[nfbmi-talk] and our 23 year old civil rights under the ADA

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Nondiscrimination on the Basis of Disability in State and Local Government

 

DEPARTMENT OF JUSTICE

 

Office of the Attorney General

 

28 CFR PART 35

 

[Order No. ]

 

Nondiscrimination on the Basis of Disability in State and Local Government Services

 

AGENCY: Department of Justice.

 

ACTION: Final rule.

 

SUMMARY: This rule implements subtitle A of title II of the Americans with Disabilities Act, Pub. L. 101-336, which prohibits discrimination on the basis

of disability by public entities. Subtitle A protects qualified individuals with disabilities from discrimination on the basis of disability in the services,

programs, or activities of all State and local governments. It extends the prohibition of discrimination in federally assisted programs established by

section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance,

and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act. This

rule, therefore, adopts the general prohibitions of discrimination established under section 504, as well as the requirements for making programs accessible

to individuals with disabilities and for providing equally effective communications. It also sets forth standards for what constitutes discrimination on

the basis of mental or physical disability, provides a definition of disability and qualified individual with a disability, and establishes a complaint

mechanism for resolving allegations of discrimination.

 

EFFECTIVE DATE: January 26, 1992.

 

FOR FURTHER INFORMATION CONTACT:

 

Barbara S. Drake, Deputy Assistant Attorney General, Civil Rights Division; Stewart B. Oneglia, Chief, Coordination and Review Section, Civil Rights Division;

John L. Wodatch, Director, Office on the Americans with Disabilities Act, Civil Rights Division; all of the U.S. Department of Justice, Washington, D.C.

20530. These individuals may be contacted through the Division's ADA Information Line at (202) 514-0301 (Voice), (202) 514-0381 (TDD), or (202) 514- 0383

(TDD). These telephone numbers are not toll-free numbers.

 

SUPPLEMENTARY INFORMATION:

 

Background.

 

The landmark Americans with Disabilities Act ("ADA" or "the Act"), enacted on July 26, 1990, provides comprehensive civil rights protections to individuals

with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications.

 

This regulation implements subtitle A of title II of the ADA, which applies to State and local governments. Most programs and activities of State and local

governments are recipients of Federal financial assistance from one or more Federal funding agencies and, therefore, are already covered by section 504

of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) ("section 504"), which prohibits discrimination on the basis of handicap in federally assisted

programs and activities. Because title II of the ADA essentially extends the nondiscrimination mandate of section 504 to those State and local governments

that do not receive Federal financial assistance, this rule hews closely to the provisions of existing section 504 regulations. This approach is also based

on section 204 of the ADA, which provides that the regulations issued by the Attorney General to implement title II shall be consistent with the ADA and

with the Department of Health, Education, and Welfare's coordination regulation, now codified at 28 CFR Part 41, and, with respect to "program accessibility,

existing facilities," and "communications," with the Department of Justice's regulation for its federally conducted programs and activities, codified at

28 CFR Part 39.

 

The first regulation implementing section 504 was issued in 1977 by the Department of Health, Education, and Welfare (HEW) for the programs and activities

to which it provided Federal financial assistance. The following year, pursuant to Executive Order 11914, HEW issued its coordination regulation for federally

assisted programs, which served as the model for regulations issued by the other Federal agencies that administer grant programs. HEW's coordination authority,

and the coordination regulation issued under that authority, were transferred to the Department of Justice by Executive Order 12250 in 1980.

 

In 1978, Congress extended application of section 504 to programs and activities conducted by Federal Executive agencies and the United States Postal Service.

Pursuant to Executive Order 12250, the Department of Justice developed a prototype regulation to implement the 1978 amendment for federally conducted programs

and activities. More than 80 Federal agencies have now issued final regulations based on that prototype, prohibiting discrimination based on handicap in

the programs and activities they conduct.

 

Despite the large number of regulations implementing section 504 for federally assisted and federally conducted programs and activities, there is very little

variation in their substantive requirements, or even in their language. Major portions of this regulation, therefore, are taken directly from the existing

regulations.

 

In addition, section 204(b) of the ADA requires that the Department's regulation implementing subtitle A of title II be consistent with the ADA. Thus, the

Department's final regulation includes provisions and concepts from titles I and III of the ADA.

 

Rulemaking History.

 

On February 22, 1991, the Department of Justice published a notice of proposed rulemaking (NPRM) implementing title III of the ADA in the Federal Register.

56 FR 7452. On February 28, 1991, the Department published a notice of proposed rulemaking implementing subtitle A of title II of the ADA in the Federal

Register. 56 FR 8538. Each NPRM solicited comments on the definitions, standards, and procedures of the proposed rules. By the April 29, 1991, close of

the comment period of the NPRM for title II, the Department had received 2,718 comments. Following the close of the comment period, the Department received

an additional 222 comments.

 

In order to encourage public participation in the development of the Department's rules under the ADA, the Department held four public hearings. Hearings

were held in Dallas, Texas on March 4-5, 1991, in Washington, D.C. on March 13-15, 1991, in San Francisco, California on March 18-19, 1991, and in Chicago,

Illinois on March 27-28, 1991. At these hearings, 329 persons testified and l,567 pages of testimony were compiled. Transcripts of the hearings were included

in the Department's rulemaking docket.

 

The comments that the Department received occupy almost six feet of shelf space and contain over 10,000 pages. The Department received comments from individuals

from all fifty States and the District of Columbia. Nearly 75% of the comments that the Department received came from individuals and from organizations

representing the interests of persons with disabilities. The Department received 292 comments from entities covered by the ADA and trade associations representing

businesses in the private sector, and 67 from government units, such as mayors' offices, public school districts, and various State agencies working with

individuals with disabilities.

 

The Department received one comment from a consortium of 540 organizations representing a broad spectrum of persons with disabilities. In addition, at least

another 25 commenters endorsed the position expressed by this consortium, or submitted identical comments on one or both proposed regulations.

 

An organization representing persons with hearing impairments submitted a large number of comments. This organization presented the Department with 479

individual comments, each providing in chart form a detailed representation of what type of auxiliary aid or service would be useful in the various categories

of places of public accommodation.

 

The Department received a number of comments based on almost ten different form letters. For example, individuals who have a heightened sensitivity to a

variety of chemical substances submitted 266 post cards detailing how exposure to various environmental conditions restricts their access to public and

commercial buildings. Another large group of form letters came from groups affiliated with independent living centers.

 

The vast majority of the comments addressed the Department's proposal implementing title III. Slightly more than 100 comments addressed only issues presented

in the proposed title II regulation.

 

The Department read and analyzed each comment that was submitted in a timely fashion. Transcripts of the four hearings were analyzed along with the written

comments. The decisions that the Department has made in response to these comments, however, were not made on the basis of the number of commenters addressing

any one point but on a thorough consideration of the merits of the points of view expressed in the comments. Copies of the written comments, including

transcripts of the four hearings, will remain available for public inspection in Room 854 of the HOLC Building, 320 First Street, N.W., Washington, D.C.

from 10:00 a.m. to 5:00 p.m., Monday through Friday, except for legal holidays, until August 30, 1991.

 

Overview of the Rule.

 

The rule is organized into seven subparts. Subpart A, "General," includes the purpose and application sections, describes the relationship of the Act to

other laws, and defines key terms used in the regulation. It also includes administrative requirements adapted from section 504 regulations for self- evaluations,

notices, designation of responsible employees, and adoption of grievance procedures by public entities.

 

Subpart B, "General Requirements," contains the general prohibitions of discrimination based on the Act and the section 504 regulations. It also contains

certain "miscellaneous" provisions derived from title V of the Act that involve issues such as retaliation and coercion against those asserting ADA rights,

illegal use of drugs, and restrictions on smoking. These provisions are also included in the Department's proposed title III regulation, as is the general

provision on maintenance of accessible features.

 

Subpart C addresses employment by public entities, which is also covered by title I of the Act. Subpart D, which is also based on the section 504 regulations,

sets out the requirements for program accessibility in existing facilities and for new construction and alterations. Subpart E contains specific requirements

relating to communications.

 

Subpart F establishes administrative procedures for enforcement of title II. As provided by section 203 of the Act, these are based on the procedures for

enforcement of section 504, which, in turn, are based on the enforcement procedures for title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a).

Subpart F also restates the provisions of title V of the ADA on attorneys fees, alternative means of dispute resolution, the effect of unavailability of

technical assistance, and State immunity.

 

Subpart G designates the Federal agencies responsible for investigation of complaints under this part. It assigns enforcement responsibility for particular

public entities, on the basis of their major functions, to eight Federal agencies that currently have substantial responsibilities for enforcing section

504. It provides that the Department of Justice would have enforcement responsibility for all State and local government entities not specifically assigned

to other designated agencies, but that the Department may further assign specific functions to other agencies. The part would not, however, displace the

existing enforcement authorities of the Federal funding agencies under section 504.

