stricken from the text, § 36.302(e)(2) public accommodations that provide hotel reserva- of the NPRM essentially would require reserva- tions services to identify and describe the accessi- tions systems to include a full accessibility report ble features in the hotels and guest rooms offered on each hotel or resort property in its system. through that service. This requirement is essential Along these lines, commenters also suggested that to ensure that individuals with disabilities receive the Department identify the specific accessible the information they need to benefit from the ser- features of hotel rooms that must be described in vices offered by the place of lodging. As a practi- the reservations system. For example, commenters cal matter, a public accommodation’s designation suggested limiting features that must be included of a guest room as ‘‘accessible’’ will not ensure to bathroom type (tub or roll-in shower) and com- necessarily that the room complies with all of the munications features. 1991 Standards. In older facilities subject to bar- The Department recognizes that a reservations rier removal requirements, strict compliance with system is not intended to be an accessibility sur- the 1991 Standards is not required. Instead, public vey. However, specific information concerning accommodations must remove barriers to the ex- accessibility features is essential to travelers with tent that it is readily achievable to do so. disabilities. Because of the wide variations in the Further, hotel rooms that are in full compliance level of accessibility that travelers will encounter, with current standards may differ, and individuals the Department cannot specify what information with disabilities must be able to ascertain which must be included in every instance. For hotels that features—in new and existing facilities—are in- were built in compliance with the 1991 Standards, cluded in the hotel’s accessible guest rooms. For it may be sufficient to specify that the hotel is ac- example, under certain circumstances, an accessi- cessible and, for each accessible room, to describe ble hotel bathroom may meet accessibility require- the general type of room (e.g., deluxe executive ments with either a bathtub or a roll-in shower. suite), the size and number of beds (e.g., two The presence or absence of particular accessible queen beds), the type of accessible bathing facility

Department of Justice Guidance and Analysis - 99 28 CFR Part 36

(e.g., roll-in shower), and communications fea- reservations service for more detailed information. tures available in the room (e.g., alarms and visual At that point, trained staff (including staff located notification devices). Based on that information, on-site at the hotel and staff located off-site at a many individuals with disabilities will be comfort- reservations center) should be available to provide able making reservations. additional information such as the specific layout For older hotels with limited accessibility fea- of the room and bathroom, shower design, grab- tures, information about the hotel should include, bar locations, and other amenities available (e.g., at a minimum, information about accessible en- bathtub bench). trances to the hotel, the path of travel to guest In the NPRM, the Department sought guid- check-in and other essential services, and the ac- ance concerning whether this requirement should cessible route to the accessible room or rooms. be applied to third-party reservations services. In addition to the room information described Comments made by or on behalf of hotels, resort above, these hotels should provide information managers, and other members of the lodging and about important features that do not comply with resort industry pointed out that, in most cases, the 1991 Standards. For example, if the door to these third parties do not have direct access to this the ‘‘accessible’’ room or bathroom is narrower information and must obtain it from the hotel or than required, this information should be included other place of lodging. Because third-party reser- (e.g., door to guest room measures 30 inches vations services must rely on the place of lodging clear). This width may not meet current standards to provide the requisite information and to ensure but may be adequate for some wheelchair users that it is accurate and timely, the Department has who use narrower chairs. In many cases, older declined to extend this requirement directly to hotels provide services through alternatives to third-party reservations services. barrier removal, for example, by providing check- Hold and release of accessible guest rooms. in or concierge services at a different, accessible The Department has addressed the hold and re- location. Reservations services for these entities lease of accessible guest rooms in settlement should include this information and provide a agreements and recognizes that current practices way for guests to contact the appropriate hotel vary widely. The Department is concerned about employee for additional information. To recognize current practices by which accessible guest rooms that the information and level of detail needed will are released to the general public even though the vary based on the nature and age of the facility, § hotel is not sold out. In such instances, individuals 36.302(e)(2) has been moved to § 36.302(e)(1)(ii) with disabilities may be denied an equal oppor- in the final rule and modified to require reserva- tunity to benefit from the services offered by the tions services to: public accommodation, i.e., a hotel guest room. Identify and describe accessible features in the In the NPRM, the Department requested informa- hotels and guest rooms offered through its reserva- tion concerning the current practices of hotels and tions service in enough detail to reasonably permit third-party reservations services with respect to individuals with disabilities to assess independent- (1) holding accessible rooms for individuals with ly whether a given hotel or guest room meets his disabilities and (2) releasing accessible rooms to or her accessibility needs. [Emphasis added] individuals without disabilities. As commenters representing hotels have de- Individuals with disabilities and organizations scribed, once reservations are made, some hotels commenting on their behalf strongly supported re- may wish to contact the guest to offer additional quiring accessible rooms to be held back for rental information and services. Or, many individuals by individuals with disabilities. In some cases with disabilities may wish to contact the hotel or commenters supported holding back all accessible

100 - Guidance and Analysis Department of Justice 28 CFR Part 36 rooms until all non-accessible rooms were rented. tices of hotels and third party reservations services Others supported holding back accessible rooms with respect to ‘‘guaranteed’’ hotel reservations in each category of rooms until all other rooms of and on the impact of requiring a public accommo- that type were reserved. This latter position was dation to guarantee accessible rooms to the extent also supported in comments received on behalf of it guarantees other rooms. the lodging industry; commenters also noted that Comments received by the Department by and this is the current practice of many hotels. In gen- on behalf of both individuals with disabilities and eral, holding accessible rooms until requested by public accommodations that provide reservations an individual who needs a room with accessible services made clear that, in many cases, when features or until it is the only available room of its speaking of room guarantees, parties who are not type was viewed widely as a sensible approach to familiar with hotel terminology actually mean to allocating scarce accessible rooms without impos- refer to policies for blocking and holding specific ing unnecessary costs on hotels. hotel rooms. Several commenters explained that, The Department agrees with this latter approach in most cases, when an individual makes ‘‘res- and has added § 36.302(e)(1)(iii), which requires ervations,’’ hotels do not reserve specific rooms; covered entities to hold accessible rooms for use rather the individual is reserving a room with cer- by individuals with disabilities until all other guest tain features at a given price. When the hotel guest rooms of that type have been rented and the acces- arrives, he or she is provided with a room that has sible room requested is the only remaining room those features. of that type. For example, if there are 25 rooms In most cases, this does not pose a problem be- of a given type and two of these rooms are acces- cause there are many available rooms of a given sible, the reservations service is required to rent type. However, in comparison, accessible rooms all 23 non-accessible rooms before it is permitted are much more limited in availability and there to rent these two accessible rooms to individuals may be only one room in a given hotel that meets without disabilities. If a one-of-a-kind room is ac- a guest’s needs. As described in the discussion on cessible, that room is available to the first party to the identification of accessible features in hotels request it. The Department believes that this is the and guest rooms, the presence or absence of par- fairest approach available since it reserves acces- ticular accessible features may be the difference sible rooms for individuals who require them until between a room that is usable by a particular per- all non-accessible rooms of that type have been son with a disability and one that is not. reserved, and then provides equal access to any For that reason, the Department has added remaining rooms. It is also fair to hotels because § 36.302(e)(1)(iv) to the final rule. Section it does not require them to forego renting a room 36.302(e)(1)(iv) requires covered entities to re- that actually has been requested in favor of the serve, upon request, accessible guest rooms or possibility that an individual with a disability may specific types of guest rooms and ensure that the want to reserve it at a later date. guest rooms requested are blocked and removed Requirement to block accessible guest room res- from all reservations systems (to eliminate double- ervations. NPRM § 36.302(e)(3) required a public booking, which is a common problem that arises accommodation that owns, leases (or leases to), or when rooms are made available to be reserved operates a place of lodging to guarantee accessible through more than one reservations service). Of guest rooms that are reserved through a reserva- course, if a public accommodation typically re- tions service to the same extent that it guarantees quires a payment or deposit from its patrons in rooms that are not accessible. In the NPRM, the order to reserve a room, it may require the same Department sought comment on the current prac- payment or deposit from individuals with dis-

Department of Justice Guidance and Analysis - 101 28 CFR Part 36 abilities before it reserves an accessible room and tion communities, and condo-hotels. removes it from all its reservations systems. These Because the Department has revised the defini- requirements should alleviate the widely-reported tion of ‘‘Places of Lodging’’ in the final rule, the problem of arriving at a hotel only to discover reservations requirements now apply to guest that, although an accessible room was reserved, rooms and other rental units in timeshares, vaca- the room available is not accessible or does not tion communities, and condo-hotels where some have the specific accessible features needed. or all of the units are owned and controlled by Many hotels already have a similar process in individual owners and rented out some portion place for other guest rooms that are unique or of time to the public, as compared to traditional one-of-a-kind, such as ‘‘Presidential’’ suites. The hotels and motels that are owned, controlled, and Department has declined to extend this require- rented to the public by one entity. If a reserva- ment directly to third-party reservations services. tions service owns and controls one or more of the Comments the Department received in response guest rooms or other units in the rental property to the NPRM indicate that most of the actions re- (e.g., a developer who retains and rents out unsold quired to implement these requirements primarily inventory), it is subject to the requirements set are within the control of the entities that own the forth in § 36.302(e). place of lodging or that manage it on behalf of its Several commenters expressed concern about owners. any rule that would require accessible units that Guarantees of reservations for accessible guest are owned individually to be removed from the rooms. The Department recognizes that not all res- rental pool and rented last. Commenters pointed ervations are guaranteed, and the rule does not im- out that this would be a disadvantage to the own- pose an affirmative duty to guarantee reservations. ers of accessible units because they would be When a public accommodation does guarantee rented last, if at all. Further, certain vacation hotel or other room reservations, it must provide property managers consider holding specific units the same guarantee for accessible guest rooms as back to be a violation of their ethical responsibil- it makes for other rooms, except that it must apply ity to present all properties they manage at an that guarantee to the specific room reserved and equal advantage. To address these concerns, the blocked, even if in other situations, its guarantee Department has added § 36.302(e)(2), which policy only guarantees that a room of a specific exempts reservations for individual guest rooms type will be available at the guaranteed price. and other units that are not owned or substantially Without this reasonable modification to its guar- controlled by the entity that owns, leases, or oper- antee policy, any guarantee for accessible rooms ates the overall facility from the requirement that would be meaningless. If, for example, a hotel accessible guest rooms be held back from rental makes reservations for an accessible ‘‘Executive until all other guest rooms of that type have been Suite’’ but, upon arrival, offers its guest an inac- rented. Section 36.302(e)(2) also exempts such cessible Executive Suite that the guest is unable to rooms from requirements for blocking and guar- enter, it would be meaningless to consider the ho- anteeing reserved rooms. In resort developments tel’s guarantee fulfilled. As with the requirements with mixed ownership structures, such as a resort for identifying, holding, and blocking accessible where some units are operated as hotel rooms and rooms, the Department has declined to extend this others are owned and controlled individually, a requirement directly to third-party reservations reservations service operated by the owner of the services because the fulfillment of guarantees hotel portion may apply the exemption only to largely is beyond their power to control. the rooms that are not owned or substantially con- Application to rental units in timeshare, vaca- trolled by the entity that owns, manages, or other-

102 - Guidance and Analysis Department of Justice 28 CFR Part 36 wise controls the overall facility. purchase tickets for accessible seating as provided Other reservations-related comments made on to spectators purchasing conventional seats. In behalf of these entities reflected concerns similar the NPRM, the Department proposed § 36.302(f) to the general concerns expressed with respect to to provide explicit direction and guidance on dis- traditional hotel properties. For example, com- criminatory practices for entities involved in the menters noted that because of the unique nature sale or distribution of tickets. of the timeshare industry, additional flexibility is The Department received comments from ad- needed when making reservations for accessible vocacy groups, assembly area trade associations, units. One commenter explained that reservations public accommodations, and individuals. Many are sometimes made through unusual entities such commenters supported the addition of regulatory as exchange companies, which are not public ac- language pertaining to ticketing and urged the commodations and which operate to trade owner- Department to retain it in the final rule. Several ship interests of millions of individual owners. commenters, however, questioned why there were The commenter expressed concern that developers inconsistencies between the title II and title III or resort owners would be held responsible for the provisions and suggested that the same language actions of these exchange entities. If, as described, be used for both titles. The Department has de- the choice to list a unit with an exchange company cided to retain ticketing regulatory language and is made by the individual owner of the property to ensure consistency between the ticketing provi- and the exchange company does not operate on sions in title II and title III. behalf of the reservations service, the reservations Because many in the ticketing industry view service is not liable for the exchange company’s season tickets and other multi-event packages actions. differently from individual tickets, the Depart- As with hotels, the Department believes that ment bifurcated some season ticket provisions within the 18-month transition period these res- from those concerning single-event tickets in ervations services should be able to modify their the NPRM. This structure, however, resulted in systems to ensure that potential guests with dis- some provisions being repeated for both types of abilities who need accessible rooms can make tickets but not for others even though they were reservations during the same hours and in the intended to apply to both types of tickets. The same manner as those who do not need accessible result was that it was not entirely clear that some rooms. of the provisions that were not repeated also were intended to apply to season tickets. The Depart- Section 36.302(f) Ticketing ment is addressing the issues raised by these commenters using a different approach. For the The 1991 title III regulation did not contain purposes of this section, a single event refers to an specific regulatory language on ticketing. The individual performance for which tickets may be ticketing policies and practices of public accom- purchased. In contrast, a series of events includes, modations, however, are subject to title III’s non- but is not limited to, subscription events, event discrimination provisions. Through the investiga- packages, season tickets, or any other tickets that tion of complaints, enforcement actions, and pub- may be purchased for multiple events of the same lic comments related to ticketing, the Department type over the course of a specified period of time became aware that some venue operators, ticket whose ownership right reverts to the public ac- sellers, and distributors were violating title III’s commodation at the end of each season or time nondiscrimination mandate by not providing indi- period. Series-of-events tickets that give their viduals with disabilities the same opportunities to holders an enhanced ability to purchase such tick-

Department of Justice Guidance and Analysis - 103 28 CFR Part 36 ets from the public accommodation in seasons or vendor. This provision will enhance third-party periods of time that follow, such as a right of first ticket vendors’ ability to acquire and sell acces- refusal or higher ranking on waiting lists for more sible seating for sale in the future. The Department desirable seats, are subject to the provisions in this notes that once third-party ticket vendors acquire section. In addition, the final rule merges together accessible tickets, they are obligated to sell them some NPRM paragraphs that dealt with related in accordance with these rules. topics and has reordered and renamed some of the The Department also has received frequent paragraphs that were in the NPRM. complaints that individuals with disabilities have Ticket sales. In the NPRM, the Department not been able to purchase accessible seating over proposed, in § 36.302(f)(1), a general rule that a the Internet, and instead have had to engage in a public accommodation shall modify its policies, laborious process of calling a customer service practices, or procedures to ensure that individu- line, or sending an email to a customer service als with disabilities can purchase tickets for ac- representative and waiting for a response. Not cessible seating for an event or series of events only is such a process burdensome, but it puts in the same way as others (i.e., during the same individuals with disabilities at a disadvantage in hours and through the same distribution methods purchasing tickets for events that are popular and as other seating is sold). ‘‘Accessible seating’’ may sell out in minutes. Because § 36.302(f)(5) is defined in § 36.302(f)(1)(i) of the final rule to of the final rule authorizes venues to release ac- mean ‘‘wheelchair spaces and companion seats cessible seating in case of a sell-out, individuals that comply with sections 221 and 802 of the 2010 with disabilities effectively could be cut off from Standards along with any other seats required to buying tickets unless they also have the ability to be offered for sale to the individual with a dis- purchase tickets in real time over the Internet. The ability pursuant to paragraph (4) of this section.’’ Department’s new regulatory language is designed The defined term does not include designated aisle to address this problem. seats. A ‘‘wheelchair space’’ refers to a space for a Several commenters representing assembly single wheelchair and its occupant. areas raised concerns about offering accessible The NPRM proposed requiring that accessible seating for sale over the Internet. They contended seats be sold through the ‘‘same methods of dis- that this approach would increase the incidence tribution’’ as non-accessible seats. 73 FR 34508, of fraud since anyone easily could purchase ac- 34554 (June 17, 2008). Comments from venue cessible seating over the Internet. They also as- managers and others in the business community, serted that it would be difficult technologically in general, noted that multiple parties are involved to provide accessible seating for sale in real time in ticketing, and because accessible seats may not over the Internet, or that to do so would require be allotted to all parties involved at each stage, simplifying the rules concerning the purchase of such parties should be protected from liability. For multiple additional accompanying seats. More- example, one commenter noted that a third-party over, these commenters argued that requiring an ticket vendor, like Ticketmaster, can only sell individual purchasing accessible seating to speak the tickets it receives from its client. Because § with a customer service representative would al- 36.302(f)(1) of the final rule requires venue opera- low the venue to meet the patron’s needs most tors to make available accessible seating through appropriately and ensure that wheelchair spaces the same methods of distribution they use for are reserved for individuals with disabilities who their regular tickets, venue operators that provide require wheelchair spaces. Finally, these com- tickets to third-party ticket vendors are required to menters argued that individuals who can transfer provide accessible seating to the third-party ticket

104 - Guidance and Analysis Department of Justice 28 CFR Part 36 effectively and conveniently from a wheelchair to (e.g., who is a member of the fan club or holds a seat with a movable armrest seat could instead that credit card) will be able to participate in the purchase designated aisle seats. special promotion and purchase accessible seating. The Department considered these concerns The Department has maintained the substantive carefully and has decided to continue with the provisions of the NPRM’s §§ 36.302(f)(1) and (f) general approach proposed in the NPRM. Al- (2) but has combined them in a single paragraph at though fraud is an important concern, the Depart- § 36.302(f)(1)(ii) of the final rule so that all of the ment believes that it is best combated by other provisions having to do with the manner in which means that would not have the effect of limiting tickets are sold are located in a single paragraph. the ability of individuals with disabilities to pur- Identification of available accessible seating. In chase tickets, particularly since restricting the pur- the NPRM, the Department proposed chase of accessible seating over the Internet will, § 36.302(f)(3), which, as modified and renum- of itself, not curb fraud. In addition, the Depart- bered § 36.302(f)(2)(iii) in the final rule, requires ment has identified permissible means for covered a facility to identify available accessible seating entities to reduce the incidence of fraudulent ac- through seating maps, brochures, or other methods cessible seating ticket purchases in § 36.302(f)(8) if that information is made available about other of the final rule. seats sold to the general public. This rule requires Several commenters questioned whether ticket public accommodations to provide information Web sites themselves must be accessible to indi- about accessible seating to the same degree of viduals who are blind or have low vision, and if specificity that it provides information about so, what that requires. The Department has con- general seating. For example, if a seating map sistently interpreted the ADA to cover Web sites displays color-coded blocks pegged to prices for that are operated by public accommodations and general seating, then accessible seating must be stated that such sites must provide their services in similarly color-coded. Likewise, if covered enti- an accessible manner or provide an accessible al- ties provide detailed maps that show exact seating ternative to the Web site that is available 24 hours and pricing for general seating, they must provide a day, seven days a week. The final rule, therefore, the same for accessible seating. does not impose any new obligation in this area. The NPRM did not specify a requirement to The accessibility of Web sites is discussed in more identify prices for accessible seating. The final detail in the section entitled ‘‘Other Issues.’’ rule requires that if such information is provided In § 36.302(f)(2) of the NPRM, the Department for general seating, it must be provided for acces- also proposed requiring public accommodations to sible seating as well. make accessible seating available during all stages In the NPRM, the Department proposed in of tickets sales including, but not limited to, pre- § 36.302(f)(4) that a public accommodation, upon sales, promotions, lotteries, waitlists, and general being asked, must inform persons with disabilities sales. For example, if tickets will be presold or an and their companions of the locations of all un- event that is open only to members of a fan club, sold or otherwise available seating. This provision or to holders of a particular credit card, then tick- is intended to prevent the practice of ‘‘steering’’ ets for accessible seating must be made available individuals with disabilities to certain accessible for purchase through those means. This require- seating so that the facility can maximize potential ment does not mean that any individual with a ticket sales by releasing unsold accessible seat- disability would be able to purchase those seats. ing, especially in preferred or desirable locations, Rather, it means that an individual with a dis- for sale to the general public. The Department ability who meets the requirement for such a sale received no significant comment on this proposal.

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The Department has retained this provision in the the event that a group must be divided because final rule but has added it, with minor modifica- of the large size of the group); and by allowing tions, to § 36.302(f)(2) as paragraph (i). an individual with a disability to purchase up to Ticket prices. In the NPRM, the Department three additional contiguous seats per wheelchair proposed § 36.302(f)(7) requiring that ticket space if they are available at the time of sale. Sec- prices for accessible seating be set no higher than tion 36.302(f)(9)(ii) of the NPRM required that the prices for other seats in that seating section for a group containing one or more wheelchair users that event. The NPRM’s provision also required must be placed together, if possible, and that in the that accessible seating be made available at every event that the group could not be placed together, price range, and if an existing facility has barri- the individuals with disabilities may not be iso- ers to accessible seating within a particular price lated from the rest of the group. range, a proportionate amount of seating (deter- The Department asked in the NPRM whether mined by the ratio of the total number of seats at this rule was sufficient to effectuate the integration that price level to the total number of seats in the of individuals with disabilities. Many advocates assembly area) must be offered in an accessible and individuals praised it as a welcome and much- location at that same price. Under this rule, for ex- needed change, stating that the trade-off of being ample, if it is not readily achievable for a 20,000- able to sit with their family or friends was worth seat facility built in 1980 to place accessible reducing the number of seats available for indi- seating in the $20-price category, which is on the viduals with disabilities. Some commenters went upper deck, it must place a proportionate number one step further and suggested that the number of of seats in an accessible location for $20. If the additional accompanying seats should not be re- upper deck has 2,000 seats, then the facility must stricted to three. place 10 percent of its accessible seating in an ac- Although most of the substance of the proposed cessible location for $20 provided that it is part provision on the purchase of multiple tickets of a seating section where ticket prices are equal has been maintained in the final rule, it has been to or more than $20—a facility may not place the renumbered as § 36.302(f)(4), reorganized, and $20-accessible seating in a $10-seating section. supplemented. To preserve the availability of The Department received no significant comment accessible seating for other individuals with dis- on this rule, and it has been retained, as amended, abilities, the Department has not expanded the in the final rule in § 36.302(f)(3). rule beyond three additional contiguous seats. Purchase of multiple tickets. In the NPRM, the Section 36.302(f)(4)(i) of the final rule requires Department proposed § 36.302(f)(9) to address public accommodations to make available for one of the most common ticketing complaints purchase three additional tickets for seats in the raised with the Department: that individuals with same row that are contiguous with the wheelchair disabilities are not able to purchase more than two space, provided that at the time of purchase there tickets. The Department proposed this provision to are three such seats available. The requirement facilitate the ability of individuals with disabilities that the additional seats be ‘‘contiguous with the to attend events with friends, companions, or as- wheelchair space’’ does not mean that each of the sociates who may or may not have a disability by additional seats must be in actual contact or have enabling individuals with disabilities to purchase a border in common with the wheelchair space; the maximum number of tickets allowed per trans- however, at least one of the additional seats should action to other spectators; by requiring venues to be immediately adjacent to the wheelchair space. place accompanying individuals in general seat- The Department recognizes that it will often be ing as close as possible to accessible seating (in necessary to use vacant wheelchair spaces to pro-

106 - Guidance and Analysis Department of Justice 28 CFR Part 36 vide for contiguous seating. gether. If it is necessary to divide the group, it The Department has added paragraphs (4)(ii) should be divided so that the individuals in the and (4)(iii) to clarify that in situations where there group who use wheelchairs are not isolated from are insufficient unsold seats to provide three ad- the rest of the members of their group. The final ditional contiguous seats per wheelchair space or rule retains the NPRM language in paragraph (4) a ticket office restricts sales of tickets to a particu- (v). lar event to less than four tickets per customer, Hold and release of unsold accessible seating. the obligation to make available three additional The Department recognizes that not all acces- contiguous seats per wheelchair space would be sible seating will be sold in all assembly areas for affected. For example, if at the time of purchase, every event to individuals with disabilities who there are only two additional contiguous seats need such seating and that public accommodations available for purchase because the third has been may have opportunities to sell such seating to the sold already, then the ticket purchaser would be general public. The Department proposed in the entitled to two such seats. In this situation, the NPRM a provision aimed at striking a balance public entity would be required to make up the between affording individuals with disabilities difference by offering one additional ticket for adequate time to purchase accessible seating and sale that is as close as possible to the accessible the entity’s desire to maximize ticket sales. In the seats. Likewise, if ticket purchases for an event NPRM, the Department proposed § 36.302(f)(6), are limited to two per customer, a person who uses which allowed for the release of accessible seat- a wheelchair who seeks to purchase tickets would ing under the following circumstances: (i) When be entitled to purchase only one additional con- all seating in the facility has been sold, excluding tiguous seat for the event. luxury boxes, club boxes, or suites; (ii) when all The Department has also added paragraph (4) seating in a designated area has been sold and the (iv) to clarify that the requirement for three addi- accessible seating being released is in the same tional contiguous seats is not intended to serve as area; or (iii) when all seating in a designated price a cap if the maximum number of tickets that may range has been sold and the accessible seating be- be purchased by members of the general public ing released is within the same price range. exceeds the four tickets an individual with a dis- The Department’s NPRM asked ‘‘whether addi- ability ordinarily would be allowed to purchase tional regulatory guidance is required or appropri- (i.e., a wheelchair space and three additional con- ate in terms of a more detailed or set schedule for tiguous seats). If the maximum number of tickets the release of tickets in conjunction with the three that may be purchased by members of the general approaches described above. For example, does public exceeds four, an individual with a disability the proposed regulation address the variable needs is to be allowed to purchase the maximum number of assembly areas covered by the ADA? Is ad- of tickets; however, additional tickets purchased ditional regulatory guidance required to eliminate by an individual with a disability beyond the discriminatory policies, practices and procedures wheelchair space and the three additional contigu- related to the sale, hold, and release of accessible ous seats provided in § 36.302(f)(4 )(i) do not seating? What considerations should appropriately have to be contiguous with the wheelchair space. inform the determination of when unsold accessi- The NPRM proposed at § 36.302(f)(9)(ii) that ble seating can be released to the general public?’’ for group sales, if a group includes one or more 73 FR 34508, 34527 (June 17, 2008). individuals who use a wheelchair, then the group The Department received comments both sup- shall be placed in a seating area with accessible porting and opposing the inclusion of a hold-and- seating so that, if possible, the group can sit to- release provision. One side proposed loosening

Department of Justice Guidance and Analysis - 107 28 CFR Part 36 the restrictions on the release of unsold accessible defining what constitutes a ‘‘sell-out’’ and that a seating. One commenter from a trade associa- public accommodation should continue to use its tion suggested that tickets should be released own approach to defining a ‘‘sell-out.’’ If, how- regardless of whether there is a sell-out, and that ever, a public accommodation declares a sell-out these tickets should be released according to a set by reference to those seats that are available for schedule. Conversely, numerous individuals, ad- sale, but it holds back tickets that it reasonably vocacy groups, and at least one public entity urged anticipates will be released later, it must hold back the Department to tighten the conditions under a proportional percentage of accessible seating to which unsold tickets for accessible seating may be be released as well. released. These commenters suggested that venues Adopting any of the alternatives proposed n should not be permitted to release tickets during the comments summarized above would have the first two weeks of sale, or alternatively, that upset the balance between protecting the rights of they should not be permitted to be released earlier individuals with disabilities and meeting venues’ than 48 hours before a sold-out event. Many of concerns about lost revenue from unsold acces- these commenters criticized the release of acces- sible seating. As a result, the Department has sible seating under the second and third prongs of retained § 36.302(f)(6) renumbered as § 36.302(f) § 36.302(f)(6) in the NPRM (when there is a sell- (5) in the final rule. The Department has, however, out in general seating in a designated seating area modified the regulation text to specify that acces- or in a price range), arguing that it would create sible seating may be released only when ‘‘all non- situations where general seating would be avail- accessible tickets in a designated seating area have able for purchase while accessible seating would been sold and the tickets for accessible seating are not be. being released in the same designated area.’’ As Numerous commenters—both from the indus- stated in the NPRM, the Department intended for try and from advocacy groups—asked for clari- this provision to allow, for example, the release fication of the term ‘‘sell-out.’’ Business groups of accessible seating at the orchestra level when commented that industry practice is to declare a all other seating at the orchestra level is sold. The sell-out when there are only ‘‘scattered singles’’ Department has added this language to the final available— isolated seats that cannot be purchased rule at § 36.302(f)(5)(B) to clarify that venues as a set of adjacent pairs. Many of those same cannot designate or redesignate seating areas for commenters also requested that ‘‘sell-out’’ be the purpose of maximizing the release of unsold qualified with the phrase ‘‘of all seating available accessible seating. So, for example, a venue may for sale’’ since it is industry practice to hold back not determine on an ad hoc basis that a group of from release tickets to be used for groups connect- seats at the orchestra level is a designated seating ed with that event (e.g., the promoter, home team, area in order to release unsold accessible seating or sports league). They argued that those tickets in that area. are not available for sale and any return of these The Department also has maintained the tickets to the general inventory happens close to hold-and-release provisions that appeared in the the event date. Noting the practice of holding back NPRM, but has added a provision to address the tickets, one advocacy group suggested that cov- release of accessible seating for series-of-events ered entities be required to hold back accessible tickets on a series-of-events basis. Many com- seating in proportion to the number of tickets that menters asked the Department whether unsold ac- are held back for later release. cessible seating may be converted to general seat- The Department has concluded that it would be ing and released to the general public on a season- inappropriate to interfere with industry practice by ticket basis or longer when tickets typically are

108 - Guidance and Analysis Department of Justice 28 CFR Part 36 sold as a season-ticket package or other long-term accessible season tickets to individuals who do not basis. Several disability rights organizations and have disabilities that require the features of acces- individual commenters argued that such a practice sible seating to establish a process to prevent the should not be permitted, and, if it were, that condi- automatic reassignment of such ticket holders to tions should be imposed to ensure that individuals accessible seating. For example, a public accom- with disabilities have future access to those seats. modation could have in place a system whereby The Department interprets the fundamental accessible seating that was released because it was principle of the ADA as a requirement to give in- not purchased by individuals with disabilities is dividuals with disabilities equal, not better, access not in the pool of tickets available for purchase for to those opportunities available to the general pub- the following season unless and until the condi- lic. Thus, for example, a public accommodation tions for ticket release have been satisfied in the that sells out its facility on a season-ticket only following season. Alternatively, a public accom- basis is not required to leave unsold its accessible modation might release tickets for accessible seat- seating if no persons with disabilities purchase ing only when a purchaser who does not need its those season-ticket seats. Of course, public ac- features agrees that he or she has no guarantee of commodations may choose to go beyond what is or right to the same seats in the following season, required by reserving accessible seating for indi- or that if season tickets are guaranteed for the fol- viduals with disabilities (or releasing such seats lowing season, the purchaser agrees that the offer for sale to the general public) on an individual- to purchase tickets is limited to non-accessible game basis. seats with, to the extent practicable, comparable If a covered entity chooses to release unsold price, view, and amenities to the accessible seats accessible seating for sale on a season-ticket or such individuals held in the prior year. The De- other long-term basis, it must meet at least two partment is aware that this rule may require some conditions. Under § 36.302(f)(5)(iii) of the final administrative changes but believes that this pro- rule, public accommodations must leave flex- cess will not create undue financial and admin- ibility for game-day change-outs to accommodate istrative burdens. The Department believes that ticket transfers on the secondary market. And this approach is balanced and beneficial. It will public accommodations must modify their ticket- allow public accommodations to sell all of their ing policies so that, in future years, individuals seats and will leave open the possibility, in future with disabilities will have the ability to purchase seasons or series of events, that persons who need accessible seating on the same basis as other accessible seating may have access to it. patrons (e.g., as season tickets). Put differently, The Department also has added § 36.302(f)(5) releasing accessible seating to the general public (iii)(B) to address how season tickets or series-of- on a season-ticket or other long-term basis can- events tickets that have attached ownership rights not result in that seating being lost to individuals should be handled if the ownership right returns with disabilities in perpetuity. If, in future years, to the public accommodation (e.g., when holders season tickets become available and persons with forfeit their ownership right by failing to purchase disabilities have reached the top of the waiting list season tickets or sell their ownership right back to or have met any other eligibility criteria for season a public accommodation). If the ownership right is ticket purchases, public accommodations must en- for accessible seating, the public accommodation sure that accessible seating will be made available is required to adopt a process that allows an eli- to the eligible individuals. In order to accomplish gible individual with a disability who requires the this, the Department has added § 36.302(f)(5)(iii) features of such seating to purchase the rights and (A) to require public accommodations that release tickets for such seating.

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Nothing in the regulatory text prevents a pub- ticket holders are permitted to transfer tickets lic accommodation from establishing a process would be inconsistent with the ADA’s guiding whereby such ticket holders agree to be voluntari- principle that individuals with disabilities must ly reassigned from accessible seating to another have rights equal to others. Thus, the Department seating area so that individuals with mobility dis- has added language in the final rule in § 36.302(f) abilities or disabilities that require the features of (6) that requires that individuals with disabilities accessible seating and who become newly eligible holding accessible seating for any event have the to purchase season tickets have an opportunity same transfer rights accorded other ticket holders to do so. For example, a public accommodation for that event. Section 36.302(f)(6) also preserves might seek volunteers to relocate to another loca- the rights of individuals with disabilities who hold tion that is at least as good in terms of its location, tickets to accessible seats for a series of events to price, and amenities or a public accommodation transfer individual tickets to others, regardless of might use a seat with forfeited ownership rights as whether the transferee needs accessible seating. an inducement to get a ticket holder to give up ac- This approach recognizes the common practice of cessible seating he or she does not need. individuals splitting season tickets or other multi- Ticket transfer. The Department received many event ticket packages with friends, colleagues, or comments asking whether accessible seating has other spectators to make the purchase of season the same transfer rights as general seats. The tickets affordable; individuals with disabilities proposed regulation at § 36.302(f)(5) required should not be placed in the burdensome position that individuals with disabilities must be allowed of having to find another individual with a disabil- to purchase season tickets for accessible seating ity with whom to share the package. on the same terms and conditions as individu- This provision, however, does not require pub- als purchasing season tickets for general seating, lic accommodations to seat an individual who including the right—if it exists for other ticket- holds a ticket to an accessible seat in such seat- holders—to transfer individual tickets to friends ing if the individual does not need the accessible or associates. Some commenters pointed out that features of the seat. A public accommodation may the NPRM proposed explicitly allowing individu- reserve the right to switch these individuals to als with disabilities holding season tickets to different seats if they are available, but a public transfer tickets but did not address the transfer of accommodation is not required to remove a person tickets purchased for individual events. Several without a disability who is using accessible seat- commenters representing assembly areas argued ing from that seating, even if a person who uses that persons with disabilities holding tickets for a wheelchair shows up with a ticket from the sec- an individual event should not be allowed to sell ondary market for a non-accessible seat and wants or transfer them to third parties because such accessible seating. ticket transfers would increase the risk of fraud or Secondary ticket market. Section 36.302(f)(7) would make unclear the obligation of the entity is a new provision in the final rule that requires to accommodate secondary ticket transfers. They a public accommodation to modify its policies, argued that individuals holding accessible seating practices, or procedures to ensure that an individ- should either be required to transfer their tickets to ual with a disability, who acquires a ticket in the another individual with a disability or return them secondary ticket market, may use that ticket under to the facility for a refund. the same terms and conditions as other ticket hold- Although the Department is sympathetic to ers who acquire a ticket in the secondary market concerns about administrative burden, curtailing for an event or series of events. This principle transfer rights for accessible seating when other was discussed in the NPRM in connection with

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§ 36.302(f)(5), pertaining to season-ticket sales. sonable modifications in their policies to allow There, the Department asked for public comment individuals with disabilities who acquired non- regarding a public accommodation’s proposed ob- accessible tickets on the secondary ticket market ligation to accommodate the transfer of accessible to be seated in accessible seating, where such seating tickets on the secondary ticket market to seating is vacant, is supported by the only Federal those who do not need accessible seating and vice court to address this issue. See Independent Living versa. Resources v. Oregon Arena Corp., 1 F. Supp. 2d The secondary ticket market, for the purposes 1159, 1171 (D. Or. 1998). The Department has in- of this rule, broadly means any transfer of tickets corporated this position into the final rule at after the public accommodation’s initial sale of § 36.302(f)(7)(ii). tickets to individuals or entities. It thus encom- The NPRM contained two questions aimed at passes a wide variety of transactions, from ticket gauging concern with the Department’s consider- transfers between friends to transfers using com- ation of secondary ticket market sales. The first mercial exchange systems. Many commenters question asked whether a secondary purchaser noted that the distinction between the primary who does not have a disability and who buys an and secondary ticket market has become blurred accessible seat should be required to move if the as a result of agreements between teams, leagues, space is needed for someone with a disability. and secondary market sellers. These commenters Many disability rights advocates answered that noted that the secondary market may operate inde- the individual should move provided that there pendently of the public accommodation, and parts is a seat of comparable or better quality avail- of the secondary market, such as ticket transfers able for him and his companion. Some venues, between friends, undoubtedly are outside the di- however, expressed concerns about this provision, rect jurisdiction of the public accommodation. To and asked how they are to identify who should the extent that venues seat persons who have pur- be moved and what obligations apply if there are chased tickets on the secondary market, they must no seats available that are equivalent or better in similarly seat persons with disabilities who have quality. purchased tickets on the secondary market. In ad- The Department’s second question asked dition, some public accommodations may acquire whether there are particular concerns about the ADA obligations directly by formally entering the obligation to provide accessible seating, including secondary ticket market. a wheelchair space, to an individual with a disabil- The Department’s enforcement experience ity who purchases an inaccessible seat through the with assembly areas also has revealed that venues secondary market. regularly provide for and make last-minute seat Industry commenters contended that this re- transfers. As long as there are vacant wheelchair quirement would create a ‘‘logistical nightmare,’’ spaces, requiring venues to provide wheelchair with venues scrambling to reseat patrons in the spaces for patrons who acquired inaccessible seats short time between the opening of the venues’ and need wheelchair spaces is an example of a doors and the commencement of the event. Fur- reasonable modification of a policy under title III thermore, they argued that they might not be able of the ADA. Similarly, a person who has a ticket to reseat all individuals and that even if they were for a wheelchair space but who does not require able to do so, patrons might be moved to inferior its accessible features could be offered non-acces- seats (whether in accessible or non-accessible sible seating if such seating is available. seating). These commenters also were concerned The Department’s longstanding position that that they would be sued by patrons moved under title III of the ADA requires venues to make rea- such circumstances.

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These commenters seem to have misconstrued tice that they may be moved. the rule. Covered entities are not required to seat Prevention of fraud in purchase of accessible every person who acquires a ticket for inacces- seating. Assembly area managers and advocacy sible seating but needs accessible seating, and are groups have informed the Department that the not required to move any individual who acquires fraudulent purchase of accessible seating is a a ticket for accessible seating but does not need pressing concern. Curbing fraud is a goal that pub- it. Covered entities that allow patrons to buy and lic accommodations and individuals with disabili- sell tickets on the secondary market must make ties share. Steps taken to prevent fraud, however, reasonable modifications to their policies to allow must be balanced carefully against the privacy persons with disabilities to participate in second- rights of individuals with disabilities. Such mea- ary ticket transfers. The Department believes that sures also must not impose burdensome require- there is no one-size-fits-all rule that will suit all ments upon, nor restrict the rights of, individuals assembly areas. In those circumstances where a with disabilities. venue has accessible seating vacant at the time an In the NPRM, the Department struck a balance individual with a disability who needs accessible between these competing concerns by proposing § seating presents his ticket for inaccessible seating 36.302(f)(8), which prohibited public accommo- at the box office, the venue must allow the indi- dations from asking for proof of disability before vidual to exchange his ticket for an accessible seat the purchase of accessible seating but provided in a comparable location if such an accessible seat guidance in two paragraphs on appropriate mea- is vacant. Where, however, a venue has sold all of sures for curbing fraud. Paragraph (i) proposed al- its accessible seating, the venue has no obligation lowing a public accommodation to ask individuals to provide accessible seating to the person with purchasing single-event tickets for accessible seat- a disability who purchased an inaccessible seat ing whether they are wheelchair users. Paragraph on the secondary market. Venues may encourage (ii) proposed allowing a public accommodation to individuals with disabilities who hold tickets for require individuals purchasing accessible seating inaccessible seating to contact the box office be- for season tickets or other multi-event ticket pack- fore the event to notify them of their need for ac- ages to attest in writing that the accessible seating cessible seating, even though they may not require is for a wheelchair user. Additionally, the NPRM ticketholders to provide such notice. proposed to permit venues, when they have good The Department notes that public accommoda- cause to believe that an individual has fraudu- tions are permitted, though not required, to adopt lently purchased accessible seating, to investigate policies regarding moving patrons who do not that individual. need the features of an accessible seat. If a public Several commenters objected to this rule on the accommodation chooses to do so, it might miti- ground that it would require a wheelchair user to gate administrative concerns by marking tickets be the purchaser of tickets. The Department has for accessible seating as such, and printing on the reworded this paragraph to reflect that the indi- ticket that individuals who purchase such seats but vidual with a disability does not have to be the who do not need accessible seating are subject to ticket purchaser. The final rule allows third parties being moved to other seats in the facility if the ac- to purchase accessible tickets at the request of an cessible seating is required for an individual with individual with a disability. a disability. Such a venue might also develop and Commenters also argued that other individu- publish a ticketing policy to provide transparency als with disabilities who do not use wheelchairs to the general public and to put holders of tickets should be permitted to purchase accessible seat- for accessible seating who do not require it on no- ing. Some individuals with disabilities who do not

112 - Guidance and Analysis Department of Justice 28 CFR Part 36 use wheelchairs urged the Department to change sible for assembly areas to have voluntary clubs the rule, asserting that they, too, need accessible where individuals with disabilities self-identify seating. The Department agrees that such seating, to the public accommodation in order to become although designed for use by a wheelchair user, a member of a club that entitles them to purchase may be used by non-wheelchair users, if those accessible seating reserved for club members or persons are persons with a disability who need to otherwise receive priority in purchasing accessible use accessible seating because of a mobility dis- seating. The Department agrees that such clubs are ability or because their disability requires the use permissible, provided that a reasonable amount of of the features that accessible seating provides accessible seating remains available at all prices (e.g., individuals who cannot bend their legs be- and dispersed at all locations for individuals with cause of braces, or individuals who, because of disabilities who are non-members. their disability, cannot sit in a straight-back chair). Some commenters raised concerns that allow- Section 36.303 Auxiliary Aids and Services ing venues to ask questions to determine whether individuals purchasing accessible seating are do- Section 36.303(a) of the 1991 title III regula- ing so legitimately would burden individuals with tion requires a public accommodation to take such disabilities in the purchase of accessible seating. steps as may be necessary to ensure that no indi- The Department has retained the substance of this vidual with a disability is excluded, denied ser- provision in § 36.302(f)(8) of the final rule, but vices, segregated, or otherwise treated differently emphasizes that such questions should be asked than other individuals because of the absence of at the initial time of purchase. For example, if the auxiliary aids and services, unless the public ac- method of purchase is via the Internet, then the commodation can demonstrate that taking such question(s) should be answered by clicking a yes steps would fundamentally alter the nature of or no box during the transaction. The public ac- the goods, services, facilities, advantages, or ac- commodation may warn purchasers that accessible commodations being offered or would result in seating is for individuals with disabilities and that an undue burden. Implicit in this duty to provide individuals purchasing such tickets fraudulently auxiliary aids and services is the underlying obli- are subject to relocation. gation of a public accommodation to communicate One commenter argued that face-to-face contact effectively with customers, clients, patients, com- between the venue and the ticket holder should be panions, or participants who have disabilities af- required in order to prevent fraud and suggested fecting hearing, vision, or speech. The Department that individuals who purchase accessible seating notes that § 36.303(a) does not require public ac- should be required to pick up their tickets at the commodations to provide assistance to individuals box office and then enter the venue immediately. with disabilities that is unrelated to effective com- The Department has declined to adopt that sugges- munication, although requests for such assistance tion. It would be discriminatory to require individ- may be otherwise subject to the reasonable modi- uals with disabilities to pick up tickets at the box fications or barrier removal requirements. office when other spectators are not required to do The Department has investigated hundreds of so. If the assembly area wishes to make face-to- complaints alleging that public accommodations face contact with accessible seating ticket holders have failed to provide effective communication, to curb fraud, it may do so through its ushers and and many of these investigations have resulted in other customer service personnel located within settlement agreements and consent decrees. Dur- the seating area. ing the course of these investigations, the Depart- Some commenters asked whether it is permis- ment has determined that public accommodations

Department of Justice Guidance and Analysis - 113 28 CFR Part 36 sometimes misunderstand the scope of their obli- who cannot see the screen because the signal is gations under the statute and the regulation. Sec- interrupted, causing unnatural pauses in communi- tion 36.303 in the final rule codifies the Depart- cation, or the image is grainy or otherwise unclear. ment’s longstanding policies in this area, and in- Many commenters requested more explicit guide- cludes provisions based on technological advances lines on the use of VRI, and some recommended and breakthroughs in the area of auxiliary aids and requirements for equipment maintenance, dedicat- services that have occurred since the 1991 title III ed high-speed, wide-bandwidth video connections, regulation was published. and training of staff using VRI, especially in Video remote interpreting (VRI). Section hospital and health care situations. Several major 36.303(b)(1) sets out examples of auxiliary aids organizations requested a requirement to include and services. In the NPRM, the Department pro- the interpreter’s face, head, arms, hands, and eyes posed adding video remote services (hereafter in all transmissions. referred to as ‘‘video remote interpreting’’ or The Department has determined that VRI can ‘‘VRI’’) and the exchange of written notes among be an effective method of providing interpreting the examples. The Department also proposed service in certain situations, particularly when amending the provision to reflect technological a live interpreter cannot be immediately on the advances, such as the wide availability of real- scene. To ensure that VRI is effective, the De- time capability in transcription services and cap- partment has established performance standards tioning. for VRI in § 36.303(f).The Department recog- VRI is defined in the final rule at § 36.104 as nizes that reliance on VRI may not be effective ‘‘an interpreting service that uses video confer- in certain situations, such as those involving the ence technology over dedicated lines or wireless exchange of complex information or involving technology offering high-speed, wide-bandwidth multiple parties, and for some individuals, such video connection or wireless connection that de- as for persons who are deaf-blind, and using VRI livers high-quality video images as provided in § in those circumstances would not satisfy a public 36.303(f).’’ The Department notes that VRI gener- accommodation’s obligation to provide effective ally consists of a videophone, monitors, cameras, communication. a high-speed video connection, and an interpreter Comments from several disability advocacy provided by the public accommodation pursuant organizations and individuals discouraged the to a contract for services. The term’s inclusion Department from adding the exchange of written within the definition of ‘‘qualified interpreter’’ notes to the list of available auxiliary aids in § makes clear that a public accommodation’s use of 36.303(b). The Department consistently has recog- VRI satisfies its title III obligations only where nized that the exchange of written notes may pro- VRI affords effective communication. Comments vide effective communication in certain contexts. from advocates and persons with disabilities ex- The NPRM proposed adding an explicit reference pressed concern that VRI may not always provide to written notes because some title III entities do effective communication, especially in hospitals not understand that exchange of written notes us- and emergency rooms. Examples were provided ing paper and pencil may be an available option in of patients who are unable to see the video moni- some circumstances. Advocates and persons with tor because they are semi-conscious or unable to disabilities requested explicit limits on the use of focus on the video screen; other examples were written notes as a form of auxiliary aid because, given of cases where the video monitor is out of they argued, most exchanges are not simple, and the sightline of the patient or the image is out of handwritten notes do not afford effective com- focus; still other examples were given of patients munication. One major advocacy organization,

114 - Guidance and Analysis Department of Justice 28 CFR Part 36 for example, noted that the speed at which indi- consistent with the terminology used by the Ac- viduals communicate orally or use sign language cess Board in the 2004 ADAAG. Comments from averages about 200 words per minute or more, advocates and persons with disabilities expressed and thus, the exchange of notes may provide only approval of the substitution of TTY for TDD in truncated or incomplete communication. For per- the proposed regulation, but expressed the view sons whose primary language is American Sign that the Department should expand the definition Language (ASL), some commenters pointed out, to ‘‘voice, text, and video-based telecommunica- using written English in exchange of notes often is tions products and systems, including TTY’s, ineffective because ASL syntax and vocabulary is videophones, and captioned telephones, or equally dissimilar from English. By contrast, some com- effective telecommunications systems.’’ The De- menters from professional medical associations partment has expanded its definition of ‘auxiliary sought more specific guidance on when notes are aids and services’’ in § 36.303 to include those allowed, especially in the context of medical of- examples in the final rule. Other additions pro- fices and health care situations. posed in the NPRM, and retained in the final rule, Exchange of notes likely will be effective in include Brailled materials and displays, screen situations that do not involve substantial conversa- reader software, magnification software, optical tion, for example, when blood is drawn for routine readers, secondary auditory programs (SAP), and lab tests or regular allergy shots are administered. accessible electronic and information technology. However, interpreters should be used when the As the Department noted in the preamble to the matter involves more complexity, such as in com- NPRM, the list of auxiliary aids in § 36.303(b) munication of medical history or diagnoses, in is merely illustrative. The Department does not conversations about medical procedures and treat- intend that every public accommodation covered ment decisions, or in communication of instruc- by title III must have access to every device or all tions for care at home or elsewhere. The Depart- new technology at all times, as long as the com- ment discussed in the NPRM the kinds of situa- munication provided is effective. tions in which use of interpreters or captioning is Companions who are individuals with dis- necessary. Additional guidance on this issue can abilities. The Department has added several new be found in a number of agreements entered into provisions to § 36.303(c), but these provisions do with health care providers and hospitals that are not impose new obligations on places of public available on the Department’s Web site at http:// accommodation. Rather, these provisions simply www.ada.gov. codify the Department’s longstanding positions. In addition, commenters requested that the De- Section 36.303(c)(1) now states that ‘‘[a] public partment include ‘‘real-time’’ before any mention accommodation shall furnish appropriate auxil- of ‘‘computer-aided’’ or ‘‘captioning’’ technology iary aids and services where necessary to ensure to highlight the value of simultaneous transla- effective communication with individuals with tion of any communication. The Department has disabilities. This includes an obligation to provide added to the final rule appropriate references to effective communication to companions who are ‘‘real-time’’ to recognize this aspect of effec- individuals with disabilities.’’ Section 36.303(c) tive communication. Lastly, in this provision and (1)(i) defines ‘‘companion’’ as ‘‘a family member, elsewhere in the title III regulation, the Depart- friend, or associate of an individual seeking access ment has replaced the term ‘‘telecommunications to, or participating in, the goods, services, facili- devices for deaf persons (TDD)’’ with ‘‘text tele- ties, privileges, advantages, or accommodations phones (TTYs).’’ As noted in the NPRM, TTY of a public accommodation, who, along with such has become the commonly accepted term and is individual, is an appropriate person with whom

Department of Justice Guidance and Analysis - 115 28 CFR Part 36 the public accommodation should communicate.’’ they alone, should determine to whom medical This provision makes clear that if the compan- information should be communicated and when ion is someone with whom the public accommo- auxiliary aids and services should be provided to dation normally would or should communicate, companions. Others asked that the Department then the public accommodation must provide ap- limit the public accommodation’s obligation to propriate auxiliary aids and services to that com- communicate effectively with a companion to panion to ensure effective communication with situations where such communication is necessary the companion. This commonsense rule provides to serve the interests of the person who is receiv- the necessary guidance to public accommoda- ing the public accommodation’s services. It also tions to implement properly the nondiscrimina- was suggested that companions should receive tion requirements of the ADA. Commenters also auxiliary aids and services only when necessary to questioned why, in the NPRM, the Department ensure effective communication with the person defined companion as ‘‘a family member, friend, receiving the public accommodation’s services, or associate of a program participant * * *,’’ not- with an emphasis on the particular needs of the ing that the scope of a public accommodation’s patient requiring assistance, not the patient’s obligation is not limited to ‘‘program participants’’ family or guardian. Some in the medical com- but rather includes all individuals seeking access munity objected to the inclusion of any regulatory to, or participating in, the goods, services, facili- language regarding companions, asserting that ties, privileges, advantages, or accommodations of such language is overbroad, seeks services for the public accommodation. 73 FR 34508, 34554 individuals whose presence is neither required by (June 17, 2008). The Department agrees and has the public accommodation nor necessary for the amended the regulatory language accordingly. delivery of the services or good, places additional Many commenters supported inclusion of com- burdens on the medical community, and represents panions in the rule and requested that the Depart- an uncompensated mandate. One medical associa- ment clarify that a companion with a disability tion commenter stated that such a mandate was may be entitled to effective communication from particularly burdensome in situations where a pa- the public accommodation, even though the indi- tient is fully and legally capable of participating in vidual seeking access to, or participating in, the the decision-making process and needs little or no goods, services, facilities, privileges, advantages, assistance in obtaining care and following through or accommodations of the public accommodation on physician’s instructions. is not an individual with a disability. Some com- The final rule codifies the Department’s long- menters asked the Department to make clear that standing interpretation of the ADA, and clarifies if the individual seeking access to or participat- that public accommodations have effective com- ing in the public accommodation’s program or munication obligations with respect to compan- services is an individual with a disability and the ions who are individuals with disabilities even companion is not, the public accommodation may where the individual seeking to participate in or not limit its communication to the companion, benefit from what a public accommodation offers instead of communicating directly with the indi- does not have a disability. There are many in- vidual with a disability, when it would otherwise stances in which such an individual may not be an be appropriate to communicate with the individual individual with a disability but his or her compan- with the disability. ion is an individual with a disability. The effective Most entities and individuals from the medical communication requirement applies equally to field objected to the Department’s proposal, sug- that companion. gesting that medical and health care providers, and Effective communication with companions is

116 - Guidance and Analysis Department of Justice 28 CFR Part 36 particularly critical in health care settings where teacher and administrators. Likewise, when a deaf miscommunication may lead to misdiagnosis spouse attempts to communicate with private so- and improper or delayed medical treatment. The cial service agencies about the services necessary Department has encountered confusion and re- for the hearing spouse, appropriate auxiliary aids luctance by medical care providers regarding the and services must be provided to the deaf spouse scope of their obligation with respect to such com- by the public accommodation to ensure effective panions. Effective communication with a compan- communication. ion is necessary in a variety of circumstances. For One medical association sought approval to example, a companion may be legally authorized impose a charge against an individual with a dis- to make health care decisions on behalf of the pa- ability, either the patient or the companion, where tient or may need to help the patient with informa- that person had stated he or she needed an inter- tion or instructions given by hospital personnel. In preter for a scheduled appointment, the medical addition, a companion may be the patient’s next provider had arranged for an interpreter to appear, of kin or health care surrogate with whom hospital and then the individual requiring the interpreter personnel need to communicate concerning the did not show up for the scheduled appointment. patient’s medical condition. Moreover, a compan- Section 36.301(c) of the 1991 title III regulation ion could be designated by the patient to commu- prohibits the imposition of surcharges to cover the nicate with hospital personnel about the patient’s costs of necessary auxiliary aids and services. As symptoms, needs, condition, or medical history. such, medical providers cannot pass along to their Furthermore, the companion could be a family patients with disabilities the cost of obtaining an member with whom hospital personnel normally interpreter, even in situations where the individual would communicate. It has been the Department’s cancels his or her appointment at the last minute longstanding position that public accommodations or is a ‘‘no-show’’ for the scheduled appointment. are required to provide effective communication The medical provider, however, may charge for to companions when they accompany patients to the missed appointment if all other patients are medical care providers for treatment. subject to such a charge in the same circumstanc- The individual with a disability does not need es. to be present physically to trigger the public ac- Determining appropriate auxiliary aids. The commodation’s obligation to provide effective type of auxiliary aid the public accommodation communication to a companion. The controlling provides is dependent on which auxiliary aid is principle regarding whether appropriate auxiliary appropriate under the particular circumstances. aids and services should be provided is whether Section 36.303(c)(1)(ii) codifies the Department’s the companion is an appropriate person with longstanding interpretation that the type of aux- whom the public accommodation should commu- iliary aid or service necessary to ensure effective nicate. Examples of such situations include back- communication will vary in accordance with the to-school night or parent-teacher conferences at a method of communication used by the individual; private school. If the faculty writes on the board or the nature, length, and complexity of the com- otherwise displays information in a visual context munication involved; and the context in which the during back-to-school night, this information must communication is taking place. As the Department be communicated effectively to parents or guard- explained in the NPRM, this provision lists fac- ians who are blind or have low vision. At a parent- tors the public accommodation should consider teacher conference, deaf parents or guardians are in determining which type of auxiliary aids and to be provided with appropriate auxiliary aids services are necessary. For example, an individual and service to communicate effectively with the with a disability who is deaf or hard of hearing

Department of Justice Guidance and Analysis - 117 28 CFR Part 36 may need a qualified interpreter to discuss with disability. However, as the Department explained hospital personnel a diagnosis, procedures, tests, when it initially promulgated the 1991 title III treatment options, surgery, or prescribed medica- regulation, the Department believes that Congress tion (e.g., dosage, side effects, drug interactions, did not intend under title III to impose upon a etc.). In comparison, an individual who is deaf or public accommodation the requirement that it hard of hearing who purchases an item in the hos- give primary consideration to the request of the pital gift shop may need only an exchange of writ- individual with a disability. See 28 CFR part 36, ten notes to achieve effective communication. app. B at 726 (2009). The legislative history does, The language in the first sentence of however, demonstrate congressional intent to § 36.303(c)(1)(ii) is derived from the Depart- strongly encourage consulting with persons with ment’s Technical Assistance Manual. See Depart- disabilities. Id. As the Department explained in the ment of Justice, Americans with Disabilities Act, 1991 preamble, ‘‘the House Education and Labor ADA Title III Technical Assistance Manual Cov- Committee stated that it ‘expects’ that ‘public ering Public Accommodations and Commercial accommodation(s) will consult with the individual Facilities, III–4.3200, available at http://www. with a disability before providing a particular aux- ada.gov/taman3.html. There were few comments iliary aid or service.’ (Education and Labor report regarding inclusion of this policy in the regulation at 107).’’ Id. itself, and those received were positive. The commenters who urged that primary con- Many advocacy groups, particularly those rep- sideration be given to the individual with a dis- resenting blind individuals and those with low ability noted, for example, that a public accommo- vision, urged the Department to add language in dation would not provide effective communication the final rule requiring the provision of accessible by using written notes where the individual requir- material in a manner that is timely, accurate, and ing an auxiliary aid is in severe pain, or by provid- private. This, they argued, would be especially ing a qualified ASL interpreter when an individual important with regard to billing information, other needs an oral interpreter instead. Both examples time-sensitive material, or confidential informa- illustrate the importance of consulting with the tion. The Department has added a provision in § individual with a disability in order to ensure that 36.303(c)(1)(ii) stating that in ‘‘order to be effec- the communication provided is effective. When a tive, auxiliary aids and services must be provided public accommodation ignores the communication in accessible formats, in a timely manner, and in needs of the individual requiring an auxiliary aid such a way so as to protect the privacy and inde- or service, it does so at its peril, for if the com- pendence of the individual with a disability.’’ munication provided is not effective, the public The second sentence of § 36.303(c)(1)(ii) states accommodation will have violated title III of the that ‘‘[a] public accommodation should consult ADA. with individuals with disabilities whenever pos- Consequently, the regulation strongly encour- sible to determine what type of auxiliary aid is ages the public accommodation to engage in a needed to ensure effective communication, but dialogue with the individual with a disability to the ultimate decision as to what measures to take determine what auxiliary aids and services are ap- rests with the public accommodation, provided propriate under the circumstances. This dialogue that the method chosen results in effective com- should include a communication assessment of the munication.’’ Many commenters urged the Depart- individual with a disability initially, regularly, and ment to amend this provision to require public as needed, because the auxiliary aids and services accommodations to give primary consideration necessary to provide effective communication to to the expressed choice of an individual with a the individual may fluctuate. For example, a deaf

118 - Guidance and Analysis Department of Justice 28 CFR Part 36 individual may go to a private community health however, that if a guest chose to cruise without an center with what is at first believed to be a minor interpreter or companion, the ship would not be medical emergency, such as a sore knee, and the compelled to provide an interpreter for the medi- individual with a disability and the community cal facility. On the contrary, when an individual health center both may believe that exchanging with a disability goes on a cruise, the cruise ship written notes will be effective; however, during has an obligation to provide effective communica- that individual’s visit, it may be determined that tion, including, if necessary, a qualified interpreter the individual is, in fact, suffering from an anterior as defined in the rule. cruciate ligament tear and must have surgery to Some representatives of pediatricians objected repair the torn ligament. As the situation develops to this provision, stating that parents of children and the diagnosis and recommended course of ac- with disabilities often know best how to interpret tion evolve into surgery, an interpreter likely will their children’s needs and health status and relay be necessary. The community health center has a that information to the child’s physician, and to continuing obligation to assess the auxiliary aids remove that parent, or add a stranger into the and services it is providing, and should consult examining room, may frighten children. These with individuals with disabilities on a continuing commenters requested clarification in the regula- basis to assess what measures are required to en- tion that public accommodations should permit sure effective communication. parents, guardians, or caregivers of children with Similarly, the Department strongly encourages disabilities to accompany them in medical set- public accommodations to keep individuals with tings to ensure effective communication. The disabilities apprised of the status of the expected regulation does not prohibit parents, guardians, arrival of an interpreter or the delivery of other re- or caregivers from being present or providing ef- quested or anticipated auxiliary aids and services. fective communication for children. Rather, it Also, when the public accommodation decides prohibits medical professionals (and other public not to provide the auxiliary aids and services re- accommodations) from requiring or forcing indi- quested by an individual with a disability, the pub- viduals with disabilities to bring other individuals lic accommodation should provide that individual with them to facilitate communication so that the with the reason for its decision. public accommodation will not have to provide Family members and friends as interpreters. appropriate auxiliary aids and services. The public Section 36.303(c)(2), which was proposed in accommodation cannot avoid its obligation to pro- the NPRM, has been included in the final rule to vide an interpreter except under the circumstances make clear that a public accommodation shall not described in § 36.303(c)(3)–(4). require an individual with a disability to bring A State medical association also objected to this another individual to interpret for him or her. The provision, opining that medical providers should Department has added this regulatory requirement have the authority to ask patients to bring some- to emphasize that when a public accommodation one with them to provide interpreting services if is interacting with a person with a disability, it the medical provider determines that such a prac- is the public accommodation’s responsibility to tice would result in effective communication and provide an interpreter to ensure effective commu- that patient privacy and confidentiality would be nication. It is not appropriate to require the person maintained. While the public accommodation has with a disability to bring another individual to the obligation to determine what type of auxiliary provide such services. any commenters supported aids and services are necessary to ensure effective inclusion of this language in the new rule. A rep- communication, it cannot unilaterally determine resentative from a cruise line association opined, whether the patient’s privacy and confidentiality

Department of Justice Guidance and Analysis - 119 28 CFR Part 36 would be maintained. very difficult position vis-a-vis family members Section 36.303(c)(3) of the final rule codifies and friends. The Department agrees. It is the De- the Department’s position that there are certain partment’s position that a public accommodation limited instances when a public accommodation shall not rely on a minor child to facilitate com- may rely on an accompanying adult to interpret munication with a family member, friend, or other or facilitate communication: (1) In an emergency individual except in an emergency involving an involving an imminent threat to the safety or imminent threat to the safety or welfare of an indi- welfare of an individual or the public; or (2) f the vidual or the public where no interpreter is avail- individual with a disability specifically requests able. Accordingly, the Department has revised the it, the accompanying adult agrees to provide the rule to state that ‘‘[a] public accommodation shall assistance, and reliance on that adult for this as- not rely on a minor child to interpret or facilitate sistance is appropriate under the circumstances. In communication, except in an emergency involv- such instances, the public accommodation should ing an imminent threat to the safety or welfare first offer to provide appropriate auxiliary aids and of an individual or the public where there is no services free of charge. interpreter available.’’ § 36.303(c)(4). Sections Commenters requested that the Department 36.303(c)(3) and (c)(4) have no application in make clear that the public accommodation cannot circumstances where an interpreter would not request, rely on, or coerce an accompanying adult otherwise be required in order to provide effective to provide effective communication for an indi- communication (e.g., in simple transactions such vidual with a disability, and that only a voluntary as purchasing movie tickets at a theater). offer of assistance is acceptable. The Department The Department stresses that privacy and con- states unequivocally that consent of, and for, the fidentiality must be maintained but notes that cov- accompanying adult to facilitate communication ered entities, such as hospitals, that are subject to must be provided freely and voluntarily both by the Privacy Rules, 45 CFR parts 160 and 164, of the individual with a disability and the accom- the Health Insurance Portability and Accountabil- panying adult— absent an emergency involving ity Act of 1996 (HIPAA), Public Law 104–191, an imminent threat to the safety or welfare of an are permitted to disclose to a patient’s relative, individual or the public. The public accommoda- close friend, or any other person identified by the tion cannot coerce or attempt to persuade another patient (such as an interpreter) relevant patient in- adult to provide effective communication for the formation if the patient agrees to such disclosures. individual with a disability. See 45 CFR parts 160 and 164. The agreement Several commenters asked that the Depart- need not be in writing. Covered entities should ment make clear that children are not to be used consult the HIPAA Privacy Rules regarding other to provide effective communication for family ways disclosures may be made to such persons. members and friends and that it is the responsi- With regard to emergency situations, proposed bility of the public accommodation to provide § 36.303(c)(3) permitted reliance on an individual effective communication, stating that interpreters accompanying an individual with a disability to often are needed in settings where it would not be interpret or facilitate communication in an emer- appropriate for children to be interpreting, such gency involving a threat to the safety or welfare of as those involving medical issues, domestic vio- an individual or the public. Commenters requested lence, or other situations involving the exchange that the Department make clear that often a public of confidential or adult-related material. Children accommodation can obtain appropriate auxiliary often are hesitant to decline requests to provide aids and services in advance of an emergency, communication services, which puts them in a particularly in anticipated emergencies, such as

120 - Guidance and Analysis Department of Justice 28 CFR Part 36 predicted dangerous weather, or in certain medical Likewise, an argument can be made that most sit- situations, such as pending childbirth, by making uations to which emergency workers respond in- necessary pre-arrangements. These comment- volve, in one way or another, a threat to the safety ers did not want public accommodations to be or welfare of an individual or the public. The im- relieved of their responsibilities to provide effec- minent threat exception in § 36.303(c)(3)– (4) is tive communication in emergency situations not- not intended to apply to typical and foreseeable ing that the need for effective communication in emergency situations that are part of the normal emergencies is heightened. For the same reason, operations of these institutions. As such, a public several commenters requested a separate rule that accommodation may rely on an accompanying requires public accommodations to provide timely individual to interpret or facilitate communication and effective communication in the event of an under the § 36.303(c)(3)–(4) imminent threat ex- emergency. ception only where there is a true emergency, i.e., One group of commenters asked that the De- where any delay in providing immediate services partment narrow the regulation permitting reliance to the individual could have life-altering or life- on a companion to interpret or facilitate commu- ending consequences. nication in emergency situations so that it is not Telecommunications. In addition to the changes available to entities with responsibilities for emer- discussed in § 36.303(b) regarding telecommu- gency preparedness and response. Some com- nications, telephones, and text telephones, the menters noted that certain exigent circumstances, Department has adopted provisions in § 36.303(d) such as those that exist during and, perhaps, im- of the final rule (which also were included in the mediately after a major hurricane, temporarily NPRM) requiring that public accommodations may excuse public accommodations of their re- must not disconnect or refuse to take calls from sponsibilities to provide effective communication. FCC-approved telecommunications relay systems, However, they asked that the Department clarify including Internet-based relay systems. Comment- that these obligations are ongoing, and that as ers from some State agencies, many advocacy soon as such situations begin to abate or become organizations, and individuals strongly urged the stabilized, the public accommodation must pro- Department to mandate such action because of vide effective communication. the high proportion of TTY calls and relay service The Department recognizes the need for ef- calls to title III entities that are not completed fective communication is critical in emergency because of phone systems or employees not tak- situations. After due consideration of all of these ing the calls. This refusal presents a significant concerns raised by commenters, the Department obstacle for persons using TTYs who do business has revised § 36.303(c) to narrow the exception- with public accommodations and denies persons permitting reliance on individuals accompany- with disabilities telephone access for business that ing the individual with a disability during an typically is handled over the telephone. emergency to make it clear that it applies only to Section 36.303(d)(1)(ii) of the NPRM added emergencies involving an ‘‘imminent threat to the public telephones equipped with volume control safety or welfare of an individual or the public * mechanisms and hearing aid compatible tele- * *.’’ § 36.303(c)(3)–(4). The Department wishes phones to the examples of types of telephone to emphasize, however, that application of this equipment to be provided. Commenters from the exception is narrowly tailored to emergencies in- disability community and from telecommunica- volving an imminent threat to the safety or welfare tions relay service providers argued that require- of individuals or the public. Arguably, all visits to ments for these particular features on telephones an emergency room are by definition emergencies. are obsolete not only because the deaf and hard of

Department of Justice Guidance and Analysis - 121 28 CFR Part 36 hearing community uses video technology more other telecommunications products and systems frequently than other types of telecommunication, for use by an individual who is deaf or hard of but also because all public coin phones have been hearing, or has a speech impairment. hearing-aid compatible since 1983, pursuant to the Video remote interpreting (VRI) services. In § Telecommunications for the Disabled Act of 1982, 36.303(f) of the NPRM, the Department proposed 47 U.S.C. 610. The Hearing Aid Compatibility Act the inclusion of four performance standards for of 1988, 47 U.S.C. 610, extended this requirement VRI (which the NPRM termed video interpreting to all wireline telephones imported into or manu- services (VIS)), for effective communication: (1) factured in the United States since 1989. In 1997, High-quality, clear, real-time, full-motion video, the FCC further required that all such phones also and audio over a dedicated high-speed Internet be equipped with volume control. See 47 CFR connection; (2) a clear, sufficiently large, and 68.6. Given these existing statutory obligations, sharply delineated picture of the participants’ the proposed language is unnecessary. Accord- heads, arms, hands, and fingers, regardless of their ingly, the Department has deleted that language body position; (3) clear transmission of voices; from the final rule. and (4) persons who are trained to set up and oper- The Department understands that there are ate the VIS quickly and efficiently. many new devices and advances in technol- Commenters generally approved of these pro- ogy that should be included in the definition of posed performance standards, but recommended available auxiliary aids and is including many of that some additional standards be included in the the telecommunications devices and some new final rule. For persons who are deaf with limited technology. While much of this technology is not vision, commenters requested that the Department expensive and should be available to most title include an explicit requirement that interpreters III entities, there may be legitimate reasons why wear high-contrast clothing with no patterns that in a particular situation some of these new and de- might distract from their hands as they are inter- veloping auxiliary aids may not be available, may preting, so that a person with limited vision could be prohibitively costly (thus supporting an undue still see the signs made by the interpreter. While burden defense), or may otherwise not be suitable the Department reiterates the importance of such given other circumstances related to the particular practices in the delivery of effective VRI as well terrain, situation, or functionality in specialized as in-person interpreting, the Department declines areas where security, among other things, may be to adopt such performance standards as part of this a factor limiting the appropriateness of the use rule. In general, professional interpreters already of a particular technology or device. The Depart- follow such practices, as the Code of Professional ment recognizes that the available new technology Conduct for interpreters the Deaf and the National may provide more effective communication than Association of the Deaf incorporates attire con- existing technology and that providing effective siderations into their standards of professionalism communication often will include use of new and conduct. Moreover, as a result of this code, technology and video relay services, as well as many VRI agencies have adopted detailed dress interpreters. However, the Department has not standards that interpreters hired by the agency mandated that title III entities make all technology must follow. Commenters also urged explicit re- or services available upon demand in all situa- quirement of a clear image of the face and eyes tions. When a public accommodation provides the of the interpreter and others. Because the face opportunity to make outgoing phone calls on more includes the eyes, the Department has amended § than an incidental-convenience basis, it shall make 36.303(f)(2) of the final rule to include a require- available accessible public telephones, TTYs, or ment that the interpreter’s face be displayed. Other

122 - Guidance and Analysis Department of Justice 28 CFR Part 36 commenters requested requirement of a wide- of the NPRM, the Department proposed that bandwidth video connection for the VRI system, sports stadiums that have a capacity of 25,000 and the Department has included this requirement or more shall provide captioning for safety and in § 36.303(f)(1) of the final rule. emergency information on scoreboards and video ATMs. The 2010 Standards set out detailed re- monitors. In addition, the Department posed quirements for ATMs, including communication- four questions about captioning of information, related requirements to make ATMs usable by especially safety and emergency information an- individuals who are blind or have low vision. In nouncements, provided over public address (PA) the NPRM, the Department discussed the applica- systems. The Department received many detailed tion of a safe harbor to the communication-related and divergent responses to each of the four ques- elements of ATMs. The NPRM explained that the tions and the proposed regulatory text. Because Department considers the communication-related comments submitted on the Department’s title II elements of ATMs to be auxiliary aids and ser- and title III proposals were intertwined, because vices, to which the safe harbor for elements built of the similarity of issues involved for title II enti- in compliance with the 1991 standards does not ties and title III entities, and in recognition of the apply. fact that many large sports stadiums are covered The Department received several comments re- by both title II and title III as joint operations of garding this issue. Several commenters represent- State or local government and one or more public ing banks objected to the exclusion of communi- accommodations, the Department presents here cation-related aspects of ATMs from the safe har- a single consolidated review and summary of the bor provision. They explained that the useful life issues raised in comments. of ATMs—on average 10 years—was longer than The Department asked whether requiring cap- the Department noted; thus, without the safe har- tioning of safety and emergency information made bor, banks would be forced to retrofit many ATMs over the public address system in stadiums seating in order to comply with the proposed regulation. fewer than 25,000 would create an undue burden Such retrofitting, they noted, would be costly to for smaller entities, and whether it would be fea- the industry. A few representatives of the disabil- sible for small stadiums to provide such caption- ity community commented that communication- ing, or whether a larger threshold, such as sports related aspects of ATMs should be excluded from stadiums with a capacity of 50,000 or more, would the safe harbor. be appropriate. The Department consistently has taken the posi- There was a consensus among the commenters, tion that the communication-related elements of including disability advocates as well as venue ATMs are auxiliary aids and services, rather than owners and stadium designers and operators, structural elements. See 28 CFR part 36, app. B that using the stadium size or seating capacity at 728 (2009). Thus, the safe harbor provision should not be the exclusive deciding factor for any does not apply to these elements. The Depart- obligation to provide captioning for safety and ment believes that the limitations on the effective emergency information broadcast over the PA sys- communication requirements, which provide that tem. Most disability advocacy organizations and a covered entity does not have to take measures individuals with disabilities complained that using that would result in a fundamental alteration of its size or seating capacity as a threshold for cap- program or would cause undue burdens, provide tioning safety and emergency information would adequate protection to covered entities that oper- undermine the ‘‘undue burden’’ defense found in ate ATMs. both titles II and III. Many commenters provided Captioning at sporting venues. In § 36.303(g) examples of facilities such as professional hockey

Department of Justice Guidance and Analysis - 123 28 CFR Part 36 arenas that seat less than 25,000 fans but that, stadium designers and title II entities commented commenters argued, should be able to provide that the requirement should arise when the facil- real-time captioning. Other commenters suggested ity has at least one elevator providing firefighter that some high school or college stadiums, for emergency operation, along with approval of au- example, may hold 25,000 fans or more and yet thorities with responsibility for fire safety. An or- lack the resources to provide real-time captioning. ganization concerned with fire safety codes com- Many commenters noted that real-time captioning mented that the Department lacks the expertise to would require use of trained stenographers, and regulate on this topic. Other commenters argued that most high school and college sports facili- for flexibility in the requirements for providing ties rely upon volunteers to operate scoreboards captioning and contended that any requirement and PA systems and they would not be qualified should apply only to stadiums constructed after stenographers, especially in case of an emergency. the effective date of the regulation. One national association noted that the typical In the NPRM, the Department also asked stenographer expense for a professional football whether the rule should address the specific means game in Washington, DC, is about $550 per game. of captioning equipment, whether captioning Similarly, one trade association representing should be provided through any effective means venues estimated that the cost for a professional (e.g., scoreboards, line boards, handheld devices, stenographer at a sporting event runs between or other means), or whether some means, such as $500 and $1,000 per game or event, the cost of handheld devices, should be eliminated as options. which, they argued, would be unduly burdensome This question elicited many comments from advo- in many cases. Some commenters posited that cates for persons with disabilities as well as from schools that do not sell tickets to athletic events covered entities. Advocacy organizations and in- would be challenged to meet such expenses, in dividuals with experience using handheld devices contrast to major college athletic programs and argued that such devices do not provide effective professional sports teams, which would be less communication. These commenters noted that likely to prevail using an ‘‘undue burden’’ defense. information is often delayed in the transmission Some venue owners and operators and other to such devices, making them hard to use when covered entities also argued that stadium size following action on the playing field or in the should not be the key consideration for whether event of an emergency when the crowd is already scoreboard captioning will be required. Instead, reacting to aural information provided over the PA these entities suggested that equipment already system well before it is received on the handheld installed in the stadium, including necessary elec- device. trical equipment and backup power supply, should Several venue owners and operators and oth- be the determining factor for whether captioning ers commented that handheld technology offers is mandated. Many commenters argued that the advantages of flexibility and portability so that it requirement to provide captioning should apply may be used successfully regardless of where in only to stadiums with scoreboards that meet the the facility the user is located, even when not in National Fire Protection Association (NFPA) Na- the line of sight of a scoreboard or other caption- tional Fire Alarm Code. Commenters reported that ing system. Still other commenters urged the De- NFPA 72 requires at least two independent and partment not to regulate in such a way as to limit reliable power supplies for emergency information innovation and use of such technology now and systems, including one source that is a genera- in the future. Cost considerations were included tor or a battery sufficient to run the system in the in comments from some stadium designers and event the primary power fails. Alternatively, some venue owners and operators who reported that

124 - Guidance and Analysis Department of Justice 28 CFR Part 36 the cost of providing handheld systems is far less information broadcast on the PA system at a sport- than the cost of providing real-time captioning ing event. Other commenters objected to requiring on scoreboards, especially in facilities that do not captioning even for emergency and safety infor- currently have the capacity to provide real-time mation over the scoreboard rather than through captions on existing equipment. Others noted that some other means. By contrast, venue operators, handheld technology is not covered by fire and State government agencies, and some model safety model codes, including the NFPA, and thus code groups, including the NFPA, commented would be more easily adapted into existing facili- that emergency and safety information must be ties if captioning were required by the Depart- provided in an accessible format and that public ment. safety is a paramount concern. Other comment- The Department also asked about requiring ers argued that the best method to deliver safety open captioning of all public address announce- and emergency information would be television ments, rather than limiting the captioning require- monitors showing local TV broadcasts with cap- ment to safety and emergency information. A tions already mandated by the FCC. Some com- variety of advocates and persons with disabilities menters posited that the most reliable information argued that all information broadcast over a PA about a major emergency would be provided on system should be captioned in real time at all the television news broadcasts. They argued that facilities in order to provide effective commu- television monitors may be located throughout the nication, and that a requirement only to provide facility, improving line of sight for patrons, some emergency and safety information would not be of whom might not be able to see the scoreboard sufficient. A few organizations representing per- from their seats or elsewhere in the facility. Some sons with disabilities commented that installation stadium designers, venue operators, and model of new systems should not be required, but that all code groups pointed out that video monitors are systems within existing facilities that are capable not regulated by the NFPA or other agencies, so of providing captioning should provide captioning that such monitors could be more easily provided. of information to the maximum extent possible. Video monitors may receive transmissions from Several organizations for persons with disabilities within the facility and could provide real-time commented that all facilities should include in captions if there is the necessary software and their safety planning measures a requirement that equipment to feed the captioning signal to a closed all aurally provided information for patrons with video network within the facility. Several com- communication disabilities be captioned. Some menters suggested that using monitors would be advocates suggested that demand for captions will preferable to requiring captions on the scoreboard only increase as the number of deaf and hard of if the regulation mandates real-time captioning. hearing persons grows with the aging of the gen- Some venue owners and operators argued that eral population and with increasing numbers of retrofitting existing stadiums with new systems veterans returning from war with disabilities. Mul- could easily cost in the hundreds of thousands of tiple commenters noted that the captioning would dollars per scoreboard or system. Some stadium benefit others as well as those with communica- designers and others argued that captioning should tion disabilities. be required only in stadiums built after the effec- By contrast, venue owners and operators and tive date of the regulation. For stadiums with ex- others commented that the action on the sports isting systems that allow for real-time captioning, field is self-explanatory and does not require cap- one commenter posited that dedicating the system tioning. These commenters objected to an explicit exclusively to real-time captioning would lead to requirement to provide real-time captioning for all an annual loss of between two and three million

Department of Justice Guidance and Analysis - 125 28 CFR Part 36 dollars per stadium in revenue from advertising individuals who are blind or have low vision to currently running in that space. enjoy movies by providing a spoken interpreta- After carefully considering the wide range of tion of key visual elements of a movie, such as public comments on this issue, the Department actions, settings, facial expressions, costumes, has concluded that the final rule will not provide and scene changes. The descriptions are narrated additional requirements for effective communica- and recorded onto an audiotape or disk that can be tion or emergency information provided at sports synchronized with the film as it is projected. An stadiums at this time. The 1991 title II and title III audio recording is an example of an auxiliary aid regulations and statutory requirements are not in and service required under the Department’s 1991 any way affected by this decision. The decision title III regulation. See 28 CFR 36.303(b)(2). to postpone rulemaking on this complex issue is The NPRM stated that technological advances based on a number of factors, including the multi- since the early 1990s have made open and closed ple layers of existing regulations by various agen- captioning and video description for movies more cies and levels of government, and the wide array readily available and effective and noted that the of information, requests, and recommendations Department was considering options to require related to developing technology offered by the captioning and video description for movies ex- public. The diversity of existing information and hibited by public accommodations. The NPRM communication systems and other characteristics also noted that the Department is aware that the among sports stadiums also complicates the regu- movie industry is transitioning, in whole or in lation of captioning. The Department has conclud- part, to movies in digital format and that movie ed that further consideration and review is prudent theater owners and operators are beginning to pur- before it issues specific regulatory requirements. chase digital projectors. The Department noted in Movie captioning. In the NPRM, the Depart- the NPRM that movie theater owners and opera- ment stated that options were being considered tors with digital projectors may have available to to require movie theater owners and operators to them different capabilities than those without digi- exhibit movies that are captioned for patrons who tal projectors. The Department sought comment are deaf or hard of hearing. Captioning makes regarding whether and how to require captioning films accessible to individuals whose hearing and video description while the film industry is too limited to benefit from assistive listening makes this transition. In addition, the NPRM devices. Both open and closed captioning are ex- stated the Department’s concern about the poten- amples of auxiliary aids and services required un- tial cost to exhibit captioned movies, noting that der the Department’s 1991 title III regulation. See cost may vary depending upon whether open or 28 CFR 36.303(b)(1). Open captions are similar closed captioning is used and whether or not digi- to subtitles in that the text is visible to everyone in tal projectors are used, and stated that the cost of the theater, while closed captioning displays the captioning must stay within the parameters of the written text of the audio only to those individuals undue burden requirement in 28 CFR 36.303(a). who request it. The Department further noted that it understands In the NPRM, the Department also stated that the cost of video description equipment to be less options were being considered to require movie than that for closed captioning. The Department theater owners and operators to exhibit movies then stated that it was considering the possibility with video description,3 a technology that enables 3 In the NPRM, the Department referred to this the Department that the more accurate and commonly technology as ‘‘narrative description.’’ 73 FR 34508, understood term is ‘‘videodescription,’’ even though 34531 (June 17, 2008). Several commenters informed the subject is movies, not video, and so the Department decided to employ that term.

126 - Guidance and Analysis Department of Justice 28 CFR Part 36 of requiring public accommodations to exhibit all first made available in a feature film presenta- new movies in captioned format and with video tion in late 1997. Closed captioning technology description at every showing. The NPRM stated currently in use allows viewers to see captions that the Department would not specify the types of using a clear panel that is mounted in front of the captioning required, leaving such decisions to the viewer’s seat.4 According to commenters from discretion of the movie theater owners and opera- the industry, the panel reflects captions that are tors. shown in reverse on an LED display in the back In the NPRM, the Department requested public of the theater, with captions appearing on or near comment as to whether public accommodations the movie image. Moviegoers may use this tech- should be required to exhibit all new movies in nology at any showing at a theater that has been captioned format at every showing, whether it equipped with the technology, so that the theater would be more appropriate to require captioning does not have to arrange limited special screen- less frequently, and, if so, with what frequency ings. captioning should be provided. The Department Video description technology also has existed also inquired as to whether the requirement for since 1997, according to a commenter who works captioning should be tied to the conversion of with the captioning and video description industry. movies from film to the use of a digital format. According to a movie industry commenter, video The Department also asked for public comment description requires the creation of a separate regarding the exhibition of all new movies with script written by specially trained writers called narrative description, whether it would it be more ‘‘describers.’’ As the commenter explained, a appropriate to require narrative description less describer initially listens to the movie without frequently, and whether narrative description of watching it in order to approximate the experience movies should be tied to the use of a digital for- of an audience member who is blind or has low vi- mat. sion. Using software to map out the pauses in the Representatives from the movie industry, a soundtrack, the describer writes a description in commenter from a non-profit organization, and a the space available. After an initial script is writ- disability rights advocacy group provided infor- ten for video description, it is edited and checked mation in their comments on the status of cap- for timing, continuity, accuracy, and a natural tioning and video description technology today flow. A narrator then records the new script to as well as an update on the transition to digital match the corresponding movie. This same in- cinema in the industry. A representative of major dustry commenter said that video description movie producers and distributors commented that currently is provided in theaters through screens traditionally open captions were created by ‘‘burn- equipped with the same type of technology as ing’’ the captions onto a special print of a selected that used for closed captioning. As commenters movie, which the studios would make available to explained, technologies in use today deliver video the exhibitors (movie theater owners and opera- descriptions via infrared or FM listening systems tors). Releases with open captions typically would to headsets worn by individuals who are blind or be presented at special screenings. More recently, 4 according to this commenter, alternative methods Other closed captioning technologies for movies that have been developed but are not in use at this time have been developed for presenting movies with include hand-held displays similar to a PDA (personal open captions, but their common feature is that digital assistant); eyeglasses fitted with a prism over the captions are visible to all theater-goers. Closed one lens; and projected bitmap captions. The PDA and captioning is an innovation in technology that was eyeglass systems use a wireless transmitter to send the captions to the display device.

Department of Justice Guidance and Analysis - 127 28 CFR Part 36 have low vision. According to a commenter and to industry docu- According to the commenter representing major ments, these standards were expected to be in movie producers and distributors, the percentage place by spring 2009. According to a commenter, of motion pictures produced with closed caption- at that time, all of the major digital cinema equip- ing by its member studios had grown to 88 percent ment vendors were expected to have support for of total releases by 2007; the percentage of mo- a variety of closed caption display and video de- tion pictures produced with open captioning by scription products. This same commenter stated its member studios had grown to 78 percent of that these technologies will be supported by the total releases by 2007; and the percentage of mo- studios that produce and distribute feature films, tion pictures provided with video description has by the theaters that show these films to the public, ranged consistently between 50 percent and 60 and by the full complement of equipment in the percent of total releases. It is the movie produc- production, distribution, and display chain. ers and distributors, not the movie theater owners The initial investment for movie theater own- and operators, who determine what to caption ers and operators to convert to digital cinema is and describe, the type of captioning to use, and expensive. One industry commenter estimated the content of the captions and video description that converting theaters to digital projection costs script. These same producers and distributors also between $70,000 and $100,000 per screen and assume the costs of captioning and describing that maintenance costs for digital projectors are movies. Movie theater owners and operators sim- estimated to run between $5,000 and $10,000 a ply purchase the equipment to display the captions year—approximately five times as expensive as and play the video description in their auditoria. the maintenance costs for film projectors. Accord- The transition to digital cinema, considered ing to this same commenter, while there has been by the industry to be one of the most profound progress in making the conversion, only approxi- advancements in motion picture production and mately 5,000 screens out of 38,794 nationwide technology of the last 100 years, will provide nu- have been converted, and the cost to make the merous advantages both for the industry and the remaining conversions involves a total investment audience. According to one commenter, currently of several billion dollars. According to another there are sufficient standards and interim solutions commenter, predictions as to when more than half to support captioning and video description now of all screens will have been converted to digital in digital format. Additionally, movie studios are projection are 10 years or more, depending on the supporting those efforts by providing accessibil- finances of the movie theater owners and opera- ity tracks (captioning and video description) in tors, the state of the economy, and the incentives many digital cinema content packages. Moreover, supporting conversion. That said, according to one a group of industry commenters composed in commenter who represents movie theater own- pertinent part of members of the motion picture ers and operators, the majority of screens in the industry, the central standards organizations for United States were expected to enter into agree- this industry, and key digital equipment vendors, ments by the end of 2008 to convert to digital noted that they are participating in a joint venture cinema. Most importantly, however, according to to establish the remaining accessibility specifica- a few commenters, the systems in place today for tions and standards for access audio tracks. Ac- captioning and video description will not become cess audio tracks are supplemental sound audio obsolete once a theater has converted to digital tracks for the hard of hearing and narrative audio cinema but still can be used by the movie theater tracks for individuals who have vision disabilities. owner and operator to exhibit captions and video

128 - Guidance and Analysis Department of Justice 28 CFR Part 36 description. The only difference for a movie the- included requiring that captioning be within the ater owner or operator will be the way the data is same line of sight to the screen as the movie so delivered to the captioning and video description that individuals who are deaf or hard of hearing equipment in place in an auditorium. Despite the can watch the movie and read the captions at the current availability of movies that are captioned same time; that the captioning be accessible from and provide video description, movie theater own- each seat; that the captions be of sufficient size ers and operators rarely exhibit the captions or and contrast to the background so as to be read- descriptions. According to several commenters, able easily; and that the recent recommendations less than 1 percent of all movies being exhibited of the Telecommunications and Electronics and in theaters are shown with captions. Information Technology Advisory Committee Re- Individuals with disabilities, advocacy groups, port to the Access Board that captions be ‘‘timely, the representative from a non-profit, and represen- accurate, complete, and efficient’’ 5 also be in- tatives of State governments, including 11 State cluded. attorneys general, overwhelmingly supported issu- The State attorneys general supported the ance of a regulation requiring movie theater own- Department’s statement in the NPRM that the ers and operators to exhibit captioned and video Department did not anticipate specifying which described movies at all showings unless doing so type of captioning to provide or what type of tech- would result in an undue burden or fundamental nology to use to provide video description, but alteration of the goods and services offered by would instead leave that to the discretion of the the public accommodation. In addition, this same movie theater owners and operators. These State group of commenters urged that any such regula- attorneys general opined that such discretion in tion should be made effective now, and should the selection of the type of technology was con- not be tied to the conversion to digital cinema by sistent with the statutory and regulatory scheme the movie theater owners and operators. In sup- of the ADA and would permit any new regulation port of such arguments, these commenters stated to keep pace with future advancements in caption- that the technology exists now to display movies ing and video description technology. These same with captions and video descriptions, regardless commenters stated that such discretion may result of whether the movie is exhibited on film or using in a mixed use of both closed captioning and open digital cinema. Moreover, since the technology in captioning, affording more choices both for the use for displaying captions and video descriptions movie theater owners and operators and for indi- on film will be compatible with digital projection viduals who are deaf or hard of hearing. systems, they argued, there is no need to postpone The representatives from the movie theater implementation of a captioning or video descrip- industry strongly urged the Department against tion regulation until the conversion to digital has issuing a regulation requiring captioning or video been made. Furthermore, since the conversion to description. These commenters argued that the digital may take years, commenters urged the De- legislative history of the ADA expressly precluded partment to issue a regulation requiring captioning regulating in the area of captioning. (These same and video description now, rather than several commenters were silent with regard to video de- years from now. 5 Refreshed Accessibility Standards and Guidelines Advocacy groups and the 11 State attorneys in Telecommunications and Electronic and Informa- general also requested that any regulation include tion Technology (April 2008), available at http://www. factors describing what constitutes effective cap- access-board.gov/sec508/refresh/report/ (last visited tioning and video description. Recommendations June 24, 2010).

Department of Justice Guidance and Analysis - 129 28 CFR Part 36 ater owners and operators. To this end, the Depart- scription on this issue.) The industry commenters ment is planning to engage in rulemaking relating also argued that to require movie theater owners specifically to movie captioning under the ADA in and operators to exhibit captioned and video de- the near future. scribed movies would constitute a fundamental al- teration in the nature of the goods and services of- Section 36.304 Removal of Barriers fered by the movie theater owners and operators. In addition, some industry commenters argued that With the adoption of the 2010 Standards, an any such regulation by the Department would be important issue that the Department must address inconsistent with the Access Board’s guidelines. is the effect that the new (referred to as ‘‘supple- Also, these commenters noted the progress that mental’’) and revised ADA Standards will have has been made in the industry in making cinema on the continuing obligation of public accom- more accessible even though there is no mandate modations to remove architectural, transportation, to caption or describe movies, and they questioned and communication barriers in existing facilities whether any mandate is necessary. Finally, all to the extent that it is readily achievable to do the industry commenters argued that to require so. See 42 U.S.C. 12182(b)(2)(A)(iv). This issue captioning or video description in 100 percent of was not addressed in the 2004 ADAAG because movie theater screens for all showings would con- it was outside the scope of the Access Board’s stitute an undue burden. statutory authority under the ADA and section 502 The comments have provided the Department of the Rehabilitation Act of 1973. See 29 U.S.C. with significant information on the state of the 792(b)(3)(A)–(B) (authorizing the Access Board movie industry with regard to the availability of to establish and maintain minimum guidelines for captioning and video description, the status of the standards issued pursuant to the Architectural closed captioning technology, and the status of the Barriers Act of 1968 and titles II and III of the transition to digital cinema. The Department also ADA). Responsibility for implementing title III’s has given due consideration to the comments it requirement that public accommodations eliminate has received from individuals, advocacy groups, barriers in existing facilities where such removal governmental entities, and representatives of the is readily achievable rests solely with the Depart- movie industry. Recently, the United States Court ment. The term ‘‘existing facility’’ is defined in of Appeals for the Ninth Circuit held that the ADA § 36.104 of the final rule. This definition is dis- requires a chain of movie theaters to exhibit mov- cussed in more detail above. See Appendix A dis- ies with closed captioning and video description cussion of definitions (§ 36.104). unless the theaters can show that to do so would The requirements for barrier removal by public amount to a fundamental alteration or undue bur- accommodations are established in the Depart- den. Arizona ex rel. Goddard v. Harkins Amuse- ment’s title III regulation. 28 CFR 36.304. Under ment Enterprises, Inc., 603 F.3d 666 (9th Cir. this regulation, the Department used the 1991 2010). However, rather than issue specific regula- Standards as a guide to identify what constitutes tory text at this time, the Department has deter- an architectural barrier, as well as the specifica- mined that it should obtain additional information tions that covered entities must follow in making regarding issues raised by commenters that were architectural changes to remove the barrier to the not contemplated at the time of the 2008 NPRM, extent that such removal is readily achievable. 28 supplemental technical information, and updated CFR 36.304(d); 28 CFR part 36, app. A (2009). information regarding the current and future status With adoption of the final rule, public accommo- of the conversion to digital cinema by movie the- dations will now be guided by the 2010 Standards,

130 - Guidance and Analysis Department of Justice 28 CFR Part 36 defined in § 36.104 as the 2004 ADAAG and the this issue during the 60-day public comment peri- requirements contained in subpart D of 28 CFR od. After consideration of all relevant information part 36. presented on the issue, it is the Department’s view The 2010 Standards include technical and that this element-by-element safe harbor provision scoping specifications for a number of elements should be retained in the final rule. This issue is that were not addressed specifically in the 1991 discussed further below. Standards; these new requirements were identified Second, the NPRM proposed several excep- as ‘‘supplemental requirements’’ in the NPRM. tions and exemptions from certain supplemental The 2010 Standards also include revisions to requirements to mitigate the barrier removal ob- technical or scoping specifications for certain ele- ligations of existing play areas and recreation fa- ments that were addressed in the 1991 Standards, cilities under the 2004 ADAAG. These proposals i.e., elements for which there already were techni- elicited many comments from both the business cal and scoping specifications. Requirements for and disability communities. After consideration which there are revised technical or scoping speci- of all relevant information presented on the issue, fications in the 2010 Standards are referred to in it is the Department’s view that these exceptions the NPRM as ‘‘incremental changes.’’ and exemptions should not be retained in the final The Department expressed concern that requir- rule. The specific proposals and comments, and ing barrier removal for incremental changes might the Department’s conclusions, are discussed be- place unnecessary cost burdens on businesses that low. already had removed barriers in existing facilities Third, the NPRM proposed a new safe harbor in compliance with the 1991 Standards. With this approach to readily achievable barrier removal as rulemaking, the Department sought to strike an applied to qualified small businesses. This pro- appropriate balance between ensuring that indi- posed small business safe harbor was based on viduals with disabilities are provided access to fa- suggestions from small business advocacy groups cilities and mitigating potential financial burdens that requested clearer guidance on the barrier from barrier removal on existing places of public removal obligations for small businesses. Accord- accommodation that satisfied their obligations un- ing to these groups, the Department’s traditional der the 1991 Standards. approach to barrier removal disproportionately In the NPRM, the Department proposed sev- affects small businesses. They argued that most eral potential additions to § 36.304(d) that might small businesses owners neither are equipped to reduce such financial burdens. First, the Depart- understand the ADA Standards nor can they af- ment proposed a safe harbor for elements in exist- ford the architects, consultants, and attorneys that ing facilities that were compliant with the 1991 might provide some level of assurance of compli- Standards. Under this approach, an element that ance with the ADA. For these same reasons, these is not altered after the effective date of the 2010 commenters contended, small business owners Standards and that complies with the scoping and are vulnerable to litigation, particularly lawsuits technical requirements for that element in the arising under title III, and often are forced to settle 1991 Standards would not be required to undergo because the ADA Standards’ complexity makes modification to comply with the 2010 Standards inadvertent noncompliance likely, even when a to satisfy the ADA’s barrier removal obligations. small business owner is acting in good faith, or The public accommodation would thus be deemed because the business cannot afford the costs of to have met its barrier removal obligation with re- litigation. spect to that element. To address these and similar concerns, the The Department received many comments on

Department of Justice Guidance and Analysis - 131 28 CFR Part 36

NPRM proposed a level of barrier removal expen- 1991 Standards. These incremental changes were ditures at which qualified small businesses would made to address technological changes that have be deemed to have met their readily achievable occurred since the promulgation of the 1991 Stan- barrier removal obligations for certain tax years. dards, to reflect additional study by the Access This safe harbor would have provided some pro- Board, and to harmonize ADAAG requirements tection from litigation because compliance could with the model codes. be assessed easily. Such a rule, the Department In the NPRM, the Department sought input on a believed, also could further accessibility, because safe harbor in proposed § 36.304(d)(2) intended to qualified small businesses would have an incen- address concerns about the practical effects of the tive to incorporate barrier removal into short- and incremental changes on public accommodations’ long-term planning. The Department recognized readily achievable barrier removal obligations. that a qualified small business safe harbor would The proposed element-by-element safe harbor be a significant change to the Department’s title provided that in existing facilities elements that III enforcement scheme. Accordingly, the De- are, as of the effective date of the 2010 Standards, partment sought comment on whether such an fully compliant with the applicable technical and approach would further the aims underlying the scoping requirements in the 1991 Standards, need statute’s barrier removal provisions, and, if so, the not be modified or retrofitted to meet the 2010 appropriate parameters of the provision. Standards, until and unless those elements are al- After consideration of the many comments re- tered. The Department posited that it would be an ceived on this issue, the Department has decided inefficient use of resources to require covered en- not to include a qualified small business safe tities that have complied with the 1991 Standards harbor in the final rule. This decision is discussed to retrofit already compliant elements when the more fully below. change might only provide a minimal improve- Element-by-element safe harbor for public ac- ment in accessibility. In addition, the Department commodations. Public accommodations have a was concerned that covered entities would have continuing obligation to remove certain architec- a strong disincentive for voluntary compliance if tural, communications, and transportation barriers every time the applicable standards were revised in existing facilities to the extent readily achiev- covered entities would be required once again to able. 42 U.S.C. 12182(b)(2)(A)(iv). Because the modify elements to keep pace with new require- Department uses the ADA Standards as a guide ments. The Department recognized that revisions to identifying what constitutes an architectural to some elements might confer a significant barrier, the 2010 Standards, once they become benefit on some individuals with disabilities and effective, will provide a new reference point for because of the safe harbor these benefits would be assessing an entity’s barrier removal obligations. unavailable until the facility undergoes alterations. The 2010 Standards introduce technical and scop- The Department received many comments on ing specifications for many elements that were this issue from the business and disability com- not included in the 1991 Standards. Accordingly, munities. Business owners and operators, indus- public accommodations will have to consider try groups and trade associations, and business these supplemental requirements when evaluat- advocacy organizations strongly supported the ing whether there are covered barriers in existing element-by-element safe harbor. By contrast, dis- facilities, and, if so, remove them to the extent ability advocacy organizations and individuals readily achievable. Also included in the 2010 commenting on behalf of the disability community Standards are revised technical and scoping re- were opposed to this safe harbor with near una- quirements for elements that were addressed in the

132 - Guidance and Analysis Department of Justice 28 CFR Part 36 nimity. lishment of technical and scoping requirements Businesses and business groups agreed with for a particular element (e.g., play area equipment) the concerns outlined by the Department in the if the business could show that the element now NPRM, and asserted that the element-by-element covered by the 2010 Standards was functionally safe harbor is integral to ensuring continued good accessible. faith compliance efforts by covered entities. These Other commenters noted ambiguity in the commenters argued that the financial cost and NPRM as to whether the element-by-element safe business disruption resulting from retrofitting harbor applies only to elements that comply fully elements constructed or previously modified to with the 1991 Standards, or also encompasses comply with 1991 Standards would be detrimental elements that comply with the 1991 Standards to to nearly all businesses and not readily achievable the extent readily achievable. Some commenters for most. They contended that it would be funda- proposed that the safe harbor should exist in per- mentally unfair to place these entities in a posi- petuity— that an element subject to a safe harbor tion where, despite full compliance with the 1991 at one point in time also should be afforded the Standards, the entities would now, overnight, be same protection with respect to all future revi- vulnerable to barrier removal litigation. They fur- sions to the ADA Standards (as with many build- ther contended that public accommodations will ing codes). These groups contended that allowing have little incentive to undertake large barrier re- permanent compliance with the 1991 Standards moval projects or incorporate barrier removal into will ensure readily accessible and usable facilities long-term planning if there is no assurance that the while also mitigating the need for expensive and actions taken and money spent for barrier removal time-consuming documentation of changes and would offer some protection from litigation. One maintenance. commenter also pointed out that the proposed safe A number of commenters inquired about the harbor would be consistent with practices under effect of the element-by-element safe harbor on other Federal accessibility standards, including the elements that are not in strict compliance with Uniform Federal Accessibility Standards (UFAS) the 1991 Standards, but conform to the terms of and the ADAAG. settlement agreements or consent decrees result- Some business commenters urged the Depart- ing from private litigation or Federal enforcement ment to expand the element-by-element safe har- actions. These commenters noted that litigation or bor to include supplemental requirements. These threatened litigation often has resulted in compro- commenters argued that imposing the 2010 Stan- mise among parties as to what is readily achiev- dards on existing facilities will provide a strong able. Business groups argued that facilities that incentive for such facilities to eliminate some have made modifications subject to those negotiat- elements entirely, particularly where the element ed agreements should not be subject to the risk of is not critical to the public accommodation’s busi- further litigation as a result of the 2010 Standards. ness or operations (e.g., play areas in fast food Lastly, some business groups that supported restaurants) or the cost of retrofitting is signifi- the element-by-element safe harbor neverthe- cant. Some of these same commenters urged the less contended that a better approach would be to Department to include within the safe harbor those separate barrier removal altogether from the 2010 elements not covered by the 1991 Standards, but Standards, such that the 2010 Standards would not which an entity had built in compliance with State be used to determine whether access to an existing or local accessibility laws. Other commenters re- facility is impeded by architectural barriers. These quested safe harbor protection where a business commenters argued that application of the 2010 had attempted barrier removal prior to the estab- Standards to barrier removal obligations is con-

Department of Justice Guidance and Analysis - 133 28 CFR Part 36 trary to the ADA’s directive that barrier removal is made where readily achievable to do so. Business required only where ‘‘easily accomplishable and commenters, on the other hand, contended that able to be carried out without much difficulty or application of the safe harbor to this requirement expense,’’ 42 U.S.C. 12181(9). is critical because retrofitting items, such as light Nearly all commenters from the disability switches and thermostats often requires work community objected to the proposed element-by- (e.g., rewiring, patching, painting, and re-wallpa- element safe harbor. These commenters asserted pering), that would be extremely burdensome for that the adoption of this safe harbor would per- entities to undertake. These commenters argued mit and sanction the retention of outdated access that such a burden is not justified where many standards even in cases where retrofitting to the of the affected entities already have retrofitted to 2010 Standards would be readily achievable. They meet the 1991 Standards. argued that title III’s readily achievable defense is Some commenters that were opposed to the adequate to address businesses’ cost concerns, and element-by-element safe harbor proposed that an rejected the premise that requiring businesses to entity’s past efforts to comply with the 1991 Stan- retrofit currently compliant elements would be an dards might appropriately be a factor in the readily inefficient use of resources where readily achiev- achievable analysis. Several commenters proposed able to do so. The proposed regulations, these a temporary 5- year safe harbor that would pro- commenters asserted, incorporate advances in vide reassurance and stability to covered entities technology, design, and construction, and reflect that have recently taken proactive steps for barrier congressional and societal understanding that ac- removal, but would also avoid the problems of cessibility is not a static concept and that the ADA preserving access deficits in perpetuity and creat- is a civil rights law intended to maximize acces- ing multiple standards as subsequent updates are sibility. Additionally, these commenters noted that adopted. since the 2004 revision of the ADAAG will not After consideration of all relevant informa- be the last, setting a precedent of safe harbors for tion presented on this issue during the comment compliant elements will have the effect of preserv- period, the Department has decided to retain the ing and protecting layers of increasingly outdated proposed element-by-element safe harbor. Title accessibility standards. III’s architectural barrier provisions place the most Many commenters objected to the Department’s significant requirements of accessibility on new characterization of the requirements subject to construction and alterations. The aim is to require the safe harbor as reflecting only incremental businesses to make their facilities fully accessible changes and asserted that many of these incremen- at the time they are first constructing or altering tal changes will result in significantly enhanced those facilities, when burdens are less and many accessibility at little cost. The requirement con- design elements will necessarily be in flux, and to cerning side-reach ranges was highlighted as an impose a correspondingly lesser duty on business- example of such requirements. Commenters from es that are not changing their facilities. The De- the disability community argued that the revised partment believes that it would be consistent with maximum side-reach range (from 54 inches to this statutory structure not to change the require- 48 inches) will result in a substantial increase in ments for design elements that were specifically accessibility for many persons with disabilities— addressed in our prior standards for those facili- particularly individuals of short stature, for whom ties that were built or altered in full compliance the revised reach range represents the difference with those standards. The Department similarly between independent access to many features and believes it would be consistent with the statutory dependence—and that the revisions should be scheme not to change the requirements for design

134 - Guidance and Analysis Department of Justice 28 CFR Part 36 elements that were specifically addressed in our the element-by-element safe harbor beyond those prior standards for those existing facilities that elements subject to the incremental changes. The came into full compliance with those standards. Department has added § 36.304(d)(2)(iii), explic- Accordingly, the final rule at § 36.304(d)(2)(i) itly clarifying that existing elements subject to provides that elements that have not been altered supplemental requirements for which scoping and in existing facilities on or after March 15, 2012 technical specifications are provided for the first and that comply with the corresponding technical time in the 2010 Standards (e.g., play area require- and scoping specifications for those elements in ments) are not covered by the safe harbor and, the 1991 Standards are not required to be modified therefore, must be modified to comply with the in order to comply with the requirements set forth 2010 Standards to the extent readily achievable. in the 2010 Standards. The safe harbor adopted is Section 36.304(d)(2)(iii) also identifies the ele- consistent in principle with the proposed provision ments in the 2010 Standards that are not eligible in the NPRM, and reflects the Department’s deter- for the element-by-element safe harbor. The safe mination that this approach furthers the statute’s harbor also does not apply to the accessible routes barrier removal provisions and promotes contin- not previously scoped in the 1991 standards, such ued good-faith compliance by public accommoda- as those required to connect the boundary of each tions. area of sport activity, including soccer fields, The element-by-element safe harbor adopted basketball courts, baseball fields, running tracks, in this final rule is a narrow one. The Depart- skating rinks, and areas surrounding a piece of ment recognizes that this safe harbor will delay, gymnastic equipment. See Advisory note to sec- in some cases, the increased accessibility that the tion F206.2.2 of the 2010 Standards. The resource incremental changes would provide and that for and fairness concerns underlying the element-by- some individuals with disabilities the impact may element safe harbor are not implicated by barrier be significant. This safe harbor, however, is not a removal involving supplemental requirements. blanket exemption for every element in existing Public accommodations have not been subject facilities. Compliance with the 1991 Standards previously to technical and scoping specifications is determined on an element-by-element basis in for these supplemental requirements. Thus, with each existing facility. respect to supplemental requirements, the existing Section 36.304(d)(2)(ii)(A) provides that prior readily achievable standard best maximizes acces- to the compliance date of the rule March 15, 2012, sibility in the built environment without imposing noncompliant elements that have not been altered unnecessary burdens on public accommodations. are obligated to be modified to the extent readily The Department also has declined to expand the achievable to comply with the requirements set element-by-element safe harbor to cover existing forth in the 1991 Standards or the 2010 Standards. elements subject to supplemental requirements Section 36.304(d)(2)(ii)(B) provides that after the that also may have been built in compliance with date the 2010 Standards take effect (18 months State or local accessibility laws. Measures taken after publication of the rule), noncompliant ele- to remove barriers under a Federal accessibility ments that have not been altered must be modified provision logically must be considered in regard to the extent readily achievable to comply with to Federal standards, in this case the 2010 Stan- the requirements set forth in the 2010 Standards. dards. This approach is based on the Department’s Noncomplying newly constructed and altered ele- determination that reference to ADA Standards for ments may also be subject to the requirements of § barrier removal will promote certainty, safety, and 36.406(a)(5). good design while still permitting slight devia- The Department has not expanded the scope of tions through readily achievable alternative meth-

Department of Justice Guidance and Analysis - 135 28 CFR Part 36 ods. The Department continues to believe that this The Department notes that commenters across approach provides an appropriate and workable the board expressed concern with recordkeeping framework for implementation of title III’s bar- burdens implicated by the element-by-element rier removal provisions. Because compliance with safe harbor. Businesses noted the additional State or local accessibility codes is not a reliable costs and administrative burdens associated with indicator of effective access for purposes of the identifying elements that fall within the element- ADA Standards, the Department has decided not by-element safe harbor, as well as tracking, docu- to include reliance on such codes as part of the menting, and maintaining data on installation safe harbor provision. dates. Disability advocates expressed concern that Only elements compliant with the 1991 Stan- varying compliance standards will make enforce- dards are eligible for the safe harbor. Thus, where ment efforts more difficult, and urged the Depart- a public accommodation attempted barrier remov- ment to clarify that title III entities bear the burden al but full compliance with the 1991 Standards of proof regarding entitlement to safe harbor was not readily achievable, the modified element protection. The Department emphasizes that pub- does not fall within the scope of the safe harbor lic accommodations wishing to benefit from the provision. A public accommodation at any point element-by-element safe harbor must demonstrate in time must remove barriers to the extent readily their safe harbor eligibility. The Department en- achievable. For existing elements, for which re- courages public accommodations to take appropri- moval is not readily achievable at any given time, ate steps to confirm and document the compliance the public accommodation must provide its goods, of existing elements with the 1991 Standards. services, facilities, privileges, advantages, or ac- Finally, while the Department has decided not to commodations through alternative methods that adopt in this rulemaking the suggestion by some are readily achievable. See 42 U.S.C. 12182(b)(2) commenters to make the protection afforded by (A)(iv), (v). the element-by-element safe harbor temporary, the One-time evaluation and implementation of the Department believes this proposal merits further readily achievable standard is not the end of the consideration. The Department, therefore, will public accommodation’s barrier-removal obliga- continue to evaluate the efficacy and appropriate- tion. Public accommodations have a continuing ness of a safe harbor expiration or sunset provi- obligation to reevaluate barrier removal on a regu- sion. lar basis. For example, if a public accommodation Application to specific scenarios raised in com- identified barriers under the 1991 Standards but ments. In response to the NPRM, the Department did not remove them because removal was not received a number of comments that raised issues readily achievable based on cost considerations, it regarding application of the element-by-element has a continuing obligation to remove these bar- safe harbor to particular situations. Business riers if the economic considerations for the public commenters requested guidance on whether the accommodation change. The fact that the public replacement for a broken or malfunctioning ele- accommodation has been providing its goods or ment that is covered by the 1991 Standards would services through alternative methods does not ne- have to comply with the 2010 Standards. These gate the continuing obligation to assess whether commenters expressed concern that in some cases removal of the barrier at issue has become readily replacement of a broken fixture might necessitate achievable. Public accommodations should incor- moving a number of other accessible fixtures porate consideration of their continuing barrier (such as in a bathroom) in order to comply with removal obligations in both short-term and long- the fixture and space requirements of the 2010 term business planning. Standards. Others questioned the effect of the new

136 - Guidance and Analysis Department of Justice 28 CFR Part 36 standards where an entity replaces an existing ele- guidelines for play areas in October 2000. 65 FR ment currently protected by the safe harbor pro- 62498 (Oct. 18, 2000). The guidelines include vision for water or energy conservation reasons. requirements for ground-level and elevated play The Department intends to address these types of components, accessible routes connecting the scenarios in technical guidance. components, accessible ground surfaces, and Effective date for barrier removal. Several com- maintenance of those surfaces. They have been menters expressed concern that the NPRM did not referenced in Federal playground construction propose a transition period for applying the 2004 and safety guidelines and in some State and local ADAAG to barrier removal in existing facili- codes and have been used voluntarily when many ties in cases where the safe harbors do not apply. play areas across the country have been altered or These commenters argued that for newly covered constructed. elements, they needed time to hire attorneys and In adopting the 2004 ADAAG (which includes consultants to assess the impact of the new re- the play area guidelines published in 2000), the quirements, determine whether they need to make Department acknowledges both the importance of additional retrofits, price those retrofits, assess integrated, full access to play areas for children whether the change actually is ‘‘readily achiev- and parents with disabilities as well as the need able,’’ obtain approval for the removal from own- to avoid placing an untenable fiscal burden on ers who must pay for the changes, obtain permits, businesses. Consequently, the Department asked and then do the actual work. The commenters rec- seven questions in the NPRM related to existing ognized that there may be some barrier removal play areas. Two questions related to safe harbors: actions that require little planning, but stated that one on the appropriateness of a general safe har- other actions cost significantly more and require bor for existing play areas and another on public more budgeting, planning, and construction time. accommodations that have complied with State Barrier removal has been an ongoing require- or local standards specific to play areas. The oth- ment that has applied to public accommodations ers related to reduced scoping, limited exemp- since the original regulation took effect on Janu- tions, and whether there is a ‘‘tipping point’’ at ary 26, 1992. The final rule maintains the existing which the costs of compliance with supplemental regulatory provision that barrier removal does requirements would be so burdensome that a pub- not have to be undertaken unless it is ‘‘readily lic accommodation would shut down a program achievable.’’ The Department has provided in § rather than comply with the new requirements. 36.304(d)(2)(ii)(B) that public accommodations In the nearly 100 comments received on title III are not required to apply the 2010 Standards to play areas, the majority of commenters strongly barrier removal until 18 months after the publica- opposed all safe harbors, exemptions, and reduc- tion date of this rule. It is the Department’s view tions in scoping, and questioned the feasibility that 18 months is a sufficient amount of time for of determining a tipping point. A smaller number application of the 2010 Standards to barrier re- of commenters advocated for a safe harbor from moval for those elements not subject to the safe compliance with the 2004 ADAAG play area harbor. This is also consistent with the compliance requirements along with reduced scoping and date the Department has specified for applying the exemptions for both readily achievable barrier re- 2010 Standards to new construction and altera- moval and alterations. tions. Commenters were split as to whether the De- Reduced scoping for play areas and other rec- partment should exempt owners and operators of reation facilities. public accommodations from compliance with the Play areas. The Access Board published final supplemental requirements for play areas and rec-

Department of Justice Guidance and Analysis - 137 28 CFR Part 36 reation facilities and instead continue to determine The NPRM asked if there are State and local accessibility in these facilities on a case-by-case standards specifically regarding play and recre- basis under existing law. Many commenters were ation area accessibility and whether facilities cur- of the view that the exemption was not necessary rently governed by, and in compliance with, such because concerns of financial burden are ad- State and local standards or codes should be sub- dressed adequately by the defenses inherent in the ject to a safe harbor from compliance with similar standard for what constitutes readily achievable applicable requirements in the 2004 ADAAG. The barrier removal. A number of commenters found Department also requested comments on whether the exemption inappropriate because no standards it would be appropriate for the Access Board to for play areas previously existed. Commenters consider the implementation of guidelines that also were concerned that a safe harbor applicable would extend such a safe harbor to play and recre- only to play areas and recreation facilities (but not ation areas undertaking alterations. In response, no to other facilities operated by a public accommo- comprehensive State or local codes were identi- dation) would create confusion, significantly limit fied, and commenters generally noted that because access for children and parents with disabilities, the 2004 ADAAG contained comprehensive ac- and perpetuate the discrimination and segregation cessibility requirements for these unique areas, individuals with disabilities face in the important public accommodations should not be afforded social arenas of play and recreation—areas where a safe harbor from compliance with them when little access has been provided in the absence of altering play and recreation areas. The Depart- specific standards. Many commenters suggested ment is persuaded by these comments that there is that instead of an exemption, the Department insufficient basis to apply a safe harbor for readily should provide guidance on barrier removal with achievable barrier removal or alterations for play respect to play areas and other recreation facilities. areas built in compliance with State or local laws. Several commenters supported the exemption, In the NPRM, the Department requested that mainly on the basis of the cost of barrier removal. public accommodations identify a ‘‘tipping point’’ More than one commenter noted that the most at which the costs of compliance with the supple- expensive aspect of barrier removal on existing mental requirements for existing play areas would play areas is the surfaces for the accessible routes be so burdensome that the entity simply would and use zones. Several commenters expressed the shut down the playground. In response, no tipping view that where a play area is ancillary to a public point was identified. Some commenters noted, accommodation (e.g., in quick service restaurants however, that the scope of the requirements may or shopping centers), the play area should be ex- create the choice between wholesale replacement empt from compliance with the supplemental re- of play areas and discontinuance of some play quirements because barrier removal would be too areas, while others speculated that some public costly, and as a result, the public accommodation accommodations may remove play areas that are might eliminate the area. merely ancillary amenities rather than incur the The Department has been persuaded that the cost of barrier removal under the 2010 Standards. ADA’s approach to barrier removal, the readily The Department has decided that the comments achievable standard, provides the appropriate bal- did not establish any clear tipping point and there- ance for the application of the 2010 Standards to fore that no regulatory response is appropriate in existing play areas. Thus, in existing playgrounds, this area. public accommodations will be required to re- The NPRM also asked for comment about the move barriers to access where these barriers can potential effect of exempting existing play areas be removed without much difficulty or expense. of less than 1,000 square feet in size from the re-

138 - Guidance and Analysis Department of Justice 28 CFR Part 36 quirements applicable to play areas. Many trade ing that the 1,000-square-foot cutoff is arbitrary, and business associations favored exempting these the exemption posited in the NPRM would have small play areas, with some arguing that where the been difficult to apply. Finally, a separate exemp- play areas are only ancillary amenities, the cost tion would have created confusion as to whether, of barrier removal may dictate that they be closed or when, to apply the exemption or the readily down. Some commenters sought guidance on the achievable standard. Consequently, the Depart- definition of a 1,000-square-foot play area, seek- ment has decided that an exemption, separate and ing clarification that seating and bathroom spaces apart from the readily achievable standard, is not associated with a play area are not included in appropriate or necessary for small private play the size definition. Disability rights advocates, by areas. contrast, overwhelmingly opposed this exemp- In the NPRM, the Department requested public tion, arguing that these play areas may be some of comment as to whether existing play areas should the few available in a community; that restaurants be permitted to substitute additional ground-level and day care facilities are important places for so- play components for the elevated play components cialization between children with disabilities and that they otherwise would have been required those without disabilities; that integrated play is to make accessible. Most commenters opposed important to the mission of day care centers and this substitution because the guidelines as well that many day care centers and play areas in large as considerations of ‘‘readily achievable barrier cities, such as New York City, have play areas that removal’’ inherently contain the flexibility neces- are less than 1,000 square feet in size; and that sary for a variety of situations. Such commenters 1,000 square feet was an arbitrary size require- also noted that the Access Board adopted exten- ment. sive guidelines with ample public input, including The Department agrees that children with dis- significant negotiation and balancing of costs. In abilities are entitled to access to integrated play addition, commenters advised that including ad- opportunities. However, the Department is aware ditional ground level play components might re- that small public accommodations are concerned sult in higher costs because more accessible route about the costs and efforts associated with bar- surfaces might be required. A limited number of rier removal. The Department has given careful commenters favored substitution. The Department consideration as to how best to insulate small enti- is persuaded by these comments that the proposed ties from overly burdensome costs and undertak- substitution of elements may not be beneficial. ings and has concluded that the existing readily The current rules applicable to readily achiev- achievable standard, not a separate exemption, is able barrier removal will be used to determine the an effective and employable method by which to number and type of accessible elements appropri- protect these entities. Under the existing readily ate for a specific facility. achievable standard, small public accommoda- In the NPRM, the Department requested public tions would be required to comply only with the comment on whether it would be appropriate for scoping and technical requirements of the 2010 the Access Board to consider issuing guidelines Standards that are easily accomplishable and able for alterations to play and recreation facilities to be carried out without much difficulty or ex- that would permit reduced scoping of accessible pense. Thus, concerns about prohibitive costs and components or substitution of ground level play efforts clearly are addressed by the existing read- components in lieu of elevated play components. ily achievable standard. Moreover, as evidenced The Department received little input on this issue, by comments inquiring as to how 1,000- square- and most commenters disfavored the suggestion. foot play areas are to be measured and complain- One commenter that supported this approach con-

Department of Justice Guidance and Analysis - 139 28 CFR Part 36 jectured that it would encourage public accommo- dividuals with disabilities; that the cost of a swim- dations to maintain and improve their playgrounds ming pool lift or other options for pool access as well as provide more accessibility. The Depart- is readily achievable and can be accomplished ment is persuaded that it is not necessary to ask without much difficulty or expense; and that the the Access Board to revisit this issue. readily achievable standard already provides pub- The NPRM also asked whether only one play lic accommodations with a means to reduce their area of each type should be required to comply at scoping requirements. A few commenters cited existing sites with multiple play areas and whether safety concerns resulting from having just one ac- there are other select requirements applicable to cessible means of access, and stated that because play areas in the 2004 ADAAG for which the De- pools typically have one ladder for every 75 linear partment should consider exemptions or reduced feet of pool wall, they should have more than one scoping. Some commenters were opposed to the accessible means of egress. Other commenters concept of requiring compliance at one play area either approved or did not oppose providing one of each type at a site with multiple play areas, accessible means of access for larger pools so long citing lack of choice and ongoing segregation of as a lift was used. children and adults with disabilities. Other com- Section 36.304(d)(4)(ii) of the NPRM proposed menters who supported an exemption and reduced to exempt existing swimming pools with fewer scoping for alterations noted that the play equip- than 300 linear feet of swimming pool wall from ment industry has adjusted to, and does not take the obligation to provide an accessible means of issue with, the provisions of the 2004 ADAAG; entry. Most commenters strongly opposed this however, they asked for some flexibility in the provision, arguing that aquatic activity is a safe barrier removal requirements as applied to play and beneficial form of exercise that is particularly equipment, arguing that augmentation of the exist- appropriate for individuals with disabilities. Many ing equipment and installation of accessible play argued that the readily achievable standard for surfacing equates to wholesale replacement of the barrier removal is available as a defense and is play equipment. The Department is persuaded that preferable to creating an exemption for pool op- the current rules applicable to readily achievable erators for whom providing an accessible means barrier removal should be used to decide which of entry would be readily achievable. Commenters play areas must comply with the supplemental re- who supported this provision apparently assumed quirements presented in the 2010 Standards. that providing an accessible means of entry would Swimming pools, wading pools, saunas, and be readily achievable and that therefore the ex- steam rooms. Section 36.304(d)(3)(ii) in the emption is needed so that small pool operators do NPRM specified that for measures taken to com- not have to provide an accessible means of entry. ply with the barrier removal requirements, exist- The Department has carefully considered all ing swimming pools with at least 300 linear feet the information available to it as well as the com- of swimming pool wall would need to provide ments submitted on these two proposed exemp- only one accessible means of entry that complies tions for swimming pools owned or operated by with section 1009.2 or section 1009.3 of the 2004 title III entities. The Department acknowledges ADAAG, instead of the two means required for that swimming provides important therapeutic, new construction. Commenters opposed the De- exercise, and social benefits for many individuals partment’s reducing the scoping from that required with disabilities and is persuaded that exemp- in the 2004 ADAAG. The following were among tion of the vast majority of privately owned or the factors cited in comments: that swimming is a operated pools from the 2010 Standards is nei- common therapeutic form of exercise for many in- ther appropriate nor necessary. The Department

140 - Guidance and Analysis Department of Justice 28 CFR Part 36 agrees with the commenters that title III already specific exemption for existing spas. The Depart- contains sufficient limitations on private entities’ ment notes that the technically infeasible and obligations to remove barriers. In particular, the readily achievable defenses are applicable equally Department agrees that those public accommoda- to existing spas and declines to adopt such an ex- tions that can demonstrate that making particular emption. existing swimming pools accessible in accordance The Department also solicited comment on the with the 2010 Standards is not readily achievable possibility of exempting existing wading pools are sufficiently protected from excessive compli- from the obligation to remove barriers where ance costs. Thus, the Department has eliminated readily achievable. Most commenters stated that proposed § 36.304(d)(3)(ii) and (d)(4)(ii) from the installing a sloped entry in an existing wading final rule. pool is not likely to be feasible. Because covered Proposed § 36.304(d)(4)(iii) would have ex- entities are not required to undertake modifica- empted existing saunas and steam rooms that tions that are not readily achievable or that would seat only two individuals from the obligation to be technically infeasible, the Department believes remove barriers. This provision generated far that the rule as drafted provides sufficient protec- fewer comments than the provisions for swim- tion from unwarranted expense to the operators of ming pools. People who commented were split small existing wading pools. Other existing wad- fairly evenly between those who argued that the ing pools, particularly those large wading pools readily achievable standard for barrier removal found in facilities such as water parks, must be should be applied to all existing saunas and steam assessed on a case-by-case basis. Therefore, the rooms and those who argued that all existing sau- Department has not included an exemption for nas and steam rooms, regardless of size, should wading pools in its final rule. be exempt from any barrier removal obligations. The Department received several comments The Department considered these comments and recommending that existing wave pools be exempt has decided to eliminate the exemption for exist- from barrier removal requirements. The comment- ing saunas and steam rooms that seat only two ers pointed out that existing wave pools often have people. Such an exemption for saunas and steam a sloped entry, but do not have the handrails, level rooms that seat only two people is unnecessary landings, or edge protection required for acces- because the readily achievable standard provides sible entry. Because pool bottom slabs are struc- sufficient protection against barrier removal that tural, they could be subject to catastrophic failure is overly expensive or too difficult. Moreover, the if the soil pressure stability or the under slab de- Department believes barrier removal likely will watering are not maintained during the installation not be readily achievable for most of these small of these accessibility features in an already con- saunas because the nature of their prefabricated structed pool. They also argue that the only safe forms, which include built-in seats, make it either design scenario is to design the wheelchair ramp, technically infeasible or too difficult or expensive pool lift, or transfer access in a side cove where to remove barriers. Consequently a separate ex- the mean water level largely is unaffected by the emption for saunas and steam rooms would have wave action, and that this additional construction been superfluous. Finally, employing the readily to an existing wave pool is not readily achievable. achievable standard for small saunas and steam If located in the main pool area, the handrails, rooms is consistent with the Department’s deci- stanchions, and edge protection for sloped entry sions regarding the proposed exemptions for play will become underwater hazards when the wave areas and swimming pools. action is pushing onto pool users, and the use of Several commenters also argued in favor of a a pool lift will not be safe without a means of

Department of Justice Guidance and Analysis - 141 28 CFR Part 36 stabilizing the person against the forces of the ing that tax year, the entity spent at least 1 percent waves while using the lift. They also pointed out of its gross revenue in the preceding tax year on that a wheelchair would pose a hazard to all wave measures undertaken in compliance with barrier pool users, in that the wave action might push removal requirements. Proposed § 36.304(d)(5) other pool users into the wheelchair or push the has been omitted from the final rule. The quali- wheelchair into other pool users. The wheelchair fied small business safe harbor was proposed in would have to be removed from the pool after the response to small business advocates’ requests user has entered (and has transferred to a flotation for clearer guidance on when barrier removal device if needed). The commenters did not specify is, and is not, readily achievable. According to if these two latter concerns are applicable to all these groups, the Department’s approach to read- wave pools or only to those with more aggressive ily achievable barrier removal disproportionately wave action. The Department has decided that the affects small business for the following reasons: issue of modifications to wave pools is best ad- (1) Small businesses are more likely to operate in dressed on a case-by-case basis, and therefore, this older buildings and facilities; (2) the 1991 Stan- rule does not contain barrier removal exemptions dards are too numerous and technical for most applicable to wave pools. small business owners to understand and deter- The Department also received comments sug- mine how they relate to State and local building gesting that it is not appropriate to require two ac- or accessibility codes; and (3) small businesses cessible means of entry to wave pools, lazy rivers, are vulnerable to title III litigation and often are sand bottom pools, and other water amusements compelled to settle because they cannot afford the that have only one point of entry. The Department litigation costs involved in proving that an action agrees. The 2010 Standards (at section 242.2, Ex- is not readily achievable. ception 2) provide that only one means of entry is The 2010 Standards go a long way toward required for wave pools, lazy rivers, sand bottom meeting the concern of small businesses with re- pools, and other water amusement where user ac- gard to achieving compliance with both Federal cess is limited to one area. and State accessibility requirements, because the Other recreation facilities. In the NPRM, the Access Board harmonized the 2004 ADAAG Department asked about a number of issues relat- with the model codes that form the basis of most ing to recreation facilities, such as team or player State and local accessibility codes. Moreover, the seating areas, areas of sport activity, exercise element-by-element safe harbor will ensure that machines, boating facilities, fishing piers and plat- unless and until a small business engages in altera- forms, golf courses, and miniature golf courses. tion of affected elements, the small business will The Department asked for public comment on the not have to retrofit elements that were constructed costs and benefits of applying the 2004 ADAAG in compliance with the 1991 Standards or, with to these spaces and facilities. The discussion of the respect to elements in an existing facility, that comments received by the Department on these is- were retrofitted to the 1991 Standards in conjunc- sues and the Department’s response to those com- tion with the business’s barrier removal obligation ments can be found in either the section entitled prior to the rule’s compliance date. ‘‘Other Issues’’ of Appendix A to this final rule. In proposing an additional safe harbor for small Safe harbor for qualified small businesses. businesses, the Department had sought to promul- Section 36.304(d)(5) of the NPRM would have gate a rule that would provide small businesses provided that a qualified small business would a level of certainty in short-term and long-term meet its obligation to remove architectural barriers planning with respect to barrier removal. This in where readily achievable for a given year if, dur- turn would benefit individuals with disabilities in

142 - Guidance and Analysis Department of Justice 28 CFR Part 36 that it would encourage small businesses to con- has been authorized specifically to do so or has sider and incorporate barrier removal in their year- proposed a size standard in compliance with the ly budgets. Such a rule also would provide some criteria set forth in the SBA regulations, has pro- protection, through diminished litigation risks, to vided an opportunity for public notice and com- small businesses that undertake significant barrier ment on the proposed standard, and has received removal projects. approval from the Administrator of the SBA to As proposed in the NPRM, the qualified small use the standard. See 15 U.S.C. 632(a)(2)(C). The business safe harbor would provide that a quali- Department further noted that Federal agencies fied small business has met its readily achievable or departments promulgating regulations relating barrier removal obligations for a given year if, to small businesses usually use SBA size criteria, during that tax year, the entity has spent at least and they otherwise must be prepared to justify 1 percent of its gross revenue in the preceding how they arrived at a different standard and why tax year on measures undertaken to comply with the SBA’s regulations do not satisfy the agency’s title III barrier removal requirements. (Several program requirements. See 13 CFR 121.903. The small business advocacy organizations pointed ADA does not define ‘‘small business’’ or specifi- out an inconsistency between the Department’s cally authorize the Department to prescribe size description of the small business safe harbor in standards. the Section-by- Section Analysis for § 36.304 and In the NPRM, the Department indicated its be- the proposed regulatory text for that provision. lief that the size standards developed by the SBA The proposed regulatory text sets out the correct are appropriate for determining which businesses parameters of the proposed rule. The Department subject to the ADA should be eligible for the small does not believe that the error substantively affect- business safe harbor provisions, and proposed to ed the comments on this issue. Some commenters adopt the SBA’s size standards to define small noted the discrepancy and commented on both; businesses for purposes of the qualified small others commented more generally on the proposal, business safe harbor. The SBA’s small business so the discrepancy was not relevant.) The Depart- size standards define the maximum size that a ment noted that the efficacy of any proposal for concern, together with all of its affiliates, may be a small business safe harbor would turn on the if it is to be eligible for Federal small business following two determinations: (1) The definition programs or to be considered a small business for of a qualified small business, and (2) the formula the purpose of other Federal agency programs. for calculating what percentage of revenue is suf- Concerns primarily engaged in the same kind of ficient to satisfy the readily achievable presump- economic activity are classified in the same indus- tion. try regardless of their types of ownership (such as As proposed in § 36.104 in the NPRM, a ‘‘qual- sole proprietorship, partnership, or corporation). ified small business’’ is a business entity defined Approximately 1200 industries are described in as a small business concern under the regulations detail in the North American Industry Classifica- promulgated by the Small Business Administra- tion System—United States, 2007. For most busi- tion (SBA) pursuant to the Small Business Act. nesses, the SBA has established a size standard See 15 U.S.C. 632; 13 CFR part 121. The Depart- based on average annual receipts. The majority ment noted that under section 3(a)(2)(C) of the of places of public accommodation will be clas- Small Business Act, Federal departments and sified as small businesses if their average annual agencies are prohibited from prescribing a size receipts are less than $6.5 million. However, some standard for categorizing a business concern as a will qualify with higher annual receipts. The SBA small business unless the department or agency small business size standards should be familiar

Department of Justice Guidance and Analysis - 143 28 CFR Part 36 to many if not most small businesses, and using of some sort, but none supported the structure these standards in the ADA regulation would pro- proposed by the Department in the NPRM. All felt vide some certainty to owners, operators, and in- strongly that clarifications and modifications were dividuals because the SBA’s current size standards needed to strengthen the provision and to provide can be changed only after notice and comment adequate protection from litigation. rulemaking. Business commenters’ objections to the pro- The Department explained in the NPRM that posed qualified small business safe harbor fell the choice of gross revenue as the basis for cal- generally into three categories: (1) That gross culating the safe harbor threshold was intended revenue is an inappropriate and inaccurate basis to avoid the effect of differences in bookkeeping for determining what is readily achievable by a practices and to maximize accessibility consistent small business since it does not take into account with congressional intent. The Department rec- expenses that may result in a small business op- ognized, however, that entities with similar gross erating at a loss; (2) that courts will interpret the revenue could have very different net revenue, and regulation to mean that a small business must that this difference might affect what is readily spend 1 percent of gross revenue each year on bar- achievable for a particular entity. The Department rier removal, i.e., that expenditure of 1 percent of also recognized that adopting a small business gross revenue on barrier removal is always ‘‘read- safe harbor would effect a marked change to the ily achievable’’; and (3) that a similar misinterpre- Department’s current position on barrier removal. tation of the 1 percent gross revenue concept, i.e., Accordingly, the Department sought public com- that 1 percent of gross revenue is always ‘‘readily ment on whether a presumption should be adopted achievable,’’ will be applied to public accom- whereby qualifying small businesses are presumed modations that are not small businesses and that to have done what is readily achievable for a giv- have substantially larger gross revenue. Business en year if, during that tax year, the entity spent at groups also expressed significant concern about least 1 percent of its gross revenue in the preced- the recordkeeping burdens they viewed as inherent ing tax year on barrier removal, and on whether 1 in the Department’s proposal. percent is an appropriate amount or whether gross Across the board, business commenters object- revenue would be the appropriate measure. ed to the Department’s proposed use of gross rev- The Department received many comments on enue as the basis for calculating whether the small the proposed qualified small business safe harbor. business safe harbor has been met. All contended From the business community, comments were that 1 percent of gross revenue is too substantial a received from individual business owners and op- trigger for safe harbor protection and would result erators, industry and trade groups, and advocacy in barrier removal burdens far exceeding what is organizations for business and industry. From the readily achievable or ‘‘easily accomplishable and disability community, comments were received able to be carried out without much difficulty or from individuals, disability advocacy groups, and expense.’’ 42U.S.C. 12181(9). These commenters nonprofit organizations involved in providing ser- further pointed out that gross revenue and receipts vices for persons with disabilities or involved in vary considerably from industry to industry de- disability-related fields. The Department has con- pending on the outputs sold in each industry, and sidered all relevant matter submitted on this issue that the use of gross revenue or receipts would during the 60-day public comment period. therefore result in arbitrary and inequitable bur- Small businesses and industry groups strongly dens on those subject to the rule. These comment- supported a qualified small business safe harbor ers stated that the readily achievable analysis, and thus the safe harbor threshold, should be premised

144 - Guidance and Analysis Department of Justice 28 CFR Part 36 on a business’s net revenue so that operating ex- sion in safe harbor analysis in subsequent years, to penses are offset before determining what amount facilitate barrier removal planning and encourage might be available for barrier removal. Many busi- large-scale barrier removal measures. ness commenters contended that barrier removal is Another primary concern of many businesses not readily achievable if an entity is operating at a and business groups is that the 1 percent threshold loss, and that a spending formula premised on net for safe harbor protection would become a de fac- revenue can reflect more accurately businesses’ to ‘‘floor’’ for what is readily achievable for any ability to engage in barrier removal. small business entity. These commenters urged the There was no consensus among the business Department to clarify that readily achievable bar- commenters as to a formula that would reflect rier removal remains the standard, and that in any more accurately what is readily achievable for given case, an entity retains the right to assert that small businesses with respect to barrier removal. barrier removal expenditures below the 1 percent Those that proposed alternative formulas offered threshold are not readily achievable. Other busi- little in the way of substantive support for their ness groups worried that courts would apply the proposals. One advocacy organization represent- 1 percent calculus to questions of barrier removal ing a large cross-section of small businesses pro- by businesses too large to qualify for the small vided some detail on the gross and net revenue of business safe harbor. These commenters requested various industry types and sizes in support of its clarification that the rationale underlying the position that for nearly all small businesses, net Department’s determination that a percentage of revenue is a better indicator of a business’s finan- gross revenue can appropriately approximate read- cial ability to spend money on barrier removal. ily achievable barrier removal for small businesses The data also incidentally highlighted the impor- does not apply outside the small business context. tance and complexity of ensuring that each com- Small businesses and business groups uniform- ponent in a safe harbor formula accurately informs ly requested guidance as to what expenses would and contributes to the ultimate question of what is be included in barrier removal costs for purposes and is not readily achievable for a small business. of determining whether the safe harbor thresh- Several business groups proposed that a thresh- old has been met. These commenters contended old of 0.5 percent (or one-half of 1 percent) of that any and all expenses associated with ADA gross revenue, or 2.5 percent of net revenue, compliance—e.g., consultants, architects, engi- spent on ADA compliance might be a workable neers, staff training, and recordkeeping— should measure of what is ‘‘readily achievable’’ for small be included in the calculation. Some proposed that businesses. Other groups proposed 3 to 5 percent litigation-related expenses, including defensive of net revenue as a possible measure. Several litigation costs, also should be accounted for in a commenters proposed affording small businesses small business safe harbor. Additionally, several an option of using gross or net revenue to deter- commenters urged the Department to issue a small mine safe harbor eligibility. Another commenter business compliance guide with detailed guidance proposed premising the safe harbor threshold and examples regarding application of the readily on a designated percentage of the amount spent achievable barrier removal standard and the safe on renovation in a given year. Others proposed harbor. Some commenters felt that the Depart- averaging gross or net revenue over a number of ment’s regulatory efforts should be focused on years to account for cyclical changes in economic clarifying the readily achievable standard rather and business environments. Additionally, many than on introducing a safe harbor based on a set proposed that an entity should be able to roll over spending level. expenditures in excess of the safe harbor for inclu- Businesses and business groups expressed con-

Department of Justice Guidance and Analysis - 145 28 CFR Part 36 cern that the Department’s proposed small busi- for whether an action is readily achievable. More- ness safe harbor would not alleviate small busi- over, they argued, a small business safe harbor for ness vulnerability to litigation. Individuals and readily achievable barrier removal is unnecessary advocacy groups were equally concerned that the because the statutory standard explicitly provides practical effect of the Department’s proposal like- that a business need only spend what is readily ly would be to accelerate or advance the initiation achievable—an amount that may be more or less of litigation. These commenters pointed out that than 1 percent of revenue in any given year. an individual encountering barriers in small busi- Several commenters opined that the formulaic ness facilities will not know whether the entity is approach proposed by the Department overlooks noncompliant or entitled to safe harbor protection. the factors that often prove most conducive and Safe harbor eligibility can be evaluated only after integral to readily achievable barrier removal— review of the small business’s barrier removal planning and prioritization. Many commenters records and financial records. Individuals and ad- expressed concern that the safe harbor creates an vocacy groups argued that the Department should incentive for business entities to forego large-scale not promulgate a rule by which individuals must barrier removal in favor of smaller, less costly file suit to obtain the information needed to deter- removal projects, regardless of the relative access mine whether a lawsuit is appropriate in a particu- the measures might provide. Others commented lar case, and that, therefore, the rule should clarify that an emphasis on a formulaic amount rather that small businesses are required to produce such than readily achievable barrier removal might re- documentation to any individual upon request. sult in competition among types of disabilities as Several commenters noted that a small business to which barriers get removed first, or discrimina- safe harbor based on net, rather than gross, rev- tion against particular types of disabilities if bar- enue would complicate exponentially its efficacy rier removal for those groups is more expensive. as an affirmative defense, because accounting Many commenters opposed to the small busi- practices and asserted expenses would be subject ness safe harbor proposed clarifications and limit- to discovery and dispute. One business advocacy ing rules. A substantial number of commenters group representing a large cross-section of small were strongly opposed to what they perceived as businesses noted that some small business owners a vastly overbroad and overly complicated defini- and operators likely would be uncomfortable with tion of ‘‘qualified small business’’ for purposes of producing detailed financial information, or could eligibility for the safe harbor, and urged the De- be prevented from using the safe harbor because partment to limit the qualified small business safe of inadvertent recordkeeping deficiencies. harbor to those businesses eligible for the ADA Individuals, advocacy groups, and nonprofit or- small business tax credit under section 44 of the ganizations commenting on behalf of the disabil- Tax Code. Some commenters from the disability ity community uniformly and strongly opposed a community contended that the spending level that safe harbor for qualified small businesses, saying triggers the safe harbor should be cumulative, to it is fundamentally at odds with the intent of Con- reflect the continuing nature of the readily achiev- gress and the plain language of the ADA. These able barrier obligation and to preclude a business commenters contended that the case-specific fac- from erasing years of unjustifiable inaction or in- tors underlying the statute’s readily achievable sufficient action by spending up to the safe harbor standard cannot be reconciled with a formulaic threshold for one year. These commenters also accounting approach, and that a blanket formula sought explicit clarification that the small business inherently is less fair, less flexible, and less effec- safe harbor is an affirmative defense. tive than the current case-by-case determination A number of commenters proposed that a busi-

146 - Guidance and Analysis Department of Justice 28 CFR Part 36 ness seeking to use the qualified small business mandate under 42 U.S.C. 12186(b) to issue regu- safe harbor should be required to have a written lations to carry out the provisions of title III. Title barrier removal plan that contains a prioritized III defines ‘‘readily achievable’’ to mean ‘‘easily list of significant access barriers, a schedule for accomplishable and able to be carried out without removal, and a description of the methods used to much difficulty or expense,’’ 42 U.S.C. 12181(9), identify and prioritize barriers. These commenters and sets out factors to consider in determining argued that only spending consistent with the plan whether an action is readily achievable. While should count toward the qualified small business the statutory factors reflect that whether an action threshold. is readily achievable is a fact-based determina- After consideration of all relevant matter pre- tion, there is no inherent inconsistency with the sented, the Department has concluded that neither Department’s proposition that a formula based on the qualified small business safe harbor proposed revenue and barrier removal expenditure could ac- in the NPRM nor any of the alternatives proposed curately approximate the high end of the level of by commenters will achieve the Department’s in- expenditure that can be considered readily achiev- tended results. Business and industry commenters able for a circumscribed subset of title III entities uniformly objected to a safe harbor based on gross defined, in part, by their maximum annual average revenue, argued that 1 percent of gross revenue receipts. Moreover, the Department’s obligation was out of reach for most, if not all, small busi- under the SBREFA to consider alternative means nesses, and asserted that a safe harbor based on of compliance for small businesses, see 5 U.S.C. net revenue would better capture whether and to 603(c), further supports the Department’s conclu- what extent barrier removal is readily achievable sion that a well-targeted formula is a reasonable for small businesses. Individuals and disability approach to implementation of the statute’s readily advocacy groups rejected a set formula as funda- achievable standard. While the Department ulti- mentally inconsistent with the case-specific ap- mately has concluded that a small business safe proach reflected in the statute. harbor should not be included in the final rule, the Commenters on both sides noted ambiguity as Department continues to believe that it is within to which ADA-related costs appropriately should the Department’s authority to develop and imple- be included in the calculation of the safe harbor ment such a safe harbor. threshold, and expressed concern about the practi- As noted above, the business community cal effect of the proposed safe harbor on litigation. strongly objected to a safe harbor premised on Disability organizations expressed concern that gross revenue, on the ground that gross revenue the proposal might increase litigation because in- is an unreliable indicator of an entity’s ability to dividuals with disabilities confronted with barriers remove barriers, and urged the Department to in places of public accommodation would not be formulate a safe harbor based on net revenue. The able to independently assess whether an entity is Department’s proposed use of gross revenue was noncompliant or is, in fact, protected by the small intended to offer a measure of certainty for quali- business safe harbor. The Department notes that fied small businesses while ensuring that those the concerns about enforcement-related complex- businesses continue to meet their ongoing obliga- ity and expense likely would increase exponen- tion to remove architectural barriers where doing tially with a small business safe harbor based on so is readily achievable. net revenue. The Department believes that a qualified small The Department continues to believe that prom- business safe harbor based on net revenue would ulgation of a small business safe harbor would be an unreliable indicator of what is readily be within the scope of the Attorney General’s achievable and would be unworkable in practice.