 

Regulatory Process Matters.

 

This final rule has been reviewed by the Office of Management and Budget under Executive Order 12291. The Department is preparing a final regulatory impact

analysis (RIA) of this rule and the Architectural and Transportation Barriers Compliance Board is preparing an RIA for its Americans with Disabilities

Act Accessibility Guidelines for Buildings and Facilities (ADAAG) that are incorporated in Appendix A of the Department's final rule implementing title

III of the ADA. Draft copies of both preliminary RIAs are available for comment; the Department will provide copies of these documents to the public upon

request. Commenters are urged to provide additional information as to the costs and benefits associated with this rule. This will facilitate the development

of a final RIA by January 1, 1992.

 

The Department's RIA will evaluate the economic impact of the final rule. Included among those title II provisions that are likely to result in significant

economic impact are the requirements for auxiliary aids, barrier removal in existing facilities, and readily accessible new construction and alterations.

An analysis of these costs will be included in the RIA.

 

The Preliminary RIA prepared for the notice of proposed rulemaking contained all of the available information that would have been included in a preliminary

regulatory flexibility analysis, had one been prepared under the Regulatory Flexibility Act, concerning the rule's impact on small entities. The final

RIA will contain all of the information that is required in a final regulatory flexibility analysis and will serve as such an analysis. Moreover, the extensive

notice and comment procedure followed by the Department in the promulgation of this rule, which included public hearings, dissemination of materials, and

provision of speakers to affected groups, clearly provided any interested small entities with the notice and opportunity for comment provided for under

the Regulatory Flexibility Act procedures.

 

The Department is preparing a statement of the federalism impact of the rule under Executive Order 12612 and will provide copies of this statement on request.

 

The reporting and recordkeeping requirements described in the rule are considered to be information collection requirements as that term is defined by the

Office of Management and Budget in 5 CFR Part 1320. Accordingly, those information collection requirements have been submitted to OMB for review pursuant

to the Paperwork Reduction Act.

 

SECTION-BY-SECTION ANALYSIS:

 

Subpart A -- General

 

{35.101 Purpose.

 

Section 35.101 states the purpose of the rule, which is to effectuate subtitle A of title II of the Americans with Disabilities Act of 1990 (the Act), which

prohibits discrimination on the basis of disability by public entities. This part does not, however, apply to matters within the scope of the authority

of the Secretary of Transportation under subtitle B of title II of the Act.

 

{35.102 Application.

 

This provision specifies that, except as provided in paragraph (b), the regulation applies to all services, programs, and activities provided or made available

by public entities, as that term is defined in {35.104. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), which prohibits discrimination on

the basis of handicap in federally assisted programs and activities, already covers those programs and activities of public entities that receive Federal

financial assistance. Title II of the ADA extends this prohibition of discrimination to include all services, programs, and activities provided or made

available by State and local governments or any of their instrumentalities or agencies, regardless of the receipt of Federal financial assistance. Except

as provided in {35.134, this part does not apply to private entities.

 

The scope of title II's coverage of public entities is comparable to the coverage of Federal Executive agencies under the 1978 amendment to section 504,

which extended section 504's application to all programs and activities "conducted by" Federal Executive agencies, in that title II applies to anything

a public entity does. Title II coverage, however, is not limited to "Executive" agencies, but includes activities of the legislative and judicial branches

of State and local governments. All governmental activities of public entities are covered, even if they are carried out by contractors. For example, a

State is obligated by title II to ensure that the services, programs, and activities of a State park inn operated under contract by a private entity are

in compliance with title II's requirements. The private entity operating the inn would also be subject to the obligations of public accommodations under

title III of the Act and the Department's title III regulations at 28 CFR Part 36.

 

Aside from employment, which is also covered by title I of the Act, there are two major categories of programs or activities covered by this regulation:

those involving general public contact as part of ongoing operations of the entity and those directly administered by the entities for program beneficiaries

and participants. Activities in the first category include communication with the public (telephone contacts, office walk-ins, or interviews) and the public's

use of the entity's facilities. Activities in the second category include programs that provide State or local government services or benefits.

 

Paragraph (b) of {35.102 explains that to the extent that the public transportation services, programs, and activities of public entities are covered by

subtitle B of title II of the Act, they are subject to the regulation of the Department of Transportation (DOT) at 49 CFR Part 37, and are not covered

by this part. The Department of Transportation's ADA regulation establishes specific requirements for construction of transportation facilities and acquisition

of vehicles. Matters not covered by subtitle B, such as the provision of auxiliary aids, are covered by this rule. For example, activities that are covered

by the Department of Transportation's regulation implementing subtitle B are not required to be included in the self-evaluation required by {35.105. In

addition, activities not specifically addressed by DOT's ADA regulation may be covered by DOT's regulation implementing section 504 for its federally assisted

programs and activities at 49 CFR Part 27. Like other programs of public entities that are also recipients of Federal financial assistance, those programs

would be covered by both the section 504 regulation and this part. Although airports operated by public entities are not subject to DOT's ADA regulation,

they are subject to subpart A of title II and to this rule.

 

Some commenters asked for clarification about the responsibilities of public school systems under section 504 and the ADA with respect to programs, services,

and activities that are not covered by the Individuals with Disabilities Education Act (IDEA), including, for example, programs open to parents or to the

public, graduation ceremonies, parent-teacher organization meetings, plays and other events open to the public, and adult education classes. Public school

systems must comply with the ADA in all of their services, programs, or activities, including those that are open to parents or to the public. For instance,

public school systems must provide program accessibility to parents and guardians with disabilities to these programs, activities, or services, and appropriate

auxiliary aids and services whenever necessary to ensure effective communication, as long as the provision of the auxiliary aids results neither in an

undue burden or in a fundamental alteration of the program.

 

{35.103 Relationship to other laws.

 

Section 35.103 is derived from sections 501(a) and (b) of the ADA. Paragraph (a) of this section provides that, except as otherwise specifically provided

by this part, title II of the ADA is not intended to apply lesser standards than are required under title V of the Rehabilitation Act of 1973, as amended

(29 U.S.C. 790-94), or the regulations implementing that title. The standards of title V of the Rehabilitation Act apply for purposes of the ADA to the

extent that the ADA has not explicitly adopted a different standard than title V. Because title II of the ADA essentially extends the antidiscrimination

prohibition embodied in section 504 to all actions of State and local governments, the standards adopted in this part are generally the same as those required

under section 504 for federally assisted programs. Title II, however, also incorporates those provisions of titles I and III of the ADA that are not inconsistent

with the regulations implementing section 504. Judiciary Committee report, H.R. Rep. No. 485, 101st Cong., 2d Sess., pt.3, at 51 (1990) [hereinafter "Judiciary

report"]; Education and Labor Committee report, H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990) [hereinafter "Education and Labor report"].

Therefore, this part also includes appropriate provisions derived from the regulations implementing those titles. The inclusion of specific language in

this part, however, should not be interpreted as an indication that a requirement is not included under a regulation implementing section 504.

 

Paragraph (b) makes clear that Congress did not intend to displace any of the rights or remedies provided by other Federal laws (including section 504)

or other State laws (including State common law) that provide greater or equal protection to individuals with disabilities. As discussed above, the standards

adopted by title II of the ADA for State and local government services are generally the same as those required under section 504 for federally assisted

programs and activities. Subpart F of the regulation establishes compliance procedures for processing complaints covered by both this part and section

504.

 

With respect to State law, a plaintiff may choose to pursue claims under a State law that does not confer greater substantive rights, or even confers fewer

substantive rights, if the alleged violation is protected under the alternative law and the remedies are greater. For example, a person with a physical

disability could seek damages under a State law that allows compensatory and punitive damages for discrimination on the basis of physical disability, but

not on the basis of mental disability. In that situation, the State law would provide narrower coverage, by excluding mental disabilities, but broader

remedies, and an individual covered by both laws could choose to bring an action under both laws. Moreover, State tort claims confer greater remedies and

are not preempted by the ADA. A plaintiff may join a State tort claim to a case brought under the ADA. In such a case, the plaintiff must, of course, prove

all the elements of the State tort claim in order to prevail under that cause of action.

 

{35.104 Definitions.

 

"Act." The word "Act" is used in this part to refer to the Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also referred to as the "ADA."

 

"Assistant Attorney General." The term "Assistant Attorney General" refers to the Assistant Attorney General of the Civil Rights Division of the Department

of Justice.

 

"Auxiliary aids and services." Auxiliary aids and services include a wide range of services and devices for ensuring effective communication. The proposed

definition in {35.104 provided a list of examples of auxiliary aids and services that was taken from the definition of auxiliary aids and services in section

3(1) of the ADA and was supplemented by examples from regulations implementing section 504 in federally conducted programs (see 28 CFR 39.103).

 

A substantial number of commenters suggested that additional examples be added to this list. The Department has added several items to this list but wishes

to clarify that the list is not an all-inclusive or exhaustive catalogue of possible or available auxiliary aids or services. It is not possible to provide

an exhaustive list, and an attempt to do so would omit the new devices that will become available with emerging technology.