Department of Justice Guidance and Analysis - 147 28 CFR Part 36

Evaluation of what is readily achievable for a the 1991 rule that § 36.308 provided specific rules small business cannot rest solely on a business’s on assembly areas to ensure that wheelchair users, net revenue because many decisions about ex- who typically were relegated to inferior seating penses are inherently subjective, and in some in the back of assembly areas separate from their cases a net loss may be more beneficial (in terms friends and family, would be provided access to of taxes, for example) than a small net profit. seats that were integrated and equal in quality The Department does not read the ADA’s read- to those provided to the general public. Specific ily achievable standard to mean necessarily that guidance on assembly areas was desirable because architectural barrier removal is to be, or should they are found in many different types of places of be, a business’s last concern, or that a business public accommodation, ranging from opera houses can claim that every barrier removal obligation is (places of exhibition or entertainment) to private not readily achievable. Therefore, if a qualified university lecture halls (places of education), and small business safe harbor were to be premised on include assembly areas that range in size from net revenue, assertion of the affirmative defense small movie theaters of 100 or fewer seats to would trigger discovery and examination of the 100,000-seat sports stadiums. business’s accounting methods and the validity In the NPRM, the Department proposed to up- or necessity of offsetting expenses. The practical date § 36.308(a) by incorporating some of the ap- benefits and legal certainty intended by the NPRM plicable assembly area provisions from the 2010 would be lost. Standards. Upon further review, however, the De- Because there was little to no support for the partment has determined that the need to provide Department’s proposed use of gross revenue and special guidance for assembly areas in a separate no workable alternatives are available at this time, section no longer exists, except for specialty seat- the Department will not adopt a small business ing areas, as discussed below. Since enactment of safe harbor in this final rule. Small business public the ADA, the Department has interpreted the 1991 accommodations are subject to the barrier removal Standards as a guide for determining the existence requirements set out in § 36.304 of the final rule. of barriers. Courts have affirmed this interpreta- In addition, the Department plans to provide small tion. See, e.g., Colorado Cross Disability Coali- businesses with more detailed guidance on assess- tion v. Too, Inc., 344 F. Supp. 2d 707 (D. Colo. ing and meeting their barrier removal obligations 2004); Access Now, Inc. v. AMH CGH, Inc., 2001 in a small business compliance guide. WL 1005593 (S.D. Fla. 2001); Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999). Section 36.308 Seating in Assembly Areas The 2010 Standards now establish detailed guidance for newly constructed and altered assem- In the 1991 rule, § 36.308 covered seating bly areas, which is provided in § 36.406(f), and obligations for public accommodations in as- these Standards will serve as a new guide for bar- sembly areas. It was bifurcated into (a) existing rier removal. Accordingly, the former § 36.308(a) facilities and (b) new construction and alterations. has been replaced in the final rule. Assembly areas The new construction and alterations provision, will benefit from the same safe harbor provisions § 36.308(b), merely stated that assembly areas applicable to barrier removal in all places of pub- should be built or altered in accordance with the lic accommodations as provided in § 36.304(d)(2) applicable provisions in the 1991 Standards. Sec- of the final rule. tion 36.308(a), by contrast, provided detailed The Department has also decided to remove guidelines on what barrier removal was required. proposed § 36.308(c)(2) from the final rule. The Department explained in the preamble to This provision would have required assembly

148 - Guidance and Analysis Department of Justice 28 CFR Part 36 areas with more than 5,000 seats to provide five to locate wheelchair seating spaces and compan- wheelchair spaces with at least three designated ion seats in each specialty seating area within companion seats for each of those five wheelchair the assembly area. The Department has added spaces. The Department agrees with commenters language in the final rule stating that public ac- who asserted that group seating already is ad- commodations that cannot place wheelchair seat- dressed more appropriately in ticketing under § ing spaces and companion seats in each specialty 36.302(f). area because it is not readily achievable to do so The Department has determined that proposed may meet their obligation by providing specialty § 36.308(c)(1), addressing specialty seating in services or amenities to individuals with dis- assembly areas, should remain as § 36.308 in the abilities and their companions at other designated final rule with additional language. This paragraph accessible locations at no additional cost. For is designed to ensure that individuals with disabil- example, if a theater that only has barrier removal ities have an opportunity to access specialty seat- obligations provides wait service to spectators in ing areas that entitle spectators to distinct services the mezzanine, and it is not readily achievable or amenities not generally available to others. This to place accessible seating there, it may meet its provision is not, as several commenters mistak- obligation by providing wait service to patrons enly thought, designed to cover luxury boxes and with disabilities who use wheelchairs and their suites. Those areas have separate requirements companions at other designated accessible loca- outlined in section 221 of the 2010 Standards. tions at no additional cost. This provision does not Section 36.308 requires only that accessible obviate the obligation to comply with applicable seating be provided in each area with distinct ser- requirements for new construction and alterations, vices or amenities. To the extent a covered entity including dispersion of accessible seating. provides multiple seating areas with the same services and amenities, each of those areas would Section 36.309 Examinations and Courses not be distinct and thus all of them would not be required to be accessible. For example, if a facility Section 36.309(a) sets forth the general rule has similar dining service in two areas, both areas that any private entity that offers examinations or would not need to be made accessible; however, if courses relating to applications, licensing, certifi- one dining service area is open to families, while cation, or credentialing for secondary or postsec- the other is open only to individuals over the age ondary education, professional, or trade purposes of 21, both areas would need to be made acces- shall offer such examinations or courses in a place sible. Factors distinguishing specialty seating and manner accessible to persons with disabilities areas generally are dictated by the type of facility or offer alternative accessible arrangements for or event, but may include, for example, such dis- such individuals. In the NPRM preamble and pro- tinct services and amenities as access to wait staff posed regulatory amendment and in this final rule, for in-seat food or beverage service; availability the Department relied on its history of enforce- of catered food or beverages for pre-game, inter- ment efforts, research, and body of knowledge of mission, or post-game events; restricted access to testing and modifications, accommodations, and lounges with special amenities, such as couches or aids in detailing steps testing entities should take flat-screen televisions; or access to team personnel to ensure that persons with disabilities receive or facilities for team-sponsored events (e.g., auto- appropriate modifications, accommodations, or graph sessions, sideline passes, or facility tours) auxiliary aids in examination and course settings not otherwise available to other spectators. as required by the ADA. The Department received The NPRM required public accommodations comments from disability rights groups, organi-

Department of Justice Guidance and Analysis - 149 28 CFR Part 36 zations that administer tests, State governments, mentation requests ‘‘is not objectionable. Indeed, professional associations, and individuals on the it largely tracks DOJ’s long-standing informal language appearing in the NPRM preamble and guidance that ‘requests for documentation must be amended regulation and has carefully considered reasonable and limited to the need for the modi- these comments. fication or aid requested.’ ’’ Commenters includ- The Department initially set out the parameters ing disability rights groups, State governments, of appropriate documentation requests relating to professional associations, and individuals made examinations and courses covered by this section it clear that, in addition to the proposed regula- in the 1991 preamble at 28 CFR part 36, stating tory change, other significant problems remain that ‘‘requests for documentation must be reason- for individuals with disabilities who seek neces- able and must be limited to the need for the modi- sary modifications to examinations and courses. fication or aid requested.’’ See 28 CFR part 36, These problems include detailed questions about app. B at 735 (2009). Since that time, the Depart- the nature of documentation materials submit- ment, through its enforcement efforts pursuant to ted by candidates, testing entities’ questioning of section 309, has addressed concerns that requests documentation provided by qualified professionals by testing entities for documentation regarding the with expertise in the particular disability at issue, existence of an individual’s disability and need and lack of timeliness in determining whether to for a modification or auxiliary aid or service were provide requested accommodations or modifica- often inappropriate and burdensome. The Depart- tions. Several commenters expressed enthusiasm ment proposed language stating that while it may for the preamble language addressing some of be appropriate for a testing entity to request that these issues, and some of these commenters rec- an applicant provide documentation supporting ommended the incorporation of portions of this the existence of a disability and the need for a preamble language into the regulatory text. Some modification, accommodation, or auxiliary aid or testing entities expressed concerns and uncertainty service, the request by the testing entity for such about the language in the preamble and sought documentation must be reasonable and limited. clarifications about its meaning. These comment- The NPRM proposed that testing entities should ers focused most of their attention on the follow- narrowly tailor requests for documentation, limit- ing language from the NPRM preamble: ing those requests to materials that will allow the Generally, a testing entity should accept with- testing entities to ascertain the nature of the dis- out further inquiry documentation provided by a ability and the individual’s need for the requested qualified professional who has made an individu- modification, accommodation, or auxiliary aid alized assessment of the applicant. Appropriate or service. This proposal codified the 1991 rule’s documentation may include a letter from a quali- preamble language regarding testing entities’ fied professional or evidence of a prior diagno- requests for information supporting applicants’ sis, or accommodation, or classification, such as requests for testing modifications or accommoda- eligibility for a special education program. When tions. an applicant’s documentation is recent and dem- Overall, most commenters supported this addi- onstrates a consistent history of a diagnosis, there tion to the regulation. These commenters gener- is no need for further inquiry into the nature of ally agreed that documentation sought by testing the disability. A testing entity should consider an entities to support requests for modifications and applicant’s past use of a particular auxiliary aid or testing accommodations should be reasonable and service. 73 FR 34508, 34539 (June 17, 2008). tailored. Commenters noted, for example, that the Professional organizations, State governments, proposal to require reasonable and tailored docu- individuals, and disability rights groups fully sup-

150 - Guidance and Analysis Department of Justice 28 CFR Part 36 ported the Department’s preamble language and results by falsely claiming or feigning disabilities recommended further modification of the regula- as an improper means of seeking advantage on an tions to encompass the issues raised in the pre- examination. Several testing entities raised con- amble. A disability rights group recommended that cerns about and sought clarification regarding the the Department incorporate the preamble language Department’s use of certain terms and concepts into the regulations to ensure that ‘‘documentation in the preamble, including ‘‘without further in- demands are strictly limited in scope and met per quiry,’’ ‘‘appropriate documentation,’’ ‘‘qualified se when documentation of previously provided professional,’’ ‘‘individualized assessment,’’ and accommodations or aids is provided.’’ One pro- ‘‘consider.’’ These entities discussed the preamble fessional education organization noted that many language at length, noting that testing entities testing corporations disregard the documented need to be able to question some aspects of test- diagnoses of qualified professionals, and instead ing applicants’ documentation or to request further substitute their own, often unqualified diagno- documentation from some candidates when the ses of individuals with disabilities. Commenters initial documentation is unclear or incomplete. confirmed that testing entities sometimes ask for One testing entity expressed concern that the De- unreasonable information that is either impossible, partment’s preamble language would require the or extremely onerous, to provide. A disability acceptance of a brief note on a doctor’s prescrip- rights organization supported the Department’s tion pad as adequate documentation of a disability proposals and noted that private testing companies and the need for an accommodation. One medical impose burdensome documentation requirements examination organization stated that the Depart- upon applicants with disabilities seeking accom- ment’s preamble language would result in persons modations and that complying with the docu- without disabilities receiving accommodations and mentation requests is frequently so difficult, and passing examinations as part of a broad expan- negotiations over the requests so prolonged, that sion of unwarranted accommodations, potentially test applicants ultimately forgo taking the test. An- endangering the health and welfare of the general other disability rights group urged the Department public. Another medical board ‘‘strenuously ob- to ‘‘expand the final regulatory language to ensure jected’’ to the ‘‘without further inquiry’’ language. that regulations accurately provide guidance and Several of the testing entities expressed concern support the comments made about reducing the that the Department’s preamble language might burden of documenting the diagnosis and exis- require testing companies to accept documentation tence of a disability.’’ from persons with temporary or questionable dis- Testing entities, although generally supportive abilities, making test scores less reliable, harming of the proposed regulatory amendment, expressed persons with legitimate entitlements, and resulting concern regarding the Department’s proposed pre- in additional expense for testing companies to ac- amble language. The testing entities provided the commodate more test takers. Department with lengthy comments in which they It remains the Department’s view that, when suggested that the Department’s rationale delin- testing entities receive documentation provided by eated in the preamble potentially could limit them a qualified professional who has made an individ- from gathering meaningful and necessary docu- ualized assessment of an applicant that supports mentation to determine whether, in any given cir- the need for the modification, accommodation, cumstance, a disability is presented, whether mod- or aid requested, they shall generally accept such ifications are warranted, and which modifications documentation and provide the accommodation. would be most appropriate. Some testing entities Several commenters sought clarifications on raised concerns about individuals skewing testing what types of documentation are acceptable to

Department of Justice Guidance and Analysis - 151 28 CFR Part 36 demonstrate the existence of a disability and the fessional’s relationship with the candidate and the need for a requested modification, accommoda- specific content of the communication, as well as tion, or aid. The Department believes that appro- how the letter fits in with the totality of the other priate documentation may vary depending on the factors used to determine testing accommodations nature of the disability and the specific modifica- under this rule. Similarly, an applicant’s failure to tion or aid requested, and accordingly, testing enti- provide results from a specific test or evaluation ties should consider a variety of types of informa- instrument should not of itself preclude approval tion submitted. Examples of types of information of requests for modifications, accommodations, to consider include recommendations of qualified or aids if the documentation provided by the ap- professionals familiar with the individual, results plicant, in its entirety, is sufficient to demonstrate of psycho-educational or other professional evalu- that the individual has a disability and requires a ations, an applicant’s history of diagnosis, partici- requested modification, accommodation, or aid on pation in a special education program, observa- the relevant examination. This issue is discussed tions by educators, or the applicant’s past use of in more detail below. testing accommodations. If an applicant has been One disability rights organization noted that granted accommodations post-high school by a requiring a 25-year old who was diagnosed in standardized testing agency, there is no need for junior high school with a learning disability and reassessment for a subsequent examination. accommodated ever since ‘‘to produce elementary Some commenters expressed concern regard- school report cards to demonstrate symptomology ing the use of the term ‘‘letter’’ in the proposed before the age of seven is unduly burdensome.’’ preamble sentence regarding appropriate docu- The same organization commented that requir- mentation. The NPRM preamble language stated ing an individual with a long and early history of that ‘‘[a]ppropriate documentation may include a disability to be assessed within three years of tak- letter from a qualified professional or evidence of ing the test in question is similarly burdensome, a prior diagnosis, accommodation, or classifica- stating that ‘‘[t]here is no scientific evidence that tion, such as eligibility for a special education learning disabilities abate with time, nor that At- program.’’ 73 FR 34508, 34539 (June 17, 2008). tention Deficits abate with time * * *.’’ This or- Some testing entities posited that the preamble ganization noted that there is no justification for language would require them to accept a brief let- repeatedly subjecting people to expensive testing ter from a doctor or even a doctor’s note on a pre- regimens simply to satisfy a disbelieving indus- scription pad indicating ‘‘I’ve been treating (stu- try. This is particularly true for adults with, for dent) for ADHD and he/she is entitled to extend example, learning disabilities such as dyslexia, a time on the ACT.’’ The Department’s reference in persistent condition without the need for retesting the NPRM preamble to letters from physicians or once the diagnosis has been established and ac- other professionals was provided in order to offer cepted by a standardized testing agency. examples of some types of acceptable documen- Some commenters from testing entities sought tation that may be considered by testing entities clarification regarding who may be considered a in evaluating the existence of an applicant’s dis- ‘‘qualified professional.’’ Qualified professionals ability and the need for a certain modification, are licensed or otherwise properly credentialed accommodation, or aid. No one piece of evidence and possess expertise in the disability for which may be dispositive in make a testing accommoda- modifications or accommodations are sought. For tion determination. The significance of a letter example, a podiatrist would not be considered to or other communication from a doctor or other be a qualified professional to diagnose a learning qualified professional would depend on the pro- disability or support a request for testing accom-

152 - Guidance and Analysis Department of Justice 28 CFR Part 36 modations on that basis. Types of professionals question, should not be subjected to unreasonably who might possess the appropriate credentials and burdensome requests for additional documenta- expertise are doctors (including psychiatrists), tion. While some testing commenters objected to psychologists, nurses, physical therapists, occu- this standard, it reflects the Department’s long- pational therapists, speech therapists, vocational standing position. When an applicant’s documen- rehabilitation specialists, school counselors, and tation demonstrates a consistent history of a diag- licensed mental health professionals. Additionally, nosis of a disability, and is prepared by a qualified while testing applicants should present documen- professional who has made an individualized tation from qualified professionals with expertise evaluation of the applicant, there is little need for in the pertinent field, it also is critical that testing further inquiry into the nature of the disability and entities that review documentation submitted by generally testing entities should grant the request- prospective examinees in support of requests for ed modification, accommodation, or aid. testing modifications or accommodations ensure After a careful review of the comments, the that their own reviews are conducted by qualified Department has decided to maintain the proposed professionals with similarly relevant expertise. regulatory language on the scope of appropriate Commenters also sought clarification of the documentation in § 36.309(b)(1)(iv). The Depart- term individualized assessment. The Depart- ment has also added new regulatory language at ment’s intention in using this term is to ensure § 36.309(b)(1)(v) that provides that testing entities that documentation provided on behalf of a test- shall give considerable weight to documentation ing candidate is not only provided by a qualified of past modifications, accommodations, or aux- professional, but also reflects that the qualified iliary aids or services received in similar testing professional has individually and personally situations as well as such modifications, accom- evaluated the candidate as opposed to simply con- modations, or related aids and services provided in sidering scores from a review of documents. This response to an Individualized Education Program is particularly important in the learning disabilities (IEP) provided under the Individuals with Dis- context, where proper diagnosis requires face-to- abilities Education Act (IDEA) or a plan providing face evaluation. Reports from experts who have services pursuant to section 504 of the Rehabilita- personal familiarity with the candidate should take tion Act of1973, as amended (often referred to as precedence over those from, for example, review- a Section 504 Plan). These additions to the regula- ers for testing agencies, who have never person- tion are necessary because the Department’s posi- ally met the candidate or conducted the requisite tion on the bounds of appropriate documentation assessments for diagnosis and treatment. contained in Appendix B, 28 CFR part 36, app. Some testing entities objected to the NPRM B (2009), has not been implemented consistently preamble’s use of the phrase ‘‘without further and fully by organizations that administer tests. inquiry.’’ The Department’s intention here is to The new regulatory language clarifies that an address the extent to which testing entities should applicant’s past use of a particular modification, accept documentation provided by an applicant accommodation, or auxiliary aid or service in a when the testing entity is determining the need similar testing setting or pursuant to an IEP or for modifications, accommodations, or auxiliary Section 504 Plan provides critical information aids or services. The Department’s view is that in determining those examination modifications applicants who submit appropriate documentation, that would be applicable in a given circumstance. e.g., documentation that is based on the careful The addition of this language and the appropriate individual consideration of the candidate by a pro- weight to be accorded it is seen as important by fessional with expertise relating to the disability in the Department because the types of accommoda-

Department of Justice Guidance and Analysis - 153 28 CFR Part 36 tions provided in both these circumstances are are not pursuant to an IEP or Section 504 Plan. typically granted in the context of individual con- Some testing entities sought clarification that sideration of a student’s needs by a team of quali- they should only be required to consider particular fied and experienced professionals. Even though use of past modifications, accommodations, auxil- these accommodations decisions form a common iary aids or services received by testing candidates sense and logical basis for testing entities to rely for prior testing and examination settings. These upon, they are often discounted and ignored by commenters noted that it would be unhelpful to testing entities. consider the classroom accommodations for a test- For example, considerable weight is warranted ing candidate, as those accommodations would when a student with a Section 504 Plan in place not typically apply in a standardized test setting. since middle school that includes the accommoda- The Department’s history of enforcement in this tions of extra time and a quiet room for testing is area has demonstrated that a recent history of past seeking these same accommodations from a test- accommodations is critical to an understanding of ing entity covered by section 309 of the Act. In the applicant’s disability and the appropriateness this example, a testing entity receiving such docu- of testing accommodations. mentation should clearly grant the request for ac- The Department also incorporates the NPRM commodations. A history of test accommodations preamble’s ‘‘timely manner’’ concept into the in secondary schools or in post-secondary institu- new regulatory language at § 36.309(b)(1)(vi). tions, particularly when determined through the Under this provision, testing entities are required rigors of a process required and detailed by Feder- to respond in a timely manner to requests for al law, is as useful and instructive for determining testing accommodations in order to ensure equal whether a specific accommodation is required as opportunity for persons with disabilities. Testing accommodations provided in standardized testing entities are to ensure that their established process situations. for securing testing accommodations provides ap- It is important to note, however, that the inclu- plicants with a reasonable opportunity to supple- sion of this weight does not suggest that individu- ment the testing entities’ requests for additional als without IEPs or Section 504 Plans are not also information, if necessary, and still be able to take entitled to receive testing accommodations. In- the test in the same testing cycle. A disability deed, it is recommended that testing entities must rights organization commented that testing entities consider the entirety of an applicant’s history to should not subject applicants to unreasonable and determine whether that history, even without the intrusive requests for information in a process that context of a IEP or Section 504 Plan, indicates a should provide persons with disabilities effective need for accommodations. In addition, many stu- modifications in a timely manner, fulfilling the dents with learning disabilities have made use of core objective of title III to provide equal access. informal, but effective accommodations. For ex- Echoing this perspective, several disability rights ample, such students often receive undocumented organizations and a State government commenter accommodations such as time to complete tests urged that testing entities should not make unrea- after school or at lunchtime, or being graded on sonably burdensome demands for documentation, content and not form or spelling of written work. particularly where those demands create impedi- Finally, testing entities shall also consider that be- ments to receiving accommodations in a timely cause private schools are not subject to the IDEA, manner. Access to examinations should be offered students at private schools may have a history of to persons with disabilities in as timely a manner receiving accommodations in similar settings that as it is offered to persons without disabilities. Fail- ure by a testing entity to act in a timely manner,

154 - Guidance and Analysis Department of Justice 28 CFR Part 36 coupled with seeking unnecessary documenta- devices. The NPRM version of § 36.311(b) pro- tion, could result in such an extended delay that it vided that a public accommodation ‘‘shall make constitutes a denial of equal opportunity or equal reasonable modifications in its policies, practices, treatment in an examination setting for persons and procedures to permit the use of other power- with disabilities. driven mobility devices by individuals with dis- abilities, unless the public accommodation can Section 36.311 Mobility Devices demonstrate that the use of the device is not rea- sonable or that its use will result in a fundamental Section 36.311 of the NPRM clarified the scope alteration in the nature of the public accommoda- and circumstances under which covered enti- tion’s goods, services, facilities, privileges, advan- ties are legally obligated to accommodate vari- tages, or accommodations.’’ 73 FR 34508, 34556 ous ‘‘mobility devices.’’ Section 36.311 set forth (June 17, 2008). In other words, public accom- specific requirements for the accommodation of modations are by default required to permit the mobility devices, including wheelchairs, manual- use of other power-driven mobility devices; the ly-powered mobility aids, and other power-driven burden is on them to prove the existence of a valid mobility devices. exception. Most commenters supported the notion In both the NPRM and the final rule, § of assessing whether the use of a particular device 36.311(a) states the general rule that in any areas is reasonable in the context of a particular venue. open to pedestrians, public accommodations shall Commenters, however, disagreed about the mean- permit individuals with mobility disabilities to use ing of the word ‘‘reasonable’’ as it is used in § wheelchairs and manually-powered mobility aids, 36.311(b) of the NPRM. Virtually every business including walkers, crutches, canes, braces, or sim- and industry commenter took the use of the word ilar devices. Because mobility scooters satisfy the ‘‘reasonable’’ to mean that a general reasonable- definition of ‘‘wheelchair’’ (i.e., ‘‘a manually-op- ness standard would be applied in making such erated or power-driven device designed primarily an assessment. Advocacy and nonprofit groups for use by an individual with a mobility disability almost universally objected to the use of a general for the main purpose of indoor, or of both indoor reasonableness standard with regard to the assess- and outdoor locomotion’’), the reference to them ment of whether a particular device should be al- in § 36.311(a) of the final rule has been omitted to lowed at a particular venue. They argued that the avoid redundancy. assessment should be based on whether reasonable Most business commenters expressed concern modifications could be made to allow a particular that permitting the use of other power-driven mo- device at a particular venue, and that the only fac- bility devices by individuals with mobility disabil- tors that should be part of the calculus that results ities would make such devices akin to wheelchairs in the exclusion of a particular device are undue and would require them to make physical changes burden, direct threat, and fundamental alteration. to their facilities to accommodate their use. This A few commenters opposed the proposed provi- concern is misplaced. If a facility complies with sion requiring public accommodations to assess the applicable design requirements in the 1991 whether reasonable modifications can be made Standards or the 2010 Standards, the public ac- to allow other power-driven mobility devices, commodation will not be required to exceed those preferring instead that the Department issue guid- standards to accommodate the use of wheelchairs ance materials so that public accommodations or other power-driven mobility devices that ex- would not have to incur the cost of such analyses. ceed those requirements. Another commenter noted a ‘‘fox guarding the Legal standard for other power-driven mobility hen house’’-type of concern with regard to public

Department of Justice Guidance and Analysis - 155 28 CFR Part 36 accommodations developing and enforcing their mobility device in a specific facility is reasonable. own modification policy. In response to comments Thus, the focus of the analysis must be on the ap- received, the Department has revised § 36.311(b) propriateness of the use of the device at a specific to provide greater clarity regarding the develop- facility, rather than whether it is necessary for an ment of legitimate safety requirements regarding individual to use a particular device. other power-driven mobility devices. The Depart- The NPRM proposed the following specific as- ment has not retained the proposed NPRM lan- sessment factors: (1) The dimensions, weight, and guage stating that an other power-driven mobility operating speed of the mobility device in relation device can be excluded if a public accommodation to a wheelchair; (2) the potential risk of harm to can demonstrate that the use of the device is not others by the operation of the mobility device; (3) reasonable or that its use fundamentally alters the the risk of harm to the environment or natural or nature of the goods, services, facilities, privileges, cultural resources or conflict with Federal land advantages, or accommodations offered by the management laws and regulations; and (4) the public accommodation because the Department ability of the public accommodation to stow the believes that these exceptions are covered by the mobility device when not in use, if requested by general reasonable modification requirement con- the user. tained in § 36.302. Factor 1 was designed to help public accommo- Assessment factors. Section 36.311(c) of the dations assess whether a particular device was ap- NPRM required public accommodations to ‘‘es- propriate, given its particular physical features, for tablish policies to permit the use of other power- a particular location. Virtually all commenters said driven mobility devices’’ and articulated four the physical features of the device affected their factors upon which public accommodations must view of whether a particular device was appropri- base decisions as to whether a modification is rea- ate for a particular location. For example, while sonable to allow the use of a class of other power- many commenters supported the use of an other driven mobility devices by individuals with dis- power-driven mobility device if the device were a abilities in specific venues (e.g., doctors’ offices, Segway® PT, because of environmental and health parks, commercial buildings, etc.). 73 FR 34508, concerns they did not offer the same level of sup- 34556 (June 17, 2008). port if the device were an off-highway vehicle, The Department has relocated and modified the all-terrain vehicle (ATV), golf car, or other device NPRM text that appeared in § 36.311(c) to new with a fuel-powered or combustion engine. Most paragraph § 36.311(b)(2) to clarify what factors commenters noted that indicators such as speed, the public accommodation shall use in determin- weight, and dimension really were an assessment ing whether a particular other power-driven mo- of the appropriateness of a particular device in bility device can be allowed in a specific facility specific venues and suggested that factor 1 say as a reasonable modification. Section 36.311(b) this more specifically. (2) now states that ‘‘[i]n determining whether a The term ‘‘in relation to a wheelchair’’ in the particular other power-driven mobility device can NPRM’s factor 1 apparently created some concern be allowed in a specific facility as a reasonable that the same legal standards that apply to wheel- modification under (b)(1), a public accommoda- chairs would be applied to other power-driven tion shall consider’’ certain enumerated factors. mobility devices. The Department has omitted The assessment factors are designed to assist pub- the term ‘‘in relation to a wheelchair’’ from § lic accommodations in determining whether al- 36.311(b)(2)(i) to clarify that if a facility that is in lowing the use of a particular other power-driven compliance with the applicable provisions of the 1991 Standards or the 2010 Standards grants per-

156 - Guidance and Analysis Department of Justice 28 CFR Part 36 mission for an other power-driven mobility device to create a new standard and has changed the lan- to go on-site, it is not required to exceed those guage in paragraphs (b)(1) and (b)(2) to clarify the standards to accommodate the use of other power- applicable standards, thereby avoiding the intro- driven mobility devices. In response to requests duction of new assessments of risk beyond those that NPRM factor 1 state more specifically that it necessary for the safe operation of the public ac- requires an assessment of an other power-driven commodation. mobility device’s appropriateness under particular While all applicable affirmative defenses are circumstances or in particular venues, the Depart- available to public accommodations in the estab- ment has added several factors and more specific lishment and execution of their policies regarding language. In addition, although the NPRM made other power-driven mobility devices, the Depart- reference to the operation of other power-driven ment did not explicitly incorporate the direct mobility devices in ‘‘specific venues,’’ the Depart- threat defense into the assessment factors because ment’s intent is captured more clearly by referenc- § 36.301(b) provides public accommodations ing ‘‘specific facility’’ in paragraph (b)(2). The the appropriate framework with which to assess Department also notes that while speed is included whether legitimate safety requirements that may in factor 1, public accommodations should not preclude the use of certain other power-driven rely solely on a device’s top speed when assessing mobility devices are necessary for the safe opera- whether the device can be accommodated; instead, tion of the public accommodation. In order to be public accommodations should also consider the legitimate, the safety requirement must be based minimum speeds at which a device can be oper- on actual risks and not mere speculation regarding ated and whether the development of speed limit the device or how it will be operated. Of course, policies can be established to address concerns public accommodations may enforce legitimate regarding the speed of the device. Finally, since safety rules established for the operation of other- the ability of the public accommodation to stow power driven mobility devices (e.g., reasonable the mobility device when not in use is an aspect of speed restrictions). Finally, NPRM factor 3 con- its design and operational characteristics, the text cerning environmental resources and conflicts of proposed as factor 4 in the NPRM has been incor- law has been relocated to paragraph (b)(2)(v). porated in paragraph (b)(2)(iii). As a result of these comments and requests, The NPRM’s version of factor 2 provided NPRM factors 1, 2, 3, and 4 have been revised that the ‘‘potential risk of harm to others by the and renumbered within paragraph 36.311(b)(2) in operation of the mobility device’’ is one of the the final rule. determinants in the assessment of whether other Several commenters requested that the Depart- power-driven mobility devices should be excluded ment provide guidance materials or more explicit from a site. With this language, the Department concepts of which considerations might be appro- intended to incorporate the safety standard found priate for inclusion in a policy that allows the use in § 36.301(b), which provides that public ac- of other power-driven mobility devices. A public commodations may ‘‘impose legitimate safety accommodation that has determined that reason- requirements that are necessary for safe opera- able modifications can be made in its policies, tion’’ into the assessment. However, several com- practices, or procedures to allow the use of other menters indicated that they read this language, power-driven mobility devices should develop a particularly the phrase ‘potential risk of harm’’ to policy that clearly states the circumstances under mean that the Department had adopted a concept which the use of other power-driven mobility de- of risk analysis different from that which is in the vices by individuals with a mobility disability will existing standards. The Department did not intend be permitted. It also should include clear, concise

Department of Justice Guidance and Analysis - 157 28 CFR Part 36 statements of specific rules governing the opera- der which the use of the other power-driven mo- tion of such devices. Finally, the public accom- bility devices is or will be restricted or prohibited; modation should endeavor to provide individuals safety, pedestrian, and other rules concerning the with disabilities who use other power-driven mo- use of the other power-driven mobility devices; bility devices with advanced notice of its policy whether, and under which circumstances, storage regarding the use of such devices and what rules for the other power-driven mobility devices will apply to the operation of these devices. be made available; and how and where individuals For example, the U.S. General Services Admin- with a mobility disability can obtain a copy of the istration (GSA) has developed a policy allowing other power-driven mobility device policy. the use of the Segway® PT and other EPAMDs in Public accommodations also might consider all Federal buildings under GSA’s jurisdiction. See grouping other power-driven mobility devices by General Services Administration, Interim Segway® type (e.g., EPAMDs, golf cars, gasoline-powered Personal Transporter Policy (Dec. 3, 2007), avail- vehicles, and other devices). For example, an able at http://www.gsa.gov/graphics/pbs/Inter- amusement park may determine that it is reason- im_Segway_Policy_121007.pdf (last visited June able to allow individuals with disabilities to use 24, 2010). The GSA policy defines the policy’s EPAMDs in a variety of outdoor programs and scope of coverage by setting out what devices are activities, but that it would not be reasonable to and are not covered by the policy. The policy also allow the use of golf cars as mobility devices in sets out requirements for safe operation, such as a similar circumstances. At the same time, the entity speed limit, prohibits the use of EPAMDs on es- may address its concerns about factors such as calators, and provides guidance regarding security space limitations by disallowing use of EPAMDs screening of these devices and their operators. by members of the general public who do not have A public accommodation that determines that it mobility disabilities. can make reasonable modifications to permit the The Department anticipates that in many cir- use of an other power-driven mobility device by cumstances, public accommodations will be able an individual with a mobility disability might in- to develop policies that will allow the use of other clude in its policy the procedure by which claims power-driven mobility devices by individuals with that the other power-driven mobility device is be- mobility disabilities without resulting in a fun- ing used for a mobility disability will be assessed damental alteration of a public accommodation’s for legitimacy (i.e., a credible assurance that the goods, services, facilities, privileges, advantages, device is being used for a mobility disability, in- or accommodations. Consider the following ex- cluding a verbal representation by the person with amples: a disability that is not contradicted by observable Example 1: Although individuals who do not fact, or the presentation of a disability parking have mobility disabilities are prohibited from space placard or card, or State-issued proof of dis- operating EPAMDs at a theme park, the park has ability); the type or classes of other power-driven developed a policy allowing individuals with mo- mobility devices are permitted to be used by indi- bility disabilities to use EPAMDs as their mobility viduals with mobility disabilities; the size, weight, device at the park. The policy states that EPAMDs and dimensions of the other power-driven mobili- are allowed in all areas of the theme park that ty devices that are permitted to be used by individ- are open to pedestrians as a reasonable modifica- uals with mobility disabilities; the speed limit for tion to its general policy on EPAMDs. The public the other power-driven mobility devices that are accommodation has determined that the facility permitted to be used by individuals with mobility provides adequate space for a taller device, such disabilities; the places, times, or circumstances un- as an EPAMD, and that it does not fundamentally

158 - Guidance and Analysis Department of Justice 28 CFR Part 36 alter the nature of the theme park’s goods and 73 FR 34508, 34556 (June 17, 2008). services. The theme park’s policies do, however, While business commenters did not take issue require that EPAMDs be operated at a safe speed with applying this standard to individuals who limit. A theme park employee may inquire at the use wheelchairs, they were not satisfied with the ticket gate whether the device is needed due to the application of this standard to other power-driven user’s disability or may request the presentation mobility devices. Business commenters expressed of a valid, State-issued, disability parking placard concern about people feigning mobility disabili- (though presentation of such a placard is not nec- ties to be able to use other power-driven mobility essary), or other State-issued proof of disability or devices in public accommodations in which their a credible assurance that the use of the EPAMD is use is otherwise restricted. These commenters for the individual’s mobility disability. The park felt that a mere inquiry into whether the device is employee also may inform an individual with a being used for a mobility disability was an insuf- disability using an EPAMD that the theme park’s ficient mechanism by which to detect fraud by policy requires that it be operated at or below the other power-driven mobility device users who do park’s designated speed limit. not have mobility disabilities. These commenters Example 2: A shopping mall has developed a believed they should be given more latitude to policy whereby EPAMDs may be operated by make inquiries of other power-driven mobility de- individuals with mobility disabilities in the com- vice users claiming a mobility disability than they mon pedestrian areas of the mall if the operator would be given for wheelchair users. They sought of the device agrees to the following: to operate the ability to establish a policy or method by the device no faster than the speed limit set by which public accommodations may assess the le- the policy; to use the elevator, not the escalator, gitimacy of the mobility disability. They suggested to transport the EPAMD to different levels; to some form of certification, sticker, or other desig- yield to pedestrian traffic; not to leave the device nation. One commenter suggested a requirement unattended unless it can stand upright and has a that a sticker bearing the international symbol for locking system; to refrain from using the device accessibility be placed on the device or that some temporarily if the mall manager determines that other identification be required to signal that the the volume of pedestrian traffic is such that the use of the device is for a mobility disability. Other operation of the device would interfere with le- suggestions included displaying a disability park- gitimate safety requirements; and to present the ing placard on the device or issuing EPAMDs, like mall management office with a valid, State-issued, the Segway® PT, a permit that would be similar to disability parking placard (though presentation of permits associated with parking spaces reserved such a placard is not necessary), or State-issued for those with disabilities. proof of disability, as a credible assurance that the Advocacy, nonprofit, and several individual use of the EPAMD is for the individual’s mobility commenters balked at the notion of allowing any disability, upon entry to the mall. inquiry beyond whether the device is necessary Inquiry into the use of other power-driven for a mobility disability and encouraged the De- mobility device. Section 36.311(d) of the NPRM partment to retain the NPRM’s language on this provided that a ‘‘public accommodation may ask a topic. Other commenters, however, were empa- person using a power-driven mobility device if the thetic with commenters who had concerns about mobility device is required because of the person’s fraud. At least one Segway® PT advocate suggest- disability. A public accommodation shall not ask ed it would be permissible to seek documentation a person using a mobility device questions about of the mobility disability in the form of a simple the nature and extent of the person’s disability.’’

Department of Justice Guidance and Analysis - 159 28 CFR Part 36 sign or permit. issue disability parking placards or cards and be- The Department has sought to find common cause these programs have penalties for fraudulent ground by balancing the needs of businesses and representations of identity and disability, utilizing individuals with mobility disabilities wishing to the parking placard system as a means to establish use other power-driven mobility devices with the existence of a mobility disability strikes a bal- the Department’s longstanding, well-established ance between the need for privacy of the individu- policy of not allowing public accommodations or al and fraud protection for the public accommoda- establishments to require proof of a mobility dis- tion. Consequently, the Department has decided ability. There is no question that public accommo- to include regulatory text in § 36.311(c)(2) of the dations have a legitimate interest in ferreting out final rule that requires public accommodations fraudulent representations of mobility disabilities, to accept the presentation of a valid, State-issued especially given the recreational use of other pow- disability parking placard or card, or State-issued er-driven mobility devices and the potential safety proof of disability, as verification that an individu- concerns created by having too many such devices al uses the other power-driven mobility device for in a specific facility at one time. However, the his or her mobility disability. A ‘‘valid’’ disability privacy of individuals with mobility disabilities placard or card is one that is presented by the in- and respect for those individuals are also vitally dividual to whom it was issued and is otherwise important. in compliance with the State of issuance’s re- Neither § 36.311(d) of the NPRM nor quirements for disability placards or cards. Public § 36.311(c) of the final rule permits inquiries into accommodations are required to accept a valid, the nature of a person’s mobility disability. How- State-issued disability parking placard or card, ever, the Department does not believe it is unrea- or State-issued proof of disability, as a credible sonable or overly intrusive for an individual with a assurance, but they cannot demand or require the mobility disability seeking to use an other power- presentation of a valid disability placard or card, driven mobility device to provide a credible as- or State-issued proof of disability, as a prerequisite surance to verify that the use of the other power- for use of an other power-driven mobility device, driven mobility device is for a mobility disability. because not all persons with mobility disabilities The Department sought to minimize the amount of have such means of proof. If an individual with a discretion and subjectivity exercised by public ac- mobility disability does not have such a placard or commodations in assessing whether an individual card, or State-issued proof of disability, he or she has a mobility disability and to allow public ac- may present other information that would serve as commodations to verify the existence of a mobil- a credible assurance of the existence of a mobility ity disability. The solution was derived from com- disability. ments made by several individuals who said they In lieu of a valid, State-issued disability parking have been admitted with their Segway® PTs into placard or card, or State-issued proof of disability, public entities and public accommodations that a verbal representation, not contradicted by ob- ordinarily do not allow these devices onsite when servable fact, shall be accepted as a credible assur- they have presented or displayed State-issued dis- ance that the other power-driven mobility device ability parking placards. In the examples provided is being used because of a mobility disability. This by commenters, the parking placards were ac- does not mean, however, that a mobility disability cepted as verification that the Segway® PTs were must be observable as a condition for allowing the being used as mobility devices. use of an other power-driven mobility device by Because many individuals with mobility dis- an individual with a mobility disability, but rather abilities avail themselves of State programs that that if an individual represents that a device is be-

160 - Guidance and Analysis Department of Justice 28 CFR Part 36 ing used for a mobility disability and that individ- be able to use an ATV as an other power-driven ual is observed thereafter engaging in a physical mobility device in a mall or a restaurant if the mall activity that is contrary to the nature of the repre- or restaurant has adopted a policy banning their sented disability, the assurance given is no longer use for any or all of the above-mentioned reasons. credible and the individual may be prevented from However, an individual with a mobility disabil- using the device. ity who has complied with a public accommoda- Possession of a valid, State-issued disability tion’s stated policies cannot be refused use of the parking placard or card or a verbal assurance does other power-driven mobility device if he or she not trump a public accommodation’s valid restric- has provided a credible assurance that the use of tions on the use of other power-driven mobility the device is for a mobility disability. devices. Accordingly, a credible assurance that the other power-driven mobility device is being used Subpart D—New Construction and because of a mobility disability is not a guarantee Alterations of entry to a public accommodation because not- withstanding such a credible assurance, use of the Subpart D establishes the title I requirements device in a particular venue may be at odds with applicable to new construction and alterations. the legal standard in § 36.311(b)(1) or with one The Department has amended this subpart to or more of the § 36.311(b)(2) factors. Only after adopt the 2004 ADAAG, set forth the effective an individual with a disability has satisfied all of dates for implementation of the 2010 Standards, the public accommodation’s policies regarding the and make related revisions as described below. use of other power-driven mobility devices does a credible assurance become a factor in allowing the Section 36.403 Alterations: Path of Travel use of the device. For example, if an individual seeking to use an other power-driven mobility In the NPRM, the Department proposed one device fails to satisfy any of the public accom- change to Sec. 36.403 on alterations and path modation’s stated policies regarding the use of of travel by adding a path of travel safe harbor. other power-driven mobility devices, the fact that Proposed Sec. 36.403(a)(1) stated that if a private the individual legitimately possesses and presents entity has constructed or altered required elements a valid, State-issued disability parking placard or of a path of travel in accordance with the 1991 card, or State-issued proof of disability, does not Standards, the private entity is not required to ret- trump the policy and require the public accom- rofit such elements to reflect incremental changes modation to allow the use of the device. In fact, in in the 2010 Standards solely because of an altera- some instances, the presentation of a legitimately tion to a primary function area served by that path held placard or card, or State-issued proof of dis- of travel. ability, will have no relevance or bearing at all on A substantial number of commenters objected whether the other power-driven mobility device to the Department’s creation of a safe harbor for may be used, because the public accommodation’s alterations to required elements of a path of travel policy does not permit the device in question on- that comply with the current 1991 Standards. site under any circumstances (e.g., because its use These commenters argued that if a public accom- would create a substantial risk of serious harm to modation already is in the process of altering the immediate environment or natural or cultural its facility, there should be a legal requirement resources). Thus, an individual with a mobility that individuals with disabilities are entitled to disability who presents a valid disability placard increased accessibility provided by the 2004 or card, or State-issued proof of disability, will not ADAAG for path of travel work. These comment-

Department of Justice Guidance and Analysis - 161 28 CFR Part 36 ers also stated that they did not believe there was a altered area do not comply with the 1991 Stan- statutory basis for “grandfathering’’ facilities that dards, then the private entity must bring those ele- comply with the 1991 Standards. Another com- ments into compliance with the 2010 Standards. menter argued that the updates incorporated into the 2004 ADAAG provide very substantial im- Section 36.405 Alterations: Historic Preservation provements for access, and that since there already is a 20 percent cost limit on the amount that can In the 1991 rule, the Department provided guid- be expended on path of travel alterations, there is ance on making alterations to buildings or facili- no need for a further limitation. ties that are eligible for listing in the National Some commenters supported the safe harbor as Register of Historic Places under the National lessening the economic costs of implementing the Historic Preservation Act or that are designated 2004 ADAAG for existing facilities. One com- as historic under State or local law. That provi- menter also stated that without the safe harbor, sion referenced the 1991 Standards. Because those entities that already have complied with the 1991 cross-references to the 1991 Standards are no Standards will have to make and pay for compli- longer applicable, it is necessary in this final rule ance twice, as compared to those entities that to provide new regulatory text. No substantive made no effort to comply in the first place. Anoth- change in the Department’s approach in this area er commenter asked that the safe harbor be revised is intended by this revision. to include pre-ADA facilities that have been made Section 36.406 Standards for New Construction compliant with the 1991 Standards to the extent and Alterations “readily achievable’’ or, in the case of alterations, “ to the maximum extent feasible,’’ but that are Applicable standards. Section 306 of the ADA, not in full compliance with the 1991 Standards. 42 U.S.C. 12186, directs the Attorney General The final rule retains the safe harbor for re- to issue regulations to implement title III that quired elements of a path of travel to altered are consistent with the guidelines published by primary function areas for private entities that al- the Access Board. As described in greater detail ready have complied with the 1991 Standards with elsewhere in this Appendix, the Department is a respect to those required elements. As discussed statutory member of the Access Board and was with respect to Sec. 36.304, the Department be- involved significantly in the development of the lieves that this safe harbor strikes an appropriate 2004 ADAAG. Nonetheless, the Department has balance between ensuring that individuals with reviewed the standards and has determined that disabilities are provided access to buildings and additional regulatory provisions are necessary to facilities and mitigating potential financial bur- clarify how the Department will apply the 2010 dens on existing places of public accommodation Standards to places of lodging, social service that are undertaking alterations subject to the center establishments, housing at a place of educa- 2010 Standards. This safe harbor is not a blanket tion, assembly areas, and medical care facilities. exemption for facilities. If a private entity under- Those provisions are contained in Sec. 36.406(c)- takes an alteration to a primary function area, only (g). Each of these provisions is discussed below. the required elements of a path of travel to that Section 36.406(a) adopts the 2004 ADAAG area that already comply with the 1991 Standards as part of the 2010 Standards and establishes are subject to the safe harbor. If a private entity the compliance date and triggering events for undertakes an alteration to a primary function area the application of those standards to both new and the required elements of a path of travel to the construction and alterations. Appendix B of this final rule (Analysis and Commentary on the 2010

162 - Guidance and Analysis Department of Justice 28 CFR Part 36

ADA Standards for Accessible Design) provides on that date. See 42 U.S.C. 12131 note; 42 U.S.C. a description of the major changes in the 2010 12183(a)(2). For new construction under title III, Standards (as compared to the 1991 ADAAG) the requirements applied to facilities designed and a discussion of the public comments that the and constructed for first occupancy after January Department received on specific sections of the 26, 1993--18 months after the 1991 Standards 2004 ADAAG. A number of commenters asked were published by the Department. See 42 U.S.C. the Department to revise certain provisions in 12183(a)(1). the 2004 ADAAG in a manner that would reduce The Department received numerous comments either the required scoping or specific technical on the issue of effective date, many of them simi- accessibility requirements. As previously stated, lar to those received in response to the ANPRM. the ADA requires the Department to adopt stan- A substantial number of commenters advocated a dards consistent with the guidelines adopted by minimum of 18 months from publication of the fi- the Access Board. The Department will not adopt nal rule to the effective date for application of the any standards that provide less accessibility than standards to new construction, consistent with the is provided under the guidelines contained in the time period used for implementation of the 1991 2004 ADAAG because the guidelines adopted by Standards. Many of these commenters argued that the Access Board are “ minimum guidelines.’’ 42 the 18-month period was necessary to minimize U.S.C. 12186(c). the likelihood of having to redesign projects al- In the NPRM, the Department specifically pro- ready in the design and permitting stages at the posed amending Sec. 36.406(a) by dividing it into time that the final rule is published. According two sections. Proposed Sec. 36.406(a)(1) specified to these commenters, large projects take several that new construction and alterations subject to years from design to occupancy, and can be sub- this part shall comply with the 1991 Standards if ject to delays from obtaining zoning, site approv- physical construction of the property commences al, third-party design approval (i.e., architectural less than six months after the effective date of the review), and governmental permits. To the extent rule. Proposed Sec. 36.406(a)(2) specified that the new standards necessitate changes in any pre- new construction and alterations subject to this vious submissions or permits already issued, busi- part shall comply with the proposed standards if nesses might have to expend significant funds and physical construction of the property commences incur delays due to redesign and resubmission. six months or more after the effective date of the Some commenters also expressed concern that rule. The Department also proposed deleting the a six-month period would be hard to implement advisory information now published in a table at given that many renovations are planned around Sec. 36.406(b). retail selling periods, holidays, and other seasonal Compliance date. When the ADA was enacted, concerns. For example, hotels plan renovations the compliance dates for various provisions were during their slow periods, retail establishments delayed in order to provide time for covered enti- avoid renovations during the major holiday sell- ties to become familiar with their new obligations. ing periods, and businesses in certain parts of the Titles II and III of the ADA generally became ef- country cannot do any major construction during fective on January 26, 1992, six months after the parts of the winter. regulations were published. See 42 U.S.C. 12131 Some commenters argued that chain establish- note; 42 U.S.C. 12181 note. New construction ments need additional time to redesign their “mas- under title II and alterations under either title II or ter facility’’ designs for replication at multiple title III had to comply with the design standards locations, taking into account both the new stan- dards and applicable State and local accessibility

Department of Justice Guidance and Analysis - 163 28 CFR Part 36 requirements. partment should adopt a two-year effective date Other commenters argued for extending the ef- for new construction. In addition to many of the fective date from six months to a minimum of 12 arguments made by commenters in support of an months for many of the same reasons, and one 18-month effective date, these commenters also commenter argued that there should be a tolling argued that a two-year time frame would allow of the effective date for those businesses that are States with DOJ-certified building codes to have in the midst of the permitting process if the neces- the time to amend their codes to meet the 2004 sary permits are delayed due to legal challenges or ADAAG so that design professionals can work other circumstances outside the business’s control. from compatible codes and standards. Several commenters took issue with the Depart- Several commenters recommended treating ment’s characterization of the 2004 ADAAG and alterations differently than new construction, the 1991 Standards as two similar rules. These arguing for a one-year effective date for altera- commenters argued that many provisions in the tions. Another commenter representing building 2004 ADAAG represent a “substantial and signifi- officials argued that a minimum of a six-month cant’’ departure from the 1991 Standards and that phase-in for alterations was sufficient, since a very it will take a great deal of time and money to iden- large percentage of alteration projects “are of a tify all the changes and implement them. In par- scale that they should be able to accommodate the ticular, they were concerned that small businesses phase-in.’’ lacked the internal resources to respond quickly to In contrast, many commenters argued that the the new changes and that they would have to hire proposed six-month effective date should be re- outside experts to assist them. One commenter tained in the final rule. expressed concern that regardless of familiarity The Department has been persuaded by con- with the 2004 ADAAG, since the 2004 ADAAG cerns raised by some of the commenters that the standards are organized in an entirely different six month compliance date proposed in the NPRM manner from the 1991 Standards, and contain, in for application of the 2010 Standards may be too the commenter’s view, extensive changes, it will short for certain projects that are already in the make the shift from the old to the new standards midst of the design and permitting process. The quite complicated. Department has determined that for new construc- Several commenters also took issue with the tion and alterations, compliance with the 2010 Department’s proffered rationale that by adopt- Standards will not be required until 18 months ing a six-month effective date, the Department from the date the final rule is published. This is was following the precedent of other Federal consistent with the amount of time given when the agencies that have adopted the 2004 ADAAG for 1991 regulation was published. Since many State facilities whose accessibility they regulate. These and local building codes contain provisions that commenters argued that the Department’s title III are consistent with 2004 ADAAG, the Depart- regulation applies to a much broader range and ment has decided that public accommodations number of facilities and programs than the other that choose to comply with the 2010 Standards Federal agencies (i.e., Department of Transporta- as defined in Sec. 36.104 before the compliance tion and the General Services Administration) and date will still be considered in compliance with that those agencies regulate accessibility primarily the ADA. However, public accommodations that in either governmental facilities or facilities oper- choose to comply with the 2010 Standards in lieu ated by quasi-governmental authorities. of the 1991 Standards prior to the compliance date Several commenters representing the travel, described in this rule must choose one or the other vacation, and golf industries argued that the De-

164 - Guidance and Analysis Department of Justice 28 CFR Part 36 standard, and may not rely on some of the require- Some commenters expressed concern that using ments contained in one standard and some of the the date of “ start of construction’’ was problemat- requirements contained in the other standard. ic because the date can be affected by factors that Triggering event. In the NPRM, the Department are outside the control of the owner. For example, proposed using the start of physical construction an owner can plan construction to start before the as the triggering event for applying the proposed new standards take effect and therefore use the standards to new construction under title III. This 1991 Standards in the design. If permits are not triggering event parallels that for the alterations issued in a timely manner, then the construction provisions (i.e., the date on which construction be- could be delayed until after the effective date, gins), and would apply clearly across all types of and then the project would have to be redesigned. covered public accommodations. The Department This problem would be avoided if the permit ap- also proposed that for prefabricated elements, plication date was the triggering event. Two com- such as modular buildings and amusement park menters expressed concern that the term “start of rides and attractions, or installed equipment, such construction’’ is ambiguous, because it is unclear as ATMs, the start of construction means the date whether start of construction means the razing of on which the site preparation begins. Site prepara- structures on the site to make way for a new facil- tion includes providing an accessible route to the ity or means site preparation, such as regrading or element. laying the foundation. The Department’s NPRM sought public com- One commenter recommended using the “sign- ment on how to define the start of construction ing date of a construction contract,’’ and an ad- and the practicality of applying commencement of ditional commenter recommended that the new construction as a triggering event. The Department standards apply only to “buildings permitted after also requested input on whether the proposed defi- the effective date of the regulations.’’ nition of the start of construction was sufficiently One commenter stated that for facilities that fall clear and inclusive of different types of facilities. outside the building permit requirements (ATMs, The Department also sought input about facilities prefabricated saunas, small sheds), the triggering subject to title III for which commencement of event should be the date of installation, rather than construction would be ambiguous or problematic. the date the space for the facility is constructed. The Department received numerous comments The Department is persuaded by the comments recommending that the Department adopt a two- to adopt a two-pronged approach to defining the pronged approach to defining the triggering event. triggering event for new construction and al- In those cases where permits are required, the terations. The final rule states that in those cases Department should use “date of permit applica- where permits are required, the triggering event tion’’ as the effective date triggering event, and if shall be the date when the last application for a no permit is required, the Department should use building permit application or permit extension “start of construction.’’ A number of these com- is certified to be complete by a State, county, or menters argued that the date of permit application local government, or in those jurisdictions where is appropriate because the applicant would have the government does not certify completion of ap- to consider the applicable State and Federal acces- plications, the date when the last application for a sibility standards in order to submit the designs building permit or permit extension is received by usually required with the application. Moreover, the State, county, or local government. If no per- the date of permit application is a typical trigger- mits are required, then the triggering event shall ing event in other code contexts, such as when be the “start of physical construction or altera- jurisdictions introduce an updated building code. tions.’’ The Department has also added clarifying

Department of Justice Guidance and Analysis - 165 28 CFR Part 36 language related to the term “start of physical con- or altered after the effective date of the applicable struction or alterations’’ to make it clear that “start ADA requirements and before March 15, 2012 of physical construction or alterations’’ is not shall, before March 15, 2012, be made accessible intended to mean the date of ceremonial ground- in accordance with either the 1991 Standards or breaking or the date a structure is razed to make it the 2010 Standards. Noncomplying new construc- possible for construction of a facility to take place. tion and alterations constructed or altered after the Amusement rides. Section 234 of the 2010 Stan- effective date of the applicable ADA requirements dards provides accessibility guidelines for newly and before March 15, 2012, shall, on or after designed and constructed amusement rides. The March 15, 2012, be made accessible in accordance amusement ride provisions do not provide a “trig- with the 2010 Standards. gering event’’ for new construction or alteration of an amusement ride. An industry commenter Section 36.406(b) Application of Standards to requested that the triggering event of “first use’’ as Fixed Elements noted in the Advisory note to section 234.1 of the The final rule contains a new Sec. 36.406(b) 2004 ADAAG be included in the final rule. The that clarifies that the requirements established by Advisory note provides that “[a] custom designed this section, including those contained in the 2004 and constructed ride is new upon its first use, ADAAG, prescribe the requirements necessary which is the first time amusement park patrons to ensure that fixed or built-in elements in new or take the ride.’’ The Department declines to treat altered facilities are accessible to individuals with amusement rides differently than other types of disabilities. Once the construction or alteration new construction and alterations and under the of a facility has been completed, all other aspects final rule, they are subject to Sec. 36.406(a)(3). of programs, services, and activities conducted in Thus, newly constructed and altered amusement that facility are subject to the operational require- rides shall comply with the 2010 Standards if the ments established elsewhere in this final rule. start of physical construction or the alteration is Although the Department has often chosen to use on or after 18 months from the publication date of the requirements of the 1991 Standards as a guide this rule. The Department also notes that section to determining when and how to make equipment 234.4.2 of the 2010 Standards only applies where and furnishings accessible, those coverage deter- the structural or operational characteristics of an minations fall within the discretionary authority of amusement ride are altered. It does not apply in the Department. cases where the only change to a ride is the theme. The Department is also clarifying that the ad- Noncomplying new construction and altera- visory notes, appendix notes, and figures that tions. The element-by-element safe harbor refer- accompany the 1991 and 2010 Standards do not enced in Sec. 36.304(d)(2) has no effect on new establish separately enforceable requirements or altered elements in existing facilities that were unless otherwise specified in the text of the stan- subject to the 1991 Standards on the date that they dards. This clarification has been made to address were constructed or altered, but do not comply concerns expressed by ANPRM commenters who with the technical and scoping specifications for mistakenly believed that the advisory notes in the those elements in the 1991 Standards. Section 2004 ADAAG established requirements beyond 36.406(a)(5) of the final rule sets forth the rules those established in the text of the guidelines (e.g., for noncompliant new construction or alterations Advisory 504.4 suggests, but does not require, that in facilities that were subject to the requirements covered entities provide visual contrast on stair of this part. Under those provisions, noncomply- tread nosings to make them more visible to indi- ing new construction and alterations constructed viduals with low vision). The Department received 166 - Guidance and Analysis Department of Justice 28 CFR Part 36 no comments on this provision in the NPRM. ment should define and regulate vacation rental Section 36.406(c) Places of Lodging units in timeshares, vacation communities, and condo-hotels where the units are owned and con- In the NPRM, the Department proposed a new trolled by individual owners and rented out some definition for public accommodations that are portion of time to the public, as compared to “places of lodging’’ and a new Sec. 36.406(c) to traditional hotels and motels that are owned, con- clarify the scope of coverage for places of pub- trolled, and rented to the public by one entity. lic accommodation that meet this definition. For Scoping and technical requirements applicable many years the Department has received inquiries to “places of lodging.’’ In the NPRM, the Depart- from members of the public seeking clarification ment asked for public comment on its proposal in of ADA coverage of rental accommodations in Sec. 36.406(c) to apply to places of lodging the timeshares, condominium hotels, and mixed-use scoping and technical requirements for transient and corporate hotel facilities that operate as places lodging, rather than the scoping and technical re- of public accommodation (as that term is now de- quirements for residential dwelling fined in Sec. 36.104). These facilities, which have units. attributes of both residential dwellings and tran- Commenters generally agreed that the transient sient lodging facilities, have become increasingly lodging requirements should apply to places of popular since the ADA’s enactment in 1990 and lodging. Several commenters stated that the deter- make up the majority of new hotel construction in mination as to which requirements apply should some vacation destinations. The hybrid residential be made based on the intention for use at the time and lodging characteristics of these new types of of design and construction. According to these facilities, as well as their ownership characteris- commenters, if units are intended for transient tics, complicate determinations of ADA cover- rentals, then the transient lodging standards should age, prompting questions from both industry and apply, and if they are intended to be used for resi- individuals with disabilities. While the Depart- dential purposes, the residential standards should ment has interpreted the ADA to encompass these apply. Some commenters agreed with the applica- hotel-like facilities when they are used to provide tion of transient lodging standards to places of transient lodging, the regulation previously has lodging in general, but disagreed about the charac- specifically not addressed them. In the NPRM, terization of certain types of facilities as covered the Department proposed a new Sec. 36.406(c), places of lodging. entitled “Places of Lodging,’’ which was intended The Department agrees that the scoping and to clarify that places of lodging, including certain technical standards applicable to transient lodging timeshares, condominium hotels, and mixed-use should apply to facilities that contain units that and corporate hotel facilities, shall comply with meet the definition of “places of lodging.’’ the provisions of the proposed standards, includ- Scoping for timeshare or condominium hotels. ing, but not limited to, the requirements for tran- In the NPRM, the Department sought comment sient lodging in sections 224 and 806 of the 2004 on the appropriate basis for determining scoping ADAAG. for a timeshare or condominium-hotel. A num- The Department’s NPRM sought public input ber of commenters indicated that scoping should on this proposal. The Department received a sub- be based on the usage of the facility. Only those stantial number of comments on these issues from units used for short-term stays should be counted industry representatives, advocates for persons for application of the transient lodging standards, with disabilities, and individuals. A significant while units sold as residential properties should be focus of these comments was on how the Depart- treated as residential units not subject to the ADA.