 

Subparagraph (1) lists several examples, which would be considered auxiliary aids and services to make aurally delivered materials available to individuals

with hearing impairments. The Department has changed the phrase used in the proposed rules, "orally delivered materials," to the statutory phrase, "aurally

delivered materials," to track section 3 of the ADA and to include non-verbal sounds and alarms, and computer generated speech.

 

The Department has added videotext displays, transcription services, and closed and open captioning to the list of examples. Videotext displays have become

an important means of accessing auditory communications through a public address system. Transcription services are used to relay aurally delivered material

almost simultaneously in written form to persons who are deaf or hearing-impaired. This technology is often used at conferences, conventions, and hearings.

While the proposed rule expressly included television decoder equipment as an auxiliary aid or service, it did not mention captioning itself. The final

rule rectifies this omission by mentioning both closed and open captioning.

 

Several persons and organizations requested that the Department replace the term "telecommunications devices for deaf persons" or "TDD's" with the term

"text telephone." The Department has declined to do so. The Department is aware that the Architectural and Transportation Barriers Compliance Board (ATBCB)

has used the phrase "text telephone" in lieu of the statutory term "TDD" in its final accessibility guidelines. Title IV of the ADA, however, uses the

term "Telecommunications Device for the Deaf" and the Department believes it would be inappropriate to abandon this statutory term at this time.

 

Several commenters urged the Department to include in the definition of "auxiliary aids and services" devices that are now available or that may become

available with emerging technology. The Department declines to do so in the rule. The Department, however, emphasizes that, although the definition would

include "state of the art" devices, public entities are not required to use the newest or most advanced technologies as long as the auxiliary aid or service

that is selected affords effective communication.

 

Subparagraph (2) lists examples of aids and services for making visually delivered materials accessible to persons with visual impairments. Many commenters

proposed additional examples, such as signage or mapping, audio description services, secondary auditory programs, telebraillers, and reading machines.

While the Department declines to add these items to the list, they are auxiliary aids and services and may be appropriate depending on the circumstances.

 

Subparagraph (3) refers to acquisition or modification of equipment or devices. Several commenters suggested the addition of current technological innovations

in microelectronics and computerized control systems (e.g., voice recognition systems, automatic dialing telephones, and infrared elevator and light control

systems) to the list of auxiliary aids. The Department interprets auxiliary aids and services as those aids and services designed to provide effective

communications, i.e., making aurally and visually delivered information available to persons with hearing, speech, and vision impairments. Methods of making

services, programs, or activities accessible to, or usable by, individuals with mobility or manual dexterity impairments are addressed by other sections

of this part, including the provision for modifications in policies, practices, or procedures ({35.130(b)(7)).

 

Paragraph (b)(4) deals with other similar services and actions. Several commenters asked for clarification that "similar services and actions" include retrieving

items from shelves, assistance in reaching a marginally accessible seat, pushing a barrier aside in order to provide an accessible route, or assistance

in removing a sweater or coat. While retrieving an item from a shelf might be an "auxiliary aid or service" for a blind person who could not locate the

item without assistance, it might be a method of providing program access for a person using a wheelchair who could not reach the shelf, or a reasonable

modification to a self-service policy for an individual who lacked the ability to grasp the item. As explained above, auxiliary aids and services are those

aids and services required to provide effective communications. Other forms of assistance are more appropriately addressed by other provisions of the final

rule.

 

"Complete complaint." "Complete complaint" is defined to include all the information necessary to enable the Federal agency designated under subpart G as

responsible for investigation of a complaint to initiate its investigation.

 

"Current illegal use of drugs." The phrase "current illegal use of drugs" is used in {35.131. Its meaning is discussed in the preamble for that section.

 

"Designated agency." The term "designated agency" is used to refer to the Federal agency designated under subpart G of this rule as responsible for carrying

out the administrative enforcement responsibilities established by subpart F of the rule.

 

"Disability." The definition of the term "disability" is the same as the definition in the title III regulation codified at 28 CFR Part 36. It is comparable

to the definition of the term "individual with handicaps" in section 7(8) of the Rehabilitation Act and section 802(h) of the Fair Housing Act. The Education

and Labor Committee report makes clear that the analysis of the term "individual with handicaps" by the Department of Health, Education, and Welfare (HEW)

in its regulations implementing section 504 (42 FR 22685 (May 4, 1977)) and the analysis by the Department of Housing and Urban Development in its regulation

implementing the Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 23, 1989)) should also apply fully to the term "disability" (Education and Labor

report at 50).

 

The use of the term "disability" instead of "handicap" and the term "individual with a disability" instead of "individual with handicaps" represents an

effort by Congress to make use of up-to-date, currently accepted terminology. As with racial and ethnic epithets, the choice of terms to apply to a person

with a disability is overlaid with stereotypes, patronizing attitudes, and other emotional connotations. Many individuals with disabilities, and organizations

representing such individuals, object to the use of such terms as "handicapped person" or "the handicapped." In other recent legislation, Congress also

recognized this shift in terminology, e.g., by changing the name of the National Council on the Handicapped to the National Council on Disability (Pub.

L. 100- 630).

 

In enacting the Americans with Disabilities Act, Congress concluded that it was important for the current legislation to use terminology most in line with

the sensibilities of most Americans with disabilities. No change in definition or substance is intended nor should one be attributed to this change in

phraseology.

 

The term "disability" means, with respect to an individual -

 

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

 

(B) A record of such an impairment; or

 

(C) Being regarded as having such an impairment.

 

If an individual meets any one of these three tests, he or she is considered to be an individual with a disability for purposes of coverage under the Americans

with Disabilities Act.

 

Congress adopted this same basic definition of "disability," first used in the Rehabilitation Act of 1973 and in the Fair Housing Amendments Act of 1988,

for a number of reasons. First, it has worked well since it was adopted in 1974. Second, it would not be possible to guarantee comprehensiveness by providing

a list of specific disabilities, especially because new disorders may be recognized in the future, as they have since the definition was first established

in 1974.

 

Test A -- A physical or mental impairment that substantially limits one or more of the major life activities of such individual

 

Physical or mental impairment. Under the first test, an individual must have a physical or mental impairment. As explained in paragraph (1)(i) of the definition,

"impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

neurological; musculoskeletal; special sense organs (which would include speech organs that are not respiratory such as vocal cords, soft palate, tongue,

etc.); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It also

means any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

This list closely tracks the one used in the regulations for section 504 of the Rehabilitation Act of 1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).

 

Many commenters asked that "traumatic brain injury" be added to the list in paragraph (1)(i). Traumatic brain injury is already included because it is a

physiological condition affecting one of the listed body systems, i.e., "neurological." Therefore, it was unnecessary to add the term to the regulation,

which only provides representative examples of physiological disorders.

 

It is not possible to include a list of all the specific conditions, contagious and noncontagious diseases, or infections that would constitute physical

or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list, particularly in light of the fact that other conditions

or disorders may be identified in the future. However, the list of examples in paragraph (1)(ii) of the definition includes: orthopedic, visual, speech

and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional

illness, specific learning disabilities, HIV disease (symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase "symptomatic

or asymptomatic" was inserted in the final rule after "HIV disease" in response to commenters who suggested the clarification was necessary.

 

The examples of "physical or mental impairments" in paragraph (1)(ii) are the same as those contained in many section 504 regulations, except for the addition

of the phrase "contagious and noncontagious" to describe the types of diseases and conditions included, and the addition of "HIV disease (symptomatic or

asymptomatic)" and "tuberculosis" to the list of examples. These additions are based on the committee reports, caselaw, and official legal opinions interpreting

section 504. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), a case involving an individual with tuberculosis, the Supreme Court held

that people with contagious diseases are entitled to the protections afforded by section 504. Following the Arline decision, this Department's Office of

Legal Counsel issued a legal opinion that concluded that symptomatic HIV disease is an impairment that substantially limits a major life activity; therefore

it has been included in the definition of disability under this part. The opinion also concluded that asymptomatic HIV disease is an impairment that substantially

limits a major life activity, either because of its actual effect on the individual with HIV disease or because the reactions of other people to individuals

with HIV disease cause such individuals to be treated as though they are disabled. See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General,

Office of Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr., Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S. 933,

the Americans with Disabilities Act, Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Resources, 101st. Cong., 1st Sess. 346

(1989).

 

Paragraph (1)(iii) states that the phrase "physical or mental impairment" does not include homosexuality or bisexuality. These conditions were never considered

impairments under other Federal disability laws. Section 511(a) of the statute makes clear that they are likewise not to be considered impairments under

the Americans with Disabilities Act.