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One commenter stated that scoping should be to meet both the FHAct and the ADA require- based on the maximum number of sleeping units ments. For example, all of the units in a vacation available for public rental. Another commenter condominium facility whose owners choose to pointed out that unlike traditional hotels and mo- rent to the public when they are not using the units tels, the number of units available for rental in a themselves would be counted for the purposes of facility or development containing individually determining the appropriate number of units that owned units is not fixed over time. Owners have must comply with the 2010 Standards. In a newly the right to participate in a public rental program constructed condominium that has three floors some, all, or none of the time, and individual own- with units dedicated to be sold solely as residen- er participation changes from year to year. tial housing and three floors with units that may The Department believes that the determina- be used as residences or hotel units, only the units tion for scoping should be based on the number on the three latter floors would be counted for ap- of units in the project that are designed and con- plying the 2010 Standards. In a newly constructed structed with the intention that their owners may timeshare development containing 100 units, all participate in a transient lodging rental program. of which may be made available to the public The Department cautions that it is not the number through an exchange or rental program, all 100 of owners that actually exercise their right to par- units would be counted for purposes of applying ticipate in the program that determines the scop- the 2010 Standards. ing. Rather it is the units that could be placed into One commenter also asked the Department for an on-site or off-site transient lodging rental pro- clarification of how to count individually owned gram. In the final rule, the Department has added “lock-off units.’’ Lock-off units are units that are a provision to Sec. 36.406(c)(3), which states that multi-bedroom but can be “locked off’’ into two units intended to be used exclusively for residen- separate units, each having individual external tial purposes that are contained in facilities that access. This commenter requested that the Depart- also meet the definition of place of lodging are not ment state in the final rule that individually owned covered by the transient lodging standards. Title lock-off units do not constitute multiple guest III of the ADA does not apply to units designed rooms for purposes of calculating compliance and constructed with the intention that they be with the scoping requirements for accessible units, rented or sold as exclusively residential units. since for the most part the lock-off units are used Such units are covered by the Fair Housing Act as part of a larger accessible unit, and portions (FHAct), which contains requirements for certain of a unit not locked off would constitute both an features of accessible and adaptable design both accessible one-bedroom unit or an accessible two- for units and for public and common use areas. bedroom unit with the lock-off unit. All units designed and constructed with the inten- It is the Department’s view that lock-off units tion that they may be used for both residential that are individually owned that can be temporar- and transient lodging purposes are covered by ily converted into two units do not constitute two the ADA and must be counted for determining separate guest rooms for purposes of calculating the required number of units that must meet the compliance with the scoping requirements. transient lodging standards in the 2010 Standards. One commenter asked the Department how Public use and common use areas in facilities con- developers should scope units where buildings are taining units subject to the ADA also must meet constructed in phases over a span of years, recom- the 2010 Standards. In some developments, units mending that the scoping be based on the total that may serve as residential units some of the number of units expected to be constructed at the time and rental units some of the time will have project and not on a building-by-building basis or

168 - Guidance and Analysis Department of Justice 28 CFR Part 36 on a phase-by-phase basis. The Department does sought input on how it could address a situation in not think scoping should be based on planned which a new or converted facility constructs the number of units, which may or may not be actu- required number of accessible units, but the own- ally constructed over a period of years. However, ers of those units choose not to participate in the the Department recognizes that resort develop- rental program; whether the facility has an obliga- ments may contain buildings and facilities that are tion to encourage or require owners of accessible of all sizes from single-unit cottages to facilities units to participate in the rental program; and with hundreds of units. The Department believes it whether the facility developer, the condominium would be appropriate to allow designers, builders, association, or the hotel operator has an obligation and developers to aggregate the units in facilities to retain ownership or control over a certain num- with 50 or fewer units that are subject to a single ber of accessible units to avoid this problem. permit application and that are on a common site In the NPRM, the Department sought public or that are constructed at the same time for the input on how to regulate scoping for a timeshare purposes of applying the scoping requirements or condominium-rental facility that decides, after in table 224.2. Facilities with more than 50 units the sale of units to individual owners, to begin a should be scoped individually in accordance with rental program that qualifies the facility as a place the table. The regulation has been revised to re- of lodging, and how the condominium association, flect this application of the scoping requirements. operator, or developer should determine which One commenter also asked the Department to units to make accessible. use the title III regulation to declare that time- A number of commenters expressed concerns shares subject to the transient lodging standards about the ability of the Department to require are exempt from the design and construction owners of accessible units to participate in the requirements of the FHAct. The coverage of the rental program, to require developers, condo as- FHAct is set by Congress and interpreted by sociations, or homeowners associations to retain regulations issued by the Department of Housing ownership of accessible units, and to impose ac- and Urban Development. The Department has no cessibility requirements on individual owners who authority to exempt anyone from coverage of the choose to place inaccessible units into a rental FHAct. program after purchase. These commenters stated Application of ADA to places of lodging that that individuals who purchase accessible vaca- contain individually owned units. The Department tion units in condominiums, individual vacation believes that regardless of ownership structure for homes, and timeshares have ownership rights in individual units, rental programs (whether they are their units and may choose lawfully to make their on- or off-site) that make transient lodging guest units available to the public some, all, or none of rooms available to the public must comply with the time. Commenters advised the Department the general nondiscrimination requirements of the that the Securities and Exchange Commission ADA. In addition, as provided in Sec. 36.406(c), takes the position that if condominium units are newly constructed facilities that contain accom- offered in connection with participation in a re- modations intended to be used for transient lodg- quired rental program for any part of the year, ing purposes must comply with the 2010 Stan- require the use of an exclusive rental agent, or dards. impose conditions otherwise restricting the occu- In the NPRM, the Department asked for public pancy or rental of the unit, then that offering will comment on several issues related to ensuring the be viewed as an offering of securities in the form availability of accessible units in a rental program of an investment (rather than a real estate offer- operated by a place of lodging. The Department ing). SEC Release No. 33-5347, Guidelines as to

Department of Justice Guidance and Analysis - 169 28 CFR Part 36 the Applicability of the Federal Securities Laws pants in a rental pool, and thus turn the sale of the to Offers and Sales of Condominiums or Units in condominiums into the sale of securities under a Real Estate Development (Jan. 4, 1973). Con- SEC Release 33-5347. sequently, most condominium developers do not Several commenters noted that requiring the op- impose such restrictions at the time of sale. More- erator of the rental program to own the accessible over, owners who choose to rent their units as a units is not feasible either because the operator of short-term vacation rental can select any rental or the rental program would have to have the funds management company to lease and manage their to invest in the purchase of all of the accessible unit, or they may rent them out on their own. They units, and it would not have a means of recoup- also may choose never to lease those units. Thus, ing its investment. One commenter stated that there are no guarantees that at any particular time, in Texas, it is illegal for on-site rental programs accessible units will be available for rental by the to own condominium units. Another commenter public. According to this commenter, providing noted that such a requirement might lead to the incentives for owners of accessible units to place loss of on-site rental programs, leaving owners their units in the rental program will not work, to use individual third-party brokers, or rent the because it does not guarantee the availability of units privately. One commenter acknowledged the requisite number of rooms dispersed across that individual owners cannot be required to place the development, and there is not any reasonable, their units in a rental pool simply to offer an ac- identifiable source of funds to cover the costs of cessible unit to the public, since the owners may such incentives. be purchasing units for their own use. However, A number of commenters also indicated that it this commenter recommended that owners who potentially is discriminatory as well as economi- choose to place their units in a rental pool be re- cally infeasible to require that a developer hold quired to contribute to a fund that would be used back the accessible units so that the units can be to renovate units that are placed in the rental pool maintained in the rental program year-round. One to increase the availability of accessible units. One commenter pointed out that if a developer did not commenter argued that the legal entity running the sell the accessible condominiums or timeshares place of lodging has an obligation to retain control in the building inventory, the developer would be over the required number of accessible units to subject to a potential ADA or FHAct complaint ensure that they are available in accordance with because persons with disabilities who wanted to title III. buy accessible units rather than rent them each A number of commenters also argued that the year would not have the option to purchase them. Department has no legal authority to require indi- In addition, if a developer held back accessible vidual owners to engage in barrier removal where units, the cost of those units would have to be an existing development adds a rental program. spread across all the buyers of the inaccessible One commenter stated that Texas law prohibits the units, and in many cases would make the project operator of on-site rental program from demand- financially infeasible. This would be especially ing that alterations be made to a particular unit. In true for smaller projects. Finally, this commenter addition, under Texas law, condominium declara- argued that requiring units to be part of the com- tions may not require some units and not others to mon elements that are owned by all of the individ- make changes, because that would lead to unequal ual unit owners is infeasible because the common treatment of units and owners, which is not per- ownership would result in pooled rental income, missible. which would transform the owners into partici- One commenter stated that since it was not possible for operators of rental programs offer-

170 - Guidance and Analysis Department of Justice 28 CFR Part 36 ing privately owned condominiums to comply that in existing facilities that meet the definition with accessible scoping, the Department should of places of lodging, where the guest rooms are create exemptions from the accessible scoping, not owned or substantially controlled by the entity especially for existing facilities. In addition, this that owns, leases, or operates the overall facility commenter stated that if an operator of an on-site and the physical features of the guest room interi- rental program were to require renovations as a ors are controlled by their individual owners, the condition of participation in the rental program, units are not subject to the alterations requirement, unit owners might just rent their units through a even where the owner rents the unit out to the different broker or on their own, in which case public through a transient lodging rental program. such requirements would not apply. In addition, the Department has added an excep- A number of commenters argued that if a devel- tion to the barrier removal requirements at Sec. opment decides to create a rental program, it must 36.304(g) providing that in existing facilities that provide accessible units. Otherwise the develop- meet the definition of places of lodging, where ment would have to ensure that units are retrofit- the guest rooms are not owned or substantially ted. A commenter argued that if an existing build- controlled by the entity that owns, leases, or oper- ing is being converted, the Department should re- ates the overall facility and the physical features quire that if alterations of the units are performed of the guest room interiors are controlled by their by an owner or developer prior to sale of the units, individual owners, the units are not subject to the then the alterations requirements should apply, in barrier removal requirement. The Department order to ensure that there are some accessible units notes, however, that there are legal relationships in the rental pool. This commenter stated that be- for some timeshares and cooperatives where the cause of the proliferation of these type of develop- ownership interests do not convey control over the ments in Hawaii, mandatory alteration is the only physical features of units. In those cases, it may be way to guarantee the availability of accessible the case that the facility has an obligation to meet units in the long run. In this commenter’s view, the alterations or barrier removal requirements or since conversions almost always require makeover to maintain accessible features. of existing buildings, this will not lead to a signifi- cant expense. Section 36.406(d) Social Service Center The Department agrees with the commenters Establishments that it would not be feasible to require developers In the NPRM, the Department proposed a new to hold back or purchase accessible units for the Sec. 36.406(d) requiring group homes, halfway purposes of making them available to the public houses, shelters, or similar social service center in a transient lodging rental program, nor would it establishments that provide temporary sleeping be feasible to require individual owners of acces- accommodations or residential dwelling units to sible units to participate in transient lodging rental comply with the provisions of the 2004 ADAAG programs. that apply to residential facilities, including, but The Department recognizes that places of lodg- not limited to, the provisions in sections 233 and ing are developed and financed under myriad 809. ownership and management structures and agrees The NPRM explained that this proposal was that there will be circumstances where there are based on two important changes in the 2004 legal barriers to requiring compliance with either ADAAG. First, for the first time, residential the alterations requirements or the requirements dwelling units are explicitly covered in the related to barrier removal. The Department has 2004 ADAAG in section 233. Second, the 2004 added an exception to Sec. 36.406(c), providing

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ADAAG eliminates the language contained in the chose the option that harmonizes the regulatory 1991 Standards addressing scoping and technical requirements: coverage under the residential fa- requirements for homeless shelters, group homes, cilities standards. and similar social service center establishments. In the NPRM, the Department expressed con- Currently, such establishments are covered in cern that the residential facilities standards do not section 9.5 of the transient lodging section of the include a requirement for clear floor space next 1991 Standards. The deletion of section 9.5 cre- to beds similar to the requirement in the transient ates an ambiguity of coverage that must be ad- lodging standards; as a result, the Department dressed. proposed adding a provision that would require The NPRM explained the Department’s be- certain social service center establishments that lief that transferring coverage of social service provide sleeping rooms with more than 25 beds center establishments from the transient lodging to ensure that a minimum of 5 percent of the beds standards to the residential facilities standards have clear floor space in accordance with section would alleviate conflicting requirements for social 806.2.3 of the 2004 ADAAG. service providers. The Department believes that The Department requested information from a substantial percentage of social service provid- providers who operate homeless shelters, transient ers are recipients of Federal financial assistance group homes, halfway houses, and other social from the Department of Housing and Urban De- service center establishments, and from the clients velopment (HUD). The Department of Health and of these facilities who would be affected by this Human Services (HHS) also provides financial proposed change. In the NPRM, the Department assistance for the operation of shelters through asked to what extent conflicts between the ADA the Administration for Children and Families and section 504 have affected these facilities and programs. As such, they are covered both by the what the effect would be of applying the residen- ADA and section 504. UFAS is currently the de- tial dwelling unit requirements to these facilities, sign standard for new construction and alterations rather than the requirements for transient lodging for entities subject to section 504. The two design guest rooms. standards for accessibility--the 1991 Standards Many of the commenters supported applying and UFAS--have confronted many social service the residential facilities requirements to social providers with separate, and sometimes conflict- service center establishments stating that even ing, requirements for design and construction of though the residential facilities requirements are facilities. To resolve these conflicts, the residential less demanding, in some instances, the existence facilities standards in the 2004 ADAAG have been of one clear standard will result in an overall in- coordinated with the section 504 requirements. creased level of accessibility by eliminating the The transient lodging standards, however, are not confusion and inaction that are sometimes caused similarly coordinated. The deletion of section 9.5 by the current existence of multiple requirements. of the 1991 Standards from the 2004 ADAAG One commenter stated that the residential facilities presented two options: (1) Require coverage under guidelines were more appropriate because individ- the transient lodging standards, and subject such uals housed in social service center establishments facilities to separate, conflicting requirements for typically stay for a prolonged period of time, and design and construction; or (2) require coverage guests of a transient lodging facility typically are under the residential facilities standards, which not housed to participate in a program or receive would harmonizes the regulatory requirements services. under the ADA and section 504. The Department One commenter opposed to the proposed sec- tion argued for the application of the transient

172 - Guidance and Analysis Department of Justice 28 CFR Part 36 lodging standards to all social service center in shower must be provided for each group. This establishments except those that were “intended supplemental requirement to the residential facili- as a person’s place of abode,’’ referencing the ties standards is in addition to the supplemental Department’s question related to the definition of requirement that was proposed in the NPRM for place of lodging in the title III NPRM. A second clear floor space in sleeping rooms with more than commenter stated that the use of transient lodging 25 beds. guidelines would lead to greater accessibility. The Department also notes that while dwelling The Department continues to be concerned units at some social service center establishments about alleviating the challenges for social service are also subject to FHAct design and construc- providers that are also subject to section 504 and tion requirements that require certain features of that would likely be subject to conflicting re- adaptable and accessible design, FHAct units do quirements if the transient lodging standard were not provide the same level of accessibility that is applied. Thus, the Department has retained the re- required for residential facilities under the 2010 quirement that social service center establishments Standards. The FHAct requirements, where also comply with the residential dwelling standards. applicable, should not be considered a substitute The Department did not receive comments regard- for the 2010 Standards. Rather, the 2010 Stan- ing adding a requirement for bathing options, such dards must be followed in addition to the FHAct as a roll-in shower, in social service center estab- requirements. lishments operated by public accommodations. The Department also notes that while in the The Department did, however, receive comments NPRM the Department used the term “social ser- in support of adding such a requirement regard- vice establishment,’’ the final rule uses the term “ ing public entities under title II. The Department social service center establishment.’’ The Depart- believes that social service center establishments ment has made this editorial change so that the that provide emergency shelter to large transient final rule is consistent with the terminology used populations should be able to provide bathing in the ADA. See 42 U.S.C. 12181(7)(K). facilities that are accessible to persons with mobil- ity disabilities who need roll-in showers. Because Section 36.406(e) Housing at a Place of of the transient nature of the population of these Education large shelters, it will not be feasible to modify The Department of Justice and the Department bathing facilities in a timely manner when faced of Education share responsibility for regulation with a need to provide a roll-in shower with a seat and enforcement of the ADA in postsecondary when requested by an overnight visitor. As a re- educational settings, including architectural fea- sult, the Department has added a requirement that tures. Housing types in educational settings range social service center establishments with sleeping from traditional residence halls and dormitories accommodations for more than 50 individuals to apartment or townhouse-style residences. In must provide at least one roll-in shower with a addition to title III of the ADA, universities and seat that complies with the relevant provisions schools that are recipients of Federal financial of section 608 of the 2010 Standards. Transfer- assistance also are subject to section 504, which type showers are not permitted in lieu of a roll-in contains its own accessibility requirements cur- shower with a seat, and the exceptions in sections rently through the application of UFAS. Residen- 608.3 and 608.4 for residential dwelling units are tial housing, including housing in an educational not permitted. When separate shower facilities are setting, is also covered by the FHAct, which provided for men and for women, at least one roll- requires newly constructed multifamily housing

Department of Justice Guidance and Analysis - 173 28 CFR Part 36 to include certain features of accessible and adapt- their layout. Some are double-occupancy rooms able design. Covered entities subject to the ADA with a shared toilet and bathing room, which may must always be aware of, and comply with, any be inside or outside the unit. Others may contain other Federal statutes or regulations that govern cluster, suite, or group arrangements where sev- the operation of residential properties. eral rooms are located inside a defined unit with Although the 1991 Standards mention dor- bathing, kitchen, and similar common facilities. In mitories as a form of transient lodging, they do some cases, these suites are indistinguishable in not specifically address how the ADA applies to features from traditional apartments. Universities dormitories and other types of residential housing may build their own housing facilities or enter into provided in an educational setting. The 1991 Stan- agreements with private developers to build, own, dards also do not contain any specific provisions or lease housing to the educational institution or to for residential facilities, allowing covered entities its students. Academic housing may be located on to elect to follow the residential standards con- the campus of the university or may be located in tained in UFAS. Although the 2004 ADAAG con- nearby neighborhoods. tains provisions for both residential facilities and Throughout the school year and the summer, transient lodging, the guidelines do not indicate academic housing can become program areas in which requirements apply to housing provided in which small groups meet, receptions and edu- an educational setting, leaving it to the adopting cational sessions are held, and social activities agencies to make that choice. After evaluating occur. The ability to move between rooms--both both sets of standards, the Department concluded accessible rooms and standard rooms--in order to that the benefits of applying the transient lodging socialize, to study, and to use all public use and standards outweighed the benefits of applying the common use areas is an essential part of having residential facilities standards. Consequently, in access to these educational programs and activi- the NPRM, the Department proposed a new Sec. ties. Academic housing also is used for short-term 36.406(e) that provided that residence halls or transient educational programs during the time dormitories operated by or on behalf of places of students are not in regular residence and may be education shall comply with the provisions of the rented out to transient visitors in a manner similar proposed standards for transient lodging, includ- to a hotel for special university functions. ing, but not limited to, the provisions in sections The Department was concerned that applying 224 and 806 of the 2004 ADAAG. the new construction requirements for residential Private universities and schools covered by facilities to educational housing facilities could title III as public accommodations are required hinder access to educational programs for students to make their programs and activities accessible with disabilities. Elevators generally are not re- to persons with disabilities. The housing facili- quired under the 2004 ADAAG residential facili- ties that they provide have varied characteristics. ties standards unless they are needed to provide College and university housing facilities typically an accessible route from accessible units to public provide housing for up to one academic year, but use and common use areas, while under the 2004 may be closed during school vacation periods. In ADAAG as it applies to other types of facilities, the summer, they often are used for short-term multistory private facilities must have elevators stays of one to three days, a week, or several unless they meet very specific exceptions. In ad- months. Graduate and faculty housing often is dition, the residential facilities standards do not provided year-round in the form of apartments, require accessible roll-in showers in bathrooms, which may serve individuals or families with while the transient lodging requirements require children. These housing facilities are diverse in some of the accessible units to be served by bath-

174 - Guidance and Analysis Department of Justice 28 CFR Part 36 rooms with roll-in showers. The transient lodging fect the cost of building new dormitories and other standards also require that a greater number of student housing. See 73 FR 34508, 34545 (June units have accessible features for persons with 17, 2008). communication disabilities. The transient lodging The Department received several comments on standards provide for installation of the required this issue under title III. One commenter stated accessible features so that they are available im- that the Department should adopt the residential mediately, but the residential facilities standards facilities standards for housing at a place of edu- allow for certain features of the unit to be adapt- cation. In the commenter’s view, the residential able. For example, only reinforcements for grab facilities standards are congruent with overlapping bars need to be provided in residential dwellings, requirements imposed by HUD, and the residen- but the actual grab bars must be installed under tial facilities requirements would ensure disper- the transient lodging standards. By contrast, the sion of accessible features more effectively. This residential facilities standards do require certain commenter also argued that while the increased features that provide greater accessibility within number of required accessible units for residen- units, such as usable kitchens and an accessible tial facilities as compared to transient lodging route throughout the dwelling. The residential may increase the cost of construction or altera- facilities standards also require 5 percent of the tion, this cost would be offset by a reduced need units to be accessible to persons with mobility later to adapt rooms if the demand for accessible disabilities, which is a continuation of the same rooms exceeds the supply. The commenter also scoping that is currently required under UFAS and encouraged the Department to impose a visit- is therefore applicable to any educational institu- ability (accessible doorways and necessary clear tion that is covered by section 504. The transient floor space for turning radius) requirement for lodging standards require a lower percentage of both the residential facilities and transient lodg- accessible sleeping rooms for facilities with large ing requirements to allow students with mobility numbers of rooms than is required by UFAS. impairments to interact and socialize in a fully For example, if a dormitory has 150 rooms, the integrated fashion. Another commenter stated that transient lodging standards would require 7 acces- while dormitories should be treated like residences sible rooms, while the residential standards would as opposed to transient lodging, the Department require 8. In a large dormitory with 500 rooms, should ensure that “all floors are accessible,’’ thus the transient lodging standards would require 13 ensuring community integration and visitability. accessible rooms, and the residential facilities Another commenter argued that housing at a place standards would require 25. There are other differ- of education is comparable to residential housing, ences between the two sets of standards, including and that most of the housing types used by schools requirements for accessible windows, alterations, do not have the same amenities and services or kitchens, an accessible route throughout a unit, function like transient lodging and should not be and clear floor space in bathrooms allowing for a treated as such. side transfer. Several commenters focused on the length of In the NPRM, the Department requested public stay at this type of housing and suggested that if comment on how to scope educational housing the facilities are subject to occupancy for greater facilities, and it asked whether the residential than 30 days, the residential standards should facilities requirements or the transient lodging apply. Another commenter supported the Depart- requirements in the 2004 ADAAG would be more ment’s adoption of the transient lodging standards, appropriate for housing at places of education and arguing this will provide greater accessibility and asked how the different requirements would af- therefore increase opportunities for students with

Department of Justice Guidance and Analysis - 175 28 CFR Part 36 disabilities to participate. One commenter, while Sec. 36.104, “Housing at a Place of Education,’’ supporting the use of transient lodging standards and has revised Sec. 36.406(e) to reflect the acces- in this area, argued that the Department also sible features that now will be required in addition should develop regulations relating to the usability to the requirements set forth under the transient of equipment in housing facilities by persons who lodging standards. The Department also recogniz- are blind or visually impaired. Another commenter es that some educational institutions provide some argued that the Department should not impose the residential housing on a year-round basis to gradu- transient lodging requirements on K-12 schools ate students and staff that is comparable to private because the cost of adding elevators can be pro- rental housing but contains no facilities for educa- hibitive, and because there are safety concerns re- tional programming. Section 36.406(e)(3) exempts lated to evacuating students in wheelchairs living from the transient lodging standards apartments or on floors above the ground floor in emergencies townhouse facilities that are provided with a lease causing elevator failures. on a year-round basis exclusively to graduate stu- The Department has considered the comments dents or faculty and that do not contain any public recommending the use of the residential facilities use or common use areas available for educational standards and acknowledges that they require cer- programming; instead, such housing must comply tain features that are not included in the transient with the requirements for residential facilities in lodging standards and that should be required for sections 233 and 809 of the 2010 Standards. housing provided at a place of education. In addi- The regulatory text uses the term “sleeping tion, the Department notes that since educational room’’ in lieu of the term “guest room,’’ which is institutions often use their academic housing the term used in the transient lodging standards. facilities as short-term transient lodging in the The Department is using this term because it summers, it is important that accessible features believes that for the most part, it provides a bet- be installed at the outset. It is not realistic to ex- ter description of the sleeping facilities used in a pect that the educational institution will be able to place of education than “guest room.’’ The final adapt a unit in a timely manner in order to provide rule states in Sec. 36.406(e) that the Department accessible accommodations to someone attending intends the terms to be used interchangeably in the a one-week program during the summer. application of the transient lodging standards to The Department has determined that the best housing at a place of education. approach to this type of housing is to continue to require the application of transient lodging Section 36.406(f) Assembly Areas standards but, at the same time, to add several requirements drawn from the residential facili- In the NPRM, the Department proposed Sec. ties standards related to accessible turning spaces 36.406(f) to supplement the assembly area re- and work surfaces in kitchens, and the accessible quirements of the 2004 ADAAG, which the route throughout the unit. This will ensure the Department is adopting as part of the 2010 Stan- maintenance of the transient lodging standard dards. The NPRM proposed at Sec. 36.406(f)(1) to requirements related to access to all floors of the require wheelchair spaces and companion seating facility, roll-in showers in facilities with more than locations to be dispersed to all levels of the facil- 50 sleeping rooms, and other important accessibil- ity that are served by an accessible route. The De- ity features not found in the residential facilities partment received no significant comments on this standards, but also will ensure usable kitchens and paragraph and has decided to adopt the proposed access to all the rooms in a suite or apartment. language with minor modifications. The Department has added a new definition to Section 36.406(f)(1) ensures that there is greater

176 - Guidance and Analysis Department of Justice 28 CFR Part 36 dispersion of wheelchair spaces and companion wheelchair seats and companion seats. seats throughout stadiums, arenas, and grand- Several commenters requested an exception stands than would otherwise be required by sec- to the prohibition of the use of temporary plat- tions 221 and 802 of the 2004 ADAAG. In some forms for public accommodations that sell most cases, the accessible route may not be the same of their tickets on a season-ticket or other multi- route that other individuals use to reach their seats. event basis. Such commenters argued that they For example, if other patrons reach their seats on should be able to use temporary platforms because the field by an inaccessible route (e.g., by stairs), they know, in advance, that the patrons sitting in but there is an accessible route that complies with certain areas for the whole season do not need section 206.3 of the 2004 ADAAG that could be wheelchair spaces and companion seats. The De- connected to seats on the field, wheelchair spaces partment declines to adopt such an exception. As and companion seats must be placed on the field it explained in detail in the NPRM, the Depart- even if that route is not generally available to the ment believes that permitting the use of movable public. platforms that seat four or more wheelchair users Regulatory language that was included in the and their companions have the potential to reduce 2004 ADAAG advisory, but that did not appear the number of available wheelchair seating spaces in the NPRM, has been added by the Depart- below the level required, thus reducing the op- ment in Sec. 36.406(f)(2). Section 36.406(f)(2) portunities for persons who need accessible seat- now requires an assembly area that has seating ing to have the same choice of ticket prices and encircling, in whole or in part, a field of play or amenities that are available to other patrons in the performance area, such as an arena or stadium, facility. In addition, use of removable platforms to place wheelchair spaces and companion seats may result in instances where last minute requests around the entire facility. This rule, which is de- for wheelchair and companion seating cannot be signed to prevent a public accommodation from met because entire sections of accessible seating placing wheelchair spaces and companion seats on will be lost when a platform is removed. See 73 one side of the facility only, is consistent with the FR 34508, 34546 (June 17, 2008). Further, use of Department’s enforcement practices and reflects temporary platforms allows facilities to limit per- its interpretation of section 4.33.3 of the 1991 sons who need accessible seating to certain seat- Standards. ing areas, and to relegate accessible seating to less In the NPRM, the Department proposed Sec. desirable locations. The use of temporary plat- 36.406(f)(2), which prohibits wheelchair spaces forms has the effect of neutralizing dispersion and and companion seating locations from being “lo- other seating requirements (e.g., line of sight) for cated on (or obstructed by) temporary platforms wheelchair spaces and companion seats. Cf. Inde- * * *.’’ 73 FR 34508, 34557 (June 17, 2008). pendent Living Resources v. Oregon Arena Corp., Through its enforcement actions, the Department 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding discovered that some venues place wheelchair that while a public accommodation may “infill’’ spaces and companion seats on temporary plat- wheelchair spaces with removable seats when the forms that, when removed, reveal conventional wheelchair spaces are not needed to accommodate seating underneath, or cover the wheelchair spaces individuals with disabilities, under certain cir- and companion seats with temporary platforms cumstances “[s]uch a practice might well violate on top of which they place risers of conventional the rule that wheelchair spaces must be dispersed seating. These platforms cover groups of con- throughout the arena in a manner that is roughly ventional seats and are used to provide groups of proportionate to the overall distribution of seat- ing’’). In addition, using temporary platforms to

Department of Justice Guidance and Analysis - 177 28 CFR Part 36 convert unsold wheelchair spaces to conventional cal viewing angles are between the 40th and 100th seating undermines the flexibility facilities need to percentile of vertical viewing angles for all seats accommodate secondary ticket market exchanges in that theater as ranked from the first row (1st as required by Sec. 36.302(f)(7) of the final rule. percentile) to the back row (100th percentile). The As the Department explained in the NPRM, vertical viewing angle is the angle between a hori- however, this provision was not designed to pro- zontal line perpendicular to the seated viewer’s hibit temporary seating that increases seating for eye to the screen and a line from the seated view- events (e.g., placing temporary seating on the er’s eye to the top of the screen. floor of a basketball court for a concert). Conse- The Department proposed this bright-line rule quently, the final rule, at Sec. 36.406(f)(3), has for two reasons: (1) the movie theater industry been amended to clarify that if an entire seating petitioned for such a rule; and (2) the Department section is on a temporary platform for a particu- has acquired expertise in the design of stadium- lar event, then wheelchair spaces and companion style theaters during its litigation with several seats may also be in that seating section. However, major movie theater chains. See United States. v. adding a temporary platform to create wheelchair AMC Entertainment, Inc., 232 F. Supp.2d 1092 spaces and companion seats that are otherwise (C.D. Cal. 2002), rev’d in part, 549 F.3d 760 dissimilar from nearby fixed seating and then (9th Cir. 2008); United States v. Cinemark USA, simply adding a small number of additional seats Inc., 348 F.3d 569 (6th Cir. 2003). Two industry to the platform would not qualify as an “entire commenters—at least one of whom otherwise seating section’’ on the platform. In addition, Sec. supported this rule—requested that the Depart- 36.406(f)(3) clarifies that facilities may fill in ment explicitly state that this rule does not apply wheelchair spaces with removable seats when the retroactively to existing theaters. Although this wheelchair spaces are not needed by persons who provision on its face applies to new construction use wheelchairs. and alterations, these commenters were concerned The Department has been responsive to as- that the rule could be interpreted to apply retroac- sembly areas’ concerns about reduced revenues tively because of the Department’s statements in due to unused accessible seating. Accordingly, the NPRM and ANPRM that this bright line rule, the Department has reduced scoping requirements although newly articulated, is not a new standard significantly—by almost half in large assembly but “merely codifi[es] longstanding Department areas—and determined that allowing assembly ar- requirement[s],’’ 73 FR 34508, 34534 (June 17, eas to in-fill unsold wheelchair spaces with readily 2008), and does not represent a “substantive removable temporary individual seats appropri- change from the existing line-of-sight require- ately balances their economic concerns with the ments’’ of section 4.33.3 of the 1991 Standards, 69 rights of individuals with disabilities. See section FR 58768, 58776 (Sept. 30, 2004). 221.1 of the 2010 Standards. Although the Department intends for Sec. For stadium-style movie theaters, in Sec. 36.406(f)(4) of this rule to apply prospectively 36.406(f)(4) of the NPRM the Department pro- to new construction and alterations, this rule is posed requiring placement of wheelchair seating not a departure from, and is consistent with, the spaces and companion seats on a riser or cross- line-of-sight requirements in the 1991 Standards. aisle in the stadium section of the theater that The Department has always interpreted the line- satisfies at least one of the following criteria: (1) of-sight requirements in the 1991 Standards to re- It is located within the rear 60 percent of the seats quire viewing angles provided to patrons who use provided in the auditorium; or (2) It is located wheelchairs to be comparable to those afforded within the area of the auditorium where the verti-

178 - Guidance and Analysis Department of Justice 28 CFR Part 36 to other spectators. Section 36.406(f)(4) merely General, encouraging dispersion of accessible represents the application of these requirements to rooms within the facility so that accessible rooms stadium-style movie theaters. are more likely to be proximate to appropriate One commenter from a trade association sought qualified staff and resources. clarification whether Sec. 36.406(f)(4) applies to In the NPRM, the Department sought additional stadium-style theaters with more than 300 seats, comment on the issue, asking whether it should and argued that it should not since dispersion require medical care facilities, such as hospitals, requirements apply in those theaters. The to disperse their accessible sleeping rooms, and Department declines to limit this rule to stadium- if so, by what method (by specialty area, floor, or style theaters with 300 or fewer seats; stadium- other criteria). All of the comments the Depart- style theaters of all sizes must comply with this ment received on this issue supported dispers- rule. So, for example, stadium-style theaters that ing accessible sleeping rooms proportionally by must vertically disperse wheelchair spaces and specialty area. These comments from individuals, companion seats must do so within the parameters organizations, and a building code association, of this rule. argued that it would not be difficult for hospitals The NPRM included a provision that required to disperse rooms by specialty area, given the high assembly areas with more than 5,000 seats to level of regulation to which hospitals are subject provide at least five wheelchair spaces with at and the planning that hospitals do based on uti- least three companion seats for each of those five lization trends. Further, comments suggest that wheelchair spaces. The Department agrees with without a requirement, it is unlikely that hospitals commenters who asserted that group seating is would disperse the rooms. In addition, concentrat- better addressed through ticketing policies rather ing accessible rooms in one area perpetuates seg- than design and has deleted that provision from regation of individuals with disabilities, which is this section of the final rule. counter to the purpose of the ADA. The Department has decided to require medical Section 36.406(g) Medical Care Facilities care facilities to disperse their accessible sleep- ing rooms in a manner that is proportionate by In the 1991 title III regulation, there was no type of medical specialty. This does not require provision addressing the dispersion of accessible exact mathematical proportionality, which at times sleeping rooms in medical care facilities. The would be impossible. However, it does require Department is aware, however, of problems that that medical care facilities disperse their acces- individuals with disabilities face in receiving full sible rooms by medical specialty so that persons and equal medical care when accessible sleeping with disabilities can, to the extent practical, stay in rooms are not adequately dispersed. When acces- an accessible room within the wing or ward that is sible rooms are not fully dispersed, a person with appropriate for their medical needs. The language a disability is often placed in an accessible room used in this rule (“in a manner that is proportion- in an area that is not medically appropriate for his ate by type of medical specialty’’) is more specific or her condition, and is thus denied quick access than that used in the NPRM (“in a manner that to staff with expertise in that medical specialty enables patients with disabilities to have access and specialized equipment. While the Access to appropriate specialty services’’) and adopts the Board did not establish specific design require- concept of proportionality proposed by the com- ments for dispersion in the 2004 ADAAG, in menters. Accessible rooms should be dispersed response to extensive comments in support of dis- throughout all medical specialties, such as obstet- persion it added an advisory note, Advisory 223.1

Department of Justice Guidance and Analysis - 179 rics,28 CFR orthopedics, Part 36 pediatrics, and cardiac care.

jurisdictions that were determined in the past to Subpart F—Certification of State Laws meet or exceed the 1991 Standards. Once the 2010 or Local Building Codes Standards take effect, certifications issued under the 1991 Standards would not have any future ef- Subpart F contains procedures implementing fect, and States and local jurisdictions with codes section 308(b)(1)(A)(ii) of the ADA, which pro- certified under the 1991 Standards would need to vides that on the application of a State or local reapply for certification under the 2010 Standards. jurisdiction, the Attorney General may certify that With regard to elements of existing buildings and a State or local building code or similar ordinance facilities constructed in compliance with a code meets or exceeds the minimum accessibility re- when a certification of equivalency was in effect, quirements of the Act. In enforcement proceed- the final rule requires that in any enforcement ings, this certification will constitute rebuttable action this compliance would be treated as rebut- evidence that the law or code meets or exceeds table evidence of compliance with the standards the ADA’s requirements. In its NPRM, the Depart- then in effect. The new provision added to § ment proposed three changes in subpart F that 36.606 may also have implications in determining would streamline the process for public entities an entity’s eligibility for the element-by-element seeking certification, all of which are adopted in safe harbor. this final rule. No substantive comments were received regard- First, the Department proposed deleting the ing the Department’s proposed changes in subpart existing § 36.603, which establishes the obliga- F, and no other changes have been made to this tions of a submitting authority that is seeking subpart in the final rule. The Department did re- certification of its code, and issue in its place in- ceive several comments addressing other issues formal regulatory guidance regarding certification raised in the NPRM that are related to subpart submission requirements. Due to the deletion of F. Because the 2010 Standards include specific § 36.603, §§ 36.604 through 36.608 are renum- design requirements for recreation facilities and bered, and § 36.603 in the final rule is modified play areas that may be new to many title III fa- to indicate that the Assistant Attorney General cilities, the Department sought comments in the for the Civil Rights Division (Assistant Attorney NPRM about how the certification review process General) shall make a preliminary determination would be affected if the State or local jurisdic- of equivalency after ‘‘receipt and review of all in- tion allocates the authority to implement the new formation relevant to a request filed by a submit- requirements to State or local agencies that are ting official for certification of a code.’’ Second, not ordinarily involved in administering building the Department proposed that the requirement in codes. One commenter, an association of building renumbered § 36.604 (previously § 36.605) that owners and managers, suggested that because of an informal hearing be held in Washington, DC, if the increased scope of the 2010 Standards, it is the Assistant Attorney General makes a prelimi- likely that parts of covered elements in the new nary determination of equivalency be changed to a standards will be under the jurisdiction of multiple requirement that the hearing be held in the State or State or local agencies. In light of these circum- local jurisdiction charged with administration and stances, the commenter recommended that the enforcement of the code. Third, the Department Department allow State or local agencies to seek proposed adding language to renumbered § 36.606 certification even if only one State or local regula- (previously § 36.607) to explain the effect of the tory agency requests certification. For example, if 2010 Standards on the codes of State or local a State agency that regulates buildings seeks cer- tification of its building code, it should be able to

180 - Guidance and Analysis Department of Justice 28 CFR Part 36 do so, even if another State agency that regulates State or local accessibility requirements that may amusement rides and miniature golf courses does be in conflict with the new 2010 Standards. The not seek certification. Department received numerous comments on the The Department’s discussion of this issue in the issue of the effective date, many of them similar to NPRM contemplated that all of a State or local the concerns expressed above, in response to both government’s accessibility requirements for title the NPRM and the ANPRM. See Appendix A dis- III facilities would be the subject of a request for cussion of compliance dates for new construction certification. Any other approach would require and alterations (§ 36.406). The Department has the Department to certify only part of a State or been persuaded by the concerns raised by many local government’s accessibility requirements as commenters addressing the time and costs related compared to the entirety of the revised ADA stan- to the design process for both new construction dards. As noted earlier, the Attorney General is and alterations, and has determined that for new authorized by section 308(b)(1)(A)(ii) of the ADA construction and alterations, compliance with to certify that a State or local building code meets the 2010 Standards will not be required until 18 or exceeds the ADA’s minimum accessibility months from the date the final rule is published. requirements, which are contained in this regula- For more information on the issue of the compli- tion. The Department has concluded that this is ance date, refer to subpart D—New Construction a decision that must be made on a case-by-case and Alterations. basis because of the wide variety of enforcement One commenter, an association of theater own- schemes adopted by the States. Piecemeal certifi- ers, recommended that the Department establish cation of laws or codes that do not contain all of a training program for State building inspectors the minimum accessibility requirements could fail for those States that receive certification to ensure to satisfy the Attorney General’s responsibility to more consistent ADA compliance and to facilitate ensure that a State or local building code meets or the review of builders’ architectural plans. The exceeds the minimum accessibility requirements commenter also recommended that State build- of the Act before granting certification. However, ing inspectors, once trained, review architectural the Department wants to permit State and local plans, and after completion and inspection of fa- code administrators to have maximum flexibility, cilities, be authorized to certify that the inspected so the Department will leave open the possibility building or facility meets both the certified State for case-by-case review to determine if a State has and the Federal accessibility requirements. Al- successfully met the burden of demonstrating that though supportive of the idea of additional train- its accessibility codes or other laws meet or ex- ing for State and local building code officials ceed the ADA requirements. regarding ADA compliance, the Department The commenter representing building owners believes that the approach suggested by the com- and managers also urged the Department to extend menter of allowing State and local code officials the proposed effective date for the final rule. The to determine if a covered facility is in compliance commenter explained that a six-month phase-in with Federal accessibility requirements is not period is inadequate for States to begin and com- consistent with or permissible under the statutory plete a code amendment process. The commenter enforcement scheme established by the ADA. As asserted that the inadequate phase-in period will the Department stated in the NPRM, certification place entities undertaking new construction and of State and local codes serves, to some extent, to alterations, particularly in those States with certi- mitigate the absence of a Federal mechanism for fied codes, in a difficult position because State of- conducting at the national level a review of all ar- ficials will continue to enforce previously certified chitectural plans and inspecting all covered build-

Department of Justice Guidance and Analysis - 181 28 CFR Part 36 ings under construction to ensure compliance with to the comments that were received. the ADA. In this regard, certification operates as a The commenter representing theater owners bridge between the obligation to comply with the also urged the Department to provide a safe harbor 1991 Standards in new construction and altera- to facilities constructed in compliance with State tions, and the administrative schemes of State and or local building codes certified under the 1991 local governments that regulate the design and Standards. With regard to elements of facilities construction process. By ensuring consistency constructed in compliance with a certified code between State or local codes and Federal acces- prior to the effective date of the 2010 Standards, sibility standards, certification has the additional and during the period when a certification of benefit of streamlining the regulatory process, equivalency was in effect, the Department noted thereby making it easier for those in the design in the NPRM that its approach would be consis- and construction industry to satisfy both State tent with the approach to the safe harbor discussed and Federal requirements. The Department notes, in subpart C, § 36.304 of the NPRM, with respect however, that although certification has the po- to elements in existing facilities constructed in tential to increase compliance with the ADA, this compliance with the 1991 Standards. For example, result, however desirable, is not guaranteed. The elements in existing facilities in States with codes ADA contemplated that there could be enforce- certified under the 1991 Standards would be eli- ment actions brought even in States with certified gible for a safe harbor if they were constructed codes, and it provided some protection in litiga- in compliance with an ADA-certified code. In tion to builders who adhered to the provisions this scenario, compliance with the certified code of the code certified to be ADA-equivalent. The would be treated as evidence of compliance with Department’s certification determinations make it the 1991 Standards for purposes of determining clear that to get the benefit of certification, a facil- the application of the safe harbor provision to ity must comply with the applicable code require- those elements. For more information on safe har- ments—without relying on waivers or variances. bor, refer to subpart C, § 36.304 of the final rule. The certified code, however, remains within the One commenter, an advocacy group for the authority of the adopting State or local jurisdic- blind, suggested that, similar to the procedures for tion to interpret and enforce: Certification does certifying a State or local building code, the De- not transform a State’s building code into Federal partment should establish a program to certify an law. Nor can certification alone authorize State entity’s obligation to make its goods and services and local building code officials implementing a accessible to persons with sensory disabilities. certified code to do more than they are authorized The Department believes that this commenter to do under State or local law, and these officials was suggesting that covered entities should be cannot acquire authority through certification able to request that the Department review their to render binding interpretations of Federal law. business operations to determine if they have met Therefore, the Department, while understanding their ADA obligations. As noted earlier, subpart F the interest in obtaining greater assurance of com- contains procedures implementing section 308(b) pliance with the ADA through the interpretation (1)(A)(ii) of the ADA, which provides that on and enforcement of a certified code by local code the application of a State or local jurisdiction, the officials, declined in the NPRM to confer on local Attorney General may certify that a State or lo- officials the authority not granted to them under cal building code or similar ordinance meets or the ADA to certify the compliance of individual exceeds the minimum accessibility requirements facilities. The Department in the final rule finds no of the ADA. The only mechanism through which reason to alter its position on this issue in response the Department is authorized to ensure a covered

182 - Guidance and Analysis Department of Justice 28 CFR Part 36 entity’s compliance with the ADA is the enforce- to the Access Board for further consideration, in ment scheme established under section 308(b)(1) particular as applied to alterations. Many of the (A)(i) of the ADA. The Department notes, how- comments received by the Department in response ever, that title III of the ADA and its implementing to these questions addressed both titles II and III. regulation, which includes the standards for ac- As a result, the Department’s discussion of these cessible design, already require existing, altered, comments and its response are collectively pre- and newly constructed places of public accom- sented for both titles. modation, such as retail stores, hotels, restaurants, Side reach. The 1991 Standards at section movie theaters, and stadiums, to make their facili- 4.2.6 establish a maximum side-reach height of ties readily accessible to and usable by individuals 54 inches. The 2010 Standards at section 308.3.1 with disabilities, which includes individuals with reduce that maximum height to 48 inches. The sensory disabilities, so that individuals with dis- 2010 Standards also add exceptions for certain abilities have a full and equal opportunity to enjoy elements to the scoping requirement for oper- the benefits of a public accommodation’s goods, able parts. The vast majority of comments the services, facilities, privileges and advantages. Department received were in support of the lower side-reach maximum of 48 inches in the 2010 Other Issues Standards. Most of these comments, but not all, were received from individuals of short stature, Questions Posed in the NPRM Regarding Costs relatives of individuals of short stature, or organi- and Benefits of Complying With zations representing the interests of persons with the 2010 Standards disabilities, including individuals of short stature. In the NPRM, the Department requested com- Comments from individuals with disabilities and ments on various cost and benefit issues related disability advocacy groups stated that the 48-inch to eight requirements in the Department’s Initial side reach would permit independence in perform- RIA, that were projected to have incremental ing many activities of daily living for individuals costs that exceeded monetized benefits by more with disabilities, including individuals of short than $100 million when using the 1991 Standards stature, persons who use wheelchairs, and persons as a comparative baseline, i.e., side reach, water who have limited upper body strength. In this closet clearances in single-user toilet rooms with regard, one commenter who is a business owner in-swinging doors, stairs, elevators, location of pointed out that as a person of short stature there accessible routes to stages, accessible attorney ar- were many occasions when he was unable to exit eas and witness stands, assistive listening systems, a public restroom independently because he could and accessible teeing grounds, putting greens, and not reach the door handle. The commenter said weather shelters at golf courses. 73 FR 34508, that often elevator control buttons are out of his 34512 (June 17, 2008). The Department was par- reach, and, if he is alone, he often must wait for ticularly concerned about how these costs applied someone else to enter the elevator so that he can to alterations. The Department noted that pursuant ask that person to press a floor button for him. to the ADA, the Department does not have statu- Another commenter, who is also a person of short tory authority to modify the 2004 ADAAG and is stature, said that he has on several occasions required instead to issue regulations implement- pulled into a gas station only to find that he was ing the ADA that are consistent with the Board’s unable to reach the credit card reader on the gas guidelines. In that regard, the Department also re- pump. Unlike other customers who can reach the quested comment about whether any of these eight card reader, swipe their credit or debit cards, pump elements in the 2010 Standards should be returned their gas, and leave the station, he must use an-

Department of Justice Guidance and Analysis - 183 28 CFR Part 36 other method to pay for his gas. Another comment accessibility, and would frustrate efforts that have from a person of short stature pointed out that as been made to harmonize private sector model more businesses take steps to reduce labor costs— construction and accessibility codes with Federal a trend expected to continue—staffed booths are accessibility requirements. Given these concerns, being replaced with automatic machines for the they overwhelmingly opposed the idea of return- sale, for example, of parking tickets and other ing the revised side-reach requirement to the Ac- products. He observed that the ‘‘ability to ac- cess Board for further consideration. cess and operate these machines becomes ever The Department also received comments in more critical to function in society,’’ and, on that support of the 48-inch side-reach requirement basis, urged the Department to adopt the 48-inch from an association of professional commercial side-reach requirement. Another individual com- property managers and operators and from State mented that persons of short stature should not governmental entities. The association of property have to carry with them adaptive tools in order to managers pointed out that the revised side-reach access building or facility elements that are out of requirement provided a reasonable approach to their reach, any more than persons in wheelchairs ‘‘regulating elevator controls and all other oper- should have to carry ramps with them in order to able parts’’ in existing facilities in light of the gain access to facilities. manner in which the safe harbor, barrier removal, Many of the commenters who supported the and alterations obligations will operate in the 2010 revised side-reach requirement pointed out that Standards. One governmental entity, while fully lowering the side-reach requirement to 48 inches supporting the 48-inch side-reach requirement, would avoid a problem sometimes encountered encouraged the Department to adopt an excep- in the built environment when an element was tion to the lower reach range for existing facili- mounted for a parallel approach at 54 inches, only ties similar to the exception permitted in the ICC/ to find afterwards that a parallel approach was not ANSI A117.1 Standard. In response to this latter possible. Some commenters also suggested that concern, the Department notes that under the safe lowering the maximum unobstructed side-reach harbor, existing facilities that are in compliance to 48 inches would reduce confusion among de- with the 1991 Standards, which required a 54-inch sign professionals by making the unobstructed side-reach maximum, would not be required to forward and side-reach maximums the same (the comply with the lower side-reach requirement, un- unobstructed forward reach in both the 1991 and less there is an alteration. See § 36.304(d)(2)(i). 2010 Standards is 48 inches maximum). These A number of commenters expressed either con- commenters also pointed out that the ICC/ANSI cern with, or opposition to, the 48-inch side-reach A117.1 Standard, which is a private sector model requirement and suggested that it be returned to accessibility standard, has included a 48-inch the Access Board for further consideration. These maximum high side-reach requirement since 1998. commenters included trade and business associa- Many jurisdictions have already incorporated tions, associations of retail stores, associations of this requirement into their building codes, which restaurant owners, retail and convenience store these commenters believed would reduce the cost chains, and a model code organization. Several of compliance with the 2010 Standards. Because businesses expressed the view that the lower numerous jurisdictions have already adopted the side-reach requirement would discourage the 48-inch side-reach requirement, the Department’s use of their products and equipment by most of failure to adopt the 48-inch side-reach requirement the general public. In particular, concerns were in the 2010 Standards, in the view of many com- expressed by a national association of pay phone menters, would result in a significant reduction in service providers regarding the possibility that pay

184 - Guidance and Analysis Department of Justice 28 CFR Part 36 telephones mounted at the lower height would not height. The table accompanying section 217.2 be used as frequently by the public to place calls, of the 2010 Standards makes clear that where which would result in an economic burden on the- one or more telephones are provided on a floor, pay phone industry. The commenter described the level, or an exterior site, only one phone per floor, lower height required for side reach as creating level, or exterior site must be placed at an acces- a new ‘‘barrier’’ to pay phone use, which would sible height. Similarly, where there is one bank of reduce revenues collected from pay phones and, phones per floor, level, or exterior site, only one consequently, further discourage the installation of phone per floor, level, or exterior site must be ac- new pay telephones. In addition, the commenter cessible. And if there are two or more banks of expressed concern that phone service provid- phones per floor, level, or exterior site, only one ers would simply decide to remove existing pay phone per bank must be placed at an accessible phones rather than incur the costs of relocating height. them at the lower height. With regard to this latter Another comment in opposition to the lower concern, the commenter misunderstood the man- reach range requirement was submitted on behalf ner in which the safe harbor and barrier removal of a chain of convenience stores with fuel stops. obligations under § 36.304 willoperate in the re- The commenter expressed the concern that the vised title III regulation for elements that comply 48-inch side reach ‘‘will make it uncomfortable with the 1991 Standards. for the majority of the public,’’ including persons The Department does not anticipate that of taller stature who would need to stoop to use wholesale relocation of pay telephones in exist- equipment such as fuel dispensers mounted at the ing facilities will be required under the final rule lower height. The commenter offered no objective where the telephones in existing facilities already support for the observation that a majority of the are in compliance with the 1991 Standards. If the public would be rendered uncomfortable if, as re- pay phones comply with the 1991 Standards, the quired in the 2010 Standards, at least one of each adoption of the 2010 Standards does not require type of fuel dispenser at a facility was made ac- retrofitting of these elements to reflect incremental cessible in compliance with the lower reach range. changes in the 2010 Standards. See § 36.304(d) Indeed, the Department received no comments (2). However, pay telephones that were required to from any individuals of tall stature expressing meet the 1991 Standards as part of new construc- concern about accessible elements or equipment tion or alterations, but do not in fact comply with being mounted at the 48-inch height. those standards, will need to be brought into com- Several retail, convenience store, restaurant, and pliance with the 2010 Standards as of 18 months amusement park commenters expressed concern from the publication date of this final rule. See § about the burden the lower side-reach requirement 36.406(a)(5). would place on their businesses in terms of self- The Department does not agree with the con- service food stations and vending areas if the 48- cerns expressed by the commenter about reduced inch requirement were applied retroactively. The revenues from pay phones mounted at lower cost of lowering counter height, in combination heights. The Department believes that while given with the lack of control businesses exercise over the choice some individuals may prefer to use a certain prefabricated service or vending fixtures, pay phone that is at a higher height, the availabil- outweighed, they argued, any benefits to persons ity of some phones at a lower height will not deter with disabilities. For this reason, they suggested individuals from making needed calls. the lower side-reach requirement be referred back The 2010 Standards will not require every to the Access Board. pay phone to be installed or moved to a lowered These commenters misunderstood the safe har-

Department of Justice Guidance and Analysis - 185 28 CFR Part 36 bor and barrier removal obligations that will be in a minimum of 18 inches from the water closet effect under the 2010 Standards. Those existing centerline and a minimum of 36 inches from the self-service food stations and vending areas that side wall adjacent to the water closet, which pre- already are in compliance with the 1991 Standards cludes side transfers. The 1991 Standards do not will not be required to satisfy the 2010 Standards allow an in-swinging door in a toilet or bathing unless they engage in alterations. With regard to room to overlap the required clear floor space at prefabricated vending machines and food service any accessible fixture. To allow greater transfer components that will be purchased and installed in options, section 604.3.2 of the 2010 Standards businesses after the 2010 Standards become effec- prohibits lavatories from overlapping the clear tive, the Department expects that companies will floor space at water closets, except in certain design these machines and fixtures to comply with residential dwelling units. Section 603.2.3 of the the 2010 Standards in the future, as many have al- 2010 Standards maintains the prohibition on doors ready done in the 10 years since the 48- inch side- swinging into the clear floor space or clearance re- reach requirement has been a part of the model quired for any fixture, except that they permit the codes and standards used by many jurisdictions as doors of toilet or bathing rooms to swing into the the basis for their construction codes. required turning space, provided that there is suf- A model code organization commented that the ficient clearance space for the wheelchair outside lower side-reach requirement would create a sig- the door swing. In addition, in single-user toilet or nificant burden if it required entities to lower the bathing rooms, exception 2 of section 603.2.3 of mounting height for light switches, environmental the 2010 Standards permits the door to swing into controls, and outlets when an alteration did not the clear floor space of an accessible fixture if a include the walls where these elements were locat- clear floor space that measures at least 30 inches ed, such as when ‘‘an area is altered or as a path of by 48 inches is available outside the arc of the travel obligation.’’ The Department believes that door swing. the final rule adequately addresses those situations The majority of commenters believed that this about which the commenter expressed concern by requirement would increase the number of toilet not requiring the relocation of existing elements, rooms accessible to individuals with disabilities such as light switches, environmental controls, who use wheelchairs or mobility scooters, and will and outlets, unless they are altered. Moreover, make it easier for them to transfer. A number of under § 36.403 of the 1991 rule, costs for alter- commenters stated thatthere was no reason to re- ing the path of travel to an altered area of primary turn this provision to the Access Board. Numerous function that exceed 20 percent of the overall commenters noted that this requirement is already costs of the alteration will continue to be deemed included in other model accessibility standards disproportionate. and many State and local building codes and that The Department has determined that the revised the adoption of the 2010 Standards is an important side-reach requirement should not be returned to part of harmonization efforts. the Access Board for further consideration based Other commenters, mostly trade associations, in large part on the views expressed by a major- opposed this requirement, arguing that the added ity of thecommenters regarding the need for, and cost to the industry outweighs any increase in importance of, the lower side-reach requirement to accessibility. Two commenters stated that these ensure access for persons with disabilities. proposed requirements would add two feet to the Alterations and water closet clearances in width of an accessible single-user toilet room; single-user toilet rooms with in-swinging doors. however, another commenter said the drawings in The 1991 Standards allow a lavatory to be placed the proposed regulation demonstrated that there

186 - Guidance and Analysis Department of Justice 28 CFR Part 36 would be no substantial increase in the size of egress to be accessible. However, exception 2 of the toilet room. Several commenters stated that section 210.1 of the 2010 Standards provides that this requirement would require moving plumbing in alterations, stairs between levels connected by fixtures, walls, or doors at significant additional an accessible route need not be accessible, except expense. Two commenters wanted the permissible that handrails shall be provided. Most comment- overlap between the door swing and clearance ers were in favor of this requirement for handrails around any fixture eliminated. One commenter in alterations, and stated that adding handrails to stated that these new requirements will result in stairs during alterations was not only feasible and fewer alterations to toilet rooms to avoid trig- not cost prohibitive, but also provided important gering the requirement for increased clearances, safety benefits. One commenter stated that making and suggested that the Department specify that all points of egress accessible increased the num- repairs, maintenance, or minor alterations would ber of people who could use the stairs in an emer- not trigger the need to provide increased clear- gency. A majority of the commenters did not want ances. Another commenter requested that the De- this requirement returned to the Access Board for partment exempt existing guest room bathrooms further consideration. The International Building and single-user toilet rooms that comply with the Code (IBC), which is a private sector model con- 1991Standards from complying with the increased struction code, contains a similar provision, and clearances in alterations. most jurisdictions enforce a version of the IBC as After careful consideration of these comments, their building code, thereby minimizing the im- the Department believes that the revised clearanc- pact of this provision on public entities and public es for single-user toilet rooms will allow safer and accommodations. The Department believes that by easier transfers for individuals with disabilities, requiring only the addition of handrails to altered and will enable a caregiver, aide, or other person stairs where levels are connected by an accessible to accompany an individual with a disability into route, the costs of compliance for public entities the toilet room to provide assistance. The illustra- and public accommodations are minimized, while tions in Appendix B to this final rule, ‘‘Analysis safe egress for individuals with disabilities is in- and Commentary on the 2010 ADA Standards creased. Therefore, the Department has decided for Accessible Design,’’describe several ways not to return this requirement to the Access Board. for public entities and public accommodations Alterations to elevators. Under the 1991 Stan- to make alterations while minimizing additional dards, if an existing elevator is altered, only that costs or loss of space. Further, in any isolated in- altered elevator must comply with the new con- stances where existing structural limitations may struction requirements for accessible elevators entail loss of space, the public entity and public to the maximum extent feasible. It is therefore accommodation may have a technical infeasibility possible that a bank of elevators controlled by a defense for that alteration. The Department has, single call system may contain just one accessible therefore, decided not to return this requirement to elevator, leaving an individual with a disability the Access Board. with no way to call an accessible elevator and Alterations to stairs. The 1991 Standards only thus having to wait indefinitely until an accessible require interior and exterior stairs to be accessible elevator happens to respond to the call system. when they provide access to levels that are not In the 2010 Standards, when an element in one connected by an elevator, ramp, or other acces- elevator is altered, section 206.6.1 will require sible means of vertical access.In contrast, section the same element to be altered in all elevators that 210.1 of the 2010 Standards requires all newly are programmed to respond to the same call but- constructed stairs that are part of a means of ton as the altered elevator. Almost all commenters

Department of Justice Guidance and Analysis - 187 28 CFR Part 36 favored the proposed requirement. This require- of auditoria about the extent to which auditoria al- ment, according to these commenters, is necessary ready provide direct access to stages and whether so a person with a disability need not wait until there were planned alterations over the next 15 an accessible elevator responds to his or her call. years that included accessible direct routes to stag- One commenter suggested that elevator owners es. The Department also asked how to quantify also could comply by modifying the call system the benefits of this requirement for persons with so the accessible elevator could be summoned disabilities, and invited commenters to provide il- independently. One commenter suggested that this lustrative anecdotal experiences about the require- requirement would be difficult for small business- ment’s benefits. es located in older buildings,and one commenter The Department received many comments re- suggested that this requirement be sent back to the garding the costs and benefits of this requirement. Access Board. Although little detail was provided, many industry After considering the comments, the Depart- and governmental entity commenters anticipated ment agrees that this requirement is necessary to that the costs of this requirement would be great ensure that when an individual with a disability and that it would be difficult to implement. They presses a call button, an accessible elevator will noted that premium seats may have to be removed arrive. The IBC contains a similar provision, and and that load-bearing walls may have to be relo- most jurisdictions enforce a version of the IBC as cated. These commenters suggested that the sig- their building code, minimizing the impact of this nificant costs would deter alterations to the stage provision on public entities and public accom- area for a great many auditoria. Some commenters modations. Public entities and small businesses suggested that ramps to the front of the stage may located in older buildings need not comply with interfere with means of egress and emergency this requirement where it is technically infeasible exits. Several commenters requested that the re- to do so. Further, as pointed out by one com- quirement apply to new construction only, and menter, modifying the call system so the acces- one industry commenter requested an exemption sible elevator can be summoned independently is for stages used in arenas or amusement parks another means of complying with this requirement where there is no audience participation or where in lieu of altering all other elevators programmed the stage is a work area for performers only. One to respond to the same call button. Therefore, the commenter requested that the requirement not ap- Department has decided not to return this require- ply to temporary stages. ment to the Access Board. The final rule does not require a direct acces- Location of accessible routes to stages. The sible route to be constructed where a direct circu- 1991 Standards, at section 4.33.5, require an ac- lation path from the seating area to the stage does cessible route to connect the accessible seating not exist. Consequently, those commenters who and the stage, as well as other ancillary spaces expressed concern about the burden imposed by used by performers. The 2010 Standards, at sec- the revised requirement (i.e., where the stage is tion 206.2.6, provide in addition that where a constructed with no direct circulation path con- circulation path directly connects the seating area necting the general seating and performing area) and the stage, the accessible route must connect should note that the final rule will not require the directly the accessible seating and the stage, and, provision of a direct accessible route under these like the 1991 Standards, an accessible route must circumstances. The final rule applies to permanent connect the stage with the ancillary spaces used by stages, as well as ‘‘temporary stages,’’ if there is performers. a direct circulation path from the seating area to In the NPRM, the Department asked operators the stage. However, the Department recognizes

188 - Guidance and Analysis Department of Justice 28 CFR Part 36 that in some circumstances, such as an alteration embarrassed and ashamed to be carried by her to a primary function area, the ability to provide a father onto a stage at one band concert. When the direct accessible route to a stage may be costly or venue had to be changed for another concert to an technically infeasible, and the auditorium owner is accessible auditorium, the band director made sure not precluded by the revised requirement from as- to comment that he was unhappy with the switch. serting defenses available under the regulation. In Rather than endure the embarrassment and indig- addition, the Department notes that since section nities, her child dropped out of band the following 4.33.5 of the 1991 Standards requires an acces- year. sible route to a stage, the safe harbor will apply to Another father commented about how he was existing facilities whose stages comply with the unable to speak from the stage at a PTA meet- 1991 Standards. ing at his child’s school. Speaking from the floor Several governmental entities supported acces- limited his line of sight and his participation. sible auditoria and the revised requirement. One Several examples were provided of children who governmental entity noted that its State building could not participate on stage during graduation, code already required direct access, that it was awards programs, or special school events, such possible to provide direct access, and that creative as plays and festivities. One student did not attend solutions had been found to do so. his college graduation because he would not be Many advocacy groups and individual com- able to get on stage. Anotherstudent was unable menters strongly supported the revised require- to participate in the class Christmas programs or ment, discussing the acute need for direct access end-of-year parties unless her father could attend to stages, as such access has an impact on a great and lift her onto the stage. These commenters did number of people at important life events, such not provide a method to quantify the benefits that as graduations and awards ceremonies, at col- would accrue by having direct access to stages. legiate and competitive performances and other One commenter stated, however, that‘‘the cost of school events, and at entertainment events that dignity and respect is without measure.’’ include audience participation. Many commenters Many industry commenters and governmental expressed the belief that direct access is essential entities suggested that the requirement be sent for integration mandates to be satisfied, and that back to the Access Board for further consider- separate routes are stigmatizing and unequal. The ation. One industry commenter mistakenly noted Department agrees with these concerns. that some international building codes do not Commenters described the impact felt by per- incorporate the requirement and that, therefore, sons in wheelchairs who are unable to access the there is a need for further consideration. However, stage at all when others are able to do so. Some of the Department notes that both the 2003 and 2006 these commenters also discussed the need for the editions of the IBC include scoping provisions performers and production staff who use wheel- that are almost identical to this requirement and chairs to have direct access to the stage, and they that these editions of the model code are the most provided a number of examples that illustrated frequently used. Many individuals and advocacy the importance of the rule proposed in the NPRM. group commenters requested that the requirement Personal anecdotes were provided in comments be adopted without further delay. These com- and at the Department’s public hearing on the menters spoke of the acute need for direct access NPRM. One mother spoke passionately and elo- to stages and the amount of time it would take to quently about the unequal treatment experienced resubmit the requirement to the Access Board. by her daughter, who uses a wheelchair, at awards Several commenters noted that the 2004 ADAAG ceremonies and band concerts. Her daughter was tracks recent model codes, and that there is thus

Department of Justice Guidance and Analysis - 189 28 CFR Part 36 no need for further consideration. The Department associated with community activities and enter- agrees that no further delay is necessary and there- tainment. Making public events and entertainment fore has decided it will not return the requirement accessible to persons with hearing loss also brings to the Access Board for further consideration. families and other groups that include persons Assistive listening systems. The 1991 Standards with hearing loss into more community events and at sections 4.33.6 and 4.33.7 require assistive activities, thus exponentially increasing the benefit listening systems (ALS) in assembly areas and from ALS. prescribe general performance standards for ALS Many commenters noted that when a person systems. In the NPRM, the Department proposed has significant hearing loss, that person may be adopting the technical specifications in the 2004 able to hear and understand information in a quiet ADAAG for ALS that are intended to ensure bet- situation with the use of hearing aids or cochlear ter quality and effective delivery of sound and implants; however, as background noise increases information for persons with hearing impair- and the distance between the source of the sound ments, especially those using hearing aids. The and the listener grows, and especially where there Department noted in the NPRM that since 1991, is distortion in the sound, an ALS becomes es- advancements in ALS and the advent of digital sential for basic comprehension and understand- technology have made these systems more ame- ing. Commenters noted that among the 31 million nable to uniform standards, which, among other Americans with hearing loss, and with a projected things, should ensure that a certain percentage of increase to over 78 million Americans with hear- required ALS systems arehearing-aid compatible. ing loss by 2030, the benefit from ALS is huge 73 FR 34508, 34513 (June 17, 2008). The 2010 and growing. Advocates for persons with dis- Standards at section 219 provide scoping require- abilities and individuals commented that they ap- ments and at section 706 address receiver jacks, preciated the improvements in the 2004 ADAAG hearing aid compatibility, sound pressure level, standards for ALS, including specifications for the signal-to-noise ratio, and peak clipping level. The ALS systems and performance standards. They Department requested comments specifically from noted that providing neckloops that translate the arena and assembly area administrators on the cost signal from the ALS transmitter to a frequency and maintenance issues associated with ALS, and that can be heard on a hearing aid or cochlear asked generally about the costs and benefits of implant are much more effective than separate ALS, and asked whether, based upon the expected ALS system headsets, which sometimes create costs of ALS, the issue should be returned to the feedback, often malfunction, and may create dis- Access Board for further consideration. tractions for others seated nearby. Comments from Commenters from advocacy organizations advocates and users of ALS systems consistently noted that persons who develop significant hear- noted that the Department’s regulation should, at ing loss often discontinue their normal routines a minimum, be consistent with the 2004 ADAAG. and activities, including meetings, entertainment, Although there were requests for adjustments in and large group events, due to a sense of isolation the scoping requirements from advocates seeking caused by the hearing loss or embarrassment. Indi- increased scoping requirements, and from large viduals with longstanding hearing loss may never venue operators seeking fewer requirements, there have participated in group activities for many was no significant concern expressed by com- of the same reasons. Requiring ALS may allow menters about the technical specifications for ALS individuals with disabilities to contribute to the in the 2004 ADAAG. community by joining in government and public Some commenters from trade associations and events, and through increased economic activity

190 - Guidance and Analysis Department of Justice 28 CFR Part 36 large venue owners criticized the scoping require- sible features at § 36.211(a) of the title III regula- ments as too onerous, and one commenter asked tion, which obligates a title III entity to maintain for a remand to the Access Board for new scop- ALS in good working order. The Department rec- ing rules. However, one State agency commented ognizes that maintenance of ALS is key to its us- that the 2004 ADAAG largely duplicates the re- ability. Necessary maintenance will vary dramati- quirements in the 2006 IBC and the 2003 ANSI cally from venue to venue based upon a variety codes,which means that entities that comply with of factors including frequency of use, number of those standards would not incur additional costs units, quality of equipment, and other items. Ac- associated with ADA compliance. cordingly, the Department has determined that it is According to one State office of the courts, the not appropriate to mandate details of maintenance, costs to install either an infrared system or an FM but notes that failure to maintain ALS would vio- system at average-sized facilities, including most late § 36.211(a) of this rule. courtrooms covered by title II, would be between The NPRM asked whether the Department $500 and $2,000, which the agency viewed as a should return the issue of ALS requirements to the small price in comparison to the benefits of inclu- Access Board for further review. The Department sion. Advocacy organizations estimated wholesale has received substantial feedback on the technical costs of ALS systems at about $250 each, and in- and scoping requirements for ALS and is con- dividual neckloops to link the signal from the ALS vinced that these requirements are reasonable— transmitter to hearing aids or cochlear implants at especially in light of the fact that the requirements less than $50 per unit.Many commenters pointed largely duplicate those in the 2006 IBC and out that if a facility already is using induction the 2003 ANSI codes already adopted in many neckloops, it would already be in compliance al- States—and that the benefits justify the require- ready and would not have any additional installa- ments. In addition, the Department believes that tion costs. One major city commented that annual the new specifications will make ALS work more maintenance is about $2,000 for the entire system effectively for more persons with disabilities, of performance venues in the city. A trade associa- which, together with a growing population of new tion representing very large venues estimated an- users, will increase demand for ALS, thus mooting nual maintenance and upkeep expenses, including criticism from some large venue operators about labor and replacement parts, to be at most about insufficient demand. Thus, the Department has $25,000 for a very large professionalsports sta- determined that it is unnecessary to refer this issue dium. back to the Access Board for reconsideration. One commenter suggested that the scoping Accessible teeing grounds, putting greens, and requirements for ALS in the 2004 ADAAG were weather shelters. The Department’s NPRM sought too stringent and that the Department should refer public input on the proposed requirements for ac- them back to the Access Board for further review cessible golf courses. These requirements specifi- and consideration. Others commented that the re- cally relate to accessible routes within the bound- quirement for new ALS systems should mandate aries of the courses, as well as the accessibility multichannel receivers capable of receiving audio of golfing elements (e.g., teeing grounds, putting description for persons who are blind, in addition greens, weather shelters). to a channel for amplification for persons who are In the NPRM, the Department sought informa- hard of hearing. Some commenters suggested that tion from the owners and operators of golf cours- the Department should require a set schedule and es, both public and private, on the extent to which protocol of mandatory maintenance. Department their courses already have golf car passages, and, regulations already require maintenance of acces- if so, whether they intended to avail themselves

Department of Justice Guidance and Analysis - 191 28 CFR Part 36 of the proposed accessible route exception for grounds or greens, many of which are higher or golf car passages. 73 FR 34508, 34513 (June 17, lower than the car path. This commenter argued 2008). that if golf car passages were required to extend Most commenters expressed support for the onto teeing grounds and greens in order to qualify adoption of an accessible route requirement that for an exception, then some golf courses would includes an exception permitting golf car passage have to substantially regrade teeing grounds and as all or part of an accessible route. Comments greens at a high cost. in favor of the proposed standard came from golf After careful consideration of the comments, course owners and operators, individuals, organi- the Department has decided to adopt the 2010 zations, and disability rights groups, golf course Standards specific to golf facilities. The Depart- requirements generally came from golf courses ment believes that in order for individuals with and organizations representing the golf course in- mobility disabilities to have an opportunity to play dustry. golf that is equal to golfers without disabilities, it The majority of commenters expressed the is essential that golf courses provide an accessible general viewpoint that nearly all golf courses route or accessible golf car passage to connect ac- provide golf cars and have either well-defined cessible elements and spaces within the boundary paths or permit golf cars to drive on the course of the golf course, including teeing grounds, put- where paths are not present—and thus meet the ting greens, and weather shelters. accessible route requirement. Several commenters disagreed with the assumption in the Initial RIA Public Comments on Other NPRM Issues that virtually every tee and putting green on an existing course would need to be regraded in order Equipment and furniture. Equipment and fur- to provide compliant accessible routes. According niture are covered under the Department’s ADA to one commenter, many golf courses are rela- regulations, including under the provision requir- tively flat with little slope, especially those heav- ing modifications in policies, practices, and proce- ily used by recreational golfers. This commenter dures and the provision requiring barrier removal. concurred with the Department that it is likely that See 28 CFR 36.302,36.304. The Department has most existing golf courses have a golf car passage not issued specific regulatory guidance on equip- to tees and greens, thereby substantially minimiz- ment and furniture, but proposed such regulations ing the cost of bringing an existing golf course in 1991. The Department decided not to establish into compliance with the proposed standards. specific equipment requirements at that time be- One commenter reported that golf course access cause the requirements could be addressed under audits found that the vast majority of public golf other sections of the regulation and because there courses would have little difficulty in meeting the were no appropriate accessibility standards ap- proposed golf course requirements. In the view of plicable to many types of equipment at that time. some commenters, providing access to golf cours- See 28 CFR part 36, app. B (2009) (‘‘Proposed es would increase golf participation by individuals Section 36.309 Purchase of Furniture and Equip- with disabilities. ment’’). The Department also received many comments In the NPRM, the Department announced its requesting clarification of the term ‘‘golf car pas- intention not to regulate equipment, proposing sage.’’ For example, one commenter requesting instead to continue with the current approach. The clarification of the term ‘‘golf car passage’’ argued Department received numerous comments object- that golf courses typically do not provide golf car ing to this decision and urging the Department to paths or pedestrian paths onto the actual teeing issue equipment and furniture regulations. Based

192 - Guidance and Analysis Department of Justice 28 CFR Part 36 on these comments, the Department has decided ing to these commenters, the lack of such acces- that it needs to revisit the issuance of equipment sibility in point-of-sale devices is particularly and furniture regulations, and it intends to do so in problematic because it forces blind individuals to future rulemaking. provide personal or sensitive information (such as Among the commenters’ key concerns, many personal identification numbers) to third parties, from the disability community objected to the De- which exposes them to identity fraud. Because the partment’s earlier decision not to issue equipment ADA does not apply directly to the manufacture regulations, especially for medical equipment. of products, the Department lacks the authority to These groups recommended that the Department issue design requirements for equipment designed list by name certain types of medical equipment exclusively for use in private homes. See Depart- that must be accessible, including exam tables ment of Justice, Americans with Disabilities Act, (that lower to 15 inches above the floor or lower), ADA Title III Technical Assistance Manual Cov- scales, medical and dental chairs, and radiologic ering Public Accommodations and Commercial equipment (including mammography equipment). Facilities, III–4.4200, available at http://www.ada. These commenters emphasized that the provision gov/taman3.html. To the extent that equipment in- of medically-related equipment and furniture also tended for such use is used by a covered entity to should be specifically regulated since they are not facilitate a covered service or activity, that covered included in the 2004 ADAAG (while depositories, entity must make the equipment accessible to the change machines, fuel dispensers, and ATMs are) extent that it can. See id.: 28 CFR part 36, app. B and because of their crucial role in the provision (2009) (‘‘Proposed Section 36.309 Purchase of of healthcare. Commenters described how the lack Furniture and Equipment’’). of accessible medical equipment negatively affects Some commenters urged the Department to re- the health of individuals with disabilities. For ex- quire swimming pool operators to provide aquatic ample, some individuals with mobility disabilities wheelchairs for the use of persons with disabili- do not get thorough medical care because their ties when the swimming pool has a sloped entry. health providers do not have accessible examina- If there is a sloped entry, a person who uses a tion tables or scales. wheelchair would require a wheelchair designed Commenters also said that the Department’s for use in the water in order to gain access to the stated plan to assess the financial impact of free- pool since taking a personal wheelchair into wa- standing equipment on businesses was not neces- ter would rust and corrode the metal on the chair sary, as any regulations could include a financial and damage any electrical components of a power balancing test. Other commenters representing wheelchair. Providing an aquatic wheelchair made persons who are blind or have low vision urged of non-corrosive materials and designed for access the Department to mandate accessibility for a into the water will protect the water from contami- wide range of equipment— including household nation and avoid damage to personal wheelchairs appliances (stoves, washers, microwaves, and or other mobility aids. coffee makers), audiovisual equipment (stereos Additionally, many commenters urged the and DVD players), exercise machines, vending Department to regulate the height of beds in ac- equipment, ATMs, computers at Internet cafes or cessible hotel guest rooms and to ensure that such hotel business centers, reservations kiosks at ho- beds have clearance at the floor to accommodate tels, and point-of-sale devices— through speech a mechanical lift. These commenters noted that output and tactile labels and controls. They argued in recent years, hotel beds have become higher as that modern technology allows such equipment hotels use thicker mattresses, thereby making it to be made accessible at minimal cost. Accord- difficult or impossible for many individuals who

Department of Justice Guidance and Analysis - 193 28 CFR Part 36 use wheelchairs to transfer onto hotel beds. In ad- the regulation, including those requiring reason- dition, many hotel beds use a solid-sided platform able modifications of policies, practices, or proce- base with no clearance at the floor,which prevents dures, readily achievable barrier removal, and ef- the use of a portable lift to transfer an individual fective communication will require the provision onto the bed. Consequently, individuals who bring of accessible equipment in appropriate circum- their own lift to transfer onto the bed cannot in- stances. Because it is clear that many commenters dependently get themselves onto the bed. ome want the Department to provide additional specific commenters suggested various design options that requirements for accessible equipment, the De- might avoid these situations. partment plans to initiate a rulemaking to address The Department intends to provide specific these issues in the near future. guidance relating to both hotel beds and aquatic Accessible golf cars. An accessible golf car wheelchairs in a future rulemaking. For the pres- means a device that is designed and manufactured ent, the Department reminds covered entities that to be driven on all areas of a golf course, is in- they have the obligation to undertake reasonable dependently usable by individuals with mobility modifications to their current policies and pro- disabilities, has a hand-operated brake and accel- cedures and to undertake barrier removal or pro- erator, carries golf clubs in an accessible location, vide alternatives to barrier removal to make their and has a seat that both swivels and raises to put facilities accessible to persons with disabilities. the golfer in a standing or semi-standing position. In many cases, providing aquatic wheelchairs or The 1991 regulation contained no language specif- adjusting hotel bed heights may be necessary to ically referencing accessible golf cars. After con- comply with those requirements. sidering the comments addressing the ANPRM’s Commenters from the business community proposed requirement that golf courses make at objected to the lack of clarity from the NPRM as least one specialized golf car available for the use to which equipment must be accessible and how of individuals with disabilities, and the safety of to make it accessible. Several commenters urged accessible golf cars and their use on golf course the Department to clarify that equipment located greens, the Department stated in the NPRM that it in a public accommodation need not meet the would not issue regulations specific to golf cars. technical specifications of ADAAG so long as the The Department received many comments in service provided by the equipment can be pro- response to its decision to propose no new regula- vided by alternative means, such as an employee. tion specific to accessible golf cars. The majority For example, the commenters suggested that a of commenters urged the Department to require self-service check-in kiosk in a hotel need not golf courses to provide accessible golf cars. These comply with the reach range requirement so long comments came from individuals, disability ad- as a guest can check in at the front desk nearby. vocacy and recreation groups, a manufacturer of Several commenters argued that the Department accessible golf cars, and representatives of local should not require that point-of-sale devices be ac- government. Comments supporting the Depart- cessible to individuals who are blind or have low ment’s decision not to propose a new regulation vision (although complying with accessible route came from golf course owners, associations, and and reach range was acceptable), especially until individuals. the Department adopts specific standards govern- Many commenters argued that while the ex- ing such access. isting title III regulation covered the issue, the The Department has decided not to add specific Department should nonetheless adopt specific scoping or technical requirements for equipment regulatory language requiring golf courses to pro- and furniture in this final rule. Other provisions of vide accessible golf cars. Some commenters noted

194 - Guidance and Analysis Department of Justice 28 CFR Part 36 that many local governments and park authorities achievable barrier removal. that operate public golf courses have already pro- Web site accessibility. Many commenters ex- vided accessible golf cars. Experience indicates pressed disappointment that the NPRM did not that such golf cars may be used without damag- specifically require title III-covered entities to ing courses. Some argued that having accessible make their Web sites, through which they offer golf cars would increase golf course revenue by goods and services, accessible to individuals with enabling more golfers with disabilities to play the disabilities. Commenters urged the Department game. Several commenters requested that the De- to require specifically that entities that provide partment adopt a regulation specifically requiring goods or services on the Internet make their Web- each golf course to provide one or more accessible sites accessible, regardless of whether or not these golf cars. Other commenters recommended allow- entities also have a ‘‘bricks and mortar’ location. ing golf courses to make ‘‘pooling’’ arrangements The commenters explained that such clarifica- to meet demands for such cars. A few comment- tion was needed because of the current ambiguity ers expressed support for using accessible golf caused by court decisions as to whether web-only cars to accommodate golfers with and without businesses are covered under title III. Comment- disabilities. Commenters also pointed out that ers argued that the cost of making Web sites ac- the Departments of the Interior and Defense have cessible through Web site design is minimal, yet already mandated that golf courses under their critical, to enabling individuals with disabilities to jurisdictional control must make accessible golf benefit from the goods and services an entity of- cars available unless it can be demonstrated that fers through its Web site. The Internet has become doing so would change the fundamental nature of an essential tool for many Americans and, when the game. accessible, provides individuals with disabilities While an industry association argued that at great independence. Commenters recommended least two models of accessible golf cars meet the that, at a minimum, the Department require cov- specifications recognized in the field, and that ered entities to meet the Electronic and Informa- accessible golf cars cause no more damage to tion Technology Accessibility Standards issued greens or other parts of golf courses than players pursuant to section 508. Under section 508 of the standing or walking across the course, other com- Rehabilitation Act of 1973, Federal agencies are menters expressed concerns about the potential for required to make their Web sites accessible. 29 damage associated with the use of accessible golf U.S.C. 794(d); 36 CFR Part 1194. cars. Citing safety concerns, golf organizations The Department agrees that the ability to ac- recommended that an industry safety standard be cess the goods and services offered on the Internet developed. through the Web sites of public accommodations Although the Department declines to add spe- is of great importance to individuals with disabili- cific scoping or technical requirements for golf ties, particularly those who are blind or who have cars to this final rule, the Department expects to low vision. When the ADA was enacted in 1990, address requirements for accessible golf cars in the Internet was unknown to most of the public. future rulemaking. In the meantime, the Depart- Today, the Internet plays a critical role in daily ment believes that golfers with disabilities who life for personal, civic, commercial, and business need accessible golf cars are protected by other purposes. In light of the growing importance of existing provisions in the title III regulation, in- eBcommerce, ensuring nondiscriminatory access cluding those requiring reasonable modifications to the goods and services offered through the Web of policies, practices, or procedures, and readily sites of covered entities can play a significant role

Department of Justice Guidance and Analysis - 195 28 CFR Part 36 in fulfilling the goals of the ADA. expressed concern that the presence of chemicals Although the language of the ADA does not interferes with their ability to participate in a wide explicitly mention the Internet, the Department range of activities. These commenters also urged has taken the position that title III covers ac- the Department to add multiple chemical sensitivi- cess to Web sites of public accommodations. The ties to the definition of a disability. Department has issued guidance on the ADA as The Department has determined not to include applied to the Web sites of public entities, which specific provisions addressing multiple chemical includes the availability of standards for Web site sensitivities in the final rule. In order to be viewed accessibility. See Accessibility of State and Local as a disability under the ADA, an impairment must Government Websites to People with Disabilities substantially limit one or more major life activi- (June 2003), available at www.ada.gov/websites2. ties. An individual’s major life activities of respi- htm. As the Department stated in that publication, ratory or neurological functioning may be substan- an agency (and similarly a public accommoda- tially limited by allergies or sensitivity to a degree tion) with an inaccessible Web site also may meet that he or she is a person with a disability. When a its legal obligations by providing an accessible person has this type of disability, a covered entity alternative for individuals to enjoy its goods or may have to make reasonable modifications in its services, such as a staffed telephone information policies and practices for that person. However, line. However, such an alternative must provide an this determination is an individual assessment and equal degree of access in terms of hours of opera- must be made on a case-by-case basis. tion and range of options and programs available. For example, if retail goods or bank services are posted on an inaccessible Web site that is avail- able 24 hours a day, 7 days a week to individuals without disabilities, then the alternative acces- sible method must also be available 24 hours a day, 7 days a week. Additional guidance is avail- able in the Web Content Accessibility Guidelines (WCAG), available at http://www.w3.org/TR/ WAIWEBCONTENT (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 did not issue proposed regula- tions as part of its NPRM, and thus is unable to issue specific regulatory language on Web site ac- cessibility at this time. However, the Department expects to engage in rulemaking relating to Web site accessibility under the ADA in the near future. 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 individu- als with chemical sensitivities. These commenters

196 - Guidance and Analysis Department of Justice Title III Regulations 1991 Preamble and Section-by-Section Analysis

Department of Justice Appendix C to the title III rule incorporates the guidance, i.e., the 1991 Section-by-Section Analysis, to the title III rule published July 26, 1991. The 1991 analysis remains relevant to the extent it is not con- tradicted by the amendments to the rules or it provides guidance on provisions of the rules unchanged by the revised 2010 ADA regulations.

198 Department of Justice 28 CFR Part 36

Department of Justice Pt. 36, App. B

AAPPENDIXPPENDIX B CTO TOP ARTPART36—P 36 —REAMBLE TO tion of public accommodation could also own, lease or lease to, or operate facilities GUIDANCEREGULATION ON ADA ON N ONDISCRIMINATIONREGULATION ON THE BASIS OF DISABILITY BY PUB- that are not places of public accommodation. The rule would exceed the reach of the ADA ON LIC NONDISCRIMINATIONACCOMMODATIONS AND IN COM- if it were to apply the public accommoda- ON MERCIALTHE FACILITIES (PUBLISHED tions requirements of subparts B and C to BASISJULY OF26, DISABILITY 1991) the operations of a private entity that do not involve a place of public accommodation. NOTE: For the convenience of the reader, BY PUBLIC ACCOMMODATIONS Similarly, § 36.102(b)(3) provides that the new this appendix contains the text of the pre- construction and alterations requirements of ambleAND INto the final regulation on non- subpart D obligate a public accommodation discrimination on the basis of disability by COMMERCIAL FACILITIES only with respect to facilities used as, or de- public accommodations and in commercial signed or constructed for use as, places of facilitiesORIGINALLY beginning PUBLISHED at the heading ON ‘‘Section- public accommodation or commercial facili- by-Section Analysis and Response to Com- JULY 26, 1991 ties. ments’’ and ending before ‘‘List of Subjects in 28 CFR part 36’’ (56 FR 35546, July 26, 1991). On the other hand, as mandated by the ADA and reflected in § 36.102(c), the new con- SECTION-BY-SECTION ANALYSIS AND RESPONSE struction and alterations requirements of TO COMMENTS subpart D apply to a commercial facility whether or not the facility is a place of pub- Subpart A—General lic accommodation, or is owned, leased, leased to, or operated by a public accommo- Section 36.101 Purpose dation. Section 36.101 states the purpose of the Section 36.102(e) states that the rule does rule, which is to effectuate title III of the not apply to any private club, religious enti- Americans with Disabilities Act of 1990. This ty, or public entity. Each of these terms is title prohibits discrimination on the basis of defined in § 36.104. The exclusion of private disability by public accommodations, re- clubs and religious entities is derived from quires places of public accommodation and section 307 of the ADA; and the exclusion of commercial facilities to be designed, con- public entities is based on the statutory defi- structed, and altered in compliance with the nition of public accommodation in section accessibility standards established by this 301(7) of the ADA, which excludes entities part, and requires that examinations or other than private entities from coverage courses related to licensing or certification under title III of the ADA. for professional or trade purposes be acces- sible to persons with disabilities. Section 36.103 Relationship to Other Laws Section 36.103 is derived from sections 501 Section 36.102 Application (a) and (b) of the ADA. Paragraph (a) pro- Section 36.102 specifies the range of enti- vides that, except as otherwise specifically ties and facilities that have obligations provided by this part, the ADA is not in- under the final rule. The rule applies to any tended to apply lesser standards than are re- public accommodation or commercial facil- quired under title V of the Rehabilitation ity as those terms are defined in § 36.104. It Act of 1973, as amended (29 U.S.C. 790–794), or also applies, in accordance with section 309 the regulations implementing that title. The of the ADA, to private entities that offer ex- standards of title V of the Rehabilitation aminations or courses related to applica- Act apply for purposes of the ADA to the ex- tions, licensing, certification, or tent that the ADA has not explicitly adopted credentialing for secondary or postsecondary a different standard from title V. Where the education, professional, or trade purposes. ADA explicitly provides a different standard Except as provided in § 36.206, ‘‘Retaliation or from section 504, the ADA standard applies coercion,’’ this part does not apply to indi- to the ADA, but not to section 504. For ex- viduals other than public accommodations or ample, section 504 requires that all federally to public entities. Coverage of private indi- assisted programs and activities be readily viduals and public entities is discussed in the accessible to and usable by individuals with preamble to § 36.206. handicaps, even if major structural alter- As defined in § 36.104, a public accommoda- ations are necessary to make a program ac- tion is a private entity that owns, leases or cessible. Title III of the ADA, in contrast, leases to, or operates a place of public ac- only requires alterations to existing facili- commodation. Section 36.102(b)(2) empha- ties if the modifications are ‘‘readily achiev- sizes that the general and specific public ac- able,’’ that is, able to be accomplished easily commodations requirements of subparts B and without much difficulty or expense. A and C obligate a public accommodation only public accommodation that is covered under with respect to the operations of a place of both section 504 and the ADA is still required public accommodation. This distinction is to meet the ‘‘program accessibility’’ stand- drawn in recognition of the fact that a pri- ard in order to comply with section 504, but vate entity that meets the regulatory defini- would not be in violation of the ADA unless

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VerDate Mar<15>2010 13:50 Aug 18, 2010 Jkt 220107 PO 00000 Frm 00711 Fmt 8010 Sfmt 8002 Y:\SGML\220107.XXX 220107 jdjones on DSK8KYBLC1PROD with CFR Department of Justice 1991 Section-by-Section Analysis - 199 28 CFR Part 36

Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

it failed to make ‘‘readily achievable’’ modi- any State, or between points in the same fications. On the other hand, an entity cov- State but through another State or foreign ered by the ADA is required to make ‘‘read- country. Commerce is defined in the same ily achievable’’ modifications, even if the manner as in title II of the Civil Rights Act program can be made accessible without any of 1964, which prohibits racial discrimination architectural modifications. Thus, an entity in public accommodations. covered by both section 504 and title III of The term ‘‘commerce’’ is used in the defi- the ADA must meet both the ‘‘program ac- nition of ‘‘place of public accommodation.’’ cessibility’’ requirement and the ‘‘readily According to that definition, one of the cri- achievable’’ requirement. teria that an entity must meet before it can Paragraph (b) makes explicit that the rule be considered a place of public accommoda- does not affect the obligation of recipients of tion is that its operations affect commerce. Federal financial assistance to comply with The term ‘‘commerce’’ is similarly used in the requirements imposed under section 504 the definition of ‘‘commercial facility.’’ of the Rehabilitation Act of 1973. The use of the phrase ‘‘operations affect Paragraph (c) makes clear that Congress commerce’’ applies the full scope of coverage did not intend to displace any of the rights of the Commerce Clause of the Constitution or remedies provided by other Federal laws in enforcing the ADA. The Constitution or other State or local laws (including State gives Congress broad authority to regulate common law) that provide greater or equal interstate commerce, including the activi- protection to individuals with disabilities. A ties of local business enterprises (e.g., a phy- plaintiff may choose to pursue claims under sician’s office, a neighborhood restaurant, a a State law that does not confer greater sub- laundromat, or a bakery) that affect inter- stantive rights, or even confers fewer sub- state commerce through the purchase or sale stantive rights, if the alleged violation is of products manufactured in other States, or protected under the alternative law and the by providing services to individuals from remedies are greater. For example, assume other States. Because of the integrated na- that a person with a physical disability ture of the national economy, the ADA and seeks damages under a State law that allows this final rule will have extremely broad ap- compensatory and punitive damages for dis- plication. crimination on the basis of physical dis- ‘‘Commercial facilities’’ are those facili- ability, but does not allow them on the basis ties that are intended for nonresidential use of mental disability. In that situation, the by a private entity and whose operations af- State law would provide narrower coverage, fect commerce. As explained under § 36.401, by excluding mental disabilities, but broader ‘‘New construction,’’ the new construction remedies, and an individual covered by both and alteration requirements of subpart D of laws could choose to bring an action under the rule apply to all commercial facilities, both laws. Moreover, State tort claims con- whether or not they are places of public ac- fer greater remedies and are not preempted commodation. Those commercial facilities by the ADA. A plaintiff may join a State tort that are not places of public accommodation claim to a case brought under the ADA. In are not subject to the requirements of sub- such a case, the plaintiff must, of course, parts B and C (e.g., those requirements con- prove all the elements of the State tort cerning auxiliary aids and general non- claim in order to prevail under that cause of discrimination provisions). action. Congress recognized that the employees A commenter had concerns about privacy within commercial facilities would generally requirements for banking transactions using be protected under title I (employment) of telephone relay services. Title IV of the Act the Act. However, as the House Committee provides adequate protections for ensuring on Education and Labor pointed out, ‘‘[t]o the confidentiality of communications using the extent that new facilities are built in a the relay services. This issue is more appro- manner that make[s] them accessible to all priately addressed by the Federal Commu- individuals, including potential employees, nications Commission in its regulation im- there will be less of a need for individual em- plementing title IV of the Act. ployers to engage in reasonable accommoda- tions for particular employees.’’ H.R. Rep. Section 36.104 Definitions No. 485, 101st Cong., 2d Sess., pt. 2, at 117 ‘‘Act.’’ The word ‘‘Act’’ is used in the regu- (1990) [hereinafter ‘‘Education and Labor re- lation to refer to the Americans with Dis- port’’]. While employers of fewer than 15 em- abilities Act of 1990, Pub. L. 101–336, which is ployees are not covered by title I’s employ- also referred to as the ‘‘ADA.’’ ment discrimination provisions, there is no ‘‘Commerce.’’ The definition of ‘‘com- such limitation with respect to new con- merce’’ is identical to the statutory defini- struction covered under title III. Congress tion provided in section 301(l) of the ADA. It chose not to so limit the new construction means travel, trade, traffic, commerce, provisions because of its desire for a uniform transportation, or communication among requirement of accessibility in new construc- the several States, between any foreign tion, because accessibility can be accom- country or any territory or possession and plished easily in the design and construction

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Department of Justice Pt. 36, App. B

stage, and because future expansion of a The use of the term ‘‘disability’’ instead of business or sale or lease of the property to a ‘‘handicap’’ and the term ‘‘individual with a larger employer or to a business that is a disability’’ instead of ‘‘individual with place of public accommodation is always a handicaps’’ represents an effort by the Con- possibility. gress to make use of up-to-date, currently The term ‘‘commercial facilities’’ is not in- accepted terminology. The terminology ap- tended to be defined by dictionary or com- plied to individuals with disabilities is a mon industry definitions. Included in this very significant and sensitive issue. As with category are factories, warehouses, office racial and ethnic terms, the choice of words buildings, and other buildings in which em- to describe a person with a disability is over- ployment may occur. The phrase, ‘‘whose op- laid with stereotypes, patronizing attitudes, erations affect commerce,’’ is to be read and other emotional connotations. Many in- broadly, to include all types of activities dividuals with disabilities, and organizations reached under the commerce clause of the representing such individuals, object to the Constitution. use of such terms as ‘‘handicapped person’’ Privately operated airports are also in- or ‘‘the handicapped.’’ In other recent legis- cluded in the category of commercial facili- lation, Congress also recognized this shift in ties. They are not, however, places of public terminology, e.g., by changing the name of accommodation because they are not termi- the National Council on the Handicapped to nals used for ‘‘specified public transpor- the National Council on Disability (Pub. L. tation.’’ (Transportation by aircraft is spe- 100–630). cifically excluded from the statutory defini- In enacting the Americans with Disabil- tion of ‘‘specified public transportation.’’) ities Act, Congress concluded that it was im- Thus, privately operated airports are subject portant for the current legislation to use ter- to the new construction and alteration re- minology most in line with the sensibilities quirements of this rule (subpart D) but not of most Americans with disabilities. No to subparts B and C. (Airports operated by change in definition or substance is intended public entities are covered by title II of the nor should be attributed to this change in Act.) Places of public accommodation lo- phraseology. cated within airports, such as restaurants, The term ‘‘disability’’ means, with respect shops, lounges, or conference centers, how- to an individual— ever, are covered by subparts B and C of this (A) A physical or mental impairment that part. substantially limits one or more of the The statute’s definition of ‘‘commercial fa- major life activities of such individual; cilities’’ specifically includes only facilities (B) A record of such an impairment; or ‘‘that are intended for nonresidential use’’ (C) Being regarded as having such an im- and specifically exempts those facilities that pairment. are covered or expressly exempted from cov- If an individual meets any one of these erage under the Fair Housing Act of 1968, as three tests, he or she is considered to be an amended (42 U.S.C. 3601–3631). The interplay individual with a disability for purposes of between the Fair Housing Act and the ADA coverage under the Americans with Disabil- with respect to those facilities that are ities Act. ‘‘places of public accommodation’’ was the Congress adopted this same basic defini- subject of many comments and is addressed tion of ‘‘disability,’’ first used in the Reha- in the preamble discussion of the definition bilitation Act of 1973 and in the Fair Housing of ‘‘place of public accommodation.’’ Amendments Act of 1988, for a number of ‘‘Current illegal use of drugs.’’ The phrase reasons. It has worked well since it was ‘‘current illegal use of drugs’’ is used in adopted in 1974. There is a substantial body § 36.209. Its meaning is discussed in the pre- of administrative interpretation and judicial amble for that section. precedent on this definition. Finally, it ‘‘Disability.’’ The definition of the term would not be possible to guarantee com- ‘‘disability’’ is comparable to the definition prehensiveness by providing a list of specific of the term ‘‘individual with handicaps’’ in disabilities, especially because new disorders section 7(8)(B) of the Rehabilitation Act and may be recognized in the future, as they section 802(h) of the Fair Housing Act. The have since the definition was first estab- Education and Labor Committee report lished in 1974. makes clear that the analysis of the term ‘‘individual with handicaps’’ by the Depart- Test A—A Physical or Mental Impairment ment of Health, Education, and Welfare in That Substantially Limits One or More of its regulations implementing section 504 (42 the Major Life Activities of Such Indi- vidual FR 22685 (May 4, 1977)) and the analysis by the Department of Housing and Urban Devel- Physical or mental impairment. Under the opment in its regulation implementing the first test, an individual must have a physical Fair Housing Amendments Act of 1988 (54 FR or mental impairment. As explained in para- 3232 (Jan. 23, 1989)) should also apply fully to graph (1) (i) of the definition, ‘‘impairment’’ the term ‘‘disability’’ (Education and Labor means any physiological disorder or condi- report at 50). tion, cosmetic disfigurement, or anatomical

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

loss affecting one or more of the following ity, either because of its actual effect on the body systems: Neurological; musculo- individual with HIV disease or because the skeletal; special sense organs (including reactions of other people to individuals with speech organs that are not respiratory, such HIV disease cause such individuals to be as vocal cords, soft palate, and tongue); res- treated as though they are disabled. See piratory, including speech organs; cardio- Memorandum from Douglas W. Kmiec, Act- vascular; reproductive; digestive; genito- ing Assistant Attorney General, Office of urinary; hemic and lymphatic; skin; and en- Legal Counsel, Department of Justice, to Ar- docrine. It also means any mental or psycho- thur B. Culvahouse, Jr., Counsel to the logical disorder, such as mental retardation, President (Sept. 27, 1988), reprinted in Hear- organic brain syndrome, emotional or men- ings on S. 933, the Americans with Disabil- tal illness, and specific learning disabilities. ities Act, Before the Subcomm. on the This list closely tracks the one used in the Handicapped of the Senate Comm. on Labor regulations for section 504 of the Rehabilita- and Human Resources, 101st Cong., 1st Sess. tion Act of 1973 (see, e.g., 45 CFR 84.3(j)(2)(i)). 346 (1989). The phrase ‘‘symptomatic or Many commenters asked that ‘‘traumatic asymptomatic’’ was inserted in the final rule brain injury’’ be added to the list in para- after ‘‘HIV disease’’ in response to com- graph (1)(i). Traumatic brain injury is al- menters who suggested that the clarification ready included because it is a physiological was necessary to give full meaning to the condition affecting one of the listed body Department’s opinion. systems, i.e., ‘‘neurological.’’ Therefore, it Paragraph (1)(iv) of the definition states was unnecessary for the Department to add that the phrase ‘‘physical or mental impair- the term to the regulation. ment’’ does not include homosexuality or bi- It is not possible to include a list of all the sexuality. These conditions were never con- specific conditions, contagious and noncon- sidered impairments under other Federal dis- tagious diseases, or infections that would ability laws. Section 511(a) of the statute constitute physical or mental impairments makes clear that they are likewise not to be because of the difficulty of ensuring the considered impairments under the Ameri- comprehensiveness of such a list, particu- cans with Disabilities Act. larly in light of the fact that other condi- Physical or mental impairment does not tions or disorders may be identified in the include simple physical characteristics, such future. However, the list of examples in para- as blue eyes or black hair. Nor does it in- graph (1)(iii) of the definition includes: Or- clude environmental, cultural, economic, or thopedic, visual, speech and hearing impair- other disadvantages, such as having a prison ments; cerebral palsy; epilepsy, muscular record, or being poor. Nor is age a disability. dystrophy, multiple sclerosis, cancer, heart Similarly, the definition does not include disease, diabetes, mental retardation, emo- common personality traits such as poor tional illness, specific learning disabilities, judgment or a quick temper where these are HIV disease (symptomatic or asymp- not symptoms of a mental or psychological tomatic), tuberculosis, drug addiction, and disorder. However, a person who has these alcoholism. characteristics and also has a physical or The examples of ‘‘physical or mental im- mental impairment may be considered as pairments’’ in paragraph (1)(iii) are the same having a disability for purposes of the Amer- as those contained in many section 504 regu- icans with Disabilities Act based on the im- lations, except for the addition of the phrase pairment. ‘‘contagious and noncontagious’’ to describe Substantial limitation of a major life activity. the types of diseases and conditions in- Under Test A, the impairment must be one cluded, and the addition of ‘‘HIV disease that ‘‘substantially limits a major life activ- (symptomatic or asymptomatic)’’ and ‘‘tu- ity.’’ Major life activities include such berculosis’’ to the list of examples. These ad- things as caring for one’s self, performing ditions are based on the ADA committee re- manual tasks, walking, seeing, hearing, ports, caselaw, and official legal opinions in- speaking, breathing, learning, and working. terpreting section 504. In School Board of Nas- For example, a person who is paraplegic is sau County v. Arline, 480 U.S. 273 (1987), a case substantially limited in the major life activ- involving an individual with tuberculosis, ity of walking, a person who is blind is sub- the Supreme Court held that people with stantially limited in the major life activity contagious diseases are entitled to the pro- of seeing, and a person who is mentally re- tections afforded by section 504. Following tarded is substantially limited in the major the Arline decision, this Department’s Office life activity of learning. A person with trau- of Legal Counsel issued a legal opinion that matic brain injury is substantially limited in concluded that symptomatic HIV disease is the major life activities of caring for one’s an impairment that substantially limits a self, learning, and working because of mem- major life activity; therefore it has been in- ory deficit, confusion, contextual difficul- cluded in the definition of disability under ties, and inability to reason appropriately. this part. The opinion also concluded that A person is considered an individual with a asymptomatic HIV disease is an impairment disability for purposes of Test A, the first that substantially limits a major life activ- prong of the definition, when the individual’s

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Department of Justice Pt. 36, App. B

important life activities are restricted as to a disability depends on whether, given the the conditions, manner, or duration under particular circumstances at issue, the im- which they can be performed in comparison pairment substantially limits one or more to most people. A person with a minor, triv- major life activities (or has a history of, or ial impairment, such as a simple infected is regarded as having such an effect). finger, is not impaired in a major life activ- Sometimes respiratory or neurological ity. A person who can walk for 10 miles con- functioning is so severely affected that an tinuously is not substantially limited in individual will satisfy the requirements to walking merely because, on the eleventh be considered disabled under the regulation. mile, he or she begins to experience pain, be- Such an individual would be entitled to all of cause most people would not be able to walk eleven miles without experiencing some dis- the protections afforded by the Act and this comfort. part. In other cases, individuals may be sen- The Department received many comments sitive to environmental elements or to on the proposed rule’s inclusion of the word smoke but their sensitivity will not rise to ‘‘temporary’’ in the definition of ‘‘dis- the level needed to constitute a disability. ability.’’ The preamble indicated that im- For example, their major life activity of pairments are not necessarily excluded from breathing may be somewhat, but not sub- the definition of ‘‘disability’’ simply because stantially, impaired. In such circumstances, they are temporary, but that the duration, the individuals are not disabled and are not or expected duration, of an impairment is entitled to the protections of the statute de- one factor that may properly be considered spite their sensitivity to environmental in determining whether the impairment sub- agents. stantially limits a major life activity. The In sum, the determination as to whether preamble recognized, however, that tem- allergies to cigarette smoke, or allergies or porary impairments, such as a broken leg, sensitivities characterized by the com- are not commonly regarded as disabilities, menters as environmental illness are disabil- and only in rare circumstances would the de- ities covered by the regulation must be made gree of the limitation and its expected dura- using the same case-by-case analysis that is tion be substantial: Nevertheless, many com- applied to all other physical or mental im- menters objected to inclusion of the word pairments. Moreover, the addition of specific ‘‘temporary’’ both because it is not in the regulatory provisions relating to environ- statute and because it is not contained in mental illness in the final rule would be in- the definition of ‘‘disability’’ set forth in the title I regulations of the Equal Employment appropriate at this time pending future con- Opportunity Commission (EEOC). The word sideration of the issue by the Architectural ‘‘temporary’’ has been deleted from the final and Transportation Barriers Compliance rule to conform with the statutory language. Board, the Environmental Protection Agen- The question of whether a temporary impair- cy, and the Occupational Safety and Health ment is a disability must be resolved on a Administration of the Department of Labor. case-by-case basis, taking into consideration both the duration (or expected duration) of Test B—A Record of Such an Impairment the impairment and the extent to which it This test is intended to cover those who actually limits a major life activity of the have a record of an impairment. As explained affected individual. in paragraph (3) of the rule’s definition of The question of whether a person has a dis- disability, this includes a person who has a ability should be assessed without regard to history of an impairment that substantially the availability of mitigating measures, such limited a major life activity, such as some- as reasonable modifications or auxiliary aids one who has recovered from an impairment. and services. For example, a person with It also includes persons who have been hearing loss is substantially limited in the misclassified as having an impairment. major life activity of hearing, even though the loss may be improved through the use of This provision is included in the definition a hearing aid. Likewise, persons with impair- in part to protect individuals who have re- ments, such as epilepsy or diabetes, that sub- covered from a physical or mental impair- stantially limit a major life activity, are ment that previously substantially limited covered under the first prong of the defini- them in a major life activity. Discrimination tion of disability, even if the effects of the on the basis of such a past impairment is impairment are controlled by medication. prohibited. Frequently occurring examples Many commenters asked that environ- of the first group (those who have a history mental illness (also known as multiple of an impairment) are persons with histories chemical sensitivity) as well as allergy to of mental or emotional illness, heart disease, cigarette smoke be recognized as disabilities. or cancer; examples of the second group The Department, however, declines to state (those who have been misclassified as having categorically that these types of allergies or an impairment) are persons who have been sensitivities are disabilities, because the de- misclassified as having mental retardation termination as to whether an impairment is or mental illness.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

Test C—Being Regarded as Having Such an cluding this test in the Rehabilitation Act’s Impairment definition, ‘‘Congress acknowledged that so- ciety’s accumulated myths and fears about This test, as contained in paragraph (4) of disability and disease are as handicapping as the definition, is intended to cover persons are the physical limitations that flow from who are treated by a private entity or public actual impairment.’’ Id. at 284. accommodation as having a physical or men- Thus, a person who is not allowed into a tal impairment that substantially limits a public accommodation because of the myths, major life activity. It applies when a person fears, and stereotypes associated with dis- is treated as if he or she has an impairment abilities would be covered under this third that substantially limits a major life activ- test whether or not the person’s physical or ity, regardless of whether that person has an mental condition would be considered a dis- impairment. ability under the first or second test in the The Americans with Disabilities Act uses definition. the same ‘‘regarded as’’ test set forth in the If a person is refused admittance on the regulations implementing section 504 of the basis of an actual or perceived physical or Rehabilitation Act. See, e.g., 28 CFR mental condition, and the public accommo- 42.540(k)(2)(iv), which provides: dation can articulate no legitimate reason (iv) ‘‘Is regarded as having an impairment’’ for the refusal (such as failure to meet eligi- means (A) Has a physical or mental impair- bility criteria), a perceived concern about ment that does not substantially limit major admitting persons with disabilities could be life activities but that is treated by a recipi- inferred and the individual would qualify for ent as constituting such a limitation; (B) coverage under the ‘‘regarded as’’ test. A Has a physical or mental impairment that person who is covered because of being re- substantially limits major life activities garded as having an impairment is not re- only as a result of the attitudes of others to- quired to show that the public accommoda- ward such impairment; or (C) Has none of tion’s perception is inaccurate (e.g., that he the impairments defined in paragraph will be accepted by others, or that insurance (k)(2)(i) of this section but is treated by a re- rates will not increase) in order to be admit- cipient as having such an impairment. ted to the public accommodation. The perception of the private entity or Paragraph (5) of the definition lists certain public accommodation is a key element of conditions that are not included within the this test. A person who perceives himself or definition of ‘‘disability.’’ The excluded con- herself to have an impairment, but does not ditions are: transvestism, transsexualism, have an impairment, and is not treated as if pedophilia, exhibitionism, voyeurism, gender he or she has an impairment, is not pro- identity disorders not resulting from phys- tected under this test. A person would be ical impairments, other sexual behavior dis- covered under this test if a restaurant re- orders, compulsive gambling, kleptomania, fused to serve that person because of a fear pyromania, and psychoactive substance use of ‘‘negative reactions’’ of others to that per- disorders resulting from current illegal use son. A person would also be covered if a pub- of drugs. Unlike homosexuality and bisex- lic accommodation refused to serve a patron uality, which are not considered impair- because it perceived that the patron had an ments under either the Americans with Dis- impairment that limited his or her enjoy- abilities Act (see the definition of ‘‘dis- ment of the goods or services being offered. ability,’’ paragraph (1)(iv)) or section 504, the For example, persons with severe burns conditions listed in paragraph (5), except for often encounter discrimination in commu- transvestism, are not necessarily excluded as nity activities, resulting in substantial limi- impairments under section 504. (Transves- tation of major life activities. These persons tism was excluded from the definition of dis- would be covered under this test based on ability for section 504 by the Fair Housing the attitudes of others towards the impair- Amendments Act of 1988, Pub. L. 100–430, ment, even if they did not view themselves § 6(b).) The phrase ‘‘current illegal use of as ‘‘impaired.’’ drugs’’ used in this definition is explained in The rationale for this third test, as used in the preamble to § 36.209. the Rehabilitation Act of 1973, was articu- ‘‘Drug.’’ The definition of the term ‘‘drug’’ lated by the Supreme Court in Arline, 480 is taken from section 510(d)(2) of the ADA. U.S. 273 (1987). The Court noted that, al- ‘‘Facility.’’ ‘‘Facility’’ means all or any though an individual may have an impair- portion of buildings, structures, sites, com- ment that does not in fact substantially plexes, equipment, rolling stock or other limit a major life activity, the reaction of conveyances, roads, walks, passageways, others may prove just as disabling. ‘‘Such an parking lots, or other real or personal prop- impairment might not diminish a person’s erty, including the site where the building, physical or mental capabilities, but could property, structure, or equipment is located. nevertheless substantially limit that per- Committee reports made clear that the defi- son’s ability to work as a result of the nega- nition of facility was drawn from the defini- tive reactions of others to the impairment.’’ tion of facility in current Federal regula- Id. at 283. The Court concluded that, by in- tions (see, e.g., Education and Labor report

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Department of Justice Pt. 36, App. B

at 114). It includes both indoor and outdoor ‘‘Individual with a disability’’ means a per- areas where human-constructed improve- son who has a disability but does not include ments, structures, equipment, or property an individual who is currently illegally using have been added to the natural environment. drugs, when the public accommodation acts The term ‘‘rolling stock or other convey- on the basis of such use. The phrase ‘‘current ances’’ was not included in the definition of illegal use of drugs’’ is explained in the pre- facility in the proposed rule. However, com- amble to § 36.209. menters raised questions about the applica- ‘‘Place of public accommodation.’’ The bility of this part to places of public accom- term ‘‘place of public accommodation’’ is an modation operated in mobile facilities (such adaptation of the statutory definition of as cruise ships, floating restaurants, or mo- ‘‘public accommodation’’ in section 301(7) of bile health units). Those places of public ac- the ADA and appears as an element of the commodation are covered under this part, regulatory definition of public accommoda- and would be included in the definition of tion. The final rule defines ‘‘place of public ‘‘facility.’’ Thus the requirements of sub- accommodation’’ as a facility, operated by a parts B and C would apply to those places of private entity, whose operations affect com- public accommodation. For example, a cov- merce and fall within at least one of 12 speci- ered entity could not discriminate on the fied categories. The term ‘‘public accommo- basis of disability in the full and equal en- dation,’’ on the other hand, is reserved by joyment of the facilities (§ 36.201). Similarly, the final rule for the private entity that a cruise line could not apply eligibility cri- owns, leases (or leases to), or operates a teria to potential passengers in a manner place of public accommodation. It is the pub- that would screen out individuals with dis- lic accommodation, and not the place of pub- abilities, unless the criteria are ‘‘necessary,’’ lic accommodation, that is subject to the as provided in § 36.301. regulation’s nondiscrimination require- However, standards for new construction ments. Placing the obligation not to dis- and alterations of such facilities are not yet criminate on the public accommodation, as included in the Americans with Disabilities defined in the rule, is consistent with section Act Accessibility Guidelines for Buildings 302(a) of the ADA, which places the obliga- and Facilities (ADAAG) adopted by § 36.406 tion not to discriminate on any person who and incorporated in appendix A. The Depart- owns, leases (or leases to), or operates a ment therefore will not interpret the new place of public accommodation. construction and alterations provisions of Facilities operated by government agen- subpart D to apply to the types of facilities cies or other public entities as defined in this discussed here, pending further development section do not qualify as places of public ac- of specific requirements. commodation. The actions of public entities Requirements pertaining to accessible are governed by title II of the ADA and will transportation services provided by public be subject to regulations issued by the De- accommodations are included in § 36.310 of partment of Justice under that title. The re- this part; standards pertaining to accessible ceipt of government assistance by a private vehicles will be issued by the Secretary of entity does not by itself preclude a facility Transportation pursuant to section 306 of the from being considered as a place of public ac- Act, and will be codified at 49 CFR part 37. commodation. A public accommodation has obligations The definition of place of public accommo- under this rule with respect to a cruise ship dation incorporates the 12 categories of fa- to the extent that its operations are subject cilities represented in the statutory defini- to the laws of the United States. tion of public accommodation in section The definition of ‘‘facility’’ only includes 301(7) of the ADA: the site over which the private entity may 1. Places of lodging. exercise control or on which a place of public 2. Establishments serving food or drink. accommodation or a commercial facility is 3. Places of exhibition or entertainment. located. It does not include, for example, ad- 4. Places of public gathering. jacent roads or walks controlled by a public 5. Sales or rental establishments. entity that is not subject to this part. Public 6. Service establishments. entities are subject to the requirements of title II of the Act. The Department’s regula- 7. Stations used for specified public trans- tion implementing title II, which will be portation. codified at 28 CFR part 35, addresses the obli- 8. Places of public display or collection. gations of public entities to ensure accessi- 9. Places of recreation. bility by providing curb ramps at pedestrian 10. Places of education. walkways. 11. Social service center establishments. ‘‘Illegal use of drugs.’’ The definition of 12. Places of exercise or recreation. ‘‘illegal use of drugs’’ is taken from section In order to be a place of public accommo- 510(d)(1) of the Act and clarifies that the dation, a facility must be operated by a pri- term includes the illegal use of one or more vate entity, its operations must affect com- drugs. merce, and it must fall within one of these 12

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

categories. While the list of categories is ex- barrier removal and alternatives to barrier haustive, the representative examples of fa- removal are discussed further in the pre- cilities within each category are not. Within amble discussion of §§ 36.304 and 36.305. each category only a few examples are given. Even if a facility does not fall within one The category of social service center estab- of the 12 categories, and therefore does not lishments would include not only the types qualify as a place of public accommodation, of establishments listed, day care centers, it still may be a commercial facility as de- senior citizen centers, homeless shelters, fined in § 36.104 and be subject to the new food banks, adoption agencies, but also es- construction and alterations requirements of tablishments such as substance abuse treat- subpart D. ment centers, rape crisis centers, and half- A number of commenters questioned the way houses. As another example, the cat- treatment of residential hotels and other egory of sales or rental establishments would residential facilities in the Department’s include an innumerable array of facilities proposed rule. These commenters were essen- that would sweep far beyond the few exam- tially seeking resolution of the relationship ples given in the regulation. For example, between the Fair Housing Act and the ADA other retail or wholesale establishments sell- concerning facilities that are both residen- ing or renting items, such as bookstores, vid- tial in nature and engage in activities that eotape rental stores, car rental establish- would cause them to be classified as ‘‘places ment, pet stores, and jewelry stores would of public accommodation’’ under the ADA. also be covered under this category, even The ADA’s express exemption relating to the though they are not specifically listed. Fair Housing Act applies only to ‘‘commer- Several commenters requested clarifica- cial facilities’’ and not to ‘‘places of public tion as to the coverage of wholesale estab- accommodation.’’ lishments under the category of ‘‘sales or A facility whose operations affect inter- rental establishments.’’ The Department in- state commerce is a place of public accom- tends for wholesale establishments to be cov- modation for purposes of the ADA to the ex- ered under this category as places of public tent that its operations include those types accommodation except in cases where they of activities engaged in or services provided sell exclusively to other businesses and not by the facilities contained on the list of 12 to individuals. For example, a company that categories in section 301(7) of the ADA. Thus, grows food produce and supplies its crops ex- a facility that provides social services would clusively to food processing corporations on be considered a ‘‘social service center estab- a wholesale basis does not become a public lishment.’’ Similarly, the category ‘‘places accommodation because of these trans- of lodging’’ would exclude solely residential actions. If this company operates a road side facilities because the nature of a place of stand where its crops are sold to the public, lodging contemplates the use of the facility the road side stand would be a sales estab- for short-term stays. lishment covered by the ADA. Conversely, a Many facilities, however, are mixed use fa- sales establishment that markets its goods cilities. For example, in a large hotel that as ‘‘wholesale to the public’’ and sells to in- has a separate residential apartment wing, dividuals would not be exempt from ADA the residential wing would not be covered by coverage despite its use of the word ‘‘whole- the ADA because of the nature of the occu- sale’’ as a marketing technique. pancy of that part of the facility. This resi- Of course, a company that operates a place dential wing would, however, be covered by of public accommodation is subject to this the Fair Housing Act. The separate nonresi- part only in the operation of that place of dential accommodations in the rest of the public accommodation. In the example given hotel would be a place of lodging, and thus a above, the wholesale produce company that public accommodation subject to the re- operates a road side stand would be a public quirements of this final rule. If a hotel al- accommodation only for the purposes of the lows both residential and short-term stays, operation of that stand. The company would but does not allocate space for these dif- be prohibited from discriminating on the ferent uses in separate, discrete units, both basis of disability in the operation of the the ADA and the Fair Housing Act may road side stand, and it would be required to apply to the facility. Such determinations remove barriers to physical access to the ex- will need to be made on a case-by-case basis. tent that it is readily achievable to do so Any place of lodging of the type described in (see § 36.304); however, in the event that it is paragraph (1) of the definition of place of not readily achievable to remove barriers, public accommodation and that is an estab- for example, by replacing a gravel surface or lishment located within a building that con- regrading the area around the stand to per- tains not more than five rooms for rent or mit access by persons with mobility impair- hire and is actually occupied by the propri- ments, the company could meet its obliga- etor of the establishment as his or her resi- tions through alternative methods of making dence is not covered by the ADA. (This ex- its goods available, such as delivering clusion from coverage does not apply to produce to a customer in his or her car (see other categories of public accommodations, § 36.305). The concepts of readily achievable for example, professional offices or homeless

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Department of Justice Pt. 36, App. B

shelters, that are located in a building that tion, such as, for example, a factory or a is also occupied as a private residence.) movie studio production set, is open to the A number of commenters noted that the general public, the route followed by the term ‘‘residential hotel’’ may also apply to a tour is a place of public accommodation and type of hotel commonly known as a ‘‘single the tour must be operated in accordance room occupancy hotel.’’ Although such ho- with the rule’s requirements for public ac- tels or portions of such hotels may fall under commodations. The place of public accom- the Fair Housing Act when operated or used modation defined by the tour does not in- as long-term residences, they are also con- clude those portions of the commercial facil- sidered ‘‘places of lodging’’ under the ADA ity that are merely viewed from the tour when guests of such hotels are free to use route. Hence, the barrier removal require- them on a short-term basis. In addition, ments of § 36.304 only apply to the physical ‘‘single room occupancy hotels’’ may provide route followed by the tour participants and social services to their guests, often through not to work stations or other areas that are the operation of Federal or State grant pro- merely adjacent to, or within view of, the grams. In such a situation, the facility would tour route. If the tour is not open to the gen- be considered a ‘‘social service center estab- eral public, but rather is conducted, for ex- lishment’’ and thus covered by the ADA as a ample, for selected business colleagues, part- place of public accommodation, regardless of ners, customers, or consultants, the tour the length of stay of the occupants. route is not a place of public accommodation A similar analysis would also be applied to and the tour is not subject to the require- other residential facilities that provide so- ments for public accommodations. cial services, including homeless shelters, Public accommodations that receive Fed- shelters for people seeking refuge from do- eral financial assistance are subject to the mestic violence, nursing homes, residential requirements of section 504 of the Rehabili- care facilities, and other facilities where per- tation Act as well as the requirements of the sons may reside for varying lengths of time. ADA. Such facilities should be analyzed under the Private schools, including elementary and Fair Housing Act to determine the applica- secondary schools, are covered by the rule as tion of that statute. The ADA, however, re- places of public accommodation. The rule quires a separate and independent analysis. itself, however, does not require a private For example, if the facility, or a portion of school to provide a free appropriate edu- the facility, is intended for or permits short- cation or develop an individualized edu- term stays, or if it can appropriately be cat- cation program in accordance with regula- egorized as a service establishment or as a tions of the Department of Education imple- social service establishment, then the facil- menting section 504 of the Rehabilitation ity or that portion of the facility used for Act of 1973, as amended (34 CFR part 104), the covered purpose is a place of public ac- and regulations implementing the Individ- commodation under the ADA. For example, a uals with Disabilities Education Act (34 CFR homeless shelter that is intended and used part 300). The receipt of Federal assistance only for long-term residential stays and that by a private school, however, would trigger does not provide social services to its resi- application of the Department of Education’s dents would not be covered as a place of pub- regulations to the extent mandated by the lic accommodation. However, if this facility particular type of assistance received. permitted short-term stays or provided so- ‘‘Private club.’’ The term ‘‘private club’’ is cial services to its residents, it would be cov- defined in accordance with section 307 of the ered under the ADA either as a ‘‘place of ADA as a private club or establishment ex- lodging’’ or as a ‘‘social service center estab- empted from coverage under title II of the lishment,’’ or as both. Civil Rights Act of 1964. Title II of the 1964 A private home, by itself, does not fall Act exempts any ‘‘private club or other es- within any of the 12 categories. However, it tablishment not in fact open to the public, can be covered as a place of public accommo- except to the extent that the facilities of dation to the extent that it is used as a facil- such establishment are made available to ity that would fall within one of the 12 cat- the customers or patrons of [a place of public egories. For example, if a professional office accommodation as defined in title II].’’ The of a dentist, doctor, or psychologist is lo- rule, therefore, as reflected in § 36.102(e) of cated in a private home, the portion of the the application section, limits the coverage home dedicated to office use (including areas of private clubs accordingly. The obligations used both for the residence and the office, of a private club that rents space to any e.g., the entrance to the home that is also other private entity for the operation of a used as the entrance to the professional of- place of public accommodation are discussed fice) would be considered a place of public further in connection with § 36.201. accommodation. Places of public accommo- In determining whether a private entity dation located in residential facilities are qualifies as a private club under title II, specifically addressed in § 36.207. courts have considered such factors as the If a tour of a commercial facility that is degree of member control of club operations, not otherwise a place of public accommoda- the selectivity of the membership selection

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

process, whether substantial membership as, places of public accommodation or com- fees are charged, whether the entity is oper- mercial facilities. ated on a nonprofit basis, the extent to ‘‘Public entity.’’ The term ‘‘public entity’’ which the facilities are open to the public, is defined in accordance with section 201(1) of the degree of public funding, and whether the the ADA as any State or local government; club was created specifically to avoid com- any department, agency, special purpose dis- pliance with the Civil Rights Act. See e.g., trict, or other instrumentality of a State or Tillman v. Wheaton-Haven Recreation Ass’n, States or local government; and the National 410 U.S. 431 (1973); Daniel v. Paul, 395 U.S. 298 Railroad Passenger Corporation, and any (1969); Olzman v. Lake Hills Swim Club, Inc., commuter authority (as defined in section 495 F.2d 1333 (2d Cir. 1974); Anderson v. Pass 103(8) of the Rail Passenger Service Act). It Christian Isles Golf Club, Inc., 488 F.2d 855 (5th is used in the definition of ‘‘private entity’’ Cir. 1974); Smith v. YMCA, 462 F.2d 634 (5th in § 36.104. Public entities are excluded from Cir. 1972); Stout v. YMCA, 404 F.2d 687 (5th the definition of private entity and therefore Cir. 1968); United States v. Richberg, 398 F.2d cannot qualify as public accommodations 523 (5th Cir. 1968); Nesmith v. YMCA, 397 F.2d under this regulation. However, the actions 96 (4th Cir. 1968); United States v. Lansdowne of public entities are covered by title II of Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989); the ADA and by the Department’s title II Durham v. Red Lake Fishing and Hunting regulations codified at 28 CFR part 35. Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); ‘‘Qualified interpreter.’’ The Department New York v. Ocean Club, Inc., 602 F. Supp. 489 received substantial comment regarding the (E.D.N.Y. 1984); Brown v. Loudoun Golf and lack of a definition of ‘‘qualified inter- Country Club, Inc., 573 F. Supp. 399 (E.D. Va. preter.’’ The proposed rule defined auxiliary 1983); United States v. Trustees of Fraternal aids and services to include the statutory Order of Eagles, 472 F. Supp. 1174 (E.D. Wis. term, ‘‘qualified interpreters’’ (§ 36.303(b)), 1979); Cornelius v. Benevolent Protective Order but did not define that term. Section 36.303 of Elks, 382 F. Supp. 1182 (D. Conn. 1974). requires the use of a qualified interpreter ‘‘Private entity.’’ The term ‘‘private enti- where necessary to achieve effective commu- ty’’ is defined as any individual or entity nication, unless an undue burden or funda- other than a public entity. It is used as part mental alteration would result. Commenters of the definition of ‘‘public accommodation’’ stated that a lack of guidance on what the in this section. term means would create confusion among The definition adds ‘‘individual’’ to the those trying to secure interpreting services statutory definition of private entity (see and often result in less than effective com- section 301(6) of the ADA). This addition munication. clarifies that an individual may be a private Many commenters were concerned that, entity and, therefore, may be considered a without clear guidance on the issue of public accommodation if he or she owns, ‘‘qualified’’ interpreter, the rule would be in- leases (or leases to), or operates a place of terpreted to mean ‘‘available, rather than public accommodation. The explicit inclu- qualified’’ interpreters. Some claimed that sion of individuals under the definition of few public accommodations would under- private entity is consistent with section stand the difference between a qualified in- 302(a) of the ADA, which broadly prohibits terpreter and a person who simply knows a discrimination on the basis of disability by few signs or how to fingerspell. any person who owns, leases (or leases to), or In order to clarify what is meant by operates a place of public accommodation. ‘‘qualified interpreter’’ the Department has ‘‘Public accommodation.’’ The term ‘‘pub- added a definition of the term to the final lic accommodation’’ means a private entity rule. A qualified interpreter means an inter- that owns, leases (or leases to), or operates a preter who is able to interpret effectively, place of public accommodation. The regu- accurately, and impartially both receptively latory term, ‘‘public accommodation,’’ cor- and expressively, using any necessary spe- responds to the statutory term, ‘‘person,’’ in cialized vocabulary. This definition focuses section 302(a) of the ADA. The ADA prohibits on the actual ability of the interpreter in a discrimination ‘‘by any person who owns, particular interpreting context to facilitate leases (or leases to), or operates a place of effective communication between the public public accommodation.’’ The text of the reg- accommodation and the individual with dis- ulation consequently places the ADA’s non- abilities. discrimination obligations on ‘‘public ac- Public comment also revealed that public commodations’’ rather than on ‘‘persons’’ or accommodations have at times asked per- on ‘‘places of public accommodation.’’ sons who are deaf to provide family members As stated in § 36.102(b)(2), the requirements or friends to interpret. In certain cir- of subparts B and C obligate a public accom- cumstances, notwithstanding that the fam- modation only with respect to the operations ily member or friend is able to interpret or of a place of public accommodation. A public is a certified interpreter, the family member accommodation must also meet the require- or friend may not be qualified to render the ments of subpart D with respect to facilities necessary interpretation because of factors used as, or designed or constructed for use such as emotional or personal involvement

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Department of Justice Pt. 36, App. B

or considerations of confidentiality that may entity’’ in paragraphs (3), (4), and (5) when adversely affect the ability to interpret ‘‘ef- referring to the larger private entity whose fectively, accurately, and impartially.’’ overall resources may be taken into account. ‘‘Readily achievable.’’ The definition of This usage is consistent with the House Ju- ‘‘readily achievable’’ follows the statutory diciary Committee’s use of the term ‘‘parent definition of that term in section 301(9) of company’’ to describe the larger entity of the ADA. Readily achievable means easily which the local facility is a part (H.R. Rep. accomplishable and able to be carried out No. 485, 101st Cong., 2d Sess., pt. 3, at 40–41, without much difficulty or expense. The 54–55 (1990) (hereinafter ‘‘Judiciary report’’)). term is used as a limitation on the obliga- A number of commenters asked for more tion to remove barriers under §§ 36.304(a), specific guidance as to when and how the re- 36.305(a), 36.308(a), and 36.310(b). Further dis- sources of a parent corporation or entity are cussion of the meaning and application of to be taken into account in determining the term ‘‘readily achievable’’ may be found what is readily achievable. The Department in the preamble section for § 36.304. believes that this complex issue is most ap- The definition lists factors to be consid- propriately resolved on a case-by-case basis. ered in determining whether barrier removal As the comments reflect, there is a wide va- is readily achievable in any particular cir- riety of possible relationships between the cumstance. A significant number of com- site in question and any parent corporation menters objected to § 36.306 of the proposed or other entity. It would be unwise to posit rule, which listed identical factors to be con- legal ramifications under the ADA of even sidered for determining ‘‘readily achievable’’ generic relationships (e.g., banks involved in and ‘‘undue burden’’ together in one section. foreclosures or insurance companies oper- They asserted that providing a consolidated ating as trustees or in other similar fidu- section blurred the distinction between the ciary relationships), because any analysis level of effort required by a public accommo- will depend so completely on the detailed dation under the two standards. The readily fact situations and the exact nature of the achievable standard is a ‘‘lower’’ standard legal relationships involved. The final rule than the ‘‘undue burden’’ standard in terms does, however, reorder the factors to be con- of the level of effort required, but the factors sidered. This shift and the addition of the used in determining whether an action is phrase ‘‘if applicable’’ make clear that the readily achievable or would result in an line of inquiry concerning factors will start undue burden are identical (See Education at the site involved in the action itself. This and Labor report at 109). Although the pre- change emphasizes that the overall re- amble to the proposed rule clearly delineated sources, size, and operations of the parent the relationship between the two standards, corporation or entity should be considered to to eliminate any confusion the Department the extent appropriate in light of ‘‘the geo- has deleted § 36.306 of the proposed rule. That graphic separateness, and the administrative section, in any event, as other commenters or fiscal relationship of the site or sites in noted, had merely repeated the lists of fac- question to any parent corporation or enti- tors contained in the definitions of readily ty.’’ achievable and undue burden. Although some commenters sought more The list of factors included in the defini- specific numerical guidance on the definition tion is derived from section 301(9) of the of readily achievable, the Department has ADA. It reflects the congressional intention declined to establish in the final rule any that a wide range of factors be considered in kind of numerical formula for determining determining whether an action is readily whether an action is readily achievable. It achievable. It also takes into account that would be difficult to devise a specific ceiling many local facilities are owned or operated on compliance costs that would take into ac- by parent corporations or entities that con- count the vast diversity of enterprises cov- duct operations at many different sites. This ered by the ADA’s public accommodations section makes clear that, in some instances, requirements and the economic situation resources beyond those of the local facility that any particular entity would find itself where the barrier must be removed may be in at any moment. The final rule, therefore, relevant in determining whether an action is implements the flexible case-by-case ap- readily achievable. One must also evaluate proach chosen by Congress. the degree to which any parent entity has re- A number of commenters requested that sources that may be allocated to the local fa- security considerations be explicitly recog- cility. nized as a factor in determining whether a The statutory list of factors in section barrier removal action is readily achievable. 301(9) of the Act uses the term ‘‘covered enti- The Department believes that legitimate ty’’ to refer to the larger entity of which a safety requirements, including crime preven- particular facility may be a part. ‘‘Covered tion measures, may be taken into account so entity’’ is not a defined term in the ADA and long as they are based on actual risks and is not used consistently throughout the Act. are necessary for safe operation of the public The definition, therefore, substitutes the accommodation. This point has been in- term ‘‘parent entity’’ in place of ‘‘covered cluded in the definition.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

Some commenters urged the Department When a church rents meeting space, which is not to consider acts of barrier removal in not a place of worship, to a local community complete isolation from each other in deter- group or to a private, independent day care mining whether they are readily achievable. center, the ADA applies to the activities of The Department believes that it is appro- the local community group and day care cen- priate to consider the cost of other barrier ter if a lease exists and consideration is paid. removal actions as one factor in determining ‘‘Service animal.’’ The term ‘‘service ani- whether a measure is readily achievable. mal’’ encompasses any guide dog, signal dog, ‘‘Religious entity.’’ The term ‘‘religious or other animal individually trained to pro- entity’’ is defined in accordance with section vide assistance to an individual with a dis- 307 of the ADA as a religious organization or ability. The term is used in § 36.302(c), which entity controlled by a religious organization, requires public accommodations generally to including a place of worship. Section 36.102(e) modify policies, practices, and procedures to of the rule states that the rule does not accommodate the use of service animals in apply to any religious entity. places of public accommodation. The ADA’s exemption of religious organi- ‘‘Specified public transportation.’’ The def- zations and religious entities controlled by inition of ‘‘specified public transportation’’ religious organizations is very broad, encom- is identical to the statutory definition in passing a wide variety of situations. Reli- section 301(10) of the ADA. The term means gious organizations and entities controlled transportation by bus, rail, or any other con- by religious organizations have no obliga- veyance (other than by aircraft) that pro- tions under the ADA. Even when a religious vides the general public with general or spe- organization carries out activities that cial service (including charter service) on a would othervise make it a public accommo- regular and continuing basis. It is used in dation, the religious organization is exempt category (7) of the definition of ‘‘place of from ADA coverage. Thus, if a church itself public accommodation,’’ which includes sta- operates a day care center, a nursing home, tions used for specified public transpor- a private school, or a diocesan school sys- tation. tem, the operations of the center, home, The effect of this definition, which ex- school, or schools would not be subject to cludes transportation by aircraft, is that it the requirements of the ADA or this part. excludes privately operated airports from The religious entity would not lose its ex- coverage as places of public accommodation. emption merely because the services pro- However, places of public accommodation lo- vided were open to the general public. The cated within airports would be covered by test is whether the church or other religious this part. Airports that are operated by pub- organization operates the public accommo- lic entities are covered by title II of the ADA dation, not which individuals receive the and, if they are operated as part of a pro- public accommodation’s services. gram receiving Federal financial assistance, Religious entities that are controlled by by section 504 of the Rehabilitation Act. Pri- religious organizations are also exempt from vately operated airports are similarly cov- the ADA’s requirements. Many religious or- ered by section 504 if they are operated as ganizations in the United States use lay part of a program receiving Federal financial boards and other secular or corporate mecha- assistance. The operations of any portion of nisms to operate schools and an array of so- any airport that are under the control of an cial services. The use of a lay board or other air carrier are covered by the Air Carrier Ac- mechanism does not itself remove the ADA’s cess Act. In addition, airports are covered as religious exemption. Thus, a parochial commercial facilities under this rule. school, having religious doctrine in its cur- ‘‘State.’’ The definition of ‘‘State’’ is iden- riculum and sponsored by a religious order, tical to the statutory definition in section could be exempt either as a religious organi- 3(3) of the ADA. The term is used in the defi- zation or as an entity controlled by a reli- nitions of ‘‘commerce’’ and ‘‘public entity’’ gious organization, even if it has a lay board. in § 36.104. The test remains a factual one—whether the ‘‘Undue burden.’’ The definition of ‘‘undue church or other religious organization con- burden’’ is analogous to the statutory defini- trols the operations of the school or of the tion of ‘‘undue hardship’’ in employment service or whether the school or service is under section 101(10) of the ADA. The term itself a religious organization. undue burden means ‘‘significant difficulty Although a religious organization or a reli- or expense’’ and serves as a limitation on the gious entity that is controlled by a religious obligation to provide auxiliary aids and serv- organization has no obligations under the ices under § 36.303 and §§ 36.309 (b)(3) and rule, a public accommodation that is not (c)(3). Further discussion of the meaning and itself a religious organization, but that oper- application of the term undue burden may be ates a place of public accommodation in found in the preamble discussion of § 36.303. leased space on the property of a religious The definition lists factors considered in entity, which is not a place of worship, is determining whether provision of an auxil- subject to the rule’s requirements if it is not iary aid or service in any particular cir- under control of a religious organization. cumstance would result in an undue burden.