 

Physical or mental impairment does not include simple physical characteristics, such as blue eyes or black hair. Nor does it include environmental, cultural,

economic, or other disadvantages, such as having a prison record, or being poor. Nor is age a disability. Similarly, the definition does not include common

personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. However, a person who has

these characteristics and also has a physical or mental impairment may be considered as having a disability for purposes of the Americans with Disabilities

Act based on the impairment.

 

Substantial limitation of a major life activity. Under Test A, the impairment must be one that "substantially limits a major life activity." Major life

activities include such things as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

 

For example, a person who is paraplegic is substantially limited in the major life activity of walking, a person who is blind is substantially limited in

the major life activity of seeing, and a person who is mentally retarded is substantially limited in the major life activity of learning. A person with

traumatic brain injury is substantially limited in the major life activities of caring for one's self, learning, and working because of memory deficit,

confusion, contextual difficulties, and inability to reason appropriately.

 

A person is considered an individual with a disability for purposes of Test A, the first prong of the definition, when the individual's important life activities

are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. A person with a minor, trivial

impairment, such as a simple infected finger, is not impaired in a major life activity. A person who can walk for 10 miles continuously is not substantially

limited in walking merely because, on the eleventh mile, he or she begins to experience pain, because most people would not be able to walk eleven miles

without experiencing some discomfort.

 

The Department received many comments on the proposed rule's inclusion of the word "temporary" in the definition of "disability." The preamble indicated

that impairments are not necessarily excluded from the definition of "disability" simply because they are temporary, but that the duration, or expected

duration, of an impairment is one factor that may properly be considered in determining whether the impairment substantially limits a major life activity.

The preamble recognized, however, that temporary impairments, such as a broken leg, are not commonly regarded as disabilities, and only in rare circumstances

would the degree of the limitation and its expected duration be substantial. Nevertheless, many commenters objected to inclusion of the word "temporary"

both because it is not in the statute and because it is not contained in the definition of "disability" set forth in the title I regulations of the Equal

Employment Opportunity Commission (EEOC). The word "temporary" has been deleted from the final rule to conform with the statutory language.

 

The question of whether a temporary impairment is a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or

expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

 

The question of whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable modifications

or auxiliary aids and services. For example, a person with hearing loss is substantially limited in the major life activity of hearing, even though the

loss may be improved through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy or diabetes, that substantially limit a major

life activity, are covered under the first prong of the definition of disability, even if the effects of the impairment are controlled by medication.

 

Many commenters asked that environmental illness (also known as multiple chemical sensitivity) as well as allergy to cigarette smoke be recognized as disabilities.

The Department, however, declines to state categorically that these types of allergies or sensitivities are disabilities, because the determination as

to whether an impairment is a disability depends on whether, given the particular circumstances at issue, the impairment substantially limits one or more

major life activities (or has a history of, or is regarded as having such an effect).

 

Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under

the regulation. Such an individual would be entitled to all of the protections afforded by the Act and this part. In other cases, individuals may be sensitive

to environmental elements or to smoke but their sensitivity will not rise to the level needed to constitute a disability. For example, their major life

activity of breathing may be somewhat, but not substantially, impaired. In such circumstances, the individuals are not disabled and are not entitled to

the protections of the statute despite their sensitivity to environmental agents.

 

In sum, the determination as to whether allergies to cigarette smoke, or allergies or sensitivities characterized by the commenters as environmental illness

are disabilities covered by the regulation must be made using the same case-by-case analysis that is applied to all other physical or mental impairments.

Moreover, the addition of specific regulatory provisions relating to environmental illness in the final rule would be inappropriate at this time pending

future consideration of the issue by the Architectural and Transportation Barriers Compliance Board, the Environmental Protection Agency, and the Occupational

Safety and Health Administration of the Department of Labor.

 

Test B -- A record of such an impairment

 

This test is intended to cover those who have a record of an impairment. As explained in paragraph (3) of the rule's definition of disability, this includes

a person who has a history of an impairment that substantially limited a major life activity, such as someone who has recovered from an impairment. It

also includes persons who have been misclassified as having an impairment.

 

This provision is included in the definition in part to protect individuals who have recovered from a physical or mental impairment that previously substantially

limited them in a major life activity. Discrimination on the basis of such a past impairment is prohibited. Frequently occurring examples of the first

group (those who have a history of an impairment) are persons with histories of mental or emotional illness, heart disease, or cancer; examples of the

second group (those who have been misclassified as having an impairment) are persons who have been misclassified as having mental retardation or mental

illness.

 

Test C -- Being regarded as having such an impairment

 

This test, as contained in paragraph (4) of the definition, is intended to cover persons who are treated by a public entity as having a physical or mental

impairment that substantially limits a major life activity. It applies when a person is treated as if he or she has an impairment that substantially limits

a major life activity, regardless of whether that person has an impairment.

 

The Americans with Disabilities Act uses the same "regarded as" test set forth in the regulations implementing section 504 of the Rehabilitation Act. See,

e.g., 28 CFR 42.540(k)(2)(iv), which provides:

 

Block quote start

(iv) "Is regarded as having an impairment" means (A) Has a physical or mental impairment that does not substantially limit major life activities but that

is treated by a recipient as constituting such a limitation; (B) Has a physical or mental impairment that substantially limits major life activities only

as a result of the attitudes of others toward such impairment; or (C) Has none of the impairments defined in paragraph (k)(2)(i) of this section but is

treated by a recipient as having such an impairment.

Block quote end

 

The perception of the covered entity is a key element of this test. A person who perceives himself or herself to have an impairment, but does not have an

impairment, and is not treated as if he or she has an impairment, is not protected under this test.

 

A person would be covered under this test if a public entity refused to serve the person because it perceived that the person had an impairment that limited

his or her enjoyment of the goods or services being offered.

 

For example, persons with severe burns often encounter discrimination in community activities, resulting in substantial limitation of major life activities.

These persons would be covered under this test based on the attitudes of others towards the impairment, even if they did not view themselves as "impaired."

 

The rationale for this third test, as used in the Rehabilitation Act of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 (1987). The Court

noted that although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove

just as disabling. "Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's

ability to work as a result of the negative reactions of others to the impairment." Id. at 283. The Court concluded that, by including this test in the

Rehabilitation Act's definition, "Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as

are the physical limitations that flow from actual impairment." Id. at 284.

 

Thus, a person who is denied services or benefits by a public entity because of myths, fears, and stereotypes associated with disabilities would be covered

under this third test whether or not the person's physical or mental condition would be considered a disability under the first or second test in the definition.

 

If a person is refused admittance on the basis of an actual or perceived physical or mental condition, and the public entity can articulate no legitimate

reason for the refusal (such as failure to meet eligibility criteria), a perceived concern about admitting persons with disabilities could be inferred

and the individual would qualify for coverage under the "regarded as" test. A person who is covered because of being regarded as having an impairment is

not required to show that the public entity's perception is inaccurate (e.g., that he will be accepted by others) in order to receive benefits from the

public entity.

 

Paragraph (5) of the definition lists certain conditions that are not included within the definition of "disability." The excluded conditions are: transvestism,

transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders,

compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs. Unlike homosexuality

and bisexuality, which are not considered impairments under either section 504 or the Americans with Disabilities Act (see the definition of "disability,"

paragraph (1)(iv)), the conditions listed in paragraph (5), except for transvestism, are not necessarily excluded as impairments under section 504. (Transvestism

was excluded from the definition of disability for section 504 by the Fair Housing Amendments Act of 1988, Pub. L. 100-430, section 6(b)).

 

"Drug." The definition of the term "drug" is taken from section 510(d)(2) of the ADA.

 

"Facility." "Facility" means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks,

passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located. It

includes both indoor and outdoor areas where human-constructed improvements, structures, equipment, or property have been added to the natural environment.

 

Commenters raised questions about the applicability of this part to activities operated in mobile facilities, such as bookmobiles or mobile health screening

units. Such activities would be covered by the requirement for program accessibility in {35.150, and would be included in the definition of "facility"

as "other real or personal property," although standards for new construction and alterations of such facilities are not yet included in the accessibility

standards adopted by {35.151. Sections 35.150 and 35.151 specifically address the obligations of public entities to ensure accessibility by providing curb

ramps at pedestrian walkways.

 

"Historic preservation programs" and "Historic properties" are defined in order to aid in the interpretation of {{35.150(a)(2) and (b)(2), which relate

to accessibility of historic preservation programs, and {35.151(d), which relates to the alteration of historic properties.

 

"Illegal use of drugs." The definition of "illegal use of drugs" is taken from section 510(d)(1) of the Act and clarifies that the term includes the illegal

use of one or more drugs.

 

"Individual with a disability" means a person who has a disability but does not include an individual who is currently illegally using drugs, when the public

entity acts on the basis of such use. The phrase "current illegal use of drugs" is explained in {35.131.

 

"Public entity." The term "public entity" is defined in accordance with section 201(1) of the ADA as any State or local government; any department, agency,

special purpose district, or other instrumentality of a State or States or local government; or the National Railroad Passenger Corporation, and any commuter

authority (as defined in section 103(8) of the Rail Passenger Service Act).