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Department of Justice Pt. 36, App. B

The factors to be considered in determining public accommodations subject to the re- whether an action would result in an undue quirements of this part. Although the statu- burden are identical to those to be consid- tory language could be interpreted as placing ered in determining whether an action is equal responsibility on all private entities, readily achievable. However, ‘‘readily whether lessor, lessee, or operator of a public achievable’’ is a lower standard than ‘‘undue accommodation, the committee reports sug- burden’’ in that it requires a lower level of gest that liability may be allocated. Section effort on the part of the public accommoda- 36.201(b) of that section of the proposed rule tion (see Education and Labor report at 109). attempted to allocate liability in the regula- Further analysis of the factors to be con- tion itself. Paragraph (b)(2) of that section sidered in determining undue burden may be made a specific allocation of liability for the found in the preamble discussion of the defi- obligation to take readily achievable meas- nition of the term ‘‘readily achievable.’’ ures to remove barriers, and paragraph (b)(3) made a specific allocation for the obligation Subpart B—General Requirements to provide auxiliary aids. Subpart B includes general prohibitions re- Numerous commenters pointed out that stricting a public accommodation from dis- these allocations would not apply in all situ- criminating against people with disabilities ations. Some asserted that paragraph (b)(2) by denying them the opportunity to benefit of the proposed rule only addressed the situ- from goods or services, by giving them un- ation when a lease gave the tenant the right equal goods or services, or by giving them to make alterations with permission of the different or separate goods or services. These landlord, but failed to address other types of general prohibitions are patterned after the leases, e.g., those that are silent on the right basic, general prohibitions that exist in to make alterations, or those in which the other civil rights laws that prohibit dis- landlord is not permitted to enter a tenant’s crimination on the basis of race, sex, color, premises to make alterations. Several com- religion, or national origin. menters noted that many leases contain other clauses more relevant to the ADA than Section 36.201 General the alterations clause. For example, many Section 36.201(a) contains the general rule leases contain a ‘‘compliance clause,’’ a that prohibits discrimination on the basis of clause which allocates responsibility to a disability in the full and equal enjoyment of particular party for compliance with all rel- goods, services, facilities, privileges, advan- evant Federal, State, and local laws. Many tages, and accommodations of any place of commenters pointed out various types of re- public accommodation. lationships that were left unaddressed by the Full and equal enjoyment means the right regulation, e.g., sale and leaseback arrange- to participate and to have an equal oppor- ments where the landlord is a financial insti- tunity to obtain the same results as others tution with no control or responsibility for to the extent possible with such accommoda- the building; franchises; subleases; and man- tions as may be required by the Act and agement companies which, at least in the these regulations. It does not mean that an hotel industry, often have control over oper- individual with a disability must achieve an ations but are unable to make modifications identical result or level of achievement as to the premises. persons without a disability. For example, Some commenters raised specific questions an exercise class cannot exclude a person as to how the barrier removal allocation who uses a wheelchair because he or she can- would work as a practical matter. Paragraph not do all of the exercises and derive the (b)(2) of the proposed rule provided that the same result from the class as persons with- burden of making readily achievable modi- out a disability. fications within the tenant’s place of public Section 302(a) of the ADA states that the accommodation would shift to the landlord prohibition against discrimination applies to when the modifications were not readily ‘‘any person who owns, leases (or leases to), achievable for the tenant or when the land- or operates a place of public accommoda- lord denied a tenant’s request for permission tion,’’ and this language is reflected in to make such modifications. Commenters § 36.201(a). The coverage is quite extensive noted that the rule did not specify exactly and would include sublessees, management when the burden would actually shift from companies, and any other entity that owns, tenant to landlord and whether the landlord leases, leases to, or operates a place of public would have to accept a tenant’s word that a accommodation, even if the operation is only particular action is not readily achievable. for a short time. Others questioned if the tenant should be ob- The first sentence of paragraph (b) of ligated to use alternative methods of barrier § 36.201 reiterates the general principle that removal before the burden shifts. In light of both the landlord that owns the building the fact that readily achievable removal of that houses the place of public accommoda- barriers can include such actions as moving tion, as well as the tenant that owns or oper- of racks and displays, some commenters ates the place of public accommodation, are doubted the appropriateness of requiring a

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

landlord to become involved in day-to-day large theater or hospital to evade ADA re- operations of its tenants’ businesses. sponsibilities by leasing to independent The Department received widely differing smaller entities. They suggested that these comments in response to the preamble ques- types of public accommodations are not real- tion asking whether landlord and tenant ob- ly landlords because they are in the business ligations should vary depending on the of providing a service, rather than renting length of time remaining on an existing space, as in the case of a shopping center or lease. Many suggested that tenants should office building landlord. These commenters have no responsibilities in ‘‘shorter leases,’’ believed that responsibility for providing which commenters defined as ranging any- auxiliary aids should shift to the landlord, if where from 90 days to three years. Other the landlord relies on a smaller public ac- commenters pointed out that the time re- commodation or independent contractor to maining on the lease should not be a factor provide services closely related to those of in the rule’s allocation of responsibilities, the larger public accommodation, and if the but is relevant in determining what is read- needed auxiliary aids prove to be an undue ily achievable for the tenant. The Depart- burden for the smaller public accommoda- ment agrees with this latter approach and tion. The final rule no longer lists specific will interpret the rule in that manner. allocations to specific parties but, rather, In recognition of the somewhat limited ap- leaves allocation of responsibilities to the plicability of the allocation scheme con- lease negotiations. Parties are, therefore, tained in the proposed rule, paragraphs (b)(2) free to allocate the responsibility for auxil- and (b)(3) have been deleted from the final iary aids. rule. The Department has substituted in- Section 36.201(b)(4) of the proposed rule, stead a statement that allocation of respon- which provided that alterations by a tenant sibility as between the parties for taking on its own premises do not trigger a path of readily achievable measures to remove bar- travel obligation on the landlord, has been riers and to provide auxiliary aids and serv- moved to § 36.403(d) of the final rule. ices both in common areas and within places of public accommodation may be determined An entity that is not in and of itself a pub- by the lease or other contractual relation- lic accommodation, such as a trade associa- ships between the parties. The ADA was not tion or performing artist, may become a pub- intended to change existing landlord/tenant lic accommodation when it leases space for a responsibilities as set forth in the lease. By conference or performance at a hotel, con- deleting specific provisions from the rule, vention center, or stadium. For an entity to the Department gives full recognition to this become a public accommodation when it is principle. As between the landlord and ten- the lessee of space, however, the Department ant, the extent of responsibility for par- believes that consideration in some form ticular obligations may be, and in many must be given. Thus, a Boy Scout troop that cases probably will be, determined by con- accepts donated space does not become a tract. public accommodation because the troop has The suggested allocation of responsibilities not ‘‘leased’’ space, as required by the ADA. contained in the proposed rule may be used As a public accommodation, the trade as- if appropriate in a particular situation. sociation or performing artist will be respon- Thus, the landlord would generally be held sible for compliance with this part. Specific responsible for making readily achievable responsibilities should be allocated by con- changes and providing auxiliary aids and tract, but, generally, the lessee should be re- services in common areas and for modifying sponsible for providing auxiliary aids and policies, practices, or procedures applicable services (which could include interpreters, to all tenants, and the tenant would gen- Braille programs, etc.) for the participants erally be responsible for readily achievable in its conference or performance as well as changes, provision of auxiliary aids, and for assuring that displays are accessible to modification of policies within its own place individuals with disabilities. of public accommodation. Some commenters suggested that the rule Many commenters objected to the proposed should allocate responsibilities for areas rule’s allocation of responsibility for pro- other than removal of barriers and auxiliary viding auxiliary aids and services solely to aids. The final rule leaves allocation of all the tenant, pointing out that this exclusive areas to the lease negotiations. However, in allocation may not be appropriate in the general landlords should not be given respon- case of larger public accommodations that sibility for policies a tenant applies in oper- operate their businesses by renting space out ating its business, if such policies are solely to smaller public accommodations. For ex- those of the tenant. Thus, if a restaurant ample, large theaters often rent to smaller tenant discriminates by refusing to seat a traveling companies and hospitals often rely patron, it would be the tenant, and not the on independent contractors to provide child- landlord, who would be responsible, because birth classes. Groups representing persons the discriminatory policy is imposed solely with disabilities objected to the proposed by the tenant and not by the landlord. If, rule because, in their view, it permitted the however, a tenant refuses to modify a ‘‘no

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Department of Justice Pt. 36, App. B

pets’’ rule to allow service animals in its res- cally set forth in this part. For example, a taurant because the landlord mandates such public accommodation cannot refuse to serve a rule, then both the landlord and the tenant a person with a disability because its insur- would be liable for violation of the ADA ance company conditions coverage or rates when a person with a service dog is refused on the absence of persons with disabilities. entrance. The Department wishes to empha- This is a frequent basis of exclusion from a size, however, that the parties are free to al- variety of community activities and is pro- locate responsibilities in any way they hibited by this part. choose. Unequal benefit—Section 36.202(b) prohibits Private clubs are also exempt from the services or accommodations that are not ADA. However, consistent with title II of the equal to those provided others. For example, Civil Rights Act (42 U.S.C. 2000a(e), a private persons with disabilities must not be limited club is considered a public accommodation to certain performances at a theater. to the extent that ‘‘the facilities of such es- Separate benefit—Section 36.202(c) permits tablishment are made available to the cus- different or separate benefits or services tomers or patrons’’ of a place of public ac- only when necessary to provide persons with commodation. Thus, if a private club runs a disabilities opportunities as effective as day care center that is open exclusively to those provided others. This paragraph per- its own members, the club, like the church mitting separate benefits ‘‘when necessary’’ in the example above, would have no respon- should be read together with § 36.203(a), sibility for compliance with the ADA. Nor which requires integration in ‘‘the most in- would the day care center have any respon- tegrated setting appropriate to the needs of sibilities because it is part of the private the individual.’’ The preamble to that sec- club exempt from the ADA. tion provides further guidance on separate On the other hand, if the private club rents programs. Thus, this section would not pro- to a day care center that is open to the pub- hibit the designation of parking spaces for lic, then the private club would have the persons with disabilities. same obligations as any other public accom- Each of the three paragraphs (a)–(c) pro- modation that functions as a landlord with hibits discrimination against an individual respect to compliance with title III within or class of individuals ‘‘either directly or the day care center. In such a situation, both through contractual, licensing, or other ar- the private club that ‘‘leases to’’ a public ac- rangements.’’ The intent of the contractual commodation and the public accommodation prohibitions of these paragraphs is to pro- lessee (the day care center) would be subject hibit a public accommodation from doing in- to the ADA. This same principle would apply directly, through a contractual relationship, if the private club were to rent to, for exam- what it may not do directly. Thus, the ‘‘in- ple, a bar association, which is not generally dividual or class of individuals’’ referenced a public accommodation but which, as ex- in the three paragraphs is intended to refer plained above, becomes a public accommoda- to the clients and customers of the public ac- tion when it leases space for a conference. commodation that entered into a contrac- tual arrangement. It is not intended to en- Section 36.202 Activities compass the clients or customers of other Section 36.202 sets out the general forms of entities. A public accommodation, therefore, discrimination prohibited by title III of the is not liable under this provision for dis- ADA. These general prohibitions are further crimination that may be practiced by those refined by the specific prohibitions in sub- with whom it has a contractual relationship, part C. Section 36.213 makes clear that the when that discrimination is not directed limitations on the ADA’s requirements con- against its own clients or customers. For ex- tained in subpart C, such as ‘‘necessity’’ ample, if an amusement park contracts with (§ 36.301(a)) and ‘‘safety’’ (§ 36.301(b)), are ap- a food service company to operate its res- plicable to the prohibitions in § 36.202. Thus, taurants at the park, the amusement park is it is unnecessary to add these limitations to not responsible for other operations of the § 36.202 as has been requested by some com- food service company that do not involve cli- menters. In addition, the language of § 36.202 ents or customers of the amusement park. very closely tracks the language of section Section 36.202(d) makes this clear by pro- 302(b)(1)(A) of the Act, and that statutory viding that the term ‘‘individual or class of provision does not expressly contain these individuals’’ refers to the clients or cus- limitations. tomers of the public accommodation that en- Deny participation—Section 36.202(a) pro- ters into the contractual, licensing, or other vides that it is discriminatory to deny a per- arrangement. son with a disability the right to participate Section 36.203 Integrated Settings in or benefit from the goods, services, facili- ties, privileges, advantages, or accommoda- Section 36.203 addresses the integration of tions of a place of public accommodation. persons with disabilities. The ADA recog- A public accommodation may not exclude nizes that the provision of goods and services persons with disabilities on the basis of dis- in an integrated manner is a fundamental ability for reasons other than those specifi- tenet of nondiscrimination on the basis of

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

disability. Providing segregated accommoda- children with mobility impairments in those tions and services relegates persons with dis- limited circumstances. However, it would be abilities to the status of second-class citi- a violation of this section if the entity then zens. For example, it would be a violation of excluded these children from other rec- this provision to require persons with mental reational services made available to non- disabilities to eat in the back room of a res- disabled children, or required children with taurant or to refuse to allow a person with a disabilities to attend only designated pro- disability the full use of a health spa because grams. of stereotypes about the person’s ability to Many commenters asked that the Depart- participate. Section 36.203(a) states that a ment clarify a public accommodation’s obli- public accommodation shall afford goods, gations within the integrated program when services, facilities, privileges, advantages, it offers a separate program, but an indi- and accommodations to an individual with a vidual with a disability chooses not to par- disability in the most integrated setting ap- ticipate in the separate program. It is impos- propriate to the needs of the individual. Sec- sible to make a blanket statement as to tion 36.203(b) specifies that, notwithstanding what level of auxiliary aids or modifications the existence of separate or different pro- are required in the integrated program. grams or activities provided in accordance Rather, each situation must be assessed indi- with this section, an individual with a dis- vidually. Assuming the integrated program ability shall not be denied the opportunity would be appropriate for a particular indi- to participate in such programs or activities vidual, the extent to which that individual that are not separate or different. Section must be provided with modifications will de- 306.203(c), which is derived from section pend not only on what the individual needs 501(d) of the Americans with Disabilities Act, but also on the limitations set forth in sub- states that nothing in this part shall be con- part C. For example, it may constitute an strued to require an individual with a dis- undue burden for a particular public accom- ability to accept an accommodation, aid, modation, which provides a full-time inter- service, opportunity, or benefit that he or preter in its special guided tour for individ- she chooses not to accept. uals with hearing impairments, to hire an Taken together, these provisions are in- additional interpreter for those individuals tended to prohibit exclusion and segregation who choose to attend the integrated pro- of individuals with disabilities and the de- gram. The Department cannot identify cat- nial of equal opportunities enjoyed by oth- egorically the level of assistance or aid re- ers, based on, among other things, presump- quired in the integrated program. tions, patronizing attitudes, fears, and stereotypes about individuals with disabil- The preamble to the proposed rule con- ities. Consistent with these standards, public tained a statement that some interpreted as accommodations are required to make deci- encouraging the continuation of separate sions based on facts applicable to individuals schools, sheltered workshops, special rec- and not on the basis of presumptions as to reational programs, and other similar pro- what a class of individuals with disabilities grams. It is important to emphasize that can or cannot do. § 36.202(c) only calls for separate programs Sections 36.203 (b) and (c) make clear that when such programs are ‘‘necessary’’ to pro- individuals with disabilities cannot be de- vide as effective an opportunity to individ- nied the opportunity to participate in pro- uals with disabilities as to other individuals. grams that are not separate or different. Likewise, § 36.203(a) only permits separate This is an important and overarching prin- programs when a more integrated setting ciple of the Americans with Disabilities Act. would not be ‘‘appropriate.’’ Separate pro- Separate, special, or different programs that grams are permitted, then, in only limited are designed to provide a benefit to persons circumstances. The sentence at issue has with disabilities cannot be used to restrict been deleted from the preamble because it the participation of persons with disabilities was too broadly stated and had been erro- in general, integrated activities. neously interpreted as Departmental encour- For example, a person who is blind may agement of separate programs without quali- wish to decline participating in a special mu- fication. seum tour that allows persons to touch The proposed rule’s reference in § 36.203(b) sculptures in an exhibit and instead tour the to separate programs or activities provided exhibit at his or her own pace with the muse- in accordance with ‘‘this section’’ has been um’s recorded tour. It is not the intent of changed to ‘‘this subpart’’ in recognition of this section to require the person who is the fact that separate programs or activities blind to avail himself or herself of the spe- may, in some limited circumstances, be per- cial tour. Modified participation for persons mitted not only by § 36.203(a) but also by with disabilities must be a choice, not a re- § 36.202(c). quirement. In addition, some commenters suggested Further, it would not be a violation of this that the individual with the disability is the section for an establishment to offer rec- only one who can decide whether a setting is reational programs specially designed for ‘‘appropriate’’ and what the ‘‘needs’’ are.

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Department of Justice Pt. 36, App. B

Others suggested that only the public accom- viduals with disabilities under section 501(d), modation can make these determinations. neither the Act nor this part provides affirm- The regulation does not give exclusive re- ative authority to suspend such treatment. sponsibility to either party. Rather, the de- Section 501(d) is intended to clarify that the terminations are to be made based on an ob- Act is not designed to foster discrimination jective view, presumably one which would through mandatory acceptance of special take into account views of both parties. services when other alternatives are pro- Some commenters expressed concern that vided; this concern does not reach to the pro- § 36.203(c), which states that nothing in the vision of medical treatment for the disabling rule requires an individual with a disability condition itself. to accept special accommodations and serv- Section 36.213 makes clear that the limita- ices provided under the ADA, could be inter- tions contained in subpart C are to be read preted to allow guardians of infants or older people with disabilities to refuse medical into subpart B. Thus, the integration re- treatment for their wards. Section 36.203(c) quirement is subject to the various defenses has been revised to make it clear that para- contained in subpart C, such as safety, if eli- graph (c) is inapplicable to the concern of gibility criteria are at issue (§ 36.301(b)), or the commenters. A new paragraph (c)(2) has fundamental alteration and undue burden, if been added stating that nothing in the regu- the concern is provision of auxiliary aids lation authorizes the representative or (§ 36.303(a)). guardian of an individual with a disability to decline food, water, medical treatment, or Section 36.204 Administrative Methods medical services for that individual. New Section 36.204 specifies that an individual paragraph (c) clarifies that neither the ADA or entity shall not, directly, or through con- nor the regulation alters current Federal law tractual or other arrangements, utilize ensuring the rights of incompetent individ- standards or criteria or methods of adminis- uals with disabilities to receive food, water, tration that have the effect of discrimi- and medical treatment. See, e.g., Child Abuse nating on the basis of disability or that per- Amendments of 1984 (42 U.S.C. 5106a(b)(10), petuate the discrimination of others who are 5106g(10)); Rehabilitation Act of 1973, as subject to common administrative control. amended (29 U.S.C 794); Developmentally Dis- abled Assistance and Bill of Rights Act (42 The preamble discussion of § 36.301 addresses U.S.C. 6042). eligibility criteria in detail. Sections 36.203(c) (1) and (2) are based on Section 36.204 is derived from section section 501(d) of the ADA. Section § 501(d) 302(b)(1)(D) of the Americans with Disabil- was designed to clarify that nothing in the ities Act, and it uses the same language used ADA requires individuals with disabilities to in the employment section of the ADA (sec- accept special accommodations and services tion 102(b)(3)). Both sections incorporate a for individuals with disabilities that may disparate impact standard to ensure the ef- segregate them: fectiveness of the legislative mandate to end The Committee added this section (501(d)) discrimination. This standard is consistent to clarify that nothing in the ADA is in- with the interpretation of section 504 by the tended to permit discriminatory treatment U.S. Supreme Court in Alexander v. Choate, on the basis of disability, even when such 469 U.S. 287 (1985). The Court in Choate ex- treatment is rendered under the guise of pro- plained that members of Congress made nu- viding an accommodation, service, aid or merous statements during passage of section benefit to the individual with disability. For 504 regarding eliminating architectural bar- example, a blind individual may choose not riers, providing access to transportation, and to avail himself or herself of the right to go eliminating discriminatory effects of job to the front of a line, even if a particular qualification procedures. The Court then public accommodation has chosen to offer noted: ‘‘These statements would ring hollow such a modification of a policy for blind indi- if the resulting legislation could not rectify viduals. Or, a blind individual may choose to the harms resulting from action that dis- decline to participate in a special museum criminated by effect as well as by design.’’ Id tour that allows persons to touch sculptures at 297 (footnote omitted). in an exhibit and instead tour the exhibits at Of course, § 36.204 is subject to the various his or her own pace with the museum’s re- corded tour. limitations contained in subpart C including, for example, necessity (§ 36.301(a)), safety (Judiciary report at 71–72.) The Act is not to (§ 36.301(b)), fundamental alteration be construed to mean that an individual with (§ 36.302(a)), readily achievable (§ 36.304(a)), disabilities must accept special accommoda- and undue burden (§ 36.303(a)). tions and services for individuals with dis- abilities when that individual chooses to par- Section 36.205 Association ticipate in the regular services already of- fered. Because medical treatment, including Section 36.205 implements section treatment for particular conditions, is not a 302(b)(1)(E) of the Act, which provides that a special accommodation or service for indi- public accommodation shall not exclude or

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

otherwise deny equal goods, services, facili- or enjoyment of any right granted or pro- ties, privileges, advantages, accommoda- tected by the Act or this part. tions, or other opportunities to an individual Illustrations of practices prohibited by this or entity because of the known disability of section are contained in paragraph (c), which an individual with whom the individual or is modeled on a similar provision in the reg- entity is known to have a relationship or as- ulations issued by the Department of Hous- sociation. This section is unchanged from ing and Urban Development to implement the proposed rule. the Fair Housing Act (see 24 CFR The individuals covered under this section 100.400(c)(l)). Prohibited actions may include: include any individuals who are discrimi- (1) Coercing an individual to deny or limit nated against because of their known asso- the benefits, services, or advantages to ciation with an individual with a disability. which he or she is entitled under the Act or For example, it would be a violation of this this part; part for a day care center to refuse admis- (2) Threatening, intimidating, or inter- sion to a child because his or her brother has fering with an individual who is seeking to HIV disease. obtain or use the goods, services, facilities, This protection is not limited to those who privileges, advantages, or accommodations have a familial relationship with the indi- of a public accommodation; vidual who has a disability. If a place of pub- (3) Intimidating or threatening any person lic accommodation refuses admission to a because that person is assisting or encour- person with cerebral palsy and his or her aging an individual or group entitled to companions, the companions have an inde- claim the rights granted or protected by the pendent right of action under the ADA and Act or this part to exercise those rights; or this section. (4) Retaliating against any person because During the legislative process, the term that person has participated in any inves- ‘‘entity’’ was added to section 302(b)(1)(E) to tigation or action to enforce the Act or this clarify that the scope of the provision is in- part. tended to encompass not only persons who This section protects not only individuals have a known association with a person with who allege a violation of the Act or this a disability, but also entities that provide part, but also any individuals who support or services to or are otherwise associated with assist them. This section applies to all inves- such individuals. This provision was in- tigations or proceedings initiated under the tended to ensure that entities such as health Act or this part without regard to the ulti- care providers, employees of social service mate resolution of the underlying allega- agencies, and others who provide profes- tions. Because this section prohibits any act sional services to persons with disabilities of retaliation or coercion in response to an are not subjected to discrimination because individual’s effort to exercise rights estab- of their professional association with persons lished by the Act and this part (or to support with disabilities. For example, it would be a the efforts of another individual), the section violation of this section to terminate the applies not only to public accommodations lease of an entity operating an independent that are otherwise subject to this part, but living center for persons with disabilities, or also to individuals other than public accom- to seek to evict a health care provider be- modations or to public entities. For exam- cause that individual or entity provides serv- ple, it would be a violation of the Act and ices to persons with mental impairments. this part for a private individual, e.g., a res- taurant customer, to harass or intimidate an Section 36.206 Retaliation or Coercion individual with a disability in an effort to Section 36.206 implements section 503 of prevent that individual from patronizing the the ADA, which prohibits retaliation against restaurant. It would, likewise, be a violation any individual who exercises his or her of the Act and this part for a public entity to rights under the Act. This section is un- take adverse action against an employee who changed from the proposed rule. Paragraph appeared as a witness on behalf of an indi- (a) of § 36.206 provides that no private entity vidual who sought to enforce the Act. or public entity shall discriminate against Section 36.207 Places of Public Accommodation any individual because that individual has Located in Private Residences exercised his or her right to oppose any act or practice made unlawful by this part, or A private home used exclusively as a resi- because that individual made a charge, testi- dence is not covered by title III because it is fied, assisted, or participated in any manner neither a ‘‘commercial facility’’ nor a ‘‘place in an investigation, proceeding, or hearing of public accommodation.’’ In some situa- under the Act or this part. tions, however, a private home is not used Paragraph (b) provides that no private en- exclusively as a residence, but houses a place tity or public entity shall coerce, intimidate, of public accommodation in all or part of a threaten, or interfere with any individual in home (e.g., an accountant who meets with the exercise of his or her rights under this his or her clients at his or her residence). part or because that individual aided or en- Section 36.207(a) provides that those portions couraged any other individual in the exercise of the private residence used in the operation

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Department of Justice Pt. 36, App. B

of the place of public accommodation are be quite modest. It might not be readily covered by this part. achievable for such a place of public accom- For instance, a home or a portion of a modation to remove any existing barriers. If home may be used as a day care center dur- it is not readily achievable to remove exist- ing the day and a residence at night. If all ing architectural barriers, a public accom- parts of the house are used for the day care modation located in a private residence may center, then the entire residence is a place of meet its obligations under the Act and this public accommodation because no part of the part by providing its goods or services to cli- house is used exclusively as a residence. If an ents or customers with disabilities through accountant uses one room in the house sole- the use of alternative measures, including ly as his or her professional office, then a delivery of goods or services in the home of portion of the house is used exclusively as a the customer or client, to the extent that place of public accommodation and a portion such alternative measures are readily is used exclusively as a residence. Section achievable (See § 36.305). 36.207 provides that when a portion of a resi- Some commenters asked for clarification dence is used exclusively as a residence, that as to how the new construction and alter- portion is not covered by this part. Thus, the ation standards of subpart D will apply to portions of the accountant’s house, other residences. The new construction standards than the professional office and areas and only apply to the extent that the residence spaces leading to it, are not covered by this or portion of the residence was designed or part. All of the requirements of this rule intended for use as a public accommodation. apply to the covered portions, including re- Thus, for example, if a portion of a home is quirements to make reasonable modifica- designed or constructed for use exclusively tions in policies, eliminate discriminatory as a lawyer’s office or for use both as a law- eligibility criteria, take readily achievable yer’s office and for residential purposes, then measures to remove barriers or provide read- it must be designed in accordance with the ily achievable alternatives (e.g., making new construction standards in the appendix. house calls), provide auxiliary aids and serv- Likewise, if a homeowner is undertaking al- ices and undertake only accessible new con- terations to convert all or part of his resi- struction and alterations. dence to a place of public accommodation, Paragraph (b) was added in response to that work must be done in compliance with comments that sought clarification on the the alterations standards in the appendix. extent of coverage of the private residence The preamble to the proposed rule ad- used as the place of public accommodation. dressed the applicable requirements when a The final rule makes clear that the place of commercial facility is located in a private accommodation extends to all areas of the residence. That situation is now addressed in home used by clients and customers of the § 36.401(b) of subpart D. place of public accommodation. Thus, the ADA would apply to any door or entry way, Section 36.208 Direct Threat hallways, a restroom, if used by customers and clients; and any other portion of the res- Section 36.208(a) implements section idence, interior or exterior, used by cus- 302(b)(3) of the Act by providing that this tomers or clients of the public accommoda- part does not require a public accommoda- tion. This interpretation is simply an appli- tion to permit an individual to participate in cation of the general rule for all public ac- or benefit from the goods, services, facilities, commodations, which extends statutory re- privileges, advantages and accommodations quirements to all portions of the facility of the public accommodation, if that indi- used by customers and clients, including, if vidual poses a direct threat to the health or applicable, restrooms, hallways, and ap- safety of others. This section is unchanged proaches to the public accommodation. As from the proposed rule. with other public accommodations, barriers The Department received a significant at the entrance and on the sidewalk leading number of comments on this section. Com- up to the public accommodation, if the side- menters representing individuals with dis- walk is under the control of the public ac- abilities generally supported this provision, commodation, must be removed if doing so is but suggested revisions to further limit its readily achievable. application. Commenters representing public The Department recognizes that many accommodations generally endorsed modi- businesses that operate out of personal resi- fications that would permit a public accom- dences are quite small, often employing only modation to exercise its own judgment in de- the homeowner and having limited total rev- termining whether an individual poses a di- enues. In these circumstances the effect of rect threat. ADA coverage would likely be quite mini- The inclusion of this provision is not in- mal. For example, because the obligation to tended to imply that persons with disabil- remove existing architectural barriers is ities pose risks to others. It is intended to limited to those that are easily accomplish- address concerns that may arise in this area. able without much difficulty or expense (see It establishes a strict standard that must be § 36.304), the range of required actions would met before denying service to an individual

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

with a disability or excluding that individual The Department believes that to preclude all from participation. such inquiries would be inappropriate. Under Paragraph (b) of this section explains that § 36.301 of this part, a public accommodation a ‘‘direct threat’’ is a significant risk to the is permitted to establish eligibility criteria health or safety of others that cannot be necessary for the safe operation of the place eliminated by a modification of policies, of public accommodation. Implicit in that practices, or procedures, or by the provision right is the right to ask if an individual of auxiliary aids and services. This para- meets the criteria. However, any eligibility graph codifies the standard first applied by or safety standard established by a public ac- the Supreme Court in School Board of Nassau commodation must be based on actual risk, County v. Arline, 480 U.S. 273 (1987), in which not on speculation or stereotypes; it must be the Court held that an individual with a con- applied to all clients or customers of the tagious disease may be an ‘‘individual with place of public accommodation; and inquiries handicaps’’ under section 504 of the Rehabili- must be limited to matters necessary to the tation Act. In Arline, the Supreme Court rec- application of the standard. ognized that there is a need to balance the interests of people with disabilities against Some commenters suggested that the test legitimate concerns for public safety. Al- established in the Arline decision, which was though persons with disabilities are gen- developed in the context of an employment erally entitled to the protection of this part, case, is too stringent to apply in a public ac- a person who poses a significant risk to oth- commodations context where interaction be- ers may be excluded if reasonable modifica- tween the public accommodation and its cli- tions to the public accommodation’s poli- ent or customer is often very brief. One sug- cies, practices, or procedures will not elimi- gested alternative was to permit public ac- nate that risk. The determination that a per- commodations to exercise ‘‘good faith’’ judg- son poses a direct threat to the health or ment in determining whether an individual safety of others may not be based on gen- poses a direct threat, particularly when a eralizations or stereotypes about the effects public accommodation is dealing with a cli- of a particular disability; it must be based on ent or customer engaged in disorderly or dis- an individual assessment that conforms to ruptive behavior. the requirements of paragraph (c) of this sec- The Department believes that the ADA tion. clearly requires that any determination to Paragraph (c) establishes the test to use in exclude an individual from participation determining whether an individual poses a must be based on an objective standard. A direct threat to the health or safety of oth- public accommodation may establish neutral ers. A public accommodation is required to eligibility criteria as a condition of receiving make an individualized assessment, based on its goods or services. As long as these cri- reasonable judgment that relies on current teria are necessary for the safe provision of medical evidence or on the best available ob- the public accommodation’s goods and serv- jective evidence, to determine: The nature, ices and applied neutrally to all clients or duration, and severity of the risk; the prob- customers, regardless of whether they are in- ability that the potential injury will actu- dividuals with disabilities, a person who is ally occur; and whether reasonable modifica- unable to meet the criteria may be excluded tions of policies, practices, or procedures will mitigate the risk. This is the test estab- from participation without inquiry into the lished by the Supreme Court in Arline. Such underlying reason for the inability to com- an inquiry is essential if the law is to ply. In places of public accommodation such achieve its goal of protecting disabled indi- as restaurants, theaters, or hotels, where the viduals from discrimination based on preju- contact between the public accommodation dice, stereotypes, or unfounded fear, while and its clients is transitory, the uniform ap- giving appropriate weight to legitimate con- plication of an eligibility standard pre- cerns, such as the need to avoid exposing cluding violent or disruptive behavior by any others to significant health and safety risks. client or customer should be sufficient to en- Making this assessment will not usually re- able a public accommodation to conduct its quire the services of a physician. Sources for business in an orderly manner. medical knowledge include guidance from Some other commenters asked for clari- public health authorities, such as the U.S. fication of the application of this provision Public Health Service, the Centers for Dis- to persons, particularly children, who have ease Control, and the National Institutes of short-term, contagious illnesses, such as fe- Health, including the National Institute of vers, influenza, or the common cold. It is Mental Health. common practice in schools and day care set- Many of the commenters sought clarifica- tings to exclude persons with such illnesses tion of the inquiry requirement. Some sug- until the symptoms subside. The Department gested that public accommodations should believes that these commenters misunder- be prohibited from making any inquiries to stand the scope of this rule. The ADA only determine if an individual with a disability prohibits discrimination against an indi- would pose a direct threat to other persons. vidual with a disability. Under the ADA and

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Department of Justice Pt. 36, App. B

this part, a ‘‘disability’’ is defined as a phys- 596, 101st Cong., 2d Sess. 64 (1990), is ‘‘illegal ical or mental impairment that substan- use of drugs that occurred recently enough tially limits one or more major life activi- to justify a reasonable belief that a person’s ties. Common, short-term illnesses that pre- drug use is current or that continuing use is dictably resolve themselves within a matter a real and ongoing problem.’’ of days do not ‘‘substantially limit’’ a major Paragraph (a)(2)(i) specifies that an indi- life activity; therefore, it is not a violation vidual who has successfully completed a su- of this part to exclude an individual from re- pervised drug rehabilitation program or has ceiving the services of a public accommoda- otherwise been rehabilitated successfully tion because of such transitory illness. How- and who is not engaging in current illegal ever, this part does apply to persons who use of drugs is protected. Paragraph (a)(2)(ii) have long-term illnesses. Any determination clarifies that an individual who is currently with respect to a person who has a chronic or participating in a supervised rehabilitation long-term illness must be made in compli- program and is not engaging in current ille- ance with the requirements of this section. gal use of drugs is protected. Paragraph Section 36.209 Illegal Use of Drugs (a)(2)(iii) provides that a person who is erro- neously regarded as engaging in current ille- Section 36.209 effectuates section 510 of the gal use of drugs, but who is not engaging in ADA, which clarifies the Act’s application to such use, is protected. people who use drugs illegally. Paragraph (a) Paragraph (b) provides a limited exception provides that this part does not prohibit dis- to the exclusion of current illegal users of crimination based on an individual’s current drugs from the protections of the Act. It pro- illegal use of drugs. hibits denial of health services, or services The Act and the regulation distinguish be- provided in connection with drug rehabilita- tween illegal use of drugs and the legal use tion, to an individual on the basis of current of substances, whether or not those sub- illegal use of drugs, if the individual is other- stances are ‘‘controlled substances,’’ as de- wise entitled to such services. As explained fined in the Controlled Substances Act (21 further in the discussion of § 36.302, a health U.S.C. 812). Some controlled substances are care facility that specializes in a particular prescription drugs that have legitimate med- type of treatment, such as care of burn vic- ical uses. Section 36.209 does not affect use of tims, is not required to provide drug reha- controlled substances pursuant to a valid bilitation services, but it cannot refuse to prescription, under supervision by a licensed treat an individual’s burns on the grounds health care professional, or other use that is that the individual is illegally using drugs. authorized by the Controlled Substances Act A commenter argued that health care pro- or any other provision of Federal law. It does viders should be permitted to use their med- apply to illegal use of those substances, as ical judgment to postpone discretionary well as to illegal use of controlled substances medical treatment of individuals under the that are not prescription drugs. The key question is whether the individual’s use of influence of alcohol or drugs. The regulation the substance is illegal, not whether the sub- permits a medical practitioner to take into stance has recognized legal uses. Alcohol is account an individual’s use of drugs in deter- not a controlled substance, so use of alcohol mining appropriate medical treatment. Sec- is not addressed by § 36.209. Alcoholics are in- tion 36.209 provides that the prohibitions on dividuals with disabilities, subject to the discrimination in this part do not apply protections of the statute. when the public accommodation acts on the A distinction is also made between the use basis of current illegal use of drugs. Al- of a substance and the status of being ad- though those prohibitions do apply under dicted to that substance. Addiction is a dis- paragraph (b), the limitations established ability, and addicts are individuals with dis- under this part also apply. Thus, under abilities protected by the Act. The protec- § 36.208, a health care provider or other public tion, however, does not extend to actions accommodation covered under § 36.209(b) may based on the illegal use of the substance. In exclude an individual whose current illegal other words, an addict cannot use the fact of use of drugs poses a direct threat to the his or her addiction as a defense to an action health or safety of others, and, under § 36.301, based on illegal use of drugs. This distinction a public accommodation may impose or is not artificial. Congress intended to deny apply eligibility criteria that are necessary protection to people who engage in the ille- for the provision of the services being of- gal use of drugs, whether or not they are ad- fered, and may impose legitimate safety re- dicted, but to provide protection to addicts quirements that are necessary for safe oper- so long as they are not currently using ation. These same limitations also apply to drugs. individuals with disabilities who use alcohol A third distinction is the difficult one be- or prescription drugs. The Department be- tween current use and former use. The defi- lieves that these provisions address this nition of ‘‘current illegal use of drugs’’ in commenter’s concerns. § 36.104, which is based on the report of the Other commenters pointed out that ab- Conference Committee, H.R. Conf. Rep. No. stention from the use of drugs is an essential

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

condition for participation in some drug re- enough, and that the regulation should pro- habilitation programs, and may be a nec- hibit smoking in all places of public accom- essary requirement in inpatient or residen- modation. The reference to smoking in sec- tial settings. The Department believes that tion 501 merely clarifies that the Act does this comment is well-founded. Congress not require public accommodations to ac- clearly did not intend to exclude from drug commodate smokers by permitting them to treatment programs the very individuals smoke in places of public accommodations. who need such programs because of their use of drugs. In such a situation, however, once Section 36.211 Maintenance of Accessible an individual has been admitted to a pro- Features gram, abstention may be a necessary and ap- propriate condition to continued participa- Section 36.211 provides that a public ac- tion. The final rule therefore provides that a commodation shall maintain in operable drug rehabilitation or treatment program working condition those features of facilities may deny participation to individuals who and equipment that are required to be read- use drugs while they are in the program. ily accessible to and usable by persons with Paragraph (c) expresses Congress’ inten- disabilities by the Act or this part. The Act tion that the Act be neutral with respect to requires that, to the maximum extent fea- testing for illegal use of drugs. This para- sible, facilities must be accessible to, and us- graph implements the provision in section able by, individuals with disabilities. This 510(b) of the Act that allows entities ‘‘to section recognizes that it is not sufficient to adopt or administer reasonable policies or provide features such as accessible routes, procedures, including but not limited to drug elevators, or ramps, if those features are not testing,’’ that ensure an individual who is maintained in a manner that enables indi- participating in a supervised rehabilitation viduals with disabilities to use them. Inoper- program, or who has completed such a pro- able elevators, locked accessible doors, or gram or otherwise been rehabilitated suc- ‘‘accessible’’ routes that are obstructed by cessfully, is no longer engaging in the illegal furniture, filing cabinets, or potted plants use of drugs. Paragraph (c) is not to be con- are neither ‘‘accessible to’’ nor ‘‘usable by’’ strued to encourage, prohibit, restrict, or au- individuals with disabilities. thorize the conducting of testing for the ille- Some commenters objected that this sec- gal use of drugs. tion appeared to establish an absolute re- Paragraph (c) of § 36.209 clarifies that it is quirement and suggested that language from not a violation of this part to adopt or ad- the preamble be included in the text of the minister reasonable policies or procedures to regulation. It is, of course, impossible to ensure that an individual who formerly en- guarantee that mechanical devices will gaged in the illegal use of drugs is not cur- never fail to operate. Paragraph (b) of the rently engaging in illegal use of drugs. Any final regulation provides that this section such policies or procedures must, of course, does not prohibit isolated or temporary be reasonable, and must be designed to iden- interruptions in service or access due to tify accurately the illegal use of drugs. This maintenance or repairs. This paragraph is in- paragraph does not authorize inquiries, tended to clarify that temporary obstruc- tests, or other procedures that would dis- close use of substances that are not con- tions or isolated instances of mechanical trolled substances or are taken under super- failure would not be considered violations of vision by a licensed health care professional, the Act or this part. However, allowing ob- or other uses authorized by the Controlled structions or ‘‘out of service’’ equipment to Substances Act or other provisions of Fed- persist beyond a reasonable period of time eral law, because such uses are not included would violate this part, as would repeated in the definition of ‘‘illegal use of drugs.’’ mechanical failures due to improper or inad- One commenter argued that the rule equate maintenance. Failure of the public should permit testing for lawful use of pre- accommodation to ensure that accessible scription drugs, but most favored the expla- routes are properly maintained and free of nation that tests must be limited to unlawful obstructions, or failure to arrange prompt use in order to avoid revealing the use of pre- repair of inoperable elevators or other equip- scription medicine used to treat disabilities. ment intended to provide access, would also Tests revealing legal use of prescription violate this part. drugs might violate the prohibition in § 36.301 Other commenters requested that this sec- of attempts to unnecessarily identify the ex- tion be expanded to include specific require- istence of a disability. ments for inspection and maintenance of equipment, for training staff in the proper Section 36.210 Smoking operation of equipment, and for maintenance Section 36.210 restates the clarification in of specific items. The Department believes section 501(b) of the Act that the Act does that this section properly establishes the not preclude the prohibition of, or imposi- general requirement for maintaining access tion of restrictions on, smoking. Some com- and that further, more detailed requirements menters argued that § 36.210 does not go far are not necessary.

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Department of Justice Pt. 36, App. B

Section 36.212 Insurance pose increased risks’’ (Senate report at 84; Education and Labor report at 136). Section The Department received numerous com- 501(c) (1) of the Act was intended to empha- ments on proposed § 36.212. Most supported size that ‘‘insurers may continue to sell to the proposed regulation but felt that it did and underwrite individuals applying for life, not go far enough in protecting individuals health, or other insurance on an individually with disabilities and persons associated with underwritten basis, or to service such insur- them from discrimination. Many com- ance products, so long as the standards used menters argued that language from the pre- are based on sound actuarial data and not on amble to the proposed regulation should be speculation’’ (Judiciary report at 70 (empha- included in the text of the final regulation. sis added); see also Senate report at 85; Edu- Other commenters argued that even that cation and Labor report at 137). language was not strong enough, and that The committee reports indicate that un- more stringent standards should be estab- derwriting and classification of risks must lished. Only a few commenters argued that be ‘‘based on sound actuarial principles or be the Act does not apply to insurance under- related to actual or reasonably anticipated writing practices or the terms of insurance experience’’ (see, e.g., Judiciary report at 71). contracts. These commenters cited language Moreover, ‘‘while a plan which limits certain from the Senate committee report (S. Rep. kinds of coverage based on classification of No. 116, 101st Cong., 1st Sess., at 84–86 (1989) risk would be allowed * * *, the plan may (hereinafter ‘‘Senate report’’)), indicating not refuse to insure, or refuse to continue to that Congress did not intend to affect exist- insure, or limit the amount, extent, or kind ing insurance practices. of coverage available to an individual, or The Department has decided to adopt the charge a different rate for the same coverage language of the proposed rule without solely because of a physical or mental im- change. Sections 36.212 (a) and (b) restate pairment, except where the refusal, limita- section 501(c) of the Act, which provides that tion, or rate differential is based on sound the Act shall not be construed to restrict actuarial principles or is related to actual or certain insurance practices on the part of in- reasonably anticipated experience’’ (Senate surance companies and employers, as long as report at 85; Education and Labor report at such practices are not used to evade the pur- 136–37; Judiciary report at 71). The ADA, poses of the Act. Section 36.212(c) is a spe- therefore, does not prohibit use of legitimate cific application of § 36.202(a), which pro- actuarial considerations to justify differen- hibits denial of participation on the basis of tial treatment of individuals with disabil- disability. It provides that a public accom- ities in insurance. modation may not refuse to serve an indi- The committee reports provide some guid- vidual with a disability because of limita- ance on how nondiscrimination principles in tions on coverage or rates in its insurance the disability rights area relate to insurance policies (see Judiciary report at 56). practices. For example, a person who is blind Many commenters supported the require- may not be denied coverage based on blind- ments of § 36.212(c) in the proposed rule be- ness independent of actuarial risk classifica- cause it addressed an important reason for tion. With respect to group health insurance denial of services by public accommodations. coverage, an individual with a pre-existing One commenter argued that services could condition may be denied coverage for that be denied if the insurance coverage required condition for the period specified in the pol- exclusion of people whose disabilities were icy, but cannot be denied coverage for illness reasonably related to the risks involved in or injuries unrelated to the pre-existing con- that particular place of public accommoda- dition. Also, a public accommodation may tion. Sections 36.208 and 36.301 establish cri- offer insurance policies that limit coverage teria for denial of participation on the basis for certain procedures or treatments, but of legitimate safety concerns. This para- may not entirely deny coverage to a person graph does not prohibit consideration of such with a disability. concerns in insurance policies, but provides The Department requested comment on that any exclusion on the basis of disability the extent to which data that would estab- must be based on the permissible criteria, lish statistically sound correlations are rather than on the terms of the insurance available. Numerous commenters cited per- contract. vasive problems in the availability and cost Language in the committee reports indi- of insurance for individuals with disabilities cates that Congress intended to reach insur- and parents of children with disabilities. No ance practices by prohibiting differential commenters cited specific data, or sources of treatment of individuals with disabilities in data, to support specific exclusionary prac- insurance offered by public accommodations tices. Several commenters reported that, unless the differences are justified. ‘‘Under even when statistics are available, they are the ADA, a person with a disability cannot often outdated and do not reflect current be denied insurance or be subject to different medical technology and treatment methods. terms or conditions of insurance based on Concern was expressed that adequate efforts disability alone, if the disability does not are not made to distinguish those individuals

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

who are high users of health care from indi- apply. Resort to the general provisions of viduals in the same diagnostic groups who subpart B is only appropriate where there may be low users of health care. One insurer are no applicable specific rules of guidance reported that ‘‘hard data and actuarial sta- in subparts C or D. This interaction between tistics are not available to provide precise the specific requirements and the general re- numerical justifications for every under- quirements operates with regard to contrac- writing determination,’’ but argued that de- tual obligations as well. cisions may be based on ‘‘logical principles One illustration of this principle is its ap- generally accepted by actuarial science and plication to the obligation of a public accom- fully consistent with state insurance laws.’’ modation to provide access to services by re- The commenter urged that the Department moval of architectural barriers or by alter- recognize the validity of information other natives to barrier removal. The general re- than statistical data as a basis for insurance quirement, established in subpart B by determinations. § 36.203, is that a public accommodation must The most frequent comment was a rec- provide its services to individuals with dis- ommendation that the final regulation abilities in the most integrated setting ap- should require the insurance company to propriate. This general requirement would provide a copy of the actuarial data on which appear to categorically prohibit ‘‘seg- its actions are based when requested by the regated’’ seating for persons in wheelchairs. applicant. Such a requirement would be be- Section 36.304, however, only requires re- yond anything contemplated by the Act or moval of architectural barriers to the extent by Congress and has therefore not been in- that removal is ‘‘readily achievable.’’ If pro- cluded in the Department’s final rule. Be- viding access to all areas of a restaurant, for cause the legislative history of the ADA example, would not be ‘‘readily achievable,’’ clarifies that different treatment of individ- a public accommodation may provide access uals with disabilities in insurance may be to selected areas only. Also, § 36.305 provides justified by sound actuarial data, such actu- that, where barrier removal is not readily arial data will be critical to any potential achievable, a public accommodation may use litigation on this issue. This information alternative, readily achievable methods of would presumably be obtainable in a court making services available, such as curbside proceeding where the insurer’s actuarial service or home delivery. Thus, in this man- data was the basis for different treatment of ner, the specific requirements of §§ 36.304 and persons with disabilities. In addition, under 36.305 control over the general requirement some State regulatory schemes, insurers of § 36.203. may have to file such actuarial information with the State regulatory agency and this Subpart C—Specific Requirements information may be obtainable at the State In general, subpart C implements the level. ‘‘specific prohibitions’’ that comprise section A few commenters representing the insur- 302(b)(2) of the ADA. It also addresses the re- ance industry conceded that underwriting quirements of section 309 of the ADA regard- practices in life and health insurance are ing examinations and courses. clearly covered, but argued that property and casualty insurance are not covered. The Section 36.301 Eligibility Criteria Department sees no reason for this distinc- Section 36.301 of the rule prohibits the im- tion. Although life and health insurance are position or application of eligibility criteria the areas where the regulation will have its that screen out or tend to screen out an indi- greatest application, the Act applies equally vidual with a disability or any class of indi- to unjustified discrimination in all types of viduals with disabilities from fully and insurance provided by public accommoda- equally enjoying any goods, services, facili- tions. A number of commenters, for example, ties, privileges, advantages, and accommoda- reported difficulties in obtaining automobile tions, unless such criteria can be shown to be insurance because of their disabilities, de- necessary for the provision of the goods, spite their having good driving records. services, facilities, privileges, advantages, or accommodations being offered. This prohibi- Section 36.213 Relationship of Subpart 8 to tion is based on section 302(b)(2)(A)(i) of the Subparts C and D ADA. This section explains that subpart B sets It would violate this section to establish forth the general principles of non- exclusive or segregative eligibility criteria discrimination applicable to all entities sub- that would bar, for example, all persons who ject to this regulation, while subparts C and are deaf from playing on a golf course or all D provide guidance on the application of this individuals with cerebral palsy from attend- part to specific situations. The specific pro- ing a movie theater, or limit the seating of visions in subparts C and D, including the individuals with Down’s syndrome to only limitations on those provisions, control over particular areas of a restaurant. The wishes, the general provisions in circumstances tastes, or preferences of other customers where both specific and general provisions may not be asserted to justify criteria that

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Department of Justice Pt. 36, App. B

would exclude or segregate individuals with as an alternative to barrier removal under disabilities. § 36.305, when home delivery is provided to all Section 36.301 also prohibits attempts by a customers for a fee. Charges for home deliv- public accommodation to unnecessarily iden- ery are permissible if home delivery is not tify the existence of a disability; for exam- considered an alternative to barrier removal. ple, it would be a violation of this section for If the public accommodation offers an alter- a retail store to require an individual to native, such as curb, carry-out, or sidewalk state on a credit application whether the ap- service for which no surcharge is assessed, plicant has epilepsy, mental illness, or any then it may charge for home delivery in ac- other disability, or to inquire unnecessarily cordance with its standard pricing for home whether an individual has HIV disease. delivery. Section 36.301 also prohibits policies that In addition, § 36.301 prohibits the imposi- unnecessarily impose requirements or bur- tion of criteria that ‘‘tend to’’ screen out an dens on individuals with disabilities that are individual with a disability. This concept, not placed on others. For example, public ac- which is derived from current regulations commodations may not require that an indi- under section 504 (see, e.g., 45 CFR 84.13), vidual with a disability be accompanied by makes it discriminatory to impose policies an attendant. As provided by § 36.306, how- or criteria that, while not creating a direct ever, a public accommodation is not required bar to individuals with disabilities, indi- to provide services of a personal nature in- rectly prevent or limit their ability to par- cluding assistance in toileting, eating, or ticipate. For example, requiring presen- dressing. tation of a driver’s license as the sole means Paragraph (c) of § 36.301 provides that pub- of identification for purposes of paying by lic accommodations may not place a sur- check would violate this section in situa- charge on a particular individual with a dis- tions where, for example, individuals with ability or any group of individuals with dis- severe vision impairments or developmental abilities to cover the costs of measures, such disabilities or epilepsy are ineligible to re- as the provision of auxiliary aids and serv- ceive a driver’s license and the use of an al- ices, barrier removal, alternatives to barrier ternative means of identification, such as removal, and reasonable modifications in another photo I.D. or credit card, is feasible. policies, practices, and procedures, that are A public accommodation may, however, required to provide that individual or group impose neutral rules and criteria that screen with the nondiscriminatory treatment re- out, or tend to screen out, individuals with quired by the Act or this part. disabilities, if the criteria are necessary for A number of commenters inquired as to the safe operation of the public accommoda- whether deposits required for the use of aux- tion. Examples of safety qualifications that iliary aids, such as assistive listening de- would be justifiable in appropriate cir- vices, are prohibited surcharges. It is the De- cumstances would include height require- partment’s view that reasonable, completely ments for certain amusement park rides or a refundable, deposits are not to be considered requirement that all participants in a rec- surcharges prohibited by this section. Re- reational rafting expedition be able to meet quiring deposits is an important means of a necessary level of swimming proficiency. ensuring the availability of equipment nec- Safety requirements must be based on actual essary to ensure compliance with the ADA. risks and not on speculation, stereotypes, or Other commenters sought clarification as generalizations about individuals with dis- to whether § 36.301(c) prohibits professionals abilities. from charging for the additional time that it may take in certain cases to provide services Section 36.302 Modifications in Policies, to an individual with disabilities. The De- Practices, or Procedures partment does not intend § 36.301(c) to pro- Section 36.302 of the rule prohibits the fail- hibit professionals who bill on the basis of ure to make reasonable modifications in time from charging individuals with disabil- policies, practices, and procedures when such ities on that basis. However, fees may not be modifications may be necessary to afford charged for the provision of auxiliary aids any goods, services, facilities, privileges, ad- and services, barrier removal, alternatives to vantages, or accommodations, unless the en- barrier removal, reasonable modifications in tity can demonstrate that making such policies, practices, and procedures, or any modifications would fundamentally alter the other measures necessary to ensure compli- nature of such goods, services, facilities, ance with the ADA. privileges, advantages, or accommodations. Other commenters inquired as to whether This prohibition is based on section day care centers may charge for extra serv- 302(b)(2)(A)(ii) of the ADA. ices provided to individuals with disabilities. For example, a parking facility would be As stated above, § 36.302(c) is intended only required to modify a rule barring all vans or to prohibit charges for measures necessary all vans with raised roofs, if an individual to achieve compliance with the ADA. who uses a wheelchair-accessible van wishes Another commenter asserted that charges to park in that facility, and if overhead may be assessed for home delivery provided structures are high enough to accommodate

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

the height of the van. A department store books or order Brailled books, if it does not may need to modify a policy of only permit- do so in the normal course of its business. ting one person at a time in a dressing room, The rule does not require modifications to if an individual with mental retardation the legitimate areas of specialization of serv- needs and requests assistance in dressing ice providers. Section 36.302(b) provides that from a companion. Public accommodations a public accommodation may refer an indi- may need to revise operational policies to vidual with a disability to another public ac- ensure that services are available to individ- commodation, if that individual is seeking, uals with disabilities. For instance, a hotel or requires, treatment or services outside of may need to adopt a policy of keeping an ac- the referring public accommodation’s area of cessible room unoccupied until an individual specialization, and if, in the normal course of with a disability arrives at the hotel, assum- its operations, the referring public accom- ing the individual has properly reserved the modation would make a similar referral for room. an individual without a disability who seeks One example of application of this prin- or requires the same treatment or services. ciple is specifically included in a new For example, it would not be discrimina- § 36.302(d) on check-out aisles. That para- tory for a physician who specializes only in graph provides that a store with check-out burn treatment to refer an individual who is aisles must ensure that an adequate number deaf to another physician for treatment of of accessible check-out aisles is kept open an injury other than a burn injury. To re- during store hours, or must otherwise mod- quire a physician to accept patients outside ify its policies and practices, in order to en- of his or her specialty would fundamentally sure that an equivalent level of convenient alter the nature of the medical practice and, service is provided to individuals with dis- therefore, not be required by this section. abilities as is provided to others. For exam- A clinic specializing exclusively in drug re- ple, if only one check-out aisle is accessible, habilitation could similarly refuse to treat a and it is generally used for express service, person who is not a drug addict, but could one way of providing equivalent service is to not refuse to treat a person who is a drug ad- allow persons with mobility impairments to dict simply because the patient tests posi- make all of their purchases at that aisle. tive for HIV. Conversely, a clinic that spe- This principle also applies with respect to cializes in the treatment of individuals with other accessible elements and services. For HIV could refuse to treat an individual that example, a particular bank may be in com- does not have HIV, but could not refuse to pliance with the accessibility guidelines for treat a person for HIV infection simply be- new construction incorporated in appendix A cause that person is also a drug addict. with respect to automated teller machines Some commenters requested clarification (ATM) at a new branch office by providing as to how this provision would apply to situ- one accessible walk-up machine at that loca- ations where manifestations of the disability tion, even though an adjacent walk-up ATM in question, itself, would raise complications is not accessible and the drive-up ATM is not requiring the expertise of a different practi- accessible. However, the bank would be in tioner. It is not the Department’s intention violation of this section if the accessible in § 36.302(b) to prohibit a physician from re- ATM was located in a lobby that was locked ferring an individual with a disability to an- during evening hours while the drive-up other physician, if the disability itself cre- ATM was available to customers without dis- ates specialized complications for the pa- abilities during those same hours. The bank tient’s health that the physician lacks the would need to ensure that the accessible experience or knowledge to address (see Edu- ATM was available to customers during the cation and Labor report at 106). hours that any of the other ATM’s was avail- Section 36.302(c)(1) requires that a public able. accommodation modify its policies, prac- A number of commenters inquired as to tices, or procedures to permit the use of a the relationship between this section and service animal by an individual with a dis- § 36.307, ‘‘Accessible or special goods.’’ Under ability in any area open to the general pub- § 36.307, a public accommodation is not re- lic. The term ‘‘service animal’’ is defined in quired to alter its inventory to include ac- § 36.104 to include guide dogs, signal dogs, or cessible or special goods that are designed any other animal individually trained to pro- for, or facilitate use by, individuals with dis- vide assistance to an individual with a dis- abilities. The rule enunciated in § 36.307 is ability. consistent with the ‘‘fundamental alter- A number of commenters pointed to the ation’’ defense to the reasonable modifica- difficulty of making the distinction required tions requirement of § 36.302. Therefore, by the proposed rule between areas open to § 36.302 would not require the inventory of the general public and those that are not. goods provided by a public accommodation The ambiguity and uncertainty surrounding to be altered to include goods with accessi- these provisions has led the Department to bility features. For example, § 36.302 would adopt a single standard for all public accom- not require a bookstore to stock Brailled modations.

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Department of Justice Pt. 36, App. B

Section 36.302(c)(1) of the final rule now derived from section 504 regulations for fed- provides that ‘‘[g]enerally, a public accom- erally conducted programs (see e.g., 28 CFR modation shall modify policies, practices, 39.160(a)) that requires that appropriate aux- and procedures to permit the use of a service iliary aids and services be furnished to en- animal by an individual with a disability.’’ sure that communication with persons with This formulation reflects the general intent disabilities is as effective as communication of Congress that public accommodations with others. take the necessary steps to accommodate Auxiliary aids and services include a wide service animals and to ensure that individ- range of services and devices for ensuring ef- uals with disabilities are not separated from fective communication. Use of the most ad- their service animals. It is intended that the vanced technology is not required so long as broadest feasible access be provided to serv- effective communication is ensured. The De- ice animals in all places of public accommo- partment’s proposed § 36.303(b) provided a list dation, including movie theaters, res- of examples of auxiliary aids and services taurants, hotels, retail stores, hospitals, and that was taken from the definition of auxil- nursing homes (see Education and Labor re- iary aids and services in section 3(1) of the port at 106; Judiciary report at 59). The sec- ADA and was supplemented by examples tion also acknowledges, however, that, in from regulations implementing section 504 in rare circumstances, accommodation of serv- federally conducted programs (see e.g., 28 ice animals may not be required because a CFR 39.103). A substantial number of com- fundamental alteration would result in the menters suggested that additional examples nature of the goods, services, facilities, be added to this list. The Department has privileges, or accommodations offered or added several items to this list but wishes to provided, or the safe operation of the public clarify that the list is not an all-inclusive or accommodation would be jeopardized. exhaustive catalogue of possible or available As specified in § 36.302(c)(2), the rule does auxiliary aids or services. It is not possible not require a public accommodation to su- to provide an exhaustive list, and such an at- pervise or care for any service animal. If a tempt would omit new devices that will be- service animal must be separated from an in- come available with emerging technology. dividual with a disability in order to avoid a fundamental alteration or a threat to safety, The Department has added videotext dis- it is the responsibility of the individual with plays, computer-aided transcription services, the disability to arrange for the care and su- and open and closed captioning to the list of pervision of the animal during the period of examples. Videotext displays have become separation. an important means of accessing auditory A museum would not be required by § 36.302 communications through a public address to modify a policy barring the touching of system. Transcription services are used to delicate works of art in order to enhance the relay aurally delivered material almost si- participation of individuals who are blind, if multaneously in written form to persons who the touching threatened the integrity of the are deaf or hard of hearing. This technology work. Damage to a museum piece would is often used at conferences, conventions, clearly be a fundamental alteration that is and hearings. While the proposed rule ex- not required by this section. pressly included television decoder equip- ment as an auxiliary aid or service, it did Section 36.303 Auxiliary Aids and Services. not mention captioning itself. The final rule rectifies this omission by mentioning both Section 36.303 of the final rule requires a public accommodation to take such steps as closed and open captioning. may be necessary to ensure that no indi- In this section, the Department has vidual with a disability is excluded, denied changed the proposed rule’s phrase, ‘‘orally services, segregated or otherwise treated dif- delivered materials,’’ to the phrase, ‘‘aurally ferently than other individuals because of delivered materials.’’ This new phrase tracks the absence of auxiliary aids and services, the language in the definition of ‘‘auxiliary unless the public accommodation can dem- aids and services’’ in section 3 of the ADA onstrate that taking such steps would fun- and is meant to include nonverbal sounds damentally alter the nature of the goods, and alarms and computer-generated speech. services, facilities, advantages, or accom- Several persons and organizations re- modations being offered or would result in quested that the Department replace the an undue burden. This requirement is based term ‘‘telecommunications devices for deaf on section 302(b)(2)(A)(iii) of the ADA. persons’’ or ‘‘TDD’s’’ with the term ‘‘text Implicit in this duty to provide auxiliary telephone.’’ The Department has declined to aids and services is the underlying obligation do so. The Department is aware that the Ar- of a public accommodation to communicate chitectural and Transportation Barriers effectively with its customers, clients, pa- Compliance Board has used the phrase ‘‘text tients, or participants who have disabilities telephone’’ in lieu of the statutory term affecting hearing, vision, or speech. To give ‘‘TDD’’ in its final accessibility guidelines. emphasis to this underlying obligation, Title IV of the ADA, however, uses the term § 36.303(c) of the rule incorporates language ‘‘Telecommunications Device for the Deaf,’’

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

and the Department believes it would be in- services required to provide effective com- appropriate to abandon this statutory term munications. Other forms of assistance are at this time. more appropriately addressed by other provi- Paragraph (b)(2) lists examples of aids and sions of the final rule. services for making visually delivered mate- The auxiliary aid requirement is a flexible rials accessible to persons with visual im- one. A public accommodation can choose pairments. Many commenters proposed addi- among various alternatives as long as the re- tional examples such as signage or mapping, sult is effective communication. For exam- audio description services, secondary audi- ple, a restaurant would not be required to tory programs (SAP), telebraillers, and read- provide menus in Braille for patrons who are ing machines. While the Department de- blind, if the waiters in the restaurant are clines to add these items to the list in the made available to read the menu. Similarly, regulation, they may be considered appro- a clothing boutique would not be required to priate auxiliary aids and services. have Brailled price tags if sales personnel Paragraph (b)(3) refers to the acquisition provide price information orally upon re- or modification of equipment or devices. For quest; and a bookstore would not be required example, tape players used for an audio-guid- to make available a sign language inter- ed tour of a museum exhibit may require the preter, because effective communication can addition of Brailled adhesive labels to the be conducted by notepad. buttons on a reasonable number of the tape A critical determination is what con- players to facilitate their use by individuals who are blind. Similarly, permanent or port- stitutes an effective auxiliary aid or service. able assistive listening systems for persons The Department’s proposed rule rec- with hearing impairments may be required ommended that, in determining what auxil- at a hotel conference center. iary aid to use, the public accommodation Several commenters suggested the addi- consult with an individual before providing tion of current technological innovations in him or her with a particular auxiliary aid or microelectronics and computerized control service. This suggestion sparked a signifi- systems (e.g., voice recognition systems, cant volume of public comment. Many per- automatic dialing telephones, and infrared sons with disabilities, particularly persons elevator and light control systems) to the who are deaf or hard of hearing, rec- list of auxiliary aids and services. The De- ommended that the rule should require that partment interprets auxiliary aids and serv- public accommodations give ‘‘primary con- ices as those aids and services designed to sideration’’ to the ‘‘expressed choice’’ of an provide effective communications, i. e., mak- individual with a disability. These com- ing aurally and visually delivered informa- menters asserted that the proposed rule was tion available to persons with hearing, inconsistent with congressional intent of the speech, and vision impairments. Methods of ADA, with the Department’s proposed rule making services, programs, or activities ac- implementing title II of the ADA, and with cessible to, or usable by, individuals with longstanding interpretations of section 504 of mobility or manual dexterity impairments the Rehabilitation Act. are addressed by other sections of this part, Based upon a careful review of the ADA including the requirements for modifications legislative history, the Department believes in policies, practices, or procedures (§ 36.302), that Congress did not intend under title III the elimination of existing architectural to impose upon a public accommodation the barriers (§ 36.304), and the provision of alter- requirement that it give primary consider- natives to barriers removal (§ 36.305). ation to the request of the individual with a Paragraph (b)(4) refers to other similar disability. To the contrary, the legislative services and actions. Several commenters history demonstrates congressional intent to asked for clarification that ‘‘similar services strongly encourage consulting with persons and actions’’ include retrieving items from with disabilities. In its analysis of the ADA’s shelves, assistance in reaching a marginally auxiliary aids requirement for public accom- accessible seat, pushing a barrier aside in modations, the House Education and Labor order to provide an accessible route, or as- Committee stated that it ‘‘expects’’ that sistance in removing a sweater or coat. ‘‘public accommodation(s) will consult with While retrieving an item from a shelf might the individual with a disability before pro- be an ‘‘auxiliary aid or service’’ for a blind viding a particular auxiliary aid or service’’ person who could not locate the item with- (Education and Labor report at 107). Some out assistance, it might be a readily achiev- commenters also cited a different committee able alternative to barrier removal for a per- statement that used mandatory language as son using a wheelchair who could not reach evidence of legislative intent to require pri- the shelf, or a reasonable modification to a mary consideration. However, this statement self-service policy for an individual who was made in the context of reasonable ac- lacked the ability to grasp the item. (Of commodations required by title I with re- course, a store would not be required to pro- spect to employment (Education and Labor vide a personal shopper.) As explained above, report at 67). Thus, the Department finds auxiliary aids and services are those aids and that strongly encouraging consultation with

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Department of Justice Pt. 36, App. B

persons with disabilities, in lieu of man- swering machines, or to permit a TDD user dating primary consideration of their ex- to leave a recorded message, and (3) are not pressed choice, is consistent with congres- appropriate for calling crisis lines relating sional intent. to such matters as rape, domestic violence, The Department wishes to emphasize that child abuse, and drugs where confidentiality public accommodations must take steps nec- is a concern. The Department believes that essary to ensure that an individual with a it is more appropriate for the Federal Com- disability will not be excluded, denied serv- munications Commission to address these ices, segregated or otherwise treated dif- issues in its rulemaking under title IV. ferently from other individuals because of A public accommodation is, however, re- the use of inappropriate or ineffective auxil- quired to make a TDD available to an indi- iary aids. In those situations requiring an in- vidual with impaired hearing or speech, if it terpreter, the public accommodations must customarily offers telephone service to its secure the services of a qualified interpreter, customers, clients, patients, or participants unless an undue burden would result. on more than an incidental convenience In the analysis of § 36.303(c) in the proposed basis. Where entry to a place of public ac- rule, the Department gave as an example the commodation requires use of a security en- situation where a note pad and written ma- trance telephone, a TDD or other effective terials were insufficient to permit effective means of communication must be provided communication in a doctor’s office when the for use by an individual with impaired hear- matter to be decided was whether major sur- ing or speech. gery was necessary. Many commenters ob- In other words, individual retail stores, jected to this statement, asserting that it doctors’ offices, restaurants, or similar es- gave the impression that only decisions tablishments are not required by this section about major surgery would merit the provi- to have TDD’s, because TDD users will be sion of a sign language interpreter. The able to make inquiries, appointments, or res- statement would, as the commenters also ervations with such establishments through claimed, convey the impression to other pub- the relay system established under title IV lic accommodations that written commu- of the ADA. The public accommodation will nications would meet the regulatory require- likewise be able to contact TDD users ments in all but the most extreme situa- through the relay system. On the other hand, tions. The Department, when using the ex- hotels, hospitals, and other similar estab- ample of major surgery, did not intend to lishments that offer nondisabled individuals limit the provision of interpreter services to the opportunity to make outgoing telephone the most extreme situations. calls on more than an incidental convenience Other situations may also require the use basis must provide a TDD on request. of interpreters to ensure effective commu- Section 36.303(e) requires places of lodging nication depending on the facts of the par- that provide televisions in five or more guest ticular case. It is not difficult to imagine a rooms and hospitals to provide, upon re- wide range of communications involving quest, a means for decoding closed captions areas such as health, legal matters, and fi- for use by an individual with impaired hear- nances that would be sufficiently lengthy or ing. Hotels should also provide a TDD or complex to require an interpreter for effec- similar device at the front desk in order to tive communication. In some situations, an take calls from guests who use TDD’s in effective alternative to use of a notepad or their rooms. In this way guests with hearing an interpreter may be the use of a computer impairments can avail themselves of such terminal upon which the representative of hotel services as making inquiries of the the public accommodation and the customer front desk and ordering room service. The or client can exchange typewritten mes- term ‘‘hospital’’ is used in its general sense sages. and should be interpreted broadly. Section 36.303(d) specifically addresses re- Movie theaters are not required by § 36.303 quirements for TDD’s. Partly because of the to present open-captioned films. However, availability of telecommunications relay other public accommodations that impart services to be established under title IV of verbal information through soundtracks on the ADA, § 36.303(d)(2) provides that a public films, video tapes, or slide shows are re- accommodation is not required to use a tele- quired to make such information accessible communication device for the deaf (TDD) in to persons with hearing impairments. Cap- receiving or making telephone calls incident tioning is one means to make the informa- to its operations. Several commenters were tion accessible to individuals with disabil- concerned that relay services would not be ities. sufficient to provide effective access in a The rule specifies that auxiliary aids and number of situations. Commenters argued services include the acquisition or modifica- that relay systems (1) do not provide effec- tion of equipment or devices. For example, tive access to the automated systems that tape players used for an audio-guided tour of require the caller to respond by pushing a a museum exhibit may require the addition button on a touch tone phone, (2) cannot op- of Brailled adhesive labels to the buttons on erate fast enough to convey messages on an- a reasonable number of the tape players to