 

"Qualified individual with a disability." The definition of "qualified individual with a disability" is taken from section 201(2) of the Act, which is derived

from the definition of "qualified handicapped person" in the Department of Health and Human Services' regulation implementing section 504 (45 CFR {84.3(k)).

It combines the definition at 45 CFR 84.3(k)(1) for employment ("a handicapped person who, with reasonable accommodation, can perform the essential functions

of the job in question") with the definition for other services at 45 CFR 84.3(k)(4) ("a handicapped person who meets the essential eligibility requirements

for the receipt of such services").

 

Some commenters requested clarification of the term "essential eligibility requirements." Because of the variety of situations in which an individual's

qualifications will be at issue, it is not possible to include more specific criteria in the definition. The "essential eligibility requirements" for participation

in some activities covered under this part may be minimal. For example, most public entities provide information about their operations as a public service

to anyone who requests it. In such situations, the only "eligibility requirement" for receipt of such information would be the request for it. Where such

information is provided by telephone, even the ability to use a voice telephone is not an "essential eligibility requirement," because {35.161 requires

a public entity to provide equally effective telecommunication systems for individuals with impaired hearing or speech.

 

For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles

established in {36.208 of the Department's regulation implementing title III of the ADA, to be codified at 28 CFR Part 36, will be applicable. That section

implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit

from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation, if that individual poses a direct threat to

the health or safety of others.

 

A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures,

or by the provision of auxiliary aids or services. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there

is a need to balance the interests of people with disabilities against legitimate concerns for public safety. Although persons with disabilities are generally

entitled to the protection of this part, a person who poses a significant risk to others will not be "qualified," if reasonable modifications to the public

entity's policies, practices, or procedures will not eliminate that risk.

 

The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects

of a particular disability. It must be based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or on

the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually

occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. This is the test established by the Supreme Court

in Arline. Such an inquiry is essential if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes,

or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks.

Making this assessment will not usually require the services of a physician. Sources for medical knowledge include guidance from public health authorities,

such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental

Health.

 

"Qualified interpreter." The Department received substantial comment regarding the lack of a definition of "qualified interpreter." The proposed rule defined

auxiliary aids and services to include the statutory term, "qualified interpreters" ({35.104), but did not define it. Section 35.160 requires the use of

auxiliary aids including qualified interpreters and commenters stated that a lack of guidance on what the term means would create confusion among those

trying to secure interpreting services and often result in less than effective communication.

 

Many commenters were concerned that, without clear guidance on the issue of "qualified" interpreter, the rule would be interpreted to mean "available, rather

than qualified" interpreters. Some claimed that few public entities would understand the difference between a qualified interpreter and a person who simply

knows a few signs or how to fingerspell.

 

In order to clarify what is meant by "qualified interpreter" the Department has added a definition of the term to the final rule. A qualified interpreter

means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized

vocabulary. This definition focuses on the actual ability of the interpreter in a particular interpreting context to facilitate effective communication

between the public entity and the individual with disabilities.

 

Public comment also revealed that public entities have at times asked persons who are deaf to provide family members or friends to interpret. In certain

circumstances, notwithstanding that the family member of friend is able to interpret or is a certified interpreter, the family member or friend may not

be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that

may adversely affect the ability to interpret "effectively, accurately, and impartially."

 

The definition of "qualified interpreter" in this rule does not invalidate or limit standards for interpreting services of any State or local law that are

equal to or more stringent than those imposed by this definition. For instance, the definition would not supersede any requirement of State law for use

of a certified interpreter in court proceedings.

 

"Section 504." The Department added a definition of "section 504" because the term is used extensively in subpart F of this part.

 

"State." The definition of "State" is identical to the statutory definition in section 3(3) of the ADA.

 

{35.105 Self-evaluation.

 

Section 35.105 establishes a requirement, based on the section 504 regulations for federally assisted and federally conducted programs, that a public entity

evaluate its current policies and practices to identify and correct any that are not consistent with the requirements of this part. As noted in the discussion

of {35.102, activities covered by the Department of Transportation's regulation implementing subtitle B of title II are not required to be included in

the self-evaluation required by this section.

 

Experience has demonstrated the self-evaluation process to be a valuable means of establishing a working relationship with individuals with disabilities,

which has promoted both effective and efficient implementation of section 504. The Department expects that it will likewise be useful to public entities

newly covered by the ADA.

 

All public entities are required to do a self-evaluation. However, only those that employ 50 or more persons are required to maintain the self- evaluation

on file and make it available for public inspection for three years. The number 50 was derived from the Department of Justice's section 504 regulations

for federally assisted programs, 28 CFR 42.505(c). The Department received comments critical of this limitation, some suggesting the requirement apply

to all public entities and others suggesting that the number be changed from 50 to 15. The final rule has not been changed. Although many regulations implementing

section 504 for federally assisted programs do use 15 employees as the cut-off for this record-keeping requirement, the Department believes that it would

be inappropriate to extend it to those smaller public entities covered by this regulation that do not receive Federal financial assistance. This approach

has the benefit of minimizing paperwork burdens on small entities.

 

Paragraph (d) provides that the self-evaluation required by this section shall apply only to programs not subject to section 504 or those policies and practices,

such as those involving communications access, that have not already been included in a self-evaluation required under an existing regulation implementing

section 504. Because most self-evaluations were done from five to twelve years ago, however, the Department expects that a great many public entities will

be reexamining all of their policies and programs. Programs and functions may have changed, and actions that were supposed to have been taken to comply

with section 504 may not have been fully implemented or may no longer be effective. In addition, there have been statutory amendments to section 504 which

have changed the coverage of section 504, particularly the Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), which broadened

the definition of a covered "program or activity."

 

Several commenters suggested that the Department clarify public entities' liability during the one-year period for compliance with the self-evaluation requirement.

The self-evaluation requirement does not stay the effective date of the statute nor of this part. Public entities are, therefore, not shielded from discrimination

claims during that time.

 

Other commenters suggested that the rule require that every self-evaluation include an examination of training efforts to assure that individuals with disabilities

are not subjected to discrimination because of insensitivity, particularly in the law enforcement area. Although the Department has not added such a specific

requirement to the rule, it would be appropriate for public entities to evaluate training efforts because, in many cases, lack of training leads to discriminatory

practices, even when the policies in place are nondiscriminatory.

 

{35.106 Notice.

 

Section 35.106 requires a public entity to disseminate sufficient information to applicants, participants, beneficiaries, and other interested persons to

inform them of the rights and protections afforded by the ADA and this regulation. Methods of providing this information include, for example, the publication

of information in handbooks, manuals, and pamphlets that are distributed to the public to describe a public entity's programs and activities; the display

of informative posters in service centers and other public places; or the broadcast of information by television or radio. In providing the notice, a public

entity must comply with the requirements for effective communication in {35.160. The preamble to that section gives guidance on how to effectively communicate

with individuals with disabilities.

 

{35.107 Designation of responsible employee and adoption of grievance procedures.

 

Consistent with {35.105, Self-evaluation, the final rule requires that public entities with 50 or more employees designate a responsible employee and adopt

grievance procedures. Most of the commenters who suggested that the requirement that self-evaluation be maintained on file for three years not be limited

to those employing 50 or more persons made a similar suggestion concerning {35.107. Commenters recommended either that all public entities be subject to

section 35.107, or that "50 or more persons" be changed to "15 or more persons." As explained in the discussion of {35.105, the Department has not adopted

this suggestion.

 

The requirement for designation of an employee responsible for coordination of efforts to carry out responsibilities under this part is derived from the

HEW regulation implementing section 504 in federally assisted programs. The requirement for designation of a particular employee and dissemination of information

about how to locate that employee helps to ensure that individuals dealing with large agencies are able to easily find a responsible person who is familiar

with the requirements of the Act and this part and can communicate those requirements to other individuals in the agency who may be unaware of their responsibilities.

This paragraph in no way limits a public entity's obligation to ensure that all of its employees comply with the requirements of this part, but it ensures

that any failure by individual employees can be promptly corrected by the designated employee.

 

Section 35.107(b) requires public entities with 50 or more employees to establish grievance procedures for resolving complaints of violations of this part.

Similar requirements are found in the section 504 regulations for federally assisted programs (see, e.g., 45 CFR 84.7(b)). The rule, like the regulations

for federally assisted programs, provides for investigation and resolution of complaints by a Federal enforcement agency. It is the view of the Department

that public entities subject to this part should be required to establish a mechanism for resolution of complaints at the local level without requiring

the complainant to resort to the Federal complaint procedures established under subpart F. Complainants would not, however, be required to exhaust the

public entity's grievance procedures before filing a complaint under subpart F. Delay in filing the complaint at the Federal level caused by pursuit of

the remedies available under the grievance procedure would generally be considered good cause for extending the time allowed for filing under {35.170(b).

 

Subpart B -- General Requirements

 

{35.130 General prohibitions against discrimination.

 

The general prohibitions against discrimination in the rule are generally based on the prohibitions in existing regulations implementing section 504 and,

therefore, are already familiar to State and local entities covered by section 504. In addition, {35.130 includes a number of provisions derived from title

III of the Act that are implicit to a certain degree in the requirements of regulations implementing section 504.

 

Several commenters suggested that this part should include the section of the proposed title III regulation that implemented section 309 of the Act, which

requires that courses and examinations related to applications, licensing, certification, or credentialing be provided in an accessible place and manner

or that alternative accessible arrangements be made. The Department has not adopted this suggestion. The requirements of this part, including the general

prohibitions of discrimination in this section, the program access requirements of subpart D, and the communications requirements of subpart E, apply to

courses and examinations provided by public entities. The Department considers these requirements to be sufficient to ensure that courses and examinations

administered by public entities meet the requirements of section 309. For example, a public entity offering an examination must ensure that modifications

of policies, practices, or procedures or the provision of auxiliary aids and services furnish the individual with a disability an equal opportunity to

demonstrate his or her knowledge or ability. Also, any examination specially designed for individuals with disabilities must be offered as often and in

as timely a manner as are other examinations. Further, under this part, courses and examinations must be offered in the most integrated setting appropriate.

The analysis of {35.130(d) is relevant to this determination.

 

A number of commenters asked that the regulation be amended to require training of law enforcement personnel to recognize the difference between criminal

activity and the effects of seizures or other disabilities such as mental retardation, cerebral palsy, traumatic brain injury, mental illness, or deafness.

Several disabled commenters gave personal statements about the abuse they had received at the hands of law enforcement personnel. Two organizations that

commented cited the Judiciary report at 50 as authority to require law enforcement training.

 

The Department has not added such a training requirement to the regulation. Discriminatory arrests and brutal treatment are already unlawful police activities.

The general regulatory obligation to modify policies, practices, or procedures requires law enforcement to make changes in policies that result in discriminatory

arrests or abuse of individuals with disabilities. Under this section law enforcement personnel would be required to make appropriate efforts to determine

whether perceived strange or disruptive behavior or unconsciousness is the result of a disability. The Department notes that a number of States have attempted

to address the problem of arresting disabled persons for noncriminal conduct resulting from their disability through adoption of the Uniform Duties to

Disabled Persons Act, and encourages other jurisdictions to consider that approach.

 

Paragraph (a) restates the nondiscrimination mandate of section 202 of the ADA. The remaining paragraphs in {35.130 establish the general principles for

analyzing whether any particular action of the public entity violates this mandate.

 

Paragraph (b) prohibits overt denials of equal treatment of individuals with disabilities. A public entity may not refuse to provide an individual with

a disability with an equal opportunity to participate in or benefit from its program simply because the person has a disability.

 

Paragraph (b)(1)(i) provides that it is discriminatory to deny a person with a disability the right to participate in or benefit from the aid, benefit,

or service provided by a public entity. Paragraph (b)(1)(ii) provides that the aids, benefits, and services provided to persons with disabilities must

be equal to those provided to others, and paragraph (b)(1)(iii) requires that the aids, benefits, or services provided to individuals with disabilities

must be as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as those

provided to others. These paragraphs are taken from the regulations implementing section 504 and simply restate principles long established under section

504.

 

Paragraph (b)(1)(iv) permits the public entity to develop separate or different aids, benefits, or services when necessary to provide individuals with disabilities

with an equal opportunity to participate in or benefit from the public entity's programs or activities, but only when necessary to ensure that the aids,

benefits, or services are as effective as those provided to others. Paragraph (b)(1)(iv) must be read in conjunction with paragraphs (b)(2), (d), and (e).

Even when separate or different aids, benefits, or services would be more effective, paragraph (b)(2) provides that a qualified individual with a disability

still has the right to choose to participate in the program that is not designed to accommodate individuals with disabilities. Paragraph (d) requires that

a public entity administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

 

Paragraph (b)(2) specifies that, notwithstanding the existence of separate or different programs or activities provided in accordance with this section,

an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different. Paragraph

(e), which is derived from section 501(d) of the Americans with Disabilities Act, states that nothing in this part shall be construed to require an individual

with a disability to accept an accommodation, aid, service, opportunity, or benefit that he or she chooses not to accept.

 

Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities

enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities. Consistent

with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as

to what a class of individuals with disabilities can or cannot do.

 

Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons

with disabilities to second-class status. For example, it would be a violation of this provision to require persons with disabilities to eat in the back

room of a government cafeteria or to refuse to allow a person with a disability the full use of recreation or exercise facilities because of stereotypes

about the person's ability to participate.

 

Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) as allowing continued segregation of individuals with disabilities. The Department recognizes

that promoting integration of individuals with disabilities into the mainstream of society is an important objective of the ADA and agrees that, in most

instances, separate programs for individuals with disabilities will not be permitted. Nevertheless, section 504 does permit separate programs in limited

circumstances, and Congress clearly intended the regulations issued under title II to adopt the standards of section 504. Furthermore, Congress included

authority for separate programs in the specific requirements of title III of the Act. Section 302(b)(1)(A)(iii) of the Act provides for separate benefits

in language similar to that in {35.130(b)(1)(iv), and section 302(b)(1)(B) includes the same requirement for "the most integrated setting appropriate"

as in {35.130(d).

 

Even when separate programs are permitted, individuals with disabilities cannot be denied the opportunity to participate in programs that are not separate

or different. This is an important and overarching principle of the Americans with Disabilities Act. Separate, special, or different programs that are

designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated

activities.

 

For example, a person who is blind may wish to decline participating in a special museum tour that allows persons to touch sculptures in an exhibit and

instead tour the exhibit at his or her own pace with the museum's recorded tour. It is not the intent of this section to require the person who is blind

to avail himself or herself of the special tour. Modified participation for persons with disabilities must be a choice, not a requirement.

 

In addition, it would not be a violation of this section for a public entity to offer recreational programs specially designed for children with mobility

impairments. However, it would be a violation of this section if the entity then excluded these children from other recreational services for which they

are qualified to participate when these services are made available to nondisabled children, or if the entity required children with disabilities to attend

only designated programs.

 

Many commenters asked that the Department clarify a public entity's obligations within the integrated program when it offers a separate program but an individual

with a disability chooses not to participate in the separate program. It is impossible to make a blanket statement as to what level of auxiliary aids or

modifications would be required in the integrated program. Rather, each situation must be assessed individually. The starting point is to question whether

the separate program is in fact necessary or appropriate for the individual. Assuming the separate program would be appropriate for a particular individual,

the extent to which that individual must be provided with modifications in the integrated program will depend not only on what the individual needs but

also on the limitations and defenses of this part. For example, it may constitute an undue burden for a public accommodation, which provides a full-time

interpreter in its special guided tour for individuals with hearing impairments, to hire an additional interpreter for those individuals who choose to

attend the integrated program. The Department cannot identify categorically the level of assistance or aid required in the integrated program.

 

Paragraph (b)(1)(v) provides that a public entity may not aid or perpetuate discrimination against a qualified individual with a disability by providing

significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to

beneficiaries of the public entity's program. This paragraph is taken from the regulations implementing section 504 for federally assisted programs.

 

Paragraph (b)(1)(vi) prohibits the public entity from denying a qualified individual with a disability the opportunity to participate as a member of a planning

or advisory board.

 

Paragraph (b)(1)(vii) prohibits the public entity from limiting a qualified individual with a disability in the enjoyment of any right, privilege, advantage,

or opportunity enjoyed by others receiving any aid, benefit, or service.

 

Paragraph (b)(3) prohibits the public entity from utilizing criteria or methods of administration that deny individuals with disabilities access to the

public entity's services, programs, and activities or that perpetuate the discrimination of another public entity, if both public entities are subject

to common administrative control or are agencies of the same State. The phrase "criteria or methods of administration" refers to official written policies

of the public entity and to the actual practices of the public entity. This paragraph prohibits both blatantly exclusionary policies or practices and nonessential

policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate. This standard is

consistent with the interpretation of section 504 by the U.S. Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate explained

that members of Congress made numerous statements during passage of section 504 regarding eliminating architectural barriers, providing access to transportation,

and eliminating discriminatory effects of job qualification procedures. The Court then noted: "These statements would ring hollow if the resulting legislation

could not rectify the harms resulting from action that discriminated by effect as well as by design." Id. at 297 (footnote omitted).

 

Paragraph (b)(4) specifically applies the prohibition enunciated in {35.130(b)(3) to the process of selecting sites for construction of new facilities or

selecting existing facilities to be used by the public entity. Paragraph (b)(4) does not apply to construction of additional buildings at an existing site.

 

Paragraph (b)(5) prohibits the public entity, in the selection of procurement contractors, from using criteria that subject qualified individuals with disabilities

to discrimination on the basis of disability.