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

facilitate their use by individuals who are assistive listening devices, and digital check- blind. Similarly, a hotel conference center out displays. The statute, however, as read may need to provide permanent or portable by the Department, limits the application of assistive listening systems for persons with the phrase ‘‘communications barriers that hearing impairments. are structural in nature’’ to those barriers As provided in § 36.303(f), a public accom- that are an integral part of the physical modation is not required to provide any par- structure of a facility. In addition to the ticular aid or service that would result ei- communications barriers posed by perma- ther in a fundamental alteration in the na- nent signage and alarm systems noted by ture of the goods, services, facilities, privi- Congress (see Education and Labor report at leges, advantages, or accommodations of- 110), the Department would also include fered or in an undue burden. Both of these among the communications barriers covered statutory limitations are derived from exist- by § 36.304 the failure to provide adequate ing regulations and caselaw under section 504 sound buffers, and the presence of physical and are to be applied on a case-by-case basis partitions that hamper the passage of sound (see, e.g., 28 CFR 39.160(d) and Southeastern waves between employees and customers. Community College v. Davis, 442 U.S. 397 Given that § 36.304’s proper focus is on the re- (1979)). Congress intended that ‘‘undue bur- moval of physical barriers, the Department den’’ under § 36.303 and ‘‘undue hardship,’’ believes that the obligation to provide com- which is used in the employment provisions munications equipment and devices such as of title I of the ADA, should be determined TDD’s, telephone handset amplifiers, assist- on a case-by-case basis under the same ive listening devices, and digital check-out standards and in light of the same factors displays is more appropriately determined (Judiciary report at 59). The rule, therefore, by the requirements for auxiliary aids and in accordance with the definition of undue services under § 36.303 (see Education and hardship in section 101(10) of the ADA, de- Labor report at 107–108). The obligation to fines undue burden as ‘‘significant difficulty remove communications barriers that are or expense’’ (see §§ 36.104 and 36.303(a)) and re- structural in nature under § 36.304, of course, quires that undue burden be determined in is independent of any obligation to provide light of the factors listed in the definition in auxiliary aids and services under § 36.303. 36.104. The statutory provision also requires the Consistent with regulations implementing readily achievable removal of certain bar- section 504 in federally conducted programs riers in existing vehicles and rail passenger (see, e.g., 28 CFR 39.160(d)), § 36.303(f) provides cars. This transportation requirement is not that the fact that the provision of a par- included in § 36.304, but rather in § 36.310(b) of ticular auxiliary aid or service would result the rule. in an undue burden does not relieve a public In striking a balance between guaranteeing accommodation from the duty to furnish an access to individuals with disabilities and alternative auxiliary aid or service, if avail- recognizing the legitimate cost concerns of able, that would not result in such a burden. businesses and other private entities, the Section 36.303(g) of the proposed rule has ADA establishes different standards for ex- been deleted from this section and included isting facilities and new construction. In ex- in a new § 36.306. That new section continues isting facilities, which are the subject of to make clear that the auxiliary aids re- § 36.304, where retrofitting may prove costly, quirement does not mandate the provision of a less rigorous degree of accessibility is re- individually prescribed devices, such as pre- quired than in the case of new construction scription eyeglasses or hearing aids. and alterations (see §§ 36.401–36.406) where ac- The costs of compliance with the require- cessibility can be more conveniently and ments of this section may not be financed by economically incorporated in the initial surcharges limited to particular individuals stages of design and construction. with disabilities or any group of individuals For example, a bank with existing auto- with disabilities (§ 36.301(c)). matic teller machines (ATM’s) would have to remove barriers to the use of the ATM’s, if it Section 36.304 Removal of Barriers is readily achievable to do so. Whether or Section 36.304 requires the removal of ar- not it is necessary to take actions such as chitectural barriers and communication bar- ramping a few steps or raising or lowering an riers that are structural in nature in exist- ATM would be determined by whether the ing facilities, where such removal is readily actions can be accomplished easily and with- achievable, i.e., easily accomplishable and out much difficulty or expense. able to be carried out without much dif- On the other hand, a newly constructed ficulty or expense. This requirement is based bank with ATM’s would be required by on section 302(b)(2)(A)(iv) of the ADA. § 36.401 to have an ATM that is ‘‘readily ac- A number of commenters interpreted the cessible to and usable by’’ persons with dis- phrase ‘‘communication barriers that are abilities in accordance with accessibility structural in nature’’ broadly to encompass guidelines incorporated under § 36.406. the provision of communications devices The requirement to remove architectural such as TDD’s, telephone handset amplifiers, barriers includes the removal of physical

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Department of Justice Pt. 36, App. B

barriers of any kind. For example, § 36.304 re- cant historic structures. Barrier removal quires the removal, when readily achievable, would not be considered ‘‘readily achiev- of barriers caused by the location of tem- able’’ if it would threaten or destroy the his- porary or movable structures, such as fur- toric significance of a building or facility niture, equipment, and display racks. In that is eligible for listing in the National order to provide access to individuals who Register of Historic Places under the Na- use wheelchairs, for example, restaurants tional Historic Preservation Act (16 U.S.C. may need to rearrange tables and chairs, and 470, et seq.), or is designated as historic under department stores may need to reconfigure State or local law. display racks and shelves. As stated in The readily achievable defense requires a § 36.304(f), such actions are not readily less demanding level of exertion by a public achievable to the extent that they would re- accommodation than does the undue burden sult in a significant loss of selling or serving defense to the auxiliary aids requirements of space. If the widening of all aisles in selling § 36.303. In that sense, it can be characterized or serving areas is not readily achievable, as a ‘‘lower’’ standard than the undue burden then selected widening should be undertaken standard. The readily achievable defense is to maximize the amount of merchandise or also less demanding than the undue hardship the number of tables accessible to individ- defense in section 102(b)(5) of the ADA, which uals who use wheelchairs. Access to goods limits the obligation to make reasonable ac- and services provided in any remaining inac- commodation in employment. Barrier re- cessible areas must be made available moval measures that are not easily accom- through alternative methods to barrier re- plishable and are not able to be carried out moval, as required by § 36.305. without much difficulty or expense are not Because the purpose of title III of the ADA required under the readily achievable stand- is to ensure that public accommodations are ard, even if they do not impose an undue bur- accessible to their customers, clients, or pa- den or an undue hardship. trons (as opposed to their employees, who Section 36.304(f)(1) of the proposed rule, are the focus of title I), the obligation to re- which stated that ‘‘barrier removal is not move barriers under § 36.304 does not extend readily achievable if it would result in sig- to areas of a facility that are used exclu- nificant loss of profit or significant loss of sively as employee work areas. efficiency of operation,’’ has been deleted Section 36.304(b) provides a wide-ranging from the final rule. Many commenters ob- list of the types of modest measures that jected to this provision because it may be taken to remove barriers and that impermissibly introduced the notion of prof- are likely to be readily achievable. The list it into a statutory standard that did not in- includes examples of measures, such as add- clude it. Concern was expressed that, in ing raised letter markings on elevator con- order for an action not to be considered read- trol buttons and installing flashing alarm ily achievable, a public accommodation lights, that would be used to remove commu- would inappropriately have to show, for ex- nications barriers that are structural in na- ample, not only that the action could not be ture. It is not an exhaustive list, but merely done without ‘‘much difficulty or expense’’, an illustrative one. Moreover, the inclusion but that a significant loss of profit would re- of a measure on this list does not mean that sult as well. In addition, some commenters it is readily achievable in all cases. Whether asserted use of the word ‘‘significant,’’ which or not any of these measures is readily is used in the definition of undue hardship achievable is to be determined on a case-by- under title I (the standard for interpreting case basis in light of the particular cir- the meaning of undue burden as a defense to cumstances presented and the factors listed title III’s auxiliary aids requirements) (see in the definition of readily achievable §§ 36.104, 36.303(f)), blurs the fact that the (§ 36.104). readily achievable standard requires a lower A public accommodation generally would level of effort on the part of a public accom- not be required to remove a barrier to phys- modation than does the undue burden stand- ical access posed by a flight of steps, if re- ard. moval would require extensive ramping or an The obligation to engage in readily achiev- elevator. Ramping a single step, however, able barrier removal is a continuing one. will likely be readily achievable, and Over time, barrier removal that initially was ramping several steps will in many cir- not readily achievable may later be required cumstances also be readily achievable. The because of changed circumstances. Many readily achievable standard does not require commenters expressed support for the De- barrier removal that requires extensive re- partment’s position that the obligation to structuring or burdensome expense. Thus, comply with § 36.304 is continuing in nature. where it is not readily achievable to do, the Some urged that the rule require public ac- ADA would not require a restaurant to pro- commodations to assess their compliance on vide access to a restroom reachable only by at least an annual basis in light of changes a flight of stairs. in resources and other factors that would be Like § 36.405, this section permits deference relevant to determining what barrier re- to the national interest in preserving signifi- moval measures would be readily achievable.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

Although the obligation to engage in read- Although many commenters expressed sup- ily achievable barrier removal is clearly a port for the concept of establishing prior- continuing duty, the Department has de- ities, a significant number objected to their clined to establish any independent require- mandatory nature in the proposed rule. The ment for an annual assessment or self-eval- Department shares the concern of these com- uation. It is best left to the public accom- menters that mandatory priorities would in- modations subject to § 36.304 to establish crease the likelihood of litigation and inap- policies to assess compliance that are appro- propriately reduce the discretion of public priate to the particular circumstances faced accommodations to determine the most ef- by the wide range of public accommodations fective mix of barrier removal measures to covered by the ADA. However, even in the undertake in particular circumstances. absence of an explicit regulatory require- Therefore, in the final rule the priorities are ment for periodic self-evaluations, the De- no longer mandatory. partment still urges public accommodations In response to comments that the prior- to establish procedures for an ongoing as- ities failed to address communications sessment of their compliance with the ADA’s issues, the Department wishes to emphasize barrier removal requirements. The Depart- that the priorities encompass the removal of ment recommends that this process include communications barriers that are structural appropriate consultation with individuals in nature. It would be counter to the ADA’s with disabilities or organizations rep- carefully wrought statutory scheme to in- resenting them. A serious effort at self-as- clude in this provision the wide range of sessment and consultation can diminish the communication devices that are required by threat of litigation and save resources by the ADA’s provisions on auxiliary aids and identifying the most efficient means of pro- services. The final rule explicitly includes viding required access. Brailled and raised letter signage and visual The Department has been asked for guid- alarms among the examples of steps to re- ance on the best means for public accom- move barriers provided in § 36.304(c)(2). modations to comply voluntarily with this Section 36.304(c)(1) places the highest pri- section. Such information is more appro- ority on measures that will enable individ- priately part of the Department’s technical uals with disabilities to physically enter a assistance effort and will be forthcoming place of public accommodation. This priority over the next several months. The Depart- on ‘‘getting through the door’’ recognizes ment recommends, however, the develop- that providing actual physical access to a fa- ment of an implementation plan designed to cility from public sidewalks, public transpor- achieve compliance with the ADA’s barrier tation, or parking is generally preferable to removal requirements before they become ef- any alternative arrangements in terms of fective on January 26, 1992. Such a plan, if both business efficiency and the dignity of appropriately designed and diligently exe- individuals with disabilities. cuted, could serve as evidence of a good faith The next priority, which is established in effort to comply with the requirements of § 36.304(c)(2), is for measures that provide ac- § 36.104. In developing an implementation cess to those areas of a place of public ac- plan for readily achievable barrier removal, commodation where goods and services are a public accommodation should consult with made available to the public. For example, local organizations representing persons in a hardware store, to the extent that it is with disabilities and solicit their suggestions readily achievable to do so, individuals with for cost-effective means of making indi- disabilities should be given access not only vidual places of public accommodation ac- to assistance at the front desk, but also ac- cessible. Such organizations may also be cess, like that available to other customers, helpful in allocating scarce resources and es- to the retail display areas of the store. tablishing priorities. Local associations of The Department agrees with those com- businesses may want to encourage this proc- menters who argued that access to the areas ess and serve as the forum for discussions on where goods and services are provided is gen- the local level between disability rights or- erally more important than the provision of ganizations and local businesses. restrooms. Therefore, the final rule reverses Section 36.304(c) recommends priorities for priorities two and three of the proposed rule public accommodations in removing barriers in order to give lower priority to accessible in existing facilities. Because the resources restrooms. Consequently, the third priority available for barrier removal may not be in the final rule (§ 36.304(c)(3)) is for measures adequate to remove all existing barriers at to provide access to restroom facilities and any given time, § 36.304(c) suggests priorities the last priority is placed on any remaining for determining which types of barriers measures required to remove barriers. should be mitigated or eliminated first. The Section 36.304(d) requires that measures purpose of these priorities is to facilitate taken to remove barriers under § 36.304 be long-term business planning and to maxi- subject to subpart D’s requirements for al- mize, in light of limited resources, the de- terations (except for the path of travel re- gree of effective access that will result from quirements in § 36.403). It only permits devi- any given level of expenditure. ations from the subpart D requirements

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Department of Justice Pt. 36, App. B

when compliance with those requirements is quate? A new paragraph (g) has been added not readily achievable. In such cases, to § 36.304 to address this issue. The Depart- § 36.304(d) permits measures to be taken that ment believes that the degree of barrier re- do not fully comply with the subpart D re- moval required under § 36.304 may be less, but quirements, so long as the measures do not certainly would not be required to exceed, pose a significant risk to the health or safety the standards for alterations under the ADA of individuals with disabilities or others. Accessibility Guidelines incorporated by This approach represents a change from subpart D of this part (ADAAG). The ADA’s the proposed rule which stated that ‘‘readily requirements for readily achievable barrier achievable’’ measures taken solely to re- removal in existing facilities are intended to move barriers under § 36.304 are exempt from be substantially less rigorous than those for the alterations requirements of subpart D. new construction and alterations. It, there- The intent of the proposed rule was to maxi- fore, would be obviously inappropriate to re- mize the flexibility of public accommoda- quire actions under § 36.304 that would exceed tions in undertaking barrier removal by al- the ADAAG requirements. Hotels, then, in lowing deviations from the technical stand- order to satisfy the requirements of § 36.304, ards of subpart D. It was thought that allow- would not be required to remove barriers in ing slight deviations would provide access a higher percentage of rooms than required and release additional resources for expand- by ADAAG. If relevant standards for alter- ing the amount of barrier removal that could ations are not provided in ADAAG, then ref- be obtained under the readily achievable erence should be made to the standards for standard. new construction. Many commenters, however, representing both businesses and individuals with disabil- Section 36.305 Alternatives to Barrier Removal ities, questioned this approach because of the likelihood that unsafe or ineffective Section 36.305 specifies that where a public measures would be taken in the absence of accommodation can demonstrate that re- the subpart D standards for alterations as a moval of a barrier is not readily achievable, reference point. Some advocated a rule re- the public accommodation must make its quiring strict compliance with the subpart D goods, services, facilities, privileges, advan- standard. tages, or accommodations available through The Department in the final rule has alternative methods, if such methods are adopted the view of many commenters that readily achievable. This requirement is (1) public accommodations should in the first based on section 302(b)(2)(A)(v) of the ADA. instance be required to comply with the sub- For example, if it is not readily achievable part D standards for alterations where it is for a retail store to raise, lower, or remove readily achievable to do so and (2) safe, read- shelves or to rearrange display racks to pro- ily achievable measures must be taken when vide accessible aisles, the store must, if read- compliance with the subpart D standards is ily achievable, provide a clerk or take other not readily achievable. Reference to the sub- alternative measures to retrieve inaccessible part D standards in this manner will pro- merchandise. Similarly, if it is not readily mote certainty and good design at the same achievable to ramp a long flight of stairs time that permitting slight deviations will leading to the front door of a restaurant or expand the amount of barrier removal that a pharmacy, the restaurant or the pharmacy may be achieved under § 36.304. must take alternative measures, if readily Because of the inconvenience to individ- achievable, such as providing curb service or uals with disabilities and the safety prob- home delivery. If, within a restaurant, it is lems involved in the use of portable ramps, not readily achievable to remove physical § 36.304(e) permits the use of a portable ramp barriers to a certain section of a restaurant, to comply with § 36.304(a) only when installa- the restaurant must, where it is readily tion of a permanent ramp is not readily achievable to do so, offer the same menu in achievable. In order to promote safety, an accessible area of the restaurant. § 36.304(e) requires that due consideration be Where alternative methods are used to pro- given to the incorporation of features such vide access, a public accommodation may as nonslip surfaces, railings, anchoring, and not charge an individual with a disability for strength of materials in any portable ramp the costs associated with the alternative that is used. method (see § 36.301(c)). Further analysis of Temporary facilities brought in for use at the issue of charging for alternative meas- the site of a natural disaster are subject to ures may be found in the preamble discus- the barrier removal requirements of § 36.304. sion of § 36.301(c). A number of commenters requested clari- In some circumstances, because of security fication regarding how to determine when a considerations, some alternative methods public accommodation has discharged its ob- may not be readily achievable. The rule does ligation to remove barriers in existing facili- not require a cashier to leave his or her post ties. For example, is a hotel required by to retrieve items for individuals with disabil- § 36.304 to remove barriers in all of its guest ities, if there are no other employees on rooms? Or is some lesser percentage ade- duty.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

Section 36.305(c) of the proposed rule has or providing curb service or home delivery, been deleted and the requirements have been are not to be considered personal services. included in a new § 36.306. That section Similarly, minimal actions that may be re- makes clear that the alternative methods re- quired as modifications in policies, practices, quirement does not mandate the provision of or procedures under § 36.302, such as a wait- personal devices, such as wheelchairs, or er’s removing the cover from a customer’s services of a personal nature. straw, a kitchen’s cutting up food into In the final rule, § 36.305(c) provides specific smaller pieces, or a bank’s filling out a de- requirements regarding alternatives to bar- posit slip, are not services of a personal na- rier removal in multiscreen cinemas. In ture within the meaning of § 36.306. (Of some situations, it may not be readily course, such modifications may be required achievable to remove enough barriers to pro- under § 36.302 only if they are ‘‘reasonable.’’) vide access to all of the theaters of a multi- Similarly, this section does not preclude the screen cinema. If that is the case, § 36.305(c) short-term loan of personal receivers that requires the cinema to establish a film rota- are part of an assistive listening system. tion schedule that provides reasonable access Of course, if personal services are custom- for individuals who use wheelchairs to films arily provided to the customers or clients of being presented by the cinema. It further re- a public accommodation, e.g., in a hospital quires that reasonable notice be provided to or senior citizen center, then these personal the public as to the location and time of ac- services should also be provided to persons cessible showings. Methods for providing no- with disabilities using the public accommo- tice include appropriate use of the inter- dation. national accessibility symbol in a cinema’s print advertising and the addition of accessi- Section 36.307 Accessible or Special Goods. bility information to a cinema’s recorded telephone information line. Section 36.307 establishes that the rule does not require a public accommodation to Section 36.306 Personal Devices and Services alter its inventory to include accessible or special goods with accessibility features that The final rule includes a new § 36.306, enti- are designed for, or facilitate use by, individ- tled ‘‘Personal devices and services.’’ Section uals with disabilities. As specified in 36.306 of the proposed rule, ‘‘Readily achiev- § 36.307(c), accessible or special goods include able and undue burden: Factors to be consid- such items as Brailled versions of books, ered,’’ was deleted for the reasons described books on audio-cassettes, closed captioned in the preamble discussion of the definition video tapes, special sizes or lines of clothing, of the term ‘‘readily achievable’’ in § 36.104. and special foods to meet particular dietary In place of §§ 36.303(g) and 36.305(c) of the pro- posed rule, which addressed the issue of per- needs. sonal devices and services in the contexts of The purpose of the ADA’s public accom- auxiliary aids and alternatives to barrier re- modations requirements is to ensure accessi- moval, § 36.306 provides a general statement bility to the goods offered by a public accom- that the regulation does not require the pro- modation, not to alter the nature or mix of vision of personal devices and services. This goods that the public accommodation has section states that a public accommodation typically provided. In other words, a book- is not required to provide its customers, cli- store, for example, must make its facilities ents, or participants with personal devices, and sales operations accessible to individuals such as wheelchairs; individually prescribed with disabilities, but is not required to stock devices, such as prescription eyeglasses or Brailled or large print books. Similarly, a hearing aids; or services of a personal nature video store must make its facilities and including assistance in eating, toileting, or rental operations accessible, but is not re- dressing. quired to stock closed-captioned video tapes. This statement serves as a limitation on The Department has been made aware, how- all the requirements of the regulation. The ever, that the most recent titles in video- personal devices and services limitation was tape rental establishments are, in fact, intended to have general application in the closed captioned. proposed rule in all contexts where it was Although a public accommodation is not relevant. The final rule, therefore, clarifies, required by § 36.307(a) to modify its inven- this point by including a general provision tory, it is required by § 36.307(b), at the re- that will explicitly apply not just to auxil- quest of an individual with disabilities, to iary aids and services and alternatives to order accessible or special goods that it does barrier removal, but across-the-board to in- not customarily maintain in stock if, in the clude such relevant areas as modifications in normal course of its operation, it makes spe- policies, practices, and procedures (§ 36.302) cial orders for unstocked goods, and if the and examinations and courses (§ 36.309), as accessible or special goods can be obtained well. from a supplier with whom the public accom- The Department wishes to clarify that modation customarily does business. For ex- measures taken as alternatives to barrier re- ample, a clothing store would be required to moval, such as retrieving items from shelves order specially-sized clothing at the request

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Department of Justice Pt. 36, App. B

of an individual with a disability, if it cus- gration. The final ADA Accessibility Guide- tomarily makes special orders for clothing lines incorporated by subpart D (ADAAG) that it does not keep in stock, and if the also add a requirement regarding aisle seat- clothing can be obtained from one of the ing that was not in the proposed guidelines. store’s customary suppliers. In situations when a person in a wheelchair One commenter asserted that the proposed transfers to existing seating, the public ac- rule could be interpreted to require a store commodation shall provide assistance in to special order accessible or special goods of handling the wheelchair of the patron with all types, even if only one type is specially the disability. ordered in the normal course of its business. Likewise, consistent vith ADAAG, the The Department, however, intends for final rule adds in § 36.308(a)(1)(ii)(B) a re- § 36.307(b) to require special orders only of quirement that, to the extent readily achiev- those particular types of goods for which a able, wheelchair seating provide lines of public accommodation normally makes spe- sight and choice of admission prices com- cial orders. For example, a book and record- parable to those for members of the general ing store would not have to specially order public. Brailled books if, in the normal course of its Finally, because Congress intended that business, it only specially orders recordings the requirements for barrier removal in ex- and not books. isting facilities be substantially less rig- orous than those required for new construc- Section 36.308 Seating in Assembly Areas. tion and alterations, the final rule clarifies Section 36.308 establishes specific require- in § 36.308(a)(3) that in no event can the re- ments for removing barriers to physical ac- quirements for existing facilities be inter- cess in assembly areas, which include such preted to exceed the standards for alter- facilities as theaters, concert halls, audito- ations under ADAAG. For example, § 4.33 of riums, lecture halls, and conference rooms. ADAAG only requires wheelchair spaces to This section does not address the provision be provided in more than one location when of auxiliary aids or the removal of commu- the seating capacity of the assembly area ex- nications barriers that are structural in na- ceeds 300. Therefore, paragraph (a) of § 36.308 ture. These communications requirements may not be interpreted to require readily are the focus of other provisions of the regu- achievable dispersal of wheelchair seating in lation (see §§ 36.303–36.304). assembly areas with 300 or fewer seats. Simi- Individuals who use wheelchairs histori- larly, § 4.1.3(19) of ADAAG requires six acces- cally have been relegated to inferior seating sible wheelchair locations in an assembly in the back of assembly areas separate from area with 301 to 500 seats. The reasonable accompanying family members and friends. number of wheelchair locations required by The provisions of § 36.308 are intended to pro- paragraph (a), therefore, may be less than mote integration and equality in seating. six, but may not be interpreted to exceed six. In some instances it may not be readily Proposed Section 36.309 Purchase of Furniture achievable for auditoriums or theaters to re- and Equipment move seats to allow individuals with wheel- chairs to sit next to accompanying family Section 36.309 of the proposed rule would members or friends. In these situations, the have required that newly purchased fur- final rule retains the requirement that the niture or equipment made available for use public accommodation provide portable at a place of public accommodation be acces- chairs or other means to allow the accom- sible, to the extent such furniture or equip- panying individuals to sit with the persons ment is available, unless this requirement in wheelchairs. Persons in wheelchairs would fundamentally alter the goods, serv- should have the same opportunity to enjoy ices, facilities, privileges, advantages, or ac- movies, plays, and similar events with their commodations offered, or would not be read- families and friends, just as other patrons ily achievable. Proposed § 36.309 has been do. The final rule specifies that portable omitted from the final rule because the De- chairs or other means to permit family partment has determined that its require- members or companions to sit with individ- ments are more properly addressed under uals who use wheelchairs must be provided other sections, and because there are cur- only when it is readily achievable to do so. rently no appropriate accessibility standards In order to facilitate seating of wheelchair addressing many types of furniture and users who wish to transfer to existing seat- equipment. ing, paragraph (a)(1) of the final rule adds a Some types of equipment will be required requirement that, to the extent readily to meet the accessibility requirements of achievable, a reasonable number of seats subpart D. For example, ADAAG establishes with removable aisle-side armrests must be technical and scoping requirements in new provided. Many persons in wheelchairs are construction and alterations for automated able to transfer to existing seating with this teller machines and telephones. Purchase or relatively minor modification. This solution modification of equipment is required in cer- avoids the potential safety hazard created by tain instances by the provisions in §§ 36.201 the use of portable chairs and fosters inte- and 36.202. For example, an arcade may need

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

to provide accessible video machines in order allowing courses and examinations to be pro- to ensure full and equal enjoyment of the fa- vided through alternative accessible ar- cilities and to provide an opportunity to par- rangements, rather than in an integrated ticipate in the services and facilities it pro- setting. vides. The barrier removal requirements of Although section 309 of the Act does not § 36.304 will apply as well to furniture and refer to a fundamental alteration or undue equipment (lowering shelves, rearranging burden limitation, those limitations do ap- furniture, adding Braille labels to a vending pear in section 302(b)(2)(A)(iii) of the Act, machine). which establishes the obligation of public ac- commodations to provide auxiliary aids and Section 36.309 Examinations and Courses services. The Department, therefore, in- Section 36.309(a) sets forth the general rule cluded it in the paragraphs of § 36.309 requir- that any private entity that offers examina- ing the provision of auxiliary aids. One com- tions or courses related to applications, li- menter argued that similar limitations censing, certification, or credentialing for should apply to all of the requirements of secondary or postsecondary education, pro- § 36.309, but the Department did not consider fessional, or trade purposes shall offer such this extension appropriate. examinations or courses in a place and man- Commenters who objected to permitting ner accessible to persons with disabilities or ‘‘alternative accessible arrangements’’ ar- offer alternative accessible arrangements for gued that such arrangements allow segrega- such individuals. tion and should not be permitted, unless Paragraph (a) restates section 309 of the they are the least restrictive available alter- Americans with Disabilities Act. Section 309 native, for example, for someone who cannot is intended to fill the gap that is created leave home. Some commenters made a dis- when licensing, certification, and other test- tinction between courses, where interaction ing authorities are not covered by section 504 is an important part of the educational expe- of the Rehabilitation Act or title II of the rience, and examinations, where it may be ADA. Any such authority that is covered by less important. Because the statute specifi- section 504, because of the receipt of Federal cally authorizes alternative accessible ar- money, or by title II, because it is a function rangements as a method of meeting the re- of a State or local government, must make quirements of section 309, the Department all of its programs accessible to persons with has not adopted this suggestion. The Depart- disabilities, which includes physical access ment notes, however, that, while examina- as well as modifications in the way the test tions of the type covered by § 36.309 may not is administered, e.g., extended time, written be covered elsewhere in the regulation, instructions, or assistance of a reader. courses will generally be offered in a ‘‘place Many licensing, certification, and testing of education,’’ which is included in the defi- authorities are not covered by section 504, nition of ‘‘place of public accommodation’’ because no Federal money is received; nor in § 36.104, and, therefore, will be subject to are they covered by title II of the ADA be- the integrated setting requirement of § 36.203. cause they are not State or local agencies. Section 36.309(b) sets forth specific require- However, States often require the licenses ments for examinations. Examinations cov- provided by such authorities in order for an ered by this section would include a bar individual to practice a particular profession exam or the Scholastic Aptitude Test pre- or trade. Thus, the provision was included in pared by the Educational Testing Service. the ADA in order to assure that persons with Paragraph (b)(1) is adopted from the Depart- disabilities are not foreclosed from edu- ment of Education’s section 504 regulation cational, professional, or trade opportunities on admission tests to postsecondary edu- because an examination or course is con- cational programs (34 CFR 104.42(b)(3)). Para- ducted in an inaccessible site or without graph (b)(1)(i) requires that a private entity needed modifications. offering an examination covered by the sec- As indicated in the ‘‘Application’’ section tion must assure that the examination is se- of this part (§ 36.102), § 36.309 applies to any lected and administered so as to best ensure private entity that offers the specified types that the examination accurately reflects an of examinations or courses. This is con- individual’s aptitude or achievement level or sistent with section 309 of the Americans other factor the examination purports to with Disabilities Act, which states that the measure, rather than reflecting the individ- requirements apply to ‘‘any person’’ offering ual’s impaired sensory, manual, or speaking examinations or courses. skills (except where those skills are the fac- The Department received a large number tors that the examination purports to meas- of comments on this section, reflecting the ure). importance of ensuring that the key gate- Paragraph (b)(1)(ii) requires that any ex- ways to education and employment are open amination specially designed for individuals to individuals with disabilities. The most with disabilities be offered as often and in as frequent comments were objections to the timely a manner as other examinations. fundamental alteration and undue burden Some commenters noted that persons with provisions in §§ 36.309 (b)(3) and (c)(3) and to disabilities may be required to travel long

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Department of Justice Pt. 36, App. B

distances when the locations for examina- and other similar services and actions. The tions for individuals with disabilities are suggestion that individuals with learning limited, for example, to only one city in a disabilities may need readers is included, al- State instead of a variety of cities. The De- though it does not appear in the Department partment has therefore revised this para- of Education regulation, because, in fact, graph to add a requirement that such exami- some individuals with learning disabilities nations be offered at locations that are as have visual perception problems and would convenient as the location of other examina- benefit from a reader. tions. Many commenters pointed out the impor- Commenters representing organizations tance of ensuring that modifications provide that administer tests wanted to be able to the individual with a disability an equal op- require individuals with disabilities to pro- portunity to demonstrate his or her knowl- vide advance notice and appropriate docu- edge or ability. For example, a reader who is mentation, at the applicants’ expense, of unskilled or lacks knowledge of specific ter- their disabilities and of any modifications or minology used in the examination may be aids that would be required. The Department unable to convey the information in the agrees that such requirements are permis- questions or to follow the applicant’s in- sible, provided that they are not unreason- structions effectively. Commenters pointed able and that the deadline for such notice is out that, for persons with visual impair- no earlier than the deadline for others apply- ments who read Braille, Braille provides the ing to take the examination. Requiring indi- closest functional equivalent to a printed viduals with disabilities to file earlier appli- test. The Department has, therefore, added cations would violate the requirement that Brailled examinations to the examples of examinations designed for individuals with auxiliary aids and services that may be re- disabilities be offered in as timely a manner quired. For similar reasons, the Department as other examinations. also added to the list of examples of auxil- Examiners may require evidence that an iary aids and services large print examina- applicant is entitled to modifications or aids tions and answer sheets; ‘‘qualified’’ readers; as required by this section, but requests for and transcribers to write answers. documentation must be reasonable and must A commenter suggested that the phrase be limited to the need for the modification ‘‘fundamentally alter the examination’’ in or aid requested. Appropriate documentation this paragraph of the proposed rule be re- might include a letter from a physician or vised to more accurately reflect the function other professional, or evidence of a prior di- affected. In the final rule the Department agnosis or accommodation, such as eligi- has substituted the phrase ‘‘fundamentally bility for a special education program. The alter the measurement of the skills or applicant may be required to bear the cost of knowledge the examination is intended to providing such documentation, but the enti- test.’’ ty administering the examination cannot Paragraph (b)(4) gives examples of alter- charge the applicant for the cost of any native accessible arrangements. For in- modifications or auxiliary aids, such as in- stance, the private entity might be required terpreters, provided for the examination. to provide the examination at an individual’s Paragraph (b)(1)(iii) requires that examina- home with a proctor. Alternative arrange- tions be administered in facilities that are ments must provide conditions for individ- accessible to individuals with disabilities or uals with disabilities that are comparable to alternative accessible arrangements are the conditions under which other individuals made. take the examinations. In other words, an Paragraph (b)(2) gives examples of modi- examination cannot be offered to an indi- fications to examinations that may be nec- vidual with a disability in a cold, poorly lit essary in order to comply with this section. basement, if other individuals are given the These may include providing more time for examination in a warm, well lit classroom. completion of the examination or a change Some commenters who provide examina- in the manner of giving the examination, tions for licensing or certification for par- e.g., reading the examination to the indi- ticular occupations or professions urged that vidual. they be permitted to refuse to provide modi- Paragraph (b)(3) requires the provision of fications or aids for persons seeking to take auxiliary aids and services, unless the pri- the examinations if those individuals, be- vate entity offering the examination can cause of their disabilities, would be unable to demonstrate that offering a particular auxil- perform the essential functions of the profes- iary aid would fundamentally alter the ex- sion or occupation for which the examina- amination or result in an undue burden. Ex- tion is given, or unless the disability is rea- amples of auxiliary aids include taped ex- sonably determined in advance as not being aminations, interpreters or other effective an obstacle to certification. The Department methods of making aurally delivered mate- has not changed its rule based on this com- rials available to individuals with hearing ment. An examination is one stage of a li- impairments, readers for individuals with censing or certification process. An indi- visual impairments or learning disabilities, vidual should not be barred from attempting

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

to pass that stage of the process merely be- that will be contained in the regulations cause he or she might be unable to meet issued by the Secretary of Transportation other requirements of the process. If the ex- pursuant to section 306 of the ADA, to be amination is not the first stage of the quali- codified at 49 CFR part 37. The Department fication process, an applicant may be re- notes that, although the responsibility for quired to complete the earlier stages prior to issuing regulations applicable to transpor- being admitted to the examination. On the tation systems operated by public accom- other hand, the applicant may not be denied modations is divided between this Depart- admission to the examination on the basis of ment and the Department of –Transpor- doubts about his or her abilities to meet re- tation, enforcement authority is assigned quirements that the examination is not de- only to the Department of Justice. signed to test. The Department received relatively few Paragraph (c) sets forth specific require- comments on this section of the proposed ments for courses. Paragraph (c)(1) contains rule. Most of the comments addressed issues the general rule that any course covered by that are not specifically addressed in this this section must be modified to ensure that the place and manner in which the course is part, such as the standards for accessible ve- given is accessible. Paragraph (c)(2) gives ex- hicles and the procedure for determining amples of possible modifications that might whether equivalent service is provided. be required, including extending the time Those standards will be contained in the reg- permitted for completion of the course, per- ulation issued by the Department of Trans- mitting oral rather than written delivery of portation. Other commenters raised ques- an assignment by a person with a visual im- tions about the types of transportation that pairment, or adapting the manner in which will be subject to this section. In response to the course is conducted (i.e., providing cas- these inquiries, the Department has revised settes of class handouts to an individual the list of examples contained in the regula- with a visual impairment). In response to tion. comments, the Department has added to the Paragraph (a)(1) states the general rule examples in paragraph (c)(2) specific ref- that covered public accommodations are sub- erence to distribution of course materials. If ject to all of the specific provisions of sub- course materials are published and available parts B, C, and D, except as provided in from other sources, the entity offering the § 36.310. Examples of operations covered by course may give advance notice of what ma- the requirements are listed in paragraph terials will be used so as to allow an indi- (a)(2). The stated examples include hotel and vidual to obtain them in Braille or on tape motel airport shuttle services, customer but materials provided by the course offerer shuttle bus services operated by private com- must be made available in alternative for- panies and shopping centers, student trans- mats for individuals with disabilities. portation, and shuttle operations of rec- In language similar to that of paragraph reational facilities such as stadiums, zoos, (b), paragraph (c)(3) requires auxiliary aids amusement parks, and ski resorts. This brief and services, unless a fundamental alter- list is not exhaustive. The section applies to ation or undue burden would result, and any fixed route or demand responsive trans- paragraph (c)(4) requires that courses be ad- ministered in accessible facilities. Paragraph portation system operated by a public ac- (c)(5) gives examples of alternative acces- commodation for the benefit of its clients or sible arrangements. These may include pro- customers. The section does not apply to vision of the course through videotape, cas- transportation services provided only to em- settes, or prepared notes. Alternative ar- ployees. Employee transportation will be rangements must provide comparable condi- subject to the regulations issued by the tions to those provided to others, including Equal Employment Opportunity Commission similar lighting, room temperature, and the to implement title I of the Act. However, if like. An entity offering a variety of courses, employees and customers or clients are to fulfill continuing education requirements served by the same transportation system, for a profession, for example, may not limit the provisions of this section will apply. the selection or choice of courses available Paragraph (b) specifically provides that a to individuals with disabilities. public accommodation shall remove trans- portation barriers in existing vehicles to the Section 36.310 Transportation Provided by extent that it is readily achievable to do so, Public Accommodations but that the installation of hydraulic or Section 36.310 contains specific provisions other lifts is not required. relating to public accommodations that pro- Paragraph (c) provides that public accom- vide transportation to their clients or cus- modations subject to this section shall com- tomers. This section has been substantially ply with the requirements for transportation revised in order to coordinate the require- vehicles and systems contained in the regu- ments of this section with the requirements lations issued by the Secretary of Transpor- applicable to these transportation systems tation.

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Department of Justice Pt. 36, App. B

Subpart D—New Construction and Alterations sistent with the statute because it sub- stituted ‘‘private entity responsible for de- Subpart D implements section 303 of the sign and construction’’ for the statutory lan- Act, which requires that newly constructed guage; because it did not address liability on or altered places of public accommodation or the part of architects, contractors, devel- commercial facilities be readily accessible to opers, tenants, owners, and other entities; and usable by individuals with disabilities. and because it limited the liability of enti- This requirement contemplates a high de- ties responsible for commercial facilities. In gree of convenient access. It is intended to response, the Department has revised this ensure that patrons and employees of places paragraph to repeat the language of section of public accommodation and employees of 303(a) of the ADA. The Department will in- commercial facilities are able to get to, terpret this section in a manner consistent enter, and use the facility. with the intent of the statute and with the Potential patrons of places of public ac- nature of the responsibilities of the various commodation, such as retail establishments, entities for design, for construction, or for should be able to get to a store, get into the both. store, and get to the areas where goods are being provided. Employees should have the Designed and Constructed for First same types of access, although those individ- Occupancy uals require access to and around the em- According to paragraph (a)(2), a facility is ployment area as well as to the area in subject to the new construction require- which goods and services are provided. ments only if a completed application for a The ADA is geared to the future—its goal building permit or permit extension is filed being that, over time, access will be the rule, after January 26, 1992, and the facility is oc- rather than the exception. Thus, the Act cupied after January 26, 1993. only requires modest expenditures, of the The proposed rule set forth for comment type addressed in § 36.304 of this part, to pro- two alternative ways by which to determine vide access to existing facilities not other- what facilities are subject to the Act and wise being altered, but requires all new con- what standards apply. Paragraph (a)(2) of the struction and alterations to be accessible. final rule is a slight variation on Option One The Act does not require new construction in the proposed rule. The reasons for the De- or alterations; it simply requires that, when partment’s choice of Option One are dis- a public accommodation or other private en- cussed later in this section. tity undertakes the construction or alter- Paragraph (a)(2) acknowledges that Con- ation of a facility subject to the Act, the gress did not contemplate having actual oc- newly constructed or altered facility must be cupancy be the sole trigger for the accessi- made accessible. This subpart establishes the bility requirements, because the statute pro- requirements for new construction and alter- hibits a failure to ‘‘design and construct for ations. first occupancy,’’ rather than requiring ac- As explained under the discussion of the cessibility in facilities actually occupied definition of ‘‘facility,’’ § 36.104, pending de- after a particular date. velopment of specific requirements, the De- The commenters overwhelmingly agreed partment will not apply this subpart to with the Department’s proposal to use a date places of public accommodation located in certain; many cited the reasons given in the mobile units, boats, or other conveyances. preamble to the proposed rule. First, it is helpful for designers and builders to have a Section 36.401 New Construction fixed date for accessible design, so that they General can determine accessibility requirements early in the planning and design stage. It is Section 36.401 implements the new con- difficult to determine accessibility require- struction requirements of the ADA. Section ments in anticipation of the actual date of 303 (a)(1) of the Act provides that discrimina- first occupancy because of unpredictable and tion for purposes of section 302(a) of the Act uncontrollable events (e.g., strikes affecting includes a failure to design and construct fa- suppliers or labor, or natural disasters) that cilities for first occupancy later than 30 may delay occupancy. To redesign or recon- months after the date of enactment (i.e., struct portions of a facility if it begins to ap- after January 26, 1993) that are readily acces- pear that occupancy will be later than an- sible to and usable by individuals with dis- ticipated would be quite costly. A fixed date abilities. also assists those responsible for enforcing, Paragraph 36.401(a)(1) restates the general or monitoring compliance with, the statute, requirement for accessible new construction. and those protected by it. The proposed rule stated that ‘‘any public The Department considered using as a trig- accommodation or other private entity re- ger date for application of the accessibility sponsible for design and construction’’ must standards the date on which a permit is ensure that facilities conform to this re- granted. The Department chose instead the quirement. Various commenters suggested date on which a complete permit application that the proposed language was not con- is certified as received by the appropriate

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

government entity. Almost all commenters a State, county, or local government after agreed with this choice of a trigger date. January 26, 1992, and (2) if the first certifi- This decision is based partly on information cate of occupancy is issued after January 26, that several months or even years can pass 1993. The Department also asked for com- between application for a permit and receipt ment on an Option Two, which would have of a permit. Design is virtually complete at imposed new construction requirements if a the time an application is complete (i.e., cer- completed application for a building permit tified to contain all the information required or permit extension was filed after the enact- by the State, county, or local government). ment of the ADA (July 26, 1990), and the fa- After an application is filed, delays may cility was occupied after January 26, 1993. occur before the permit is granted due to nu- merous factors (not necessarily relating to The request for comment on this issue accessibility): for example, hazardous waste drew a large number of comments expressing discovered on the property, flood plain re- a wide range of views. Most business groups quirements, zoning disputes, or opposition to and some disability rights groups favored the project from various groups. These fac- Option One, and some business groups and tors should not require redesign for accessi- most disability rights groups favored Option bility if the application was completed be- Two. Individuals and government entities fore January 26, 1992. However, if the facility were equally divided; several commenters must be redesigned for other reasons, such as proposed other options. a change in density or environmental preser- Those favoring Option One pointed out vation, and the final permit is based on a that it is more reasonable in that it allows new application, the rule would require ac- time for those subject to the new construc- cessibility if that application was certified tion requirements to anticipate those re- complete after January 26, 1992. quirements and to receive technical assist- The certification of receipt of a complete ance pursuant to the Act. Numerous com- application for a building permit is an appro- menters said that time frames for designing priate point in the process because certifi- and constructing some types of facilities (for cations are issued in writing by govern- example, health care facilities) can range mental authorities. In addition, this ap- proach presents a clear and objective stand- from two to four years or more. They ex- ard. pressed concerns that Option Two, which However, a few commenters pointed out would apply to some facilities already under that in some jurisdictions it is not possible design or construction as of the date the Act to receive a ‘‘certification’’ that an applica- was signed, and to some on which construc- tion is complete, and suggested that in those tion began shortly after enactment, could re- cases the fixed date should be the date on sult in costly redesign or reconstruction of which an application for a permit is received those facilities. In the same vein, some Op- by the government agency. The Department tion One supporters found Option Two objec- has included such a provision in tionable on due process grounds. In their § 36.401(a)(2)(i). view, Option Two would mean that in July The date of January 26, 1992, is relevant 1991 (upon issuance of the final DOJ rule) the only with respect to the last application for responsible entities would learn that ADA a permit or permit extension for a facility. standards had been in effect since July 26, Thus, if an entity has applied for only a 1990, and this would amount to retroactive ‘‘foundation’’ permit, the date of that permit application of standards. Numerous com- application has no effect, because the entity menters characterized Option Two as having must also apply for and receive a permit at no support in the statute and Option One as a later date for the actual superstructure. In being more consistent with congressional in- this case, it is the date of the later applica- tent. tion that would control, unless construction is not completed within the time allowed by Those who favored Option Two pointed out the permit, in which case a third permit that it would include more facilities within would be issued and the date of the applica- the coverage of the new construction stand- tion for that permit would be determinative ards. They argued that because similar ac- for purposes of the rule. cessibility requirements are in effect under State laws, no hardship would be imposed by Choice of Option One for Defining ‘‘Designed this option. Numerous commenters said that and Constructed for First Occupancy’’ hardship would also be eliminated in light of Under the option the Department has cho- their view that the ADA requires compliance sen for determining applicability of the new with the Uniform Federal Accessibility construction standards, a building would be Standards (UFAS) until issuance of DOJ considered to be ‘‘for first occupancy’’ after standards. Those supporting Option Two January 26, 1993, only (1) if the last applica- claimed that it was more consistent with the tion for a building permit or permit exten- statute and its legislative history. sion for the facility is certified to be com- The Department has chosen Option One plete (or, in some jurisdictions, received) by rather than Option Two, primarily on the

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Department of Justice Pt. 36, App. B

basis of the language of three relevant sec- by individuals with disabilities (including tions of the statute. First, section 303(a) re- mobility, sensory, and cognitive impair- quires compliance with accessibility stand- ments) easily and conveniently. A facility ards set forth, or incorporated by reference that is constructed to meet the requirements in, regulations to be issued by the Depart- of the rule’s accessibility standards will be ment of Justice. Standing alone, this section considered readily accessible and usable with cannot be read to require compliance with respect to construction. To the extent that a the Department’s standards before those particular type or element of a facility is not standards are issued (through this rule- specifically addressed by the standards, the making). Second, according to section 310 of language of this section is the safest guide. the statute, section 303 becomes effective on A private entity that renders an ‘‘acces- January 26, 1992. Thus, section 303 cannot sible’’ building inaccessible in its operation, impose requirements on the design of build- through policies or practices, may be in vio- ings before that date. Third, while section lation of section 302 of the Act. For example, 306(d) of the Act requires compliance with a private entity can render an entrance to a UFAS if final regulations have not been facility inaccessible by keeping an accessible issued, that provision cannot reasonably be entrance open only during certain hours read to take effect until July 26, 1991, the (whereas the facility is available to others date by which the Department of Justice for a greater length of time). A facility could must issue final regulations under title III. similarly be rendered inaccessible if a person Option Two was based on the premise that with disabilities is significantly limited in the interim standards in section 306(d) take her or his choice of a range of accommoda- effect as of the ADA’s enactment (July 26, tions. 1990), rather than on the date by which the Ensuring access to a newly constructed fa- Department of Justice regulations are due to cility will include providing access to the fa- be issued (July 26, 1991). The initial clause of cility from the street or parking lot, to the section 306(d)(1) itself is silent on this ques- extent the responsible entity has control tion: over the route from those locations. In some If final regulations have not been issued cases, the private entity will have no control pursuant to this section, for new construc- over access at the point where streets, curbs, tion for which a * * * building permit is ob- or sidewalks already exist, and in those in- tained prior to the issuance of final regula- stances the entity is encouraged to request tions * * * (interim standards apply). modifications to a sidewalk, including in- The approach in Option Two relies partly stallation of curb cuts, from a public entity on the language of section 310 of the Act, responsible for them. However, as some com- which provides that section 306, the interim menters pointed out, there is no obligation standards provision, takes effect on the date for a private entity subject to title III of the of enactment. Under this interpretation the ADA to seek or ensure compliance by a pub- interim standards provision would prevail lic entity with title II. Thus, although a lo- over the operative provision, section 303, cality may have an obligation under title II which requires that new construction be ac- of the Act to install curb cuts at a particular cessible and which becomes effective Janu- location, that responsibility is separate from ary 26, 1992. This approach would also require the private entity’s title III obligation, and construing the language of section 306(d)(1) any involvement by a private entity in seek- to take effect before the Department’s stand- ing cooperation from a public entity is pure- ards are due to be issued. The preferred read- ly voluntary in this context. ing of section 306 is that it would require that, if the Department’s final standards had Work Areas not been issued by July 26, 1991, UFAS would Proposed paragraph 36.401(b) addressed ac- apply to certain buildings until such time as cess to employment areas, rather than to the the Department’s standards were issued. areas where goods or services are being pro- vided. The preamble noted that the proposed General Substantive Requirements of the paragraph provided guidance for new con- New Construction Provisions struction and alterations until more specific The rule requires, as does the statute, that guidance was issued by the ATBCB and re- covered newly constructed facilities be read- flected in this Department’s regulation. The ily accessible to and usable by individuals entire paragraph has been deleted from this with disabilities. The phrase ‘‘readily acces- section in the final rule. The concepts of sible to and usable by individuals with dis- paragraphs (b) (1), (2), and (5) of the proposed abilities’’ is a term that, in slightly varied rule are included, with modifications and ex- formulations, has been used in the Architec- pansion, in ADAAG. Paragraphs (3) and (4) of tural Barriers Act of 1968, the Fair Housing the proposed rule, concerning fixtures and Act, the regulations implementing section equipment, are not included in the rule or in 504 of the Rehabilitation Act of 1973, and cur- ADAAG. rent accessibility standards. It means, with Some commenters asserted that questions respect to a facility or a portion of a facility, relating to new construction and alterations that it can be approached, entered, and used of work areas should be addressed by the

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

EEOC under title I, as employment concerns. they must be constructed or altered in com- However, the legislative history of the stat- pliance with the accessibility standards. ute clearly indicates that the new construc- This principle is not stated in § 36.401 but is tion and alterations requirements of title III implicit in the requirements of this section were intended to ensure accessibility of new and ADAAG. facilities to all individuals, including em- ployees. The language of section 303 sweeps Commercial Facilities in Private Residences broadly in its application to all public ac- commodations and commercial facilities. Section 36.401(b) of the final rule is a new EEOC’s title I regulations will address acces- provision relating to commercial facilities sibility requirements that come into play located in private residences. The proposed when ‘‘reasonable accommodation’’ to indi- rule addressed these requirements in the pre- vidual employees or applicants with disabil- amble to § 36.207, ‘‘Places of public accommo- ities is mandated under title I. dation located in private residences.’’ The The issues dealt with in proposed § 36.401(b) preamble stated that the approach for com- (1) and (2) are now addressed in ADAAG sec- mercial facilities would be the same as that tion 4.1.1(3). The Department’s proposed for places of public accommodation, i.e., paragraphs would have required that areas those portions used exclusively as a commer- that will be used only by employees as work cial facility or used as both a commercial fa- stations be constructed so that individuals cility and for residential purposes would be with disabilities could approach, enter, and covered. Because commercial facilities are exit the areas. They would not have required only subject to new construction and alter- that all individual work stations be con- ations requirements, however, the covered structed or equipped (for example, with portions would only be subject to subpart D. shelves that are accessible or adaptable) to This approach is reflected in § 36.401(b)(1). be accessible. This approach was based on The Department is aware that the statu- the theory that, as long as an employee with tory definition of ‘‘commercial facility’’ ex- disabilities could enter the building and get cludes private residences because they are to and around the employment area, modi- ‘‘expressly exempted from coverage under fications in a particular work station could the Fair Housing Act of 1968, as amended.’’ be instituted as a ‘‘reasonable accommoda- tion’’ to that employee if the modifications However, the Department interprets that ex- were necessary and they did not constitute emption as applying only to facilities that an undue hardship. are exclusively residential. When a facility is Almost all of the commenters agreed with used as both a residence and a commercial the proposal to require access to a work area facility, the exemption does not apply. but not to require accessibility of each indi- Paragraph (b)(2) is similar to the new para- vidual work station. This principle is in- graph (b) under § 36.207, ‘‘Places of public ac- cluded in ADAAG 4.1.1(3). Several of the commodation located in private residences.’’ comments related to the requirements of the The paragraph clarifies that the covered por- proposed ADAAG and have been addressed in tion includes not only the space used as a the accessibility standards. commercial facility, but also the elements Proposed paragraphs (b) (3) and (4) would used to enter the commercial facility, e.g., have required that consideration be given to the homeowner’s front sidewalk, if any; the placing fixtures and equipment at accessible doorway; the hallways; the restroom, if used heights in the first instance, and to pur- by employees or visitors of the commercial chasing new equipment and fixtures that are facility; and any other portion of the resi- adjustable. These paragraphs have not been dence, interior or exterior, used by employ- included in the final rule because the rule in ees or visitors of the commercial facility. most instances does not establish accessi- As in the case of public accommodations bility standards for purchased equipment. located in private residences, the new con- (See discussion elsewhere in the preamble of struction standards only apply to the extent proposed § 36.309.) While the Department en- that a portion of the residence is designed or courages entities to consider providing ac- intended for use as a commercial facility. cessible or adjustable fixtures and equipment Likewise, if a homeowner alters a portion of for employees, this rule does not require his home to convert it to a commercial facil- them to do so. ity, that work must be done in compliance Paragraph (b)(5) of proposed § 36.401 clari- with the alterations standards in appendix fied that proposed paragraph (b) did not A. limit the requirement that employee areas other than individual work stations must be Structural Impracticability accessible. For example, areas that are em- ployee ‘‘common use’’ areas and are not sole- Proposed § 36.401(c) is included in the final ly used as work stations (e.g., employee rule with minor changes. It details a statu- lounges, cafeterias, health units, exercise fa- tory exception to the new construction re- cilities) are treated no differently under this quirement: the requirement that new con- regulation than other parts of a building; struction be accessible does not apply where

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Department of Justice Pt. 36, App. B

an entity can demonstrate that it is struc- rules or the Fair Housing Accessibility turally impracticable to meet the require- Guidelines, especially when a facility may be ments of the regulation. This provision is subject to both because of mixed use. Guid- also included in ADAAG, at section ance on this question is provided in the dis- 4.1.1(5)(a). cussion of the definitions of place of public Consistent with the legislative history of accommodation and commercial facility. the ADA, this narrow exception will apply With respect to the structural imprac- only in rare and unusual circumstances ticability exception, a mixed-use facility where unique characteristics of terrain make could not take advantage of the Fair Hous- accessibility unusually difficult. Such limi- ing exemption, to the extent that it is less tations for topographical problems are anal- stringent than the ADA exemption, except ogous to an acknowledged limitation in the for those portions of the facility that are application of the accessibility requirements subject only to the Fair Housing Act. of the Fair Housing Amendments Act As explained in the preamble to the pro- (FHAA) of 1988. posed rule, in those rare circumstances in Almost all commenters supported this in- which it is structurally impracticable to terpretation. Two commenters argued that achieve full compliance with accessibility re- the DOJ requirement is too limiting and tirements under the ADA, places of public would not exempt some buildings that should be exempted because of soil condi- accommodation and commercial facilities tions, terrain, and other unusual site condi- should still be designed and constructed to tions. These commenters suggested consist- incorporate accessibility features to the ex- ency with HUD’s Fair Housing Accessibility tent that the features are structurally prac- Guidelines (56 FR 9472 (1991)), which gen- ticable. The accessibility requirements erally would allow exceptions from accessi- should not be viewed as an all-or-nothing bility requirements, or allow compliance proposition in such circumstances. with less stringent requirements, on sites If it is structurally impracticable for a fa- with slopes exceeding 10%. cility in its entirety to be readily accessible The Department is aware of the provisions to and usable by people with disabilities, in HUD’s guidelines, which were issued on then those portions that can be made acces- March 6, 1991, after passage of the ADA and sible should be made accessible. If a building publication of the Department’s proposed cannot be constructed in compliance with rule. The approach taken in these guidelines, the full range of accessibility requirements which apply to different types of construc- because of structural impracticability, then tion and implement different statutory re- it should still incorporate those features quirements for new construction, does not that are structurally practicable. If it is bind this Department in regulating under structurally impracticable to make a par- the ADA. The Department has included in ticular facility accessible to persons who the final rule the substance of the proposed have particular types of disabilities, it is provision, which is faithful to the intent of still appropriate to require it to be made ac- the statute, as expressed in the legislative cessible to persons with other types of dis- history. (See Senate report at 70–71; Edu- abilities. For example, a facility that is of cation and Labor report at 120.) necessity built on stilts and cannot be made The limited structural impracticability ex- accessible to persons who use wheelchairs be- ception means that it is acceptable to devi- cause it is structurally impracticable to do ate from accessibility requirements only so, must be made accessible for individuals where unique characteristics of terrain pre- with vision or hearing impairments or other vent the incorporation of accessibility fea- kinds of disabilities. tures and where providing accessibility would destroy the physical integrity of a fa- Elevator Exemption cility. A situation in which a building must be built on stilts because of its location in Section 36.401(d) implements the ‘‘elevator marshlands or over water is an example of exemption’’ for new construction in section one of the few situations in which the excep- 303(b) of the ADA. The elevator exemption is tion for structural impracticability would an exception to the general requirement that apply. new facilities be readily accessible to and us- This exception to accessibility require- able by individuals with disabilities. Gen- ments should not be applied to situations in erally, an elevator is the most common way which a facility is located in ‘‘hilly’’ terrain to provide individuals who use wheelchairs or on a plot of land upon which there are ‘‘ready access’’ to floor levels above or below steep grades. In such circumstances, accessi- the ground floor of a multi-story building. bility can be achieved without destroying Congress, however, chose not to require ele- the physical integrity of a structure, and is vators in new small buildings, that is, those required in the construction of new facili- with less than three stories or less than 3,000 ties. square feet per story. In buildings eligible for Some commenters asked for clarification the exemption, therefore, ‘‘ready access’’ concerning when and how to apply the ADA from the building entrance to a floor above

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

or below the ground floor is not required, be- er a series of buildings should fall within the cause the statute does not require that an el- definition only if they are physically con- evator be installed in such buildings. The el- nected. evator exemption does not apply, however, Most of those responding to the first ques- to a facility housing a shopping center, a tion (overwhelmingly groups representing shopping mall, or the professional office of a people with disabilities, or individual com- health care provider, or other categories of menters) urged that the definition encom- facilities as determined by the Attorney pass more places of public accommodation, General. For example, a new office building such as restaurants, motion picture houses, that will have only two stories, with no ele- laundromats, dry cleaners, and banks. They vator planned, will not be required to have pointed out that often it is not known what an elevator, even if each story has 20,000 types of establishments will be tenants in a square feet. In other words, having either new facility. In addition, they noted that less than 3000 square feet per story or less malls are advertised as entities, that their than three stories qualifies a facility for the appeal is in the ‘‘package’’ of services offered exemption; it need not qualify for the ex- to the public, and that this package often in- emption on both counts. Similarly, a facility cludes the additional types of establishments that has five stories of 2800 square feet each mentioned. qualifies for the exemption. If a facility has Commenters representing business groups three or more stories at any point, it is not sought to exempt banks, travel services, gro- eligible for the elevator exemption unless all cery stores, drug stores, and freestanding re- the stories are less than 3000 square feet. tail stores from the elevator requirement. The terms ‘‘shopping center or shopping They based this request on the desire to con- mall’’ and ‘‘professional office of a health tinue the practice in some locations of incor- care provider’’ are defined in this section. porating mezzanines housing administrative They are substantively identical to the defi- offices, raised pharmacist areas, and raised nitions included in the proposed rule in areas in the front of supermarkets that § 36.104, ‘‘Definitions.’’ They have been moved to this section because, as commenters house safes and are used by managers to pointed out, they are relevant only for the oversee operations of check-out aisles and purposes of the elevator exemption, and in- other functions. Many of these concerns are clusion in the general definitions section adequately addressed by ADAAG. Apart from could give the incorrect impression that an those addressed by ADAAG, the Department office of a health care provider is not covered sees no reason to treat a particular type of as a place of public accommodation under sales or rental establishment differently other sections of the rule, unless the office from any other. Although banks and travel falls within the definition. services are not included as ‘‘sales or rental For purposes of § 36.401, a ‘‘shopping center establishments,’’ because they do not fall or shopping mall’’ is (1) a building housing under paragraph (5) of the definition of place five or more sales or rental establishments, of public accommodation, grocery stores and or (2) a series of buildings on a common site, drug stores are included. either under common ownership or common The Department has declined to include control or developed either as one project or places of public accommodation other than as a series of related projects, housing five or sales or rental establishments in the defini- more sales or rental establishments. The tion. The statutory definition of ‘‘public ac- term ‘‘shopping center or shopping mall’’ commodation’’ (section 301(7)) lists 12 types only includes floor levels containing at least of establishments that are considered public one sales or rental establishment, or any accommodations. Category (E) includes ‘‘a floor level that was designed or intended for bakery, grocery store, clothing store, hard- use by at least one sales or rental establish- ware store, shopping center, or other sales or ment. rental establishment.’’ This arrangement Any sales or rental establishment of the suggests that it is only these types of estab- type that is included in paragraph (5) of the lishments that would make up a shopping definition of ‘‘place of public accommoda- center for purposes of the statute. To include tion’’ (for example, a bakery, grocery store, all types of places of public accommodation, clothing store, or hardware store) is consid- or those from 6 or 7 of the categories, as ered a sales or rental establishment for pur- commenters suggest, would overly limit the poses of this definition; the other types of elevator exemption; the universe of facilities public accommodations (e.g., restaurants, covered by the definition of ‘‘shopping cen- laundromats, banks, travel services, health ter’’ could well exceed the number of multi- spas) are not. tenant facilities not covered, which would In the preamble to the proposed rule, the render the exemption almost meaningless. Department sought comment on whether the For similar reasons, the Department is re- definition of ‘‘shopping center or mall’’ taining the requirement that a building or should be expanded to include any of these series of buildings must house five or more other types of public accommodations. The sales or rental establishments before it falls Department also sought comment on wheth- within the definition of ‘‘shopping center.’’

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Department of Justice Pt. 36, App. B

Numerous commenters objected to the num- For example, a two-story facility built for ber and requested that the number be low- mixed-use occupancy on both floors (e.g., by ered from five to three or four. Lowering the sales and rental establishments, a movie the- number in this manner would include an in- ater, restaurants, and general office space) is ordinately large number of two-story multi- a shopping center or shopping mall if it tenant buildings within the category of houses five or more sales or rental establish- those required to have elevators. ments. If none of these establishments is lo- The responses to the question concerning cated on the second floor, then only the whether a series of buildings should be con- ground floor, which contains the sales or nected in order to be covered were varied. rental establishments, would be a ‘‘shopping Generally, disability rights groups and some center or shopping mall,’’ unless the second government agencies said a series of build- floor was designed or intended for use by at ings should not have to be connected, and least one sales or rental establishment. In pointed to a trend in some areas to build determining whether a floor was intended for shopping centers in a garden or village set- such use, factors to be considered include the ting. The Department agrees that this design types of establishments that first occupied choice should not negate the elevator re- the floor, the nature of the developer’s mar- quirement for new construction. Some busi- keting strategy, i.e., what types of establish- ness groups answered the question in the af- ments were sought, and inclusion of any de- firmative, and some suggested a different sign features particular to rental and sales definition of shopping center. For example, establishments. one commenter recommended the addition of A ‘‘professional office of a health care pro- a requirement that the five or more estab- vider’’ is defined as a location where a person lishments be physically connected on the or entity regulated by a State to provide non-ground floors by a common pedestrian professional services related to the physical walkway or pathway, because otherwise a se- or mental health of an individual makes ries of stand-alone facilities would have to such services available to the public. In a comply with the elevator requirement, which two-story development that houses health would be unduly burdensome and perhaps in- care providers only on the ground floor, the feasible. Another suggested use of what it ‘‘professional office of a health care pro- characterized as the standard industry defi- vider’’ is limited to the ground floor unless nition: ‘‘A group of retail stores and related the second floor was designed or intended for business facilities, the whole planned, devel- use by a health care provider. In determining oped, operated and managed as a unit.’’ if a floor was intended for such use, factors While the rule’s definition would reach a se- to be considered include whether the facility ries of related projects that are under com- was constructed with special plumbing, elec- mon control but were not developed as a sin- trical, or other features needed by health gle project, the Department considers such a care providers, whether the developer mar- facility to be a shopping center within the keted the facility as a medical office center, meaning of the statute. However, in light of and whether any of the establishments that the hardship that could confront a series of first occupied the floor was, in fact, a health existing small stand-alone buildings if ele- care provider. vators were required in alterations, the De- In addition to requiring that a building partment has included a common access that is a shopping center, shopping mall, or route in the definition of shopping center or the professional office of a health care pro- shopping mall for purposes of § 36.404. vider have an elevator regardless of square Some commenters suggested that access to footage or number of floors, the ADA (sec- restrooms and other shared facilities open to tion 303(b)) provides that the Attorney Gen- the public should be required even if those eral may determine that a particular cat- facilities were not on a shopping floor. Such egory of facilities requires the installation of a provision with respect to toilet or bathing elevators based on the usage of the facilities. facilities is included in the elevator excep- The Department, as it proposed to do, has tion in final ADAAG 4.1.3(5). added to the nonexempt categories termi- For purposes of this subpart, the rule does nals, depots, or other stations used for speci- not distinguish between a ‘‘shopping mall’’ fied public transportation, and airport pas- (usually a building with a roofed-over com- senger terminals. Numerous commenters in mon pedestrian area serving more than one all categories endorsed this proposal; none tenant in which a majority of the tenants opposed it. It is not uncommon for an airport have a main entrance from the common pe- passenger terminal or train station, for ex- destrian area) and a ‘‘shopping center’’ (e.g., ample, to have only two floors, with gates on a ‘‘shopping strip’’). Any facility housing both floors. Because of the significance of five or more of the types of sales or rental transportation, because a person with dis- establishments described, regardless of the abilities could be arriving or departing at number of other types of places of public ac- any gate, and because inaccessible facilities commodation housed there (e.g., offices, could result in a total denial of transpor- movie theatres, restaurants), is a shopping tation services, it is reasonable to require center or shopping mall. that newly constructed transit facilities be

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

accessible, regardless of square footage or on the first floor, or walk up a flight of number of floors. One comment suggested an stairs to a store on the second floor. All 40 amendment that would treat terminals and stores must be accessible at ground floor stations similarly to shopping centers, by re- level or by accessible vertical access from quiring an accessible route only to those that level. This does not mean, however, areas used for passenger loading and unload- that 20 elevators must be installed. Access ing and for other passenger services. Para- could be provided to the second floor by an graph (d)(2)(ii) has been modified accord- elevator from the pedestrian area on the ingly. lower level to an upper walkway connecting Some commenters suggested that other all the areas on the second floor. types of facilities (e.g., educational facili- 3. In the same type of development, it is ties, libraries, museums, commercial facili- planned that retail stores will be housed ex- ties, and social service facilities) should be clusively on the ground floor, with only of- included in the category of nonexempt facili- fice space (not professional offices of health ties. The Department has not found adequate care providers) on the second. Elevator ac- justification for including any other types of cess need not be provided to the second floor facilities in the nonexempt category at this because all the sales or rental establish- time. ments (the entities that make the facility a Section 36.401(d)(2) establishes the opera- shopping center) are located on an accessible tive requirements concerning the elevator ground floor. exemption and its application to shopping 4. In the same type of development, the centers and malls, professional offices of space is designed and marketed as medical or health care providers, transit stations, and office suites, or as a medical office facility. airport passenger terminals. Under the rule’s Accessible vertical access must be provided framework, it is necessary first to determine to all areas, as described in example 2. if a new facility (including one or more Some commenters suggested that building buildings) houses places of public accommo- owners who knowingly lease or rent space to dation or commercial facilities that are in nonexempt places of public accommodation the categories for which elevators are re- would violate § 36.401. However, the Depart- quired. If so, and the facility is a shopping ment does not consider leasing or renting in- center or shopping mall, or a professional of- accessible space in itself to constitute a vio- fice of a health care provider, then any area lation of this part. Nor does a change in use housing such an office or a sales or rental es- of a facility, with no accompanying alter- tablishment or the professional office of a ations (e.g., if a psychiatrist replaces an at- health care provider is not entitled to the el- torney as a tenant in a second-floor office, evator exemption. but no alterations are made to the office) The following examples illustrate the ap- trigger accessibility requirements. plication of these principles: Entities cannot evade the requirements of 1. A shopping mall has an upper and a this section by constructing facilities in lower level. There are two ‘‘anchor stores’’ such a way that no story is intended to con- (in this case, major department stores at ei- stitute a ‘‘ground floor.’’ For example, if a ther end of the mall, both with exterior en- private entity constructs a building whose trances and an entrance on each level from main entrance leads only to stairways or es- the common area). In addition, there are 30 calators that connect with upper or lower stores (sales or rental establishments) on the floors, the Department would consider at upper level, all of which have entrances from least one level of the facility a ground story. a common central area. There are 30 stores The rule requires in § 36.401(d)(3), con- on the lower level, all of which have en- sistent with the proposed rule, that, even if trances from a common central area. Ac- a building falls within the elevator exemp- cording to the rule, elevator access must be tion, the floor or floors other than the provided to each store and to each level of ground floor must nonetheless be accessible, the anchor stores. This requirement could be except for elevator access, to individuals satisfied with respect to the 60 stores with disabilities, including people who use through elevators connecting the two pedes- wheelchairs. This requirement applies to trian levels, provided that an individual buildings that do not house sales or rental could travel from the elevator to any other establishments or the professional offices of point on that level (i.e., into any store a health care provider as well as to those in through a common pedestrian area) on an ac- which such establishments or offices are all cessible path. located on the ground floor. In such a situa- 2. A commercial (nonresidential) ‘‘town- tion, little added cost is entailed in making house’’ development is composed of 20 two- the second floor accessible, because it is story attached buildings. The facility is de- similar in structure and floor plan to the veloped as one project, with common owner- ground floor. ship, and the space will be leased to retail- There are several reasons for this provi- ers. Each building has one accessible en- sion. First, some individuals who are mobil- trance from a pedestrian walk to the first ity impaired may work on a building’s sec- floor. From that point, one can enter a store ond floor, which they can reach by stairs and

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Department of Justice Pt. 36, App. B

the use of crutches; however, the same indi- posed rule would, in some instances, unfairly viduals, once they reach the second floor, penalize projects that were substantially may then use a wheelchair that is kept in completed before the effective date. There- the office. Secondly, because the first floor fore, paragraph (a)(2) has been revised to will be accessible, there will be little addi- specify that an alteration will be deemed to tional cost entailed in making the second be undertaken after January 26, 1992, if the floor, with the same structure and generally physical alteration of the property begins the same floor plan, accessible. In addition, after that date. As a matter of interpreta- the second floor must be accessible to those tion, the Department will construe this pro- persons with disabilities who do not need ele- vision to apply to alterations that require a vators for level changes (for example, per- permit from a State, County or local govern- sons with sight or hearing impairments and ment, if physical alterations pursuant to the those with certain mobility impairments). terms of the permit begin after January 26, Finally, if an elevator is installed in the fu- 1992. The Department recognizes that this ture for any reason, full access to the floor application of the effective date may require will be facilitated. redesign of some facilities that were planned One commenter asserted that this provi- prior to the publication of this part, but no sion goes beyond the Department’s authority retrofitting will be required of facilities on under the Act, and disagreed with the De- which the physical alterations were initiated partment’s claim that little additional cost prior to the effective date of the Act. Of would be entailed in compliance. However, course, nothing in this section in any way al- the provision is taken directly from the leg- ters the obligation of any facility to remove islative history (see Education and Labor re- architectural barriers in existing facilities port at 114). to the extent that such barrier removal is One commenter said that where an eleva- readily achievable. tor is not required, platform lifts should be required. Two commenters pointed out that Paragraph (b) provides that, for the pur- the elevator exemption is really an exemp- poses of this part, an ‘‘alteration’’ is a tion from the requirement for providing an change to a place of public accommodation accessible route to a second floor not served or a commercial facility that affects or could by an elevator. The Department agrees with affect the usability of the building or facility the latter comment. Lifts to provide access or any part thereof. One commenter sug- between floors are not required in buildings gested that the concept of usability should that are not required to have elevators. This apply only to those changes that affect ac- point is specifically addressed in the appen- cess by persons with disabilities. The Depart- dix to ADAAG (§ 4.1.3(5)). ADAAG also ad- ment remains convinced that the Act re- dresses in detail the situations in which lifts quires the concept of ‘‘usability’’ to be read are permitted or required. broadly to include any change that affects the usability of the facility, not simply Section 36.402 Alterations changes that relate directly to access by in- Sections 36.402–36.405 implement section dividuals with disabilities. 303(a)(2) of the Act, which requires that al- The Department received a significant terations to existing facilities be made in a number of comments on the examples pro- way that ensures that the altered portion is vided in paragraphs (b)(1) and (b)(2) of the readily accessible to and usable by individ- proposed rule. Some commenters urged the uals with disabilities. This part does not re- Department to limit the application of this quire alterations; it simply provides that provision to major structural modifications, when alterations are undertaken, they must while others asserted that it should be ex- be made in a manner that provides access. panded to include cosmetic changes such as Section 36.402(a)(1) provides that any alter- painting and wallpapering. The Department ation to a place of public accommodation or believes that neither approach is consistent a commercial facility, after January 26, 1992, with the legislative history, which requires shall be made so as to ensure that, to the this Department’s regulation to be con- maximum extent feasible, the altered por- sistent with the accessibility guidelines tions of the facility are readily accessible to (ADAAG) developed by the Architectural and and usable by individuals with disabilities, Transportation Barriers Compliance Board including individuals who use wheelchairs. (ATBCB). Although the legislative history The proposed rule provided that an alter- contemplates that, in some instances, the ation would be deemed to be undertaken ADA accessibility standards will exceed the after January 26, 1992, if the physical alter- current MGRAD requirements, it also clear- ation of the property is in progress after that ly indicates the view of the drafters that date. Commenters pointed out that this pro- ‘‘minor changes such as painting or papering vision would, in some cases, produce an un- walls * * * do not affect usability’’ (Edu- just result by requiring the redesign or ret- cation and Labor report at 111, Judiciary re- rofitting of projects initiated before this port at 64), and, therefore, are not alter- part established the ADA accessibility stand- ations. The proposed rule was based on the ards. The Department agrees that the pro- existing MGRAD definition of ‘‘alteration.’’

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

The language of the final rule has been re- is a factor in determining whether it is fea- vised to be consistent with ADAAG, incor- sible to make an altered area accessible. The porated as appendix A to this part. legislative history of the ADA indicates that Some commenters sought clarification of the concept of feasibility only reaches the the intended scope of this section. The pro- question of whether it is possible to make posed rule contained illustrations of changes the alteration accessible in compliance with that affect usability and those that do not. this part. Costs are to be considered only The intent of the illustrations was to explain when an alteration to an area containing a the scope of the alterations requirement; the primary function triggers an additional re- effect was to obscure it. As a result of the il- quirement to make the path of travel to the lustrations, some commenters concluded altered area accessible. that any alteration to a facility, even a Section 36.402(c) is, therefore, essentially minor alteration such as relocating an elec- unchanged from the proposed rule. At the trical outlet, would trigger an extensive ob- recommendation of a commenter, the De- ligation to provide access throughout an en- partment has inserted the word ‘‘virtually’’ tire facility. That result was never con- to modify ‘‘impossible’’ to conform to the templated. language of the legislative history. It ex- Therefore, in this final rule paragraph plains that the phrase ‘‘to the maximum ex- (b)(1) has been revised to include the major provisions of paragraphs (b)(1) and (b)(2) of tent feasible’’ as used in this section applies the proposed rule. The examples in the pro- to the occasional case where the nature of an posed rule have been deleted. Paragraph existing facility makes it virtually impos- (b)(1) now provides that alterations include, sible to comply fully with applicable accessi- but are not limited to, remodeling, renova- bility standards through a planned alter- tion, rehabilitation, reconstruction, historic ation. In the occasional cases in which full restoration, changes or rearrangement in compliance is impossible, alterations shall structural parts or elements, and changes or provide the maximum physical accessibility rearrangement in the plan configuration of feasible. Any features of the facility that are walls and full-height partitions. Normal being altered shall be made accessible unless maintenance, reroofing, painting or it is technically infeasible to do so. If pro- wallpapering, asbestos removal, or changes viding accessibility in conformance with this to mechanical and electrical systems are not section to individuals with certain disabil- alterations unless they affect the usability ities (e.g., those who use wheelchairs) would of building or facility. not be feasible, the facility shall be made ac- Paragraph (b)(2) of this final rule was cessible to persons with other types of dis- added to clarify the scope of the alterations abilities (e.g., those who use crutches or who requirement. Paragraph (b)(2) provides that have impaired vision or hearing, or those if existing elements, spaces, or common who have other types of impairments). areas are altered, then each such altered ele- ment, space, or area shall comply with the Section 36.403 Alterations: Path of Travel applicable provisions of appendix A Section 36.403 implements the statutory re- (ADAAG). As provided in § 36.403, if an al- quirement that any alteration that affects or tered space or area is an area of the facility that contains a primary function, then the could affect the usability of or access to an requirements of that section apply. area of a facility that contains a primary Therefore, when an entity undertakes a function shall be made so as to ensure that, minor alteration to a place of public accom- to the maximum extent feasible, the path of modation or commercial facility, such as travel to the altered area, and the restrooms, moving an electrical outlet, the new outlet telephones, and drinking fountains serving must be installed in compliance with the altered area, are readily accessible to ADAAG. (Alteration of the elements listed in and usable by individuals with disabilities, § 36.403(c)(2) cannot trigger a path of travel including individuals who use wheelchairs, obligation.) If the alteration is to an area, unless the cost and scope of such alterations such as an employee lounge or locker room, is disproportionate to the cost of the overall that is not an area of the facility that con- alteration. Paragraph (a) restates this statu- tains a primary function, that area must tory requirement. comply with ADAAG. It is only when an al- Paragraph (b) defines a ‘‘primary function’’ teration affects access to or usability of an as a major activity for which the facility is area containing a primary function, as op- intended. This paragraph is unchanged from posed to other areas or the elements listed in the proposed rule. Areas that contain a pri- § 36.403(c)(2), that the path of travel to the al- mary function include, but are not limited tered area must be made accessible. to, the customer services lobby of a bank, The Department received relatively few the dining area of a cafeteria, the meeting comments on paragraph (c), which explains rooms in a conference center, as well as of- the statutory phrase ‘‘to the maximum ex- fices and all other work areas in which the tent feasible.’’ Some commenters suggested activities of the public accommodation or that the regulation should specify that cost other private entities using the facility are

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Department of Justice Pt. 36, App. B

carried out. The concept of ‘‘areas con- mittee report accompanying the bill explains taining a primary function’’ is analogous to that: the concept of ‘‘functional spaces’’ in § 3.5 of New construction and alterations of both the existing Uniform Federal Accessibility public accommodations and commercial fa- Standards, which defines ‘‘functional spaces’’ cilities must be made readily accessible to as ‘‘[t]he rooms and spaces in a building or and usable by individuals with disabilities facility that house the major activities for * * *. Essentially, [this requirement] is de- which the building or facility is intended.’’ signed to ensure that patrons and employees Paragraph (b) provides that areas such as of public accommodations and commercial mechanical rooms, boiler rooms, supply stor- facilities are able to get to, enter and use the age rooms, employee lounges and locker facility * * *. The rationale for making new rooms, janitorial closets, entrances, cor- construction accessible applies with equal ridors, and restrooms are not areas con- force to alterations. taining a primary function. There may be ex- Judiciary report at 62–63 (emphasis added). ceptions to this general rule. For example, The ADA, as enacted, contains the lan- the availability of public restrooms at a guage of section 303 as it was reported out of place of public accommodation at a roadside the Judiciary Committee. Therefore, the De- rest stop may be a major factor affecting partment has concluded that the concept of customers’ decisions to patronize the public ‘‘primary function’’ should be applied in the accommodation. In that case, a restroom same manner to places of public accommoda- would be considered to be an ‘‘area con- tion and to commercial facilities, thereby in- taining a primary function’’ of the facility. cluding employee work areas in places of Most of the commenters who addressed public accommodation within the scope of this issue supported the approach taken by the Department; but a few commenters sug- this section. gested that areas not open to the general Paragraph (c) provides examples of alter- public or those used exclusively by employ- ations that affect the usability of or access ees should be excluded from the definition of to an area containing a primary function. primary function. The preamble to the pro- The examples include: Remodeling a mer- posed rule noted that the Department con- chandise display area or employee work sidered an alternative approach to the defi- areas in a department store; installing a new nition of ‘‘primary function,’’ under which a floor surface to replace an inaccessible sur- primary function of a commercial facility face in the customer service area or em- would be defined as a major activity for ployee work areas of a bank; redesigning the which the facility was intended, while a pri- assembly line area of a factory; and install- mary function of a place of public accommo- ing a computer center in an accounting firm. dation would be defined as an activity which This list is illustrative, not exhaustive. Any involves providing significant goods, serv- change that affects the usability of or access ices, facilities, privileges, advantages, or ac- to an area containing a primary function commodations. However, the Department triggers the statutory obligation to make concluded that, although portions of the leg- the path of travel to the altered area acces- islative history of the ADA support this al- sible. ternative, the better view is that the lan- When the proposed rule was drafted, the guage now contained in § 36.403(b) most accu- Department believed that the rule made it rately reflects congressional intent. No com- clear that the ADA would require alterations menter made a persuasive argument that the to the path of travel only when such alter- Department’s interpretation of the legisla- ations are not disproportionate to the alter- tive history is incorrect. ation to the primary function area. However, When the ADA was introduced, the re- the comments that the Department received quirement to make alterations accessible indicated that many commenters believe was included in section 302 of the Act, which that even minor alterations to individual identifies the practices that constitute dis- elements would require additional alter- crimination by a public accommodation. Be- ations to the path of travel. To address the cause section 302 applies only to the oper- concern of these commenters, a new para- ation of a place of public accommodation, graph (c)(2) has been added to the final rule the alterations requirement was intended to provide that alterations to such elements only to provide access to clients and cus- as windows, hardware, controls (e.g. light tomers of a public accommodation. It was switches or thermostats), electrical outlets, anticipated that access would be provided to or signage will not be deemed to be alter- employees with disabilities under the ‘‘rea- ations that affect the usability of or access sonable accommodation’’ requirements of to an area containing a primary function. Of title I. However, during its consideration of course, each element that is altered must the ADA, the House Judiciary Committee comply with ADAAG (appendix A) . The cost amended the bill to move the alterations of alterations to individual elements would provision from section 302 to section 303, be included in the overall cost of an alter- which applies to commercial facilities as ation for purposes of determining well as public accommodations. The Com- disproportionality and would be counted

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

when determining the aggregate cost of a se- also includes the restrooms, telephones, and ries of small alterations in accordance with drinking fountains serving an altered area. § 36.401(h) if the area is altered in a manner Although the Act establishes an expecta- that affects access to or usability of an area tion that an accessible path of travel should containing a primary function. generally be included when alterations are Paragraph (d) concerns the respective obli- made to an area containing a primary func- gations of landlords and tenants in the cases tion, Congress recognized that, in some cir- of alterations that trigger the path of travel cumstances, providing an accessible path of requirement under § 36.403. This paragraph travel to an altered area may be sufficiently was contained in the landlord/tenant section burdensome in comparison to the alteration of the proposed rule, § 36.201(b). If a tenant is being undertaken to the area containing a making alterations upon its premises pursu- primary function as to render this require- ant to terms of a lease that grant it the au- ment unreasonable. Therefore, Congress pro- thority to do so (even if they constitute al- vided, in section 303(a)(2) of the Act, that al- terations that trigger the path of travel re- quirement), and the landlord is not making terations to the path of travel that are dis- alterations to other parts of the facility, proportionate in cost and scope to the over- then the alterations by the tenant on its own all alteration are not required. premises do not trigger a path of travel obli- The Act requires the Attorney General to gation upon the landlord in areas of the fa- determine at what point the cost of pro- cility under the landlord’s authority that are viding an accessible path of travel becomes not otherwise being altered. The legislative disproportionate. The proposed rule provided history makes clear that the path of travel three options for making this determination. requirement applies only to the entity that Two committees of Congress specifically is already making the alteration, and thus addressed this issue: the House Committee the Department has not changed the final on Education and Labor and the House Com- rule despite numerous comments suggesting mittee on the Judiciary. The reports issued that the tenant be required to provide a path by each committee suggested that accessi- of travel. bility alterations to a path of travel might Paragraph (e) defines a ‘‘path of travel’’ as be ‘‘disproportionate’’ if they exceed 30% of a continuous, unobstructed way of pedes- the alteration costs (Education and Labor trian passage by means of which an altered report at 113; Judiciary report at 64). Be- area may be approached, entered, and exited; cause the Department believed that smaller and which connects the altered area with an percentage rates might be appropriate, the exterior approach (including sidewalks, proposed rule sought comments on three op- streets, and parking areas), an entrance to the facility, and other parts of the facility. tions: 10%, 20%, or 30%. This concept of an accessible path of travel The Department received a significant is analogous to the concepts of ‘‘accessible number of comments on this section. Com- route’’ and ‘‘circulation path’’ contained in menters representing individuals with dis- section 3.5 of the current UFAS. Some com- abilities generally supported the use of 30% menters suggested that this paragraph (or more); commenters representing covered should address emergency egress. The De- entities supported a figure of 10% (or less). partment disagrees. ‘‘Path of travel’’ as it is The Department believes that alterations used in this section is a term of art under the made to provide an accessible path of travel ADA that relates only to the obligation of to the altered area should be deemed dis- the public accommodation or commercial fa- proportionate to the overall alteration when cility to provide additional accessible ele- the cost exceeds 20% of the cost of the alter- ments when an area containing a primary ation to the primary function area. This ap- function is altered. The Department recog- proach appropriately reflects the intent of nizes that emergency egress is an important Congress to provide access for individuals issue, but believes that it is appropriately with disabilities without causing economic addressed in ADAAG (appendix A), not in hardship for the covered public accommoda- this paragraph. Furthermore, ADAAG does tions and commercial facilities. not require changes to emergency egress areas in alterations. The Department has determined that the basis for this cost calculation shall be the Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that an accessible path cost of the alterations to the area containing of travel may consist of walks and sidewalks, the primary function. This approach will en- curb ramps and other interior or exterior pe- able the public accommodation or other pri- destrian ramps; clear floor paths through vate entity that is making the alteration to lobbies, corridors, rooms, and other im- calculate its obligation as a percentage of a proved areas; parking access aisles; elevators clearly ascertainable base cost, rather than and lifts; or a combination of such elements. as a percentage of the ‘‘total’’ cost, an Paragraph (e)(3) provides that, for the pur- amount that will change as accessibility al- poses of this part, the term ‘‘path of travel’’ terations to the path of travel are made.

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Department of Justice Pt. 36, App. B

Paragraph (f)(2) (paragraph (e)(2) in the ations undertaken after January 26, 1992, proposed rule) is unchanged. It provides ex- shall be considered in determining if the cost amples of costs that may be counted as ex- of providing accessible features is dispropor- penditures required to provide an accessible tionate to the overall cost of the alterations. path of travel. They include: • Costs associated with providing an acces- Section 36.404 Alterations: Elevator Exemption sible entrance and an accessible route to the Section 36.404 implements the elevator ex- altered area, for example, the cost of wid- emption in section 303(b) of the Act as it ap- ening doorways or installing ramps; plies to altered facilities. The provisions of Costs associated with making restrooms • section 303(b) are discussed in the preamble accessible, such as installing grab bars, en- to § 36.401(d) above. The statute applies the larging toilet stalls, insulating pipes, or in- same exemption to both new construction stalling accessible faucet controls; and alterations. The principal difference be- • Costs associated with providing acces- tween the requirements of § 36.401(d) and sible telephones, such as relocating tele- § 36.404 is that, in altering an existing facil- phones to an accessible height, installing ity that is not eligible for the statutory ex- amplification devices, or installing tele- emption, the public accommodation or other communications devices for deaf persons (TDD’s); private entity responsible for the alteration is not required to install an elevator if the • Costs associated with relocating an inac- cessible drinking fountain. installation of an elevator would be dis- Paragraph (f)(1) of the proposed rule pro- proportionate in cost and scope to the cost of vided that when the cost of alterations nec- the overall alteration as provided in essary to make the path of travel serving an § 36.403(f)(1). In addition, the standards ref- altered area fully accessible is dispropor- erenced in § 36.406 (ADAAG) provide that in- tionate to the cost of the overall alteration, stallation of an elevator in an altered facil- the path of travel shall be made accessible to ity is not required if it is ‘‘technically infea- the maximum extent feasible. In response to sible.’’ the suggestion of a commenter, the Depart- This section has been revised to define the ment has made an editorial change in the terms ‘‘professional office of a health care final rule (paragraph (g)(1)) to clarify that if provider’’ and ‘‘shopping center or shopping the cost of providing a fully accessible path mall’’ for the purposes of this section. The of travel is disproportionate, the path of definition of ‘‘professional office of a health travel shall be made accessible ‘‘to the ex- care provider’’ is identical to the definition tent that it can be made accessible without included in § 36.401(d). incurring disproportionate costs.’’ It has been brought to the attention of the Paragraph (g)(2) (paragraph (f)(2) in the Department that there is some misunder- NPRM) establishes that priority should be standing about the scope of the elevator ex- given to those elements that will provide the emption as it applies to the professional of- greatest access, in the following order: An fice of a health care provider. A public ac- accessible entrance; an accessible route to commodation, such as the professional office the altered area; at least one accessible rest- of a health care provider, is required to re- room for each sex or a single unisex rest- move architectural barriers to its facility to room; accessible telephones; accessible the extent that such barrier removal is read- drinking fountains; and, whenever possible, ily achievable (see § 36.304), but it is not oth- additional accessible elements such as park- erwise required by this part to undertake ing, storage, and alarms. This paragraph is new construction or alterations. This part unchanged from the proposed rule. does not require that an existing two story Paragraph (h) (paragraph (g) in the pro- building that houses the professional office posed rule) provides that the obligation to of a health care provider be altered for the provide an accessible path of travel may not purpose of providing elevator access. If, how- be evaded by performing a series of small al- ever, alterations to the area housing the of- terations to the area served by a single path fice of the health care provider are under- of travel if those alterations could have been taken for other purposes, the installation of performed as a single undertaking. If an area an elevator might be required, but only if containing a primary function has been al- the cost of the elevator is not dispropor- tered without providing an accessible path of tionate to the cost of the overall alteration. travel to serve that area, and subsequent al- Neither the Act nor this part prohibits a terations of that area, or a different area on health care provider from locating his or her the same path of travel, are undertaken professional office in an existing facility within three years of the original alteration, that does not have an elevator. the total cost of alterations to primary func- Because of the unique challenges presented tion areas on that path of travel during the in altering existing facilities, the Depart- preceding three year period shall be consid- ment has adopted a definition of ‘‘shopping ered in determining whether the cost of center or shopping mall’’ for the purposes of making the path of travel serving that area this section that is slightly different from accessible is disproportionate. Only alter- the definition adopted under § 36.401(d). For

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

the purposes of this section, a ‘‘shopping cen- ‘‘adverse effect’’ published by the Advisory ter or shopping mall’’ is (1) a building hous- Council on Historic Preservation under the ing five or more sales or rental establish- National Historic Preservation Act (36 CFR ments, or (2) a series of buildings on a com- 800.9) as the standard for determining wheth- mon site, connected by a common pedestrian er an historic property may be altered. access route above or below the ground floor, The Department agrees with these com- either under common ownership or common ments to the extent that they suggest that control or developed either as one project or the language of the rule should conform to as a series of related projects, housing five or the language employed by Congress in the more sales or rental establishments. As is ADA. Therefore, the language of this section the case with new construction, the term has been revised to make it clear that this ‘‘shopping center or shopping mall’’ only in- provision applies to buildings or facilities cludes floor levels housing at least one sales that are eligible for listing in the National or rental establishment, or any floor level Register of Historic Places under the Na- that was designed or intended for use by at tional Historic Preservation Act (16 U.S.C. least one sales or rental establishment. 470 et seq.) and to buildings or facilities that The Department believes that it is appro- are designated as historic under State or priate to use a different definition of ‘‘shop- local law. The Department believes, how- ping center or shopping mall’’ for this sec- ever, that the criteria of adverse effect em- tion than for § 36.401, in order to make it ployed under the National Historic Preserva- clear that a series of existing buildings on a tion Act are inappropriate for this rule be- common site that is altered for the use of cause section 504(c) of the ADA specifies that sales or rental establishments does not be- special alterations provisions shall apply come a ‘‘shopping center or shopping mall’’ only when an alteration would ‘‘threaten or required to install an elevator, unless there destroy the historic significance of qualified is a common means of pedestrian access historic buildings and facilities.’’ above or below the ground floor. Without The Department intends that the excep- this exemption, separate, but adjacent, tion created by this section be applied only buildings that were initially designed and in those very rare situations in which it is constructed independently of each other not possible to provide access to an historic could be required to be retrofitted with ele- property using the special access provisions vators, if they were later renovated for a in ADAAG. Therefore, paragraph (a) of § 36.405 has been revised to provide that alter- purpose not contemplated at the time of con- ations to historic properties shall comply, to struction. the maximum extent feasible, with section Like § 36.401(d), § 36.404 provides that the 4.1.7 of ADAAG. Paragraph (b) of this section exemptions in this paragraph do not obviate has been revised to provide that if it has or limit in any way the obligation to comply been determined, under the procedures estab- with the other accessibility requirements es- lished in ADAAG, that it is not feasible to tablished in this subpart. For example, alter- provide physical access to an historic prop- ations to floors above or below the ground erty that is a place of public accommodation floor must be accessible regardless of wheth- in a manner that will not threaten or de- er the altered facility has an elevator. If a stroy the historic significance of the prop- facility that is not required to install an ele- erty, alternative methods of access shall be vator nonetheless has an elevator, that ele- provided pursuant to the requirements of vator shall meet, to the maximum extent Subpart C. feasible, the accessibility requirements of this section. Section 36.406 Standards for New Construction and Alterations Section 36.405 Alterations: Historic Preservation Section 36.406 implements the require- ments of sections 306(b) and 306(c) of the Act, Section 36.405 gives effect to the intent of which require the Attorney General to pro- Congress, expressed in section 504(c) of the mulgate standards for accessible design for Act, that this part recognize the national in- buildings and facilities subject to the Act terest in preserving significant historic and this part that are consistent with the structures. Commenters criticized the De- supplemental minimum guidelines and re- partment’s use of descriptive terms in the quirements for accessible design published proposed rule that are different from those by the Architectural and Transportation used in the ADA to describe eligible historic Barriers Compliance Board (ATBCB or properties. In addition, some commenters Board) pursuant to section 504 of the Act. criticized the Department’s decision to use This section of the rule provides that new the concept of ‘‘substantially impairing’’ the construction and alterations subject to this historic features of a property, which is a part shall comply with the standards for ac- concept employed in regulations imple- cessible design published as appendix A to menting section 504 of the Rehabilitation this part. Act of 1973. Those commenters recommended Appendix A contains the Americans with that the Department adopt the criteria of Disabilities Act Accessibility Guidelines for

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Department of Justice Pt. 36, App. B

Buildings and Facilities (ADAAG) which is Section 4 contains scoping provisions and being published by the ATBCB as a final rule technical specifications applicable to all cov- elsewhere in this issue of the FEDERAL REG- ered buildings and facilities. The scoping ISTER. As proposed in this Department’s pro- provisions are listed separately for new con- posed rule, § 36.406(a) adopts ADAAG as the struction of sites and exterior facilities; new accessibility standard applicable under this construction of buildings; additions; alter- rule. ations; and alterations to historic properties. Paragraph (b) was not included in the pro- The technical specifications generally re- posed rule. It provides, in chart form, guid- print the text and illustrations of the ANSI ance for using ADAAG together with sub- A117.1 standard, except where differences are parts A through D of this part when deter- noted by italics. Sections 5 through 9 of the mining requirements for a particular facil- guidelines are special application sections ity. This chart is intended solely as guidance and contain additional requirements for res- for the user; it has no effect for purposes of taurants and cafeterias, medical care facili- compliance or enforcement. It does not nec- ties, business and mercantile facilities, li- essarily provide complete or mandatory in- braries, and transient lodging. The appendix formation. to the guidelines contains additional infor- Proposed § 36.406(b) is not included in the mation to aid in understanding the technical final rule. That provision, which would have specifications. The section numbers in the taken effect only if the final rule had fol- appendix correspond to the sections of the lowed the proposed Option Two for § 36.401(a), guidelines to which they relate. An asterisk is unnecessary because the Department has after a section number indicates that addi- chosen Option One, as explained in the pre- tional information appears in the appendix. amble for that section. ADAAG’s provisions are further explained Section 504(a) of the ADA requires the under Summary of ADAAG below. ATBCB to issue minimum guidelines to sup- plement the existing Minimum Guidelines GENERAL COMMENTS and Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for purposes of One commenter urged the Department to title III. According to section 504(b) of the move all or portions of subpart D, New Con- Act, the guidelines are to establish addi- struction and Alterations, to the appendix tional requirements, consistent with the (ADAAG) or to duplicate portions of subpart Act, ‘‘to ensure that buildings and facilities D in the appendix. The commenter correctly are accessible, in terms of architecture and pointed out that subpart D is inherently design,...and communication, to individ- linked to ADAAG, and that a self-contained uals with disabilities.’’ Section 306(c) of the set of rules would be helpful to users. The Act requires that the accessibility standards Department has attempted to simplify use of included in the Department’s regulations be the two documents by deleting some para- consistent with the minimum guidelines, in graphs from subpart D (e.g., those relating to this case ADAAG. work areas), because they are included in As explained in the ATBCB’s preamble to ADAAG. However, the Department has re- ADAAG, the substance and form of the tained in subpart D those sections that are guidelines are drawn from several sources. taken directly from the statute or that give They use as their model the 1984 Uniform meaning to specific statutory concepts (e.g., Federal Accessibility Standards (UFAS) (41 structural impracticability, path of travel). CFR part 101, subpart 101–19.6, appendix), While some of the subpart D provisions are which are the standards implementing the duplicated in ADAAG, others are not. For Architectural Barriers Act. UFAS is based example, issues relating to path of travel and on the Board’s 1982 MGRAD. ADAAG follows disproportionality in alterations are not ad- the numbering system and format of the pri- dressed in detail in ADAAG. (The structure vate sector American National Standard In- and contents of the two documents are ad- stitute’s ANSI A117.1 standards. (American dressed below under Summary of ADAAG.) National Specifications for Making Build- While the Department agrees that it would ings and Facilities Accessible to and Usable be useful to have one self-contained docu- by Physically Handicapped People (ANSI ment, the different focuses of this rule and A117–1980) and American National Standard ADAAG do not permit this result at this for Buildings and Facilities—Providing Ac- time. However, the chart included in cessibility and Usability for Physically § 36.406(b) should assist users in applying the Handicapped People (ANSI A117.1–1986).) provisions of subparts A through D, and ADAAG supplements MGRAD. In developing ADAAG together. ADAAG, the Board made every effort to be Numerous business groups have urged the consistent with MGRAD and the current and Department not to adopt the proposed proposed ANSI Standards, to the extent con- ADAAG as the accessibility standards, be- sistent with the ADA. cause the requirements established are too ADAAG consists of nine main sections and high, reflect the ‘‘state of the art,’’ and are a separate appendix. Sections 1 through 3 inflexible, rigid, and impractical. Many of contain general provisions and definitions. these objections have been lodged on the

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

basis that ADAAG exceeds the statutory sign stage. The Department plans to work mandate to establish ‘‘minimum’’ guidelines. toward this goal. In the view of the Department, these com- The Department, however, must comply menters have misconstrued the meaning of with the requirements of the ADA, the Fed- the term ‘‘minimum guidelines.’’ The statute eral Advisory Committee Act (5 U.S.C app. 1 clearly contemplates that the guidelines es- et seq.) and the Administrative Procedure tablish a level of access—a minimum—that Act (5 U.S.C 551 et seq.). Neither the Depart- the standards must meet or exceed. The ment nor the Board can adopt private re- guidelines are not to be ‘‘minimal’’ in the quirements wholesale. Furthermore, neither sense that they would provide for a low level the 1991 ANSI A117 Standard revision nor the of access. To the contrary, Congress empha- BCMC process is complete. Although the sized that the ADA requires a ‘‘high degree ANSI and BCMC provisions are not final, the of convenient access.’’ Education and Labor Board has carefully considered both the draft report at 117–18. The legislative history ex- BCMC scoping provisions and draft ANSI plains that the guidelines may not ‘‘reduce, technical standards and included their lan- weaken, narrow or set less accessibility guage in ADAAG wherever consistent with standards than those included in existing the ADA. MGRAD’’ and should provide greater guid- Some commenters requested that, if the ance in communication accessibility for in- Department did not adopt ANSI by ref- dividuals with hearing and vision impair- erence, the Department declare compliance ments. Id. at 139. Nor did Congress con- with ANSI/BCMC to constitute equivalency template a set of guidelines less detailed with the ADA standards. The Department than ADAAG; the statute requires that the has not adopted this recommendation but ADA guidelines supplement the existing has instead worked as a member of the MGRAD. When it established the statutory ATBCB to ensure that its accessibility scheme, Congress was aware of the content standards are practical and usable. In addi- and purpose of the 1982 MGRAD; as ADAAG tion, as explained under subpart F, Certifi- does with respect to ADA, MGRAD estab- cation of State Laws or Local Building lishes a minimum level of access that the Ar- Codes, the proper forum for further evalua- chitectural Barriers Act standards (i.e., tion of this suggested approach would be in UFAS) must meet or exceed, and includes a conjunction with the certification process. high level of detail. Some commenters urged the Department Many of the same commenters urged the to allow an additional comment period after Department to incorporate as its accessi- the Board published its guidelines in final bility standards the ANSI standard’s tech- form, for purposes of affording the public a nical provisions and to adopt the proposed further opportunity to evaluate the appro- scoping provisions under development by the priateness of including them as the Depart- Council of American Building Officials’ ments accessibility standards. Such an addi- Board for the Coordination of Model Codes tional comment period is unnecessary and (BCMC). They contended that the ANSI would unduly delay the issuance of final reg- standard is familiar to and accepted by pro- ulations. The Department put the public on fessionals, and that both documents are de- notice, through the proposed rule, of its in- veloped through consensus. They suggested tention to adopt the proposed ADAAG, with that ADAAG will not stay current, because any changes made by the Board, as the ac- it does not follow an established cyclical re- cessibility standards. As a member of the view process, and that it is not likely to be Board and of its ADA Task Force, the De- adopted by nonfederal jurisdictions in State partment participated actively in the public and local codes. They urged the Department hearings held on the proposed guidelines and and the Board to coordinate the ADAAG pro- in preparation of both the proposed and final visions and any substantive changes to them versions of ADAAG. Many individuals and with the ANSI A117 committee in order to groups commented directly to the Depart- maintain a consistent and uniform set of ac- ment’s docket, or at its public hearings, cessibility standards that can be efficiently about ADAAG. The comments received on and effectively implemented at the State ADAAG, whether by the Board or by this De- and local level through the existing building partment, were thoroughly analyzed and regulatory processes. considered by the Department in the context The Department shares the commenters’ of whether the proposed ADAAG was con- goal of coordination between the private sec- sistent with the ADA and suitable for adop- tor and Federal standards, to the extent that tion as both guidelines and standards. The coordination can lead to substantive require- Department is convinced that ADAAG as ments consistent with the ADA. A single ac- adopted in its final form is appropriate for cessibility standard, or consistent accessi- these purposes. The final guidelines, adopted bility standards, that can be used for ADA here as standards, will ensure the high level purposes and that can be incorporated or ref- of access contemplated by Congress, con- erenced by State and local governments, sistent with the ADA’s balance between the would help to ensure that the ADA require- interests of people with disabilities and the ments are routinely implemented at the de- business community.

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Department of Justice Pt. 36, App. B

A few commenters, citing the Senate re- • Rather than requiring 5% of new hotel port (at 70) and the Education and Labor re- rooms to be accessible to people with mobil- port (at 119), asked the Department to in- ity impairments, between 2 and 4% accessi- clude in the regulations a provision stating bility (depending on total number of rooms) that departures from particular technical is required. In addition, 1% of the rooms and scoping requirements of the accessibility must have roll-in showers. standards will be permitted so long as the al- • The proposed rule reserved the provisions ternative methods used will provide substan- on alterations to homeless shelters. The tially equivalent or greater access to and final guidelines apply alterations require- utilization of the facility. Such a provision is ments to homeless shelters, but the require- found in ADAAG 2.2 and by virtue of that ments are less stringent than those applied fact is included in these regulations. to other types of facilities. • Parking spaces that can be used by peo- Comments on specific provisions of proposed ple in vans (with lifts) will be required. ADAAG • As mandated by the ADA, the Board has During the course of accepting comments established a procedure to be followed with on its proposed rule, the Department re- respect to alterations to historic facilities. ceived numerous comments on ADAAG. SUMMARY OF ADAAG Those areas that elicited the heaviest re- sponse included assistive listening systems, This section of the preamble summarizes automated teller machines, work areas, the structure of ADAAG, and highlights the parking, areas of refuge, telephones (scoping more important portions. for TDD’s and volume controls) and visual • Sections 1 Through 3 alarms. Strenuous objections were raised by some business commenters to the proposed Sections 1 through 3 contain general re- provisions of the guidelines concerning quirements, including definitions. check-out aisles, counters, and scoping for hotels and nursing facilities. All these com- • Section 4.1.1, Application ments were considered in the same manner Section 4 contains scoping requirements. as other comments on the Department’s pro- Section 4.1.1, Application, provides that all posed rule and, in the Department’s view, areas of newly designed or newly constructed have been addressed adequately in the final buildings and facilities and altered portions ADAAG. of existing buildings and facilities required Largely in response to comments, the to be accessible by § 4.1.6 must comply with Board made numerous changes from its pro- the guidelines unless otherwise provided in posal, including the following: § 4.1.1 or a special application section. It ad- • Generally, at least 50% of public en- dresses areas used only by employees as trances to new buildings must be accessible, work areas, temporary structures, and gen- rather than all entrances, as would often eral exceptions. have resulted from the proposed approach. Section 4.1.1(3) preserves the basic prin- • Not all check-out aisles are required to ciple of the proposed rule: Areas that may be be accessible. used by employees with disabilities shall be • The final guidelines provide greater flexi- designed and constructed so that an indi- bility in providing access to sales counters, vidual with a disability can approach, enter, and no longer require a portion of every and exit the area. The language has been counter to be accessible. clarified to provide that it applies to any • Scoping for TDD’s or text telephones was area used only as a work area (not just to increased. One TDD or text telephone, for areas ‘‘that may be used by employees with speech and hearing impaired persons, must disabilities’’), and that the guidelines do not be provided at locations with 4, rather than require that any area used as an individual 6, pay phones, and in hospitals and shopping work station be designed with maneuvering malls. Use of portable (less expensive) TDD’s space or equipped to be accessible. The ap- is allowed. pendix to ADAAG explains that work areas • Dispersal of wheelchair seating areas in must meet the guidelines’ requirements for theaters will be required only where there doors and accessible routes, and rec- are more than 300 seats, rather than in all ommends, but does not require, that 5% of cases. Seats with removable armrests (i.e., individual work stations be designed to per- seats into which persons with mobility im- mit a person using a wheelchair to maneuver pairments can transfer) will also be required. within the space. • Areas of refuge (areas with direct access Further discussion of work areas is found to a stairway, and where people who cannot in the preamble concerning proposed use stairs may await assistance during an § 36.401(b). emergency evacuation) will be required, as Section 4.1.1(5)(a) includes an exception for proposed, but the final provisions are based structural impracticability that corresponds on the Uniform Building Code. Such areas to the one found in § 36.401(c) and discussed are not required in alterations. in that portion of the preamble.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

• Section 4.1.2, Accessible Sites and Exterior The next seven subsections deal with Facilities: New Construction drinking fountains (§ 4.1.3(10)); toilet facili- ties (§ 4.1.3(11)); storage, shelving, and display This section addresses exterior features, units (§ 4.1.3(12)), controls and operating elements, or spaces such as parking, portable mechanisms (§ 4.1.3(13)), emergency warning toilets, and exterior signage, in new con- systems (§ 4.1.3(14)), detectable warnings struction. Interior elements and spaces are (§ 4.1.3(15)), and building signage (§ 4.1.3(16)). covered by § 4.1.3. Paragraph 11 requires that toilet facilities The final rule retains the UFAS scoping comply with § 4.22, which requires one acces- for parking but also requires that at least sible toilet stall (60< 60< ) in each newly one of every eight accessible parking spaces ″× ″ constructed restroom. In response to public be designed with adequate adjacent space to comments, the final rule requires that a sec- deploy a lift used with a van. These spaces ond accessible stall (36< 60< ) be provided in must have a sign indicating that they are ″× ″ restrooms that have six or more stalls. van-accessible, but they are not to be re- ADAAG Section 4.1.3(17) establishes re- served exclusively for van users. quirements for accessibility of pay phones to • Section 4.1.3, Accessible Buildings: New persons with mobility impairments, hearing Construction impairments (requiring some phones with volume controls), and those who cannot use This section establishes scoping require- voice telephones. It requires one interior ments for new construction of buildings and ‘‘text telephone’’ to be provided at any facil- facilities. ity that has a total of four or more public Sections 4.1.3 (1) through (4) cover acces- pay phones. (The term ‘‘text telephone’’ has sible routes, protruding objects, ground and been adopted to reflect current terminology floor surfaces, and stairs. and changes in technology.) In addition, text Section 4.1.3(5) generally requires elevators telephones will be required in specific loca- to serve each level in a newly constructed tions, such as covered shopping malls, hos- building, with four exceptions included in pitals (in emergency rooms, waiting rooms, the subsection. Exception 1 is the ‘‘elevator and recovery areas), and convention centers. exception’’ established in § 36.401(d), which Paragraph 18 of Section 4.1.3 generally re- must be read with this section. Exception 4 quires that at least five percent of fixed or allows the use of platform lifts under certain built-in seating or tables be accessible. conditions. Paragraph 19, covering assembly areas, Section 4.1.3(6), Windows, is reserved. Sec- specifies the number of wheelchair seating tion 4.1.3(7) applies to doors. spaces and types and numbers of assistive Under § 4.1.3(8), at least 50% of all public listening systems required. It requires dis- entrances must be accessible. In addition, if persal of wheelchair seating locations in fa- a building is designed to provide access to cilities where there are more than 300 seats. enclosed parking, pedestrian tunnels, or ele- The guidelines also require that at least one vated walkways, at least one entrance that percent of all fixed seats be aisle seats with- serves each such function must be accessible. out armrests (or with moveable armrests) on Each tenancy in a building must be served the aisle side to increase accessibility for by an accessible entrance. Where local regu- persons with mobility impairments who pre- lations (e.g., fire codes) require that a min- fer to transfer from their wheelchairs to imum number of exits be provided, an equiv- fixed seating. In addition, the final ADAAG alent number of accessible entrances must be requires that fixed seating for a companion provided. (The latter provision does not re- be located adjacent to each wheelchair loca- quire a greater number of entrances than tion. otherwise planned.) Paragraph 20 requires that where auto- ADAAG Section 4.1.3(9), with accom- mated teller machines are provided, at least panying technical requirements in Section one must comply with section 4.34, which, 4.3, requires an area of rescue assistance (i.e., among other things, requires accessible con- an area with direct access to an exit stair- trols, and instructions and other information way and where people who are unable to use that are accessible to persons with sight im- stairs may await assistance during an emer- pairments. gency evacuation) to be established on each Under paragraph 21, where dressing rooms floor of a multi-story building. This was one are provided, five percent or at least one of the most controversial provisions in the must comply with section 4.35. guidelines. The final ADAAG is based on cur- rent Uniform Building Code requirements • Section 4.1.5, Additions and retains the requirement that areas of Each addition to an existing building or fa- refuge (renamed ‘‘areas of rescue assist- cility is regarded as an alteration subject to ance’’) be provided, but specifies that this re- §§ 36.402 through 36.406 of subpart D, includ- quirement does not apply to buildings that ing the date established in § 36.402(a). But ad- have a supervised automatic sprinkler sys- ditions also have attributes of new construc- tem. Areas of refuge are not required in al- tion, and to the extent that a space or ele- terations. ment in the addition is newly constructed,

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Department of Justice Pt. 36, App. B

each new space or element must comply with to qualified historic buildings and facilities. the applicable scoping provisions of sections It clarifies the procedures under the Na- 4.1.1 to 4.1.3 for new construction, the appli- tional Historic Preservation Act and their cable technical specifications of sections 4.2 application to alterations covered by the through 4.34, and any applicable special pro- ADA. An individual seeking to alter a facil- visions in sections 5 through 10. For in- ity that is subject to the ADA guidelines and stance, if a restroom is provided in the addi- to State or local historic preservation stat- tion, it must comply with the requirements utes shall consult with the State Historic for new construction. Construction of an ad- Preservation Officer to determine if the dition does not, however, create an obliga- planned alteration would threaten or destroy tion to retrofit the entire existing building the historic significance of the facility. or facility to meet requirements for new con- struction. Rather, the addition is to be re- • Sections 4.2 Through 4.35 garded as an alteration and to the extent Sections 4.2 through 4.35 contain the tech- that it affects or could affect the usability of nical specifications for elements and spaces or access to an area containing a primary required to be accessible by the scoping pro- function, the requirements in section 4.1.6(2) visions (sections 4.1 through 4.1.7) and spe- are triggered with respect to providing an cial application sections (sections 5 through accessible path of travel to the altered area 10). The technical specifications are the and making the restrooms, telephones, and same as the 1980 version of ANSI A117.1 drinking fountains serving the altered area standard, except as noted in the text by accessible. For example, if a museum adds a italics. new wing that does not have a separate en- trance as part of the addition, an accessible • Sections 5 Through 9 path of travel would have to be provided These are special application sections and through the existing building or facility un- contain additional requirements for res- less it is disproportionate to the overall cost taurants and cafeterias, medical care facili- and scope of the addition as established in ties, business and mercantile facilities, li- § 36.403(f). braries, and transient lodging. For example, • Section 4.1.6, Alterations at least 5 percent, but not less than one, of the fixed tables in a restaurant must be ac- An alteration is a change to a building or cessible. facility that affects or could affect the In section 7, Business and Mercantile, usability of or access to the building or facil- paragraph 7.2 (Sales and Service Counters, ity or any part thereof. There are three gen- Teller Windows, Information Counters) has eral principles for alterations. First, if any been revised to provide greater flexibility in existing element or space is altered, the al- new construction than did the proposed rule. tered element or space must meet new con- At least one of each type of sales or service struction requirements (section 4.1.6(1)(b)). counter where a cash register is located shall Second, if alterations to the elements in a be made accessible. Accessible counters shall space when considered together amount to be dispersed throughout the facility. At an alteration of the space, the entire space counters such as bank teller windows or must meet new construction requirements ticketing counters, alternative methods of (section 4.1.6(1)(c)). Third, if the alteration compliance are permitted. A public accom- affects or could affect the usability of or ac- modation may lower a portion of the cess to an area containing a primary func- counter, provide an auxiliary counter, or tion, the path of travel to the altered area provide equivalent facilitation through such and the restrooms, drinking fountains, and means as installing a folding shelf on the telephones serving the altered area must be front of the counter at an accessible height made accessible unless it is disproportionate to provide a work surface for a person using to the overall alterations in terms of cost a wheelchair. and scope as determined under criteria es- Section 7.3., Check-out Aisles, provides tablished by the Attorney General (§ 4.1.6(2)). that, in new construction, a certain number Section 4.1.6 should be read with §§ 36.402 of each design of check-out aisle, as listed in through 36.405. Requirements concerning al- a chart based on the total number of check- terations to an area serving a primary func- out aisles of each design, shall be accessible. tion are addressed with greater detail in the The percentage of check-outs required to be latter sections than in section 4.1.6(2). Sec- accessible generally ranges from 20% to 40%. tion 4.1.6(1)(j) deals with technical infeasi- In a newly constructed or altered facility bility. Section 4.1.6(3) contains special tech- with less than 5,000 square feet of selling nical provisions for alterations to existing space, at least one of each type of check-out buildings and facilities. aisle must be accessible. In altered facilities with 5,000 or more square feet of selling Section 4.1.7, Historic Preservation • space, at least one of each design of check- This section contains scoping provisions out aisle must be made accessible when al- and alternative requirements for alterations tered, until the number of accessible aisles

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

of each design equals the number that would Section 10, Transportation Facilities be required for new construction. Section 10 of ADAAG is reserved. On March • Section 9, Accessible Transient Lodging 20, 1991, the ATBCB published a supple- mental notice of proposed rulemaking (56 FR Section 9 addresses two types of transient 11874) to establish special access require- lodging: hotels, motels, inns, boarding ments for transportation facilities. The De- houses, dormitories, resorts, and other simi- partment anticipates that when the ATBCB lar places (sections 9.1 through 9.4); and issues final guidelines for transportation fa- homeless shelters, halfway houses, transient cilities, this part will be amended to include group homes, and other social service estab- those provisions. lishments (section 9.5). The interplay of the ADA and Fair Housing Act with respect to Subpart E—Enforcement such facilities is addressed in the preamble Because the Department of Justice does discussion of the definition of ‘‘place of pub- not have authority to establish procedures lic accommodation’’ in § 36.104. for judicial review and enforcement, subpart The final rule establishes scoping require- E generally restates the statutory proce- ments for accessibility of newly constructed dures for enforcement. hotels. Four percent of the first hundred Section 36.501 describes the procedures for rooms, and roughly two percent of rooms in private suits by individuals and the judicial excess of 100, must meet certain require- remedies available. In addition to the lan- ments for accessibility to persons with mo- guage in section 308(a)(1) of the Act, bility or hearing impairments, and an addi- § 36.501(a) of this part includes the language tional identical percentage must be acces- from section 204(a) of the Civil Rights Act of sible to persons with hearing impairments. 1964 (42 U.S.C. 2000a–3(a)) which is incor- An additional 1% of the available rooms porated by reference in the ADA. A com- must be equipped with roll-in showers, rais- menter noted that the proposed rule did not ing the actual scoping for rooms accessible include the provision in section 204(a) allow- to persons with mobility impairments to 5% ing the court to appoint an attorney for the of the first hundred rooms and 3% thereafter. complainant and authorize the commence- The final ADAAG also provides that when a ment of the civil action without the pay- hotel is being altered, one fully accessible ment of fees, costs, or security. That provi- room and one room equipped with visual sion has been included in the final rule. alarms, notification devices, and amplified Section 308(a)(1) of the ADA permits a pri- telephones shall be provided for each 25 vate suit by an individual who has reason- rooms being altered until the number of ac- able grounds for believing that he or she is cessible rooms equals that required under ‘‘about to be’’ subjected to discrimination in the new construction standard. Accessible violation of section 303 of the Act (subpart D rooms must be dispersed in a manner that of this part), which requires that new con- will provide persons with disabilities with a struction and alterations be readily acces- choice of single or multiple-bed accommoda- sible to and usable by individuals with dis- tions. abilities. Authorizing suits to prevent con- In new construction, homeless shelters and struction of facilities with architectural bar- other social service entities must comply riers will avoid the necessity of costly retro- with ADAAG; at least one type of amenity in fitting that might be required if suits were each common area must be accessible. In a not permitted until after the facilities were facility that is not required to have an eleva- completed. To avoid unnecessary suits, this tor, it is not necessary to provide accessible section requires that the individual bringing amenities on the inaccessible floors if at the suit have ‘reasonable grounds’ for believ- least one of each type of amenity is provided ing that a violation is about to occur, but in accessible common areas. The percentage does not require the individual to engage in of accessible sleeping accommodations re- a futile gesture if he or she has notice that quired is the same as that required for other a person or organization covered by title III places of transient lodging. Requirements for of the Act does not intend to comply with its facilities altered for use as a homeless shel- provisions. ter parallel the current MGRAD accessibility Section 36.501(b) restates the provisions of requirements for leased buildings. A shelter section 308(a)(2) of the Act, which states that located in an altered facility must have at injunctive relief for the failure to remove ar- least one accessible entrance, accessible chitectural barriers in existing facilities or sleeping accommodations in a number equiv- the failure to make new construction and al- alent to that established for new construc- terations accessible ‘‘shall include’’ an order tion, at least one accessible toilet and bath, to alter these facilities to make them read- at least one accessible common area, and an ily accessible to and usable by persons with accessible route connecting all accessible disabilities to the extent required by title areas. All accessible areas in a homeless III. The Report of the Energy and Commerce shelter in an altered facility may be located Committee notes that ‘‘an order to make a on one level. facility readily accessible to and usable by

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Department of Justice Pt. 36, App. B

individuals with disabilities is mandatory’’ manent relief, providing an auxiliary aid or under this standard. H.R. Rep. No. 485, 101st service, modification of policy or alternative Cong., 2d Sess, pt 4, at 64 (1990). Also, injunc- method, or making facilities readily acces- tive relief shall include, where appropriate, sible to and usable by individuals with dis- requiring the provision of an auxiliary aid or abilities, to the extent required by title III. service, modification of a policy, or provi- In addition, a court may award such other sion of alternative methods, to the extent re- relief as the court considers to be appro- quired by title III of the Act and this part. priate, including monetary damages to per- Section 36.502 is based on section sons aggrieved, when requested by the Attor- 308(b)(1)(A)(i) of the Act, which provides that ney General. the Attorney General shall investigate al- Furthermore, the court may vindicate the leged violations of title III and undertake public interest by assessing a civil penalty periodic reviews of compliance of covered en- against the covered entity in an amount not tities. Although the Act does not establish a exceeding $50,000 for a first violation and not comprehensive administrative enforcement exceeding $100,000 for any subsequent viola- mechanism for investigation and resolution tion. Section 36.504(b) of the rule adopts the of all complaints received, the legislative standard of section 308(b)(3) of the Act. This history notes that investigation of alleged section makes it clear that, in counting the violations and periodic compliance reviews number of previous determinations of viola- are essential to effective enforcement of title tions for determining whether a ‘‘first’’ or III, and that the Attorney General is ex- ‘‘subsequent’’ violation has occurred, deter- pected to engage in active enforcement and minations in the same action that the entity to allocate sufficient resources to carry out has engaged in more than one discriminatory this responsibility. Judiciary Report at 67. act are to be counted as a single violation. A Many commenters argued for inclusion of ‘‘second violation’’ would not accrue to that more specific provisions for administrative entity until the Attorney General brought resolution of disputes arising under the Act another suit against the entity and the enti- and this part in order to promote voluntary ty was again held in violation. Again, all of compliance and avoid the need for litigation. the violations found in the second suit would Administrative resolution is far more effi- be cumulatively considered as a ‘‘subsequent cient and economical than litigation, par- violation.’’ ticularly in the early stages of implementa- tion of complex legislation when the specific Section 36.504(c) clarifies that the terms requirements of the statute are not widely ‘‘monetary damages’’ and ‘‘other relief’’ do understood. The Department has added a not include punitive damages. They do in- new paragraph (c) to this section authorizing clude, however, all forms of compensatory the Attorney General to initiate a compli- damages, including out-of-pocket expenses ance review where he or she has reason to be- and damages for pain and suffering. lieve there may be a violation of this rule. Section 36.504(a)(3) is based on section Section 36.503 describes the procedures for 308(b)(2)(C) of the Act, which provides that, suits by the Attorney General set out in sec- ‘‘to vindicate the public interest,’’ a court tion 308(b)(1)(B) of the Act. If the Depart- may assess a civil penalty against the entity ment has reasonable cause to believe that that has been found to be in violation of the any person or group of persons is engaged in Act in suits brought by the Attorney Gen- a pattern or practice of resistance to the full eral. In addition, § 36.504(d), which is taken enjoyment of any of the rights granted by from section 308(b)(5) of the Act, further pro- title III or that any person or group of per- vides that, in considering what amount of sons has been denied any of the rights grant- civil penalty, if any, is appropriate, the ed by title III and such denial raises an issue court shall give consideration to ‘‘any good of general public importance, the Attorney faith effort or attempt to comply with this General may commence a civil action in any part.’’ In evaluating such good faith, the appropriate United States district court. The court shall consider ‘‘among other factors it proposed rule provided for suit by the Attor- deems relevant, whether the entity could ney General ‘‘or his or her designee.’’ The have reasonably anticipated the need for an reference to a ‘‘designee’’ has been omitted appropriate type of auxiliary aid needed to in the final rule because it is unnecessary. accommodate the unique needs of a par- The Attorney General has delegated enforce- ticular individual with a disability.’’ ment authority under the ADA to the Assist- The ‘‘good faith’’ standard referred to in ant Attorney General for Civil Rights. 55 FR this section is not intended to imply a will- 40653 (October 4, 1990) (to be codified at 28 ful or intentional standard—that is, an enti- CFR 0.50(l).) ty cannot demonstrate good faith simply by Section 36.504 describes the relief that may showing that it did not willfully, inten- be granted in a suit by the Attorney General tionally, or recklessly disregard the law. At under section 308(b)(2) of the Act. In such an the same time, the absence of such a course action, the court may grant any equitable of conduct would be a factor a court should relief it considers to be appropriate, includ- weigh in determining the existence of good ing granting temporary, preliminary, or per- faith.

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

Section 36.505 states that courts are au- ceedings, this certification will constitute thorized to award attorneys fees, including rebuttable evidence that the law or code litigation expenses and costs, as provided in meets or exceeds the ADA’s requirements. section 505 of the Act. Litigation expenses Three significant changes, further ex- include items such as expert witness fees, plained below, were made from the proposed travel expenses, etc. The Judiciary Com- subpart, in response to comments. First, the mittee Report specifies that such items are State or local jurisdiction is required to hold included under the rubric of ‘‘attorneys fees’’ a public hearing on its proposed request for and not ‘‘costs’’ so that such expenses will be certification and to submit to the Depart- assessed against a plaintiff only under the ment, as part of the information and mate- standard set forth in Christiansburg Garment rials in support of a request for certification, Co. v. Equal Employment Opportunity Commis- a transcript of the hearing. Second, the time sion, 434 U.S. 412 (1978). (Judiciary report at allowed for interested persons and organiza- 73.) tions to comment on the request filed with Section 36.506 restates section 513 of the the Department (§ 36.605(a)(1)) has been Act, which encourages use of alternative changed from 30 to 60 days. Finally, a new means of dispute resolution. Section 36.507 § 36.608, Guidance concerning model codes, explains that, as provided in section 506(e) of has been added. the Act, a public accommodation or other Section 36.601 establishes the definitions to private entity is not excused from compli- be used for purposes of this subpart. Two of ance with the requirements of this part be- the definitions have been modified, and a cause of any failure to receive technical as- definition of ‘‘model code’’ has been added. sistance. First, in response to a comment, a reference to a code ‘‘or part thereof’’ has been added to Section 36.305 Effective Date the definition of ‘‘code.’’ The purpose of this In general, title III is effective 18 months addition is to clarify that an entire code after enactment of the Americans with Dis- need not be submitted if only part of it is abilities Act, i.e., January 26, 1992. However, relevant to accessibility, or if the jurisdic- there are several exceptions to this general tion seeks certification of only some of the rule contained throughout title III. Section portions that concern accessibility. The De- 36.508 sets forth all of these exceptions in one partment does not intend to encourage place. ‘‘piecemeal’’ requests for certification by a Paragraph (b) contains the rule on civil ac- single jurisdiction. In fact, the Department tions. It states that, except with respect to expects that in some cases, rather than cer- new construction and alterations, no civil tifying portions of a particular code and re- action shall be brought for a violation of this fusing to certify others, it may notify a sub- part that occurs before July 26, 1992, against mitting jurisdiction of deficiencies and en- businesses with 25 or fewer employees and courage a reapplication that cures those de- gross receipts of $1,000,000 or less; and before ficiencies, so that the entire code can be cer- January 26, 1993, against businesses with 10 tified eventually. Second, the definition of or fewer employees and gross receipts of ‘‘submitting official’’ has been modified. The $500,000 or less. In determining what con- proposed rule defined the submitting official stitutes gross receipts, it is appropriate to to be the State or local official who has prin- exclude amounts collected for sales taxes. cipal responsibility for administration of a Paragraph (c) concerns transportation code. Commenters pointed out that in some services provided by public accommodations cases more than one code within the same not primarily engaged in the business of jurisdiction is relevant for purposes of cer- transporting people. The 18-month effective tification. It was also suggested that the De- date applies to all of the transportation pro- partment allow a State to submit a single visions except those requiring newly pur- application on behalf of the State, as well as chased or leased vehicles to be accessible. on behalf of any local jurisdictions required Vehicles subject to that requirement must to follow the State accessibility require- be accessible to and usable by individuals ments. Consistent with these comments, the with disabilities if the solicitation for the Department has added to the definition lan- vehicle is made on or after August 26, 1990. guage clarifying that the official can be one authorized to submit a code on behalf of a ju- Subpart F—Certification of State Labs or Local risdiction. Building Codes A definition of ‘‘model code’’ has been Subpart F establishes procedures to imple- added in light of new § 36.608. ment section 308(b)(1)(A)(ii) of the Act, Most commenters generally approved of which provides that, on the application of a the proposed certification process. Some ap- State or local government, the Attorney proved of what they saw as the Department’s General may certify that a State law or local attempt to bring State and local codes into building code or similar ordinance meets or alignment with the ADA. A State agency exceeds the minimum accessibility require- said that this section will be the backbone of ments of the Act. In enforcement pro- the intergovernmental cooperation essential

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258 - 1991 Section-by-Section Analysis Department of Justice 28 CFR Part 36

Department of Justice Pt. 36, App. B

if the accessibility provisions of the ADA are for alternative methods providing equivalent to be effective. facilitation and, in some cases, provide ex- Some comments disapproved of the pro- amples. (See, e.g., section 4.31.9, Text Tele- posed process as timeconsuming and labo- phones; section 7.2(2) (iii), Sales and Service rious for the Department, although some of Counters.) Section 4.1.6 includes less strin- these comments pointed out that, if the At- gent requirements that are permitted in al- torney General certified model codes on terations, in certain circumstances. which State and local codes are based, many However, in an attempt to ensure that it perceived problems would be alleviated. does not certify a code that in practice has (This point is further addressed by new been or will be applied in a manner that de- § 36.608.) feats its equivalency with the ADA, the De- Many of the comments received from busi- partment will require that the submitting ness organizations, as well as those from official include, with the application for cer- some individuals and disability rights tification, any relevant manuals, guides, or groups, addressed the relationship of the any other interpretive information issued ADA requirements and their enforcement, to that pertain to the code. (§ 36.603(c)(1).) The existing State and local codes and code en- requirement that this information be pro- forcement systems. These commenters urged vided is in addition to the NPRM’s require- the Department to use existing code-making ment that the official provide any pertinent bodies for interpretations of the ADA, and to formal opinions of the State Attorney Gen- actively participate in the integration of the eral or the chief legal officer of the jurisdic- ADA into the text of the national model tion. codes that are adopted by State and local en- The first step in the certification process is forcement agencies. These issues are dis- a request for certification, filed by a ‘‘sub- cussed in preamble section 36.406 under Gen- mitting official’’ (§ 36.603). The Department eral comments. will not accept requests for certification Many commenters urged the Department until after January 26, 1992, the effective to evaluate or certify the entire code en- date of this part. The Department received forcement system (including any process for numerous comments from individuals and hearing appeals from builders of denials by organizations representing a variety of inter- the building code official of requests for ests, urging that the hearing required to be variances, waivers, or modifications). Some held by the Assistant Attorney General in urged that certification not be allowed in ju- Washington, DC, after a preliminary deter- risdictions where waivers can be granted, un- mination of equivalency (§ 36.605(a)(2)), be less there is a clearly identified decision- held within the State or locality requesting making process, with written rulings and no- certification, in order to facilitate greater tice to affected parties of any waiver or participation by all interested parties. While modification request. One commenter urged the Department has not modified the re- establishment of a dispute resolution mecha- quirement that it hold a hearing in Wash- nism, providing for interpretation (usually ington, it has added a new subparagraph through a building official) and an adminis- 36.603(b)(3) requiring a hearing within the trative appeals mechanism (generally called State or locality before a request for certifi- Boards of Appeal, Boards of Construction Ap- cation is filed. The hearing must be held peals, or Boards of Review), before certifi- after adequate notice to the public and must cation could be granted. be on the record; a transcript must be pro- The Department thoroughly considered vided with the request for certification. This these proposals but has declined to provide procedure will insure input from the public for certification of processes of enforcement at the State or local level and will also in- or administration of State and local codes. sure a Washington, DC, hearing as men- The statute clearly authorizes the Depart- tioned in the legislative history. ment to certify the codes themselves for The request for certification, along with equivalency with the statute; it would be ill- supporting documents (§ 36.603(c)), must be advised for the Department at this point to filed in duplicate with the office of the As- inquire beyond the face of the code and writ- sistant Attorney General for Civil Rights. ten interpretations of it. It would be inap- The Assistant Attorney General may request propriate to require those jurisdictions that further information. The request and sup- grant waivers or modifications to establish porting materials will be available for public certain procedures before they can apply for examination at the office of the Assistant certification, or to insist that no deviations Attorney General and at the office of the can be permitted. In fact, the Department State or local agency charged with adminis- expects that many jurisdictions will allow tration and enforcement of the code. The slight variations from a particular code, con- submitting official must publish public no- sistent with ADAAG itself. ADAAG includes tice of the request for certification. in § 2.2 a statement allowing departures from Next, under § 36.604, the Assistant Attorney particular requirements where substantially General’s office will consult with the ATBCB equivalent or greater access and usability is and make a preliminary determination to ei- provided. Several sections specifically allow ther (1) find that the code is equivalent

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Pt. 36, App. B 28 CFR Ch. I (7–1–10 Edition)

(make a ‘‘preliminary determination of mitting official will need to reapply for cer- equivalency’’) or (2) deny certification. The tification of the changed or additional provi- next step depends on which of these prelimi- sions. nary determinations is made. Certification will not be effective in those If the preliminary determination is to find situations where a State or local building equivalency, the Assistant Attorney Gen- code official allows a facility to be con- eral, under § 36.605, will inform the submit- structed or altered in a manner that does not ting official in writing of the preliminary de- follow the technical or scoping provisions of termination and publish a notice in the FED- the certified code. Thus, if an official either ERAL REGISTER informing the public of the waives an accessible element or feature or preliminary determination and inviting com- allows a change that does not provide equiv- ment for 60 days. (This time period has been alent facilitation, the fact that the Depart- increased from 30 days in light of public com- ment has certified the code itself will not ment pointing out the need for more time stand as evidence that the facility has been within which to evaluate the code.) After constructed or altered in accordance with considering the information received in re- the minimum accessibility requirements of sponse to the comments, the Department the ADA. The Department’s certification of will hold a hearing in Washington. This hear- a code is effective only with respect to the ing will not be subject to the formal require- standards in the code; it is not to be inter- ments of the Administrative Procedure Act. preted to apply to a State or local govern- In fact, this requirement could be satisfied ment’s application of the code. The fact that by a meeting with interested parties. After the Department has certified a code with the hearing, the Assistant Attorney Gen- provisions concerning waivers, variances, or eral’s office will consult again with the equivalent facilitation shall not be inter- ATBCB and make a final determination of preted as an endorsement of actions taken equivalency or a final determination to deny pursuant to those provisions. the request for certification, with a notice of The final rule includes a new § 36.608 con- the determination published in the FEDERAL cerning model codes. It was drafted in re- REGISTER. sponse to concerns raised by numerous com- 1If the preliminary determination is to menters, many of which have been discussed deny certification, there will be no hearing under General comments (§ 36.406). It is in- (§ 36.606). The Department will notify the tended to assist in alleviating the difficulties submitting official of the preliminary deter- posed by attempting to certify possibly tens mination, and may specify how the code of thousands of codes. It is included in rec- could be modified in order to receive a pre- ognition of the fact that many codes are liminary determination of equivalency. The based on, or incorporate, model or consensus Department will allow at least 15 days for standards developed by nationally recog- the submitting official to submit relevant nized organizations (e.g., the American Na- material in opposition to the preliminary de- tional Standards Institute (ANSI); Building nial. If none is received, no further action Officials and Code Administrators (BOCA) will be taken. If more information is re- International; Council of American Building ceived, the Department will consider it and Officials (CABO) and its Board for the Co- make either a final decision to deny certifi- ordination of Model Codes (BCMC); Southern cation or a preliminary determination of Building Code Congress International equivalency. If at that stage the Assistant (SBCCI)). While the Department will not cer- Attorney General makes a preliminary de- tify or ‘‘precertify’’ model codes, as urged by termination of equivalency, the hearing pro- some commenters, it does wish to encourage cedures set out in § 36.605 will be followed. the continued viability of the consensus and Section 36.607 addresses the effect of cer- model code process consistent with the pur- tification. First, certification will only be ef- poses of the ADA. fective concerning those features or ele- The new section therefore allows an au- ments that are both (1) covered by the cer- thorized representative of a private entity tified code and (2) addressed by the regula- responsible for developing a model code to tions against which they are being certified. apply to the Assistant Attorney General for For example, if children’s facilities are not review of the code. The review process will addressed by the Department’s standards, be informal and will not be subject to the and the building in question is a private ele- procedures of §§ 36.602 through 36.607. The re- mentary school, certification will not be ef- sult of the review will take the form of guid- fective for those features of the building to ance from the Assistant Attorney General as be used by children. And if the Department’s to whether and in what respects the model regulations addressed equipment but the code is consistent with the ADA’s require- local code did not, a building’s equipment ments. The guidance will not be binding on would not be covered by the certification. any entity or on the Department; it will as- In addition, certification will be effective sist in evaluations of individual State or only for the particular edition of the code local codes and may serve as a basis for es- that is certified. Amendments will not auto- tablishing priorities for consideration of in- matically be considered certified, and a sub- dividual codes. The Department anticipates

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Department of Justice § 37.2

that this approach will foster further co- (1) That fall within the overlapping operation among various government levels, jurisdiction of titles I and II (but are the private entities developing standards, not covered by section 504); and and individuals with disabilities. (2) That are covered by title II, but not title I (whether or not they are PART 37—PROCEDURES FOR CO- also covered by section 504). ORDINATING THE INVESTIGATION (c) This part also describes the proce- OF COMPLAINTS OR CHARGES dures to be followed when a complaint OF EMPLOYMENT DISCRIMINA- or charge arising solely under section TION BASED ON DISABILITY SUB- 504 or title I is filed with a section 504 JECT TO THE AMERICANS WITH agency or the EEOC. DISABILITIES ACT AND SECTION (d) This part does not apply to com- 504 OF THE REHABILITATION ACT plaints or charges against Federal con- tractors under section 503 of the Reha- OF 1973 bilitation Act. (e) This part does not create rights in Sec. any person or confer agency jurisdic- 37.1 Purpose and application. tion not created or conferred by the 37.2 Definitions. ADA or section 504 over any complaint 37.3 Exchange of information. or charge. 37.4 Confidentiality. 37.5 Date of receipt. § 37.2 Definitions. 37.6 Processing of complaints of employ- ment discrimination filed with an agency As used in this part, the term: other than the EEOC. Americans with Disabilities Act of 1990 37.7 Processing of charges of employment or ADA means the Americans with Dis- discrimination filed with the EEOC. abilities Act of 1990 (Pub. L. 101–336, 104 37.8 Processing of complaints or charges of Stat. 327, 42 U.S.C. 12101–12213 and 47 employment discrimination filed with U.S.C. 225 and 611). both the EEOC and a section 504 agency. 37.9 Processing of complaints or charges of Assistant Attorney General refers to employment discrimination filed with a the Assistant Attorney General, Civil designated agency and either a section Rights Division, United States Depart- 504 agency, the EEOC, or both. ment of Justice, or his or her designee. 37.10 Section 504 agency review of deferred Chairman of the Equal Employment Op- complaints. portunity Commission refers to the 37.11 EEOC review of deferred charges. Chairman of the United States Equal 37.12 Standards. Employment Opportunity Commission, 37.13 Agency specific memoranda of under- or his or her designee. standing. Civil Rights Division means the Civil AUTHORITY: 5 U.S.C. 301; 28 U.S.C. 509, 510; Rights Division of the United States 29 U.S.C. 794 (d); 42 U.S.C. 12117(b); 28 CFR Department of Justice. 0.50(l). Designated agency means any one of SOURCE: Order No. 1899–94, 59 FR 39904, the eight agencies designated under 39908, Aug. 4, 1994, unless otherwise noted. § 35.190 of 28 CFR part 35 (the Depart- ment’s title II regulation) to imple- § 37.1 Purpose and application. ment and enforce title II of the ADA (a) This part establishes the proce- with respect to the functional areas dures to be followed by the Federal within their jurisdiction. agencies responsible for processing and Dual-filed complaint or charge means a resolving complaints or charges of em- complaint or charge of employment ployment discrimination filed against discrimination that: recipients of Federal financial assist- (1) Arises under both section 504 and ance when jurisdiction exists under title I; both section 504 and title I. (2) Has been filed with both a section (b) This part also repeats the provi- 504 agency that has jurisdiction under sions established by 28 CFR 35.171 for section 504 and with the EEOC, which determining which Federal agency has jurisdiction under title I; and shall process and resolve complaints or (3) Alleges the same facts and raises charges of employment discrimination: the same issues in both filings.

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