 

Paragraph (b)(6) prohibits the public entity from discriminating against qualified individuals with disabilities on the basis of disability in the granting

of licenses or certification. A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the

essential eligibility requirements for receiving the license or certification (see {35.104).

 

A number of commenters were troubled by the phrase "essential eligibility requirements" as applied to State licensing requirements, especially those for

health care professions. Because of the variety of types of programs to which the definition of "qualified individual with a disability" applies, it is

not possible to use more specific language in the definition. The phrase "essential eligibility requirements," however, is taken from the definitions in

the regulations implementing section 504, so caselaw under section 504 will be applicable to its interpretation. In Southeastern Community College v. Davis,

442 U.S. 397, for example, the Supreme Court held that section 504 does not require an institution to "lower or effect substantial modifications of standards

to accommodate a handicapped person," 442 U.S. at 413, and that the school had established that the plaintiff was not "qualified" because she was not able

to "serve the nursing profession in all customary ways," id. Whether a particular requirement is "essential" will, of course, depend on the facts of the

particular case.

 

In addition, the public entity may not establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals

with disabilities to discrimination on the basis of disability. For example, the public entity must comply with this requirement when establishing safety

standards for the operations of licensees. In that case the public entity must ensure that standards that it promulgates do not discriminate against the

employment of qualified individuals with disabilities in an impermissible manner.

 

Paragraph (b)(6) does not extend the requirements of the Act or this part directly to the programs or activities of licensees or certified entities themselves.

The programs or activities of licensees or certified entities are not themselves programs or activities of the public entity merely by virtue of the license

or certificate.

 

Paragraph (b)(7) is a specific application of the requirement under the general prohibitions of discrimination that public entities make reasonable modifications

in policies, practices, or procedures where necessary to avoid discrimination on the basis of disability. Section 302(b)(2)(A)(ii) of the ADA sets out

this requirement specifically for public accommodations covered by title III of the Act, and the House Judiciary Committee Report directs the Attorney

General to include those specific requirements in the title II regulation to the extent that they do not conflict with the regulations implementing section

504. Judiciary report at 52.

 

Paragraph (b)(8), a new paragraph not contained in the proposed rule, prohibits the imposition or application of eligibility criteria that screen out or

tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program,

or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. This prohibition is

also a specific application of the general prohibitions of discrimination and is based on section 302(b)(2)(A)(i) of the ADA. It prohibits overt denials

of equal treatment of individuals with disabilities, or establishment of exclusive or segregative criteria that would bar individuals with disabilities

from participation in services, benefits, or activities.

 

Paragraph (b)(8) also prohibits policies that unnecessarily impose requirements or burdens on individuals with disabilities that are not placed on others.

For example, public entities may not require that a qualified individual with a disability be accompanied by an attendant. A public entity is not, however,

required to provide attendant care, or assistance in toileting, eating, or dressing to individuals with disabilities, except in special circumstances,

such as where the individual is an inmate of a custodial or correctional institution.

 

In addition, paragraph (b)(8) prohibits the imposition of criteria that "tend to" screen out an individual with a disability. This concept, which is derived

from current regulations under section 504 (see, e.g., 45 CFR 84.13), makes it discriminatory to impose policies or criteria that, while not creating a

direct bar to individuals with disabilities, indirectly prevent or limit their ability to participate. For example, requiring presentation of a driver's

license as the sole means of identification for purposes of paying by check would violate this section in situations where, for example, individuals with

severe vision impairments or developmental disabilities or epilepsy are ineligible to receive a driver's license and the use of an alternative means of

identification, such as another photo I.D. or credit card, is feasible.

 

A public entity may, however, impose neutral rules and criteria that screen out, or tend to screen out, individuals with disabilities if the criteria are

necessary for the safe operation of the program in question. Examples of safety qualifications that would be justifiable in appropriate circumstances would

include eligibility requirements for drivers' licenses, or a requirement that all participants in a recreational rafting expedition be able to meet a necessary

level of swimming proficiency. Safety requirements must be based on actual risks and not on speculation, stereotypes, or generalizations about individuals

with disabilities.

 

Paragraph (c) provides that nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities,

or to a particular class of individuals with disabilities, beyond those required by this part. It is derived from a provision in the section 504 regulations

that permits programs conducted pursuant to Federal statute or Executive order that are designed to benefit only individuals with disabilities or a given

class of individuals with disabilities to be limited to those individuals with disabilities. Section 504 ensures that federally assisted programs are made

available to all individuals, without regard to disabilities, unless the Federal program under which the assistance is provided is specifically limited

to individuals with disabilities or a particular class of individuals with disabilities. Because coverage under this part is not limited to federally assisted

programs, paragraph (c) has been revised to clarify that State and local governments may provide special benefits, beyond those required by the nondiscrimination

requirements of this part, that are limited to individuals with disabilities or a particular class of individuals with disabilities, without thereby incurring

additional obligations to persons without disabilities or to other classes of individuals with disabilities.

 

Paragraphs (d) and (e), previously referred to in the discussion of paragraph (b)(1)(iv), provide that the public entity must administer services, programs,

and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities, i.e., in a setting that enables individuals

with disabilities to interact with nondisabled persons to the fullest extent possible, and that persons with disabilities must be provided the option of

declining to accept a particular accommodation.

 

Some commenters expressed concern that {35.130(e), which states that nothing in the rule requires an individual with a disability to accept special accommodations

and services provided under the ADA, could be interpreted to allow guardians of infants or older people with disabilities to refuse medical treatment for

their wards. Section 35.130(e) has been revised to make it clear that paragraph (e) is inapplicable to the concern of the commenters. A new paragraph (e)(2)

has been added stating that nothing in the regulation authorizes the representative or guardian of an individual with a disability to decline food, water,

medical treatment, or medical services for that individual. New paragraph (e) clarifies that neither the ADA nor the regulation alters current Federal

law ensuring the rights of incompetent individuals with disabilities to receive food, water, and medical treatment. See, e.g., Child Abuse Amendments of

1984 (42 U.S.C. 5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights

Act (42 U.S.C. 6042).

 

Sections 35.130(e)(1) and (2) are based on section 501(d) of the ADA. Section 501(d) was designed to clarify that nothing in the ADA requires individuals

with disabilities to accept special accommodations and services for individuals with disabilities that may segregate them:

 

The Committee added this section [501(d)] to clarify that nothing in the ADA is intended to permit discriminatory treatment on the basis of disability,

even when such treatment is rendered under the guise of providing an accommodation, service, aid or benefit to the individual with disability. For example,

a blind individual may choose not to avail himself or herself of the right to go to the front of a line, even if a particular public accommodation has

chosen to offer such a modification of a policy for blind individuals. Or, a blind individual may choose to decline to participate in a special museum

tour that allows persons to touch sculptures in an exhibit and instead tour the exhibits at his or her own pace with the museum's recorded tour.

 

Judiciary report at 71-72. The Act is not to be construed to mean that an individual with disabilities must accept special accommodations and services for

individuals with disabilities when that individual can participate in the regular services already offered. Because medical treatment, including treatment

for particular conditions, is not a special accommodation or service for individuals with disabilities under section 501(d), neither the Act nor this part

provides affirmative authority to suspend such treatment. Section 501(d) is intended to clarify that the Act is not designed to foster discrimination through

mandatory acceptance of special services when other alternatives are provided; this concern does not reach to the provision of medical treatment for the

disabling condition itself.

 

Paragraph (f) provides that a public entity may not place a surcharge on a particular individual with a disability, or any group of individuals with disabilities,

to cover any costs of measures required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part. Such

measures may include the provision of auxiliary aids or of modifications required to provide program accessibility.

 

Several commenters asked for clarification that the costs of interpreter services may not be assessed as an element of "court costs." The Department has

already recognized that imposition of the cost of courtroom interpreter services is impermissible under section 504. The preamble to the Department's section

504 regulation for its federally assisted programs states that where a court system has an obligation to provide qualified interpreters, "it has the corresponding

responsibility to pay for the services of the interpreters." (45 FR 37630 (June 3, 1980)). Accordingly, recouping the costs of interpreter services by

assessing them as part of court costs would also be prohibited.

 

Paragraph (g), which prohibits discrimination on the basis of an individual's or entity's known relationship or association with an individual with a disability,

is based on sections 102(b)(4) and 302(b)(1)(E) of the ADA. This paragraph was not contained in the proposed rule. The individuals covered under this paragraph

are any individuals who are discriminated against because of their known association with an individual with a disability. For example, it would be a violation

of this paragraph for a local government to refuse to allow a theater company to use a school auditorium on the grounds that the company had recently performed

for an audience of individuals with HIV disease.

 

This protection is not limited to those who have a familial relationship with the individual who has a disability. Congress considered, and rejected, amendments

that would have limited the scope of this provision to specific associations and relationships. Therefore, if a public entity refuses admission to a person

with cerebral palsy and his or her companions, the companions have an independent right of action under the ADA and this section.

 

During the legislative process, the term "entity" was added to section 302(b)(l)(E) to clarify that the scope of the provision is intended to encompass

not only persons who have a known association with a person with a disability, but also entities that provide services to or are otherwise associated with

such individuals. This provision was intended to ensure that entities such as health care providers, employees of social service agencies, and others who

provide professional services to persons with disabilities are not subjected to discrimination because of their professional association with persons with

disabilities.

 

{35.131 Illegal use of drugs.

 

Section 35.131 effectuates section 510 of the ADA, which clarifies the Act's application to people who use drugs illegally. Paragraph (a) provides that

this part does not prohibit discrimination based on an individual's current illegal use of drugs.

 

The Act and the regulation distinguish between illegal use of drugs and the legal use of substances, whether or not those substances are "controlled substances,"

as defined in the Controlled Substances Act (21 U.S.C. 812). Some controlled substances are prescription drugs that have legitimate medical uses. Section

35.131 does not affect use of controlled substances pursuant to a valid prescription under supervision by a licensed health care professional, or other

use that is authorized by the Controlled Substances Act or any other provision of Federal law. It does apply to illegal use of those substances, as well

as to illegal use of controlled substances that are not prescription drugs. The key question is whether the individual's use of the substance is illegal,

not whether the substance has recognized legal uses. Alcohol is not a controlled substance, so use of alcohol is not addressed by {35.131 (although alcoholics

are individuals with disabilities, subject to the protections of the statute).

 

A distinction is also made between the use of a substance and the status of being addicted to that substance. Addiction is a disability, and addicts are

individuals with disabilities protected by the Act. The protection, however, does not extend to actions based on the illegal use of the substance. In other

words, an addict cannot use the fact of his or her addiction as a defense to an action based on illegal use of drugs. This distinction is not artificial.

Congress intended to deny protection to people who engage in the illegal use of drugs, whether or not they are addicted, but to provide protection to addicts

so long as they are not currently using drugs.

 

A third distinction is the difficult one between current use and former use. The definition of "current illegal use of drugs" in {35.104, which is based

on the report of the Conference Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990) [hereinafter "Conference report"], is "illegal use

of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing

problem."

 

Paragraph (a)(2)(i) specifies that an individual who has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated

successfully and who is not engaging in current illegal use of drugs is protected. Paragraph (a)(2)(ii) clarifies that an individual who is currently participating

in a supervised rehabilitation program and is not engaging in current illegal use of drugs is protected. Paragraph (a)(2)(iii) provides that a person who

is erroneously regarded as engaging in current illegal use of drugs, but who is not engaging in such use, is protected.

 

Paragraph (b) provides a limited exception to the exclusion of current illegal users of drugs from the protections of the Act. It prohibits denial of health

services, or services provided in connection with drug rehabilitation to an individual on the basis of current illegal use of drugs, if the individual

is otherwise entitled to such services. A health care facility, such as a hospital or clinic, may not refuse treatment to an individual in need of the

services it provides on the grounds that the individual is illegally using drugs, but it is not required by this section to provide services that it does

not ordinarily provide. For example, a health care facility that specializes in a particular type of treatment, such as care of burn victims, is not required

to provide drug rehabilitation services, but it cannot refuse to treat a individual's burns on the grounds that the individual is illegally using drugs.

 

Some commenters pointed out that abstention from the use of drugs is an essential condition of participation in some drug rehabilitation programs, and may

be a necessary requirement in inpatient or residential settings. The Department believes that this comment is well-founded. Congress clearly intended to

prohibit exclusion from drug treatment programs of the very individuals who need such programs because of their use of drugs, but, once an individual has

been admitted to a program, abstention may be a necessary and appropriate condition to continued participation. The final rule therefore provides that

a drug rehabilitation or treatment program may prohibit illegal use of drugs by individuals while they are participating in the program.

 

Paragraph (c) expresses Congress' intention that the Act be neutral with respect to testing for illegal use of drugs. This paragraph implements the provision

in section 510(b) of the Act that allows entities "to adopt or administer reasonable policies or procedures, including but not limited to drug testing,"

that ensure that an individual who is participating in a supervised rehabilitation program, or who has completed such a program or otherwise been rehabilitated

successfully is no longer engaging in the illegal use of drugs. The section is not to be "construed to encourage, prohibit, restrict, or authorize the

conducting of testing for the illegal use of drugs."

 

Paragraph 35.131(c) clarifies that it is not a violation of this part to adopt or administer reasonable policies or procedures to ensure that an individual

who formerly engaged in the illegal use of drugs is not currently engaging in illegal use of drugs. Any such policies or procedures must, of course, be

reasonable, and must be designed to identify accurately the illegal use of drugs. This paragraph does not authorize inquiries, tests, or other procedures

that would disclose use of substances that are not controlled substances or are taken under supervision by a licensed health care professional, or other

uses authorized by the Controlled Substances Act or other provisions of Federal law, because such uses are not included in the definition of "illegal use

of drugs." A commenter argued that the rule should permit testing for lawful use of prescription drugs, but most commenters preferred that tests must be

limited to unlawful use in order to avoid revealing the lawful use of prescription medicine used to treat disabilities.

 

{35.132 Smoking.

 

Section 35.132 restates the clarification in section 501(b) of the Act that the Act does not preclude the prohibition of, or imposition of restrictions

on, smoking in transportation covered by title II. Some commenters argued that this section is too limited in scope, and that the regulation should prohibit

smoking in all facilities used by public entities. The reference to smoking in section 501, however, merely clarifies that the Act does not require public

entities to accommodate smokers by permitting them to smoke in transportation facilities.

 

{35.133 Maintenance of accessible features.

 

Section 35.133 provides that a public entity shall maintain in operable working condition those features of facilities and equipment that are required to

be readily accessible to and usable by persons with disabilities by the Act or this part. The Act requires that, to the maximum extent feasible, facilities

must be accessible to, and usable by, individuals with disabilities. This section recognizes that it is not sufficient to provide features such as accessible

routes, elevators, or ramps, if those features are not maintained in a manner that enables individuals with disabilities to use them. Inoperable elevators,

locked accessible doors, or "accessible" routes that are obstructed by furniture, filing cabinets, or potted plants are neither "accessible to" nor "usable

by" individuals with disabilities.

 

Some commenters objected that this section appeared to establish an absolute requirement and suggested that language from the preamble be included in the

text of the regulation. It is, of course, impossible to guarantee that mechanical devices will never fail to operate. Paragraph (b) of the final regulation

provides that this section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. This paragraph is

intended to clarify that temporary obstructions or isolated instances of mechanical failure would not be considered violations of the Act or this part.

However, allowing obstructions or "out of service" equipment to persist beyond a reasonable period of time would violate this part, as would repeated mechanical

failures due to improper or inadequate maintenance. Failure of the public entity to ensure that accessible routes are properly maintained and free of obstructions,

or failure to arrange prompt repair of inoperable elevators or other equipment intended to provide access would also violate this part.

 

Other commenters requested that this section be expanded to include specific requirements for inspection and maintenance of equipment, for training staff

in the proper operation of equipment, and for maintenance of specific items. The Department believes that this section properly establishes the general

requirement for maintaining access and that further details are not necessary.

 

{35.134 Retaliation or coercion.

 

Section 35.134 implements section 503 of the ADA, which prohibits retaliation against any individual who exercises his or her rights under the Act. This

section is unchanged from the proposed rule. Paragraph (a) of {35.134 provides that no private or public entity shall discriminate against any individual

because that individual has exercised his or her right to oppose any act or practice made unlawful by this part, or because that individual made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

 

Paragraph (b) provides that no private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise of his or her

rights under this part or because that individual aided or encouraged any other individual in the exercise or enjoyment of any right granted or protected

by the Act or this part.

 

This section protects not only individuals who allege a violation of the Act or this part, but also any individuals who support or assist them. This section

applies to all investigations or proceedings initiated under the Act or this part without regard to the ultimate resolution of the underlying allegations.

Because this section prohibits any act of retaliation or coercion in response to an individual's effort to exercise rights established by the Act and this

part (or to support the efforts of another individual), the section applies not only to public entities subject to this part, but also to persons acting

in an individual capacity or to private entities. For example, it would be a violation of the Act and this part for a private individual to harass or intimidate

an individual with a disability in an effort to prevent that individual from attending a concert in a State-owned park. It would, likewise, be a violation

of the Act and this part for a private entity to take adverse action against an employee who appeared as a witness on behalf of an individual who sought

to enforce the Act.

 

{35.135 Personal devices and services.

 

The final rule includes a new {35.135, entitles "Personal devices and services," which states that the provision of personal devices and services is not

required by title II. This new section, which serves as a limitation on all of the requirements of the regulation, replaces {35.160(b)(2) of the proposed

rule, which addressed the issue of personal devices and services explicitly only in the context of communications. The personal devices and services limitation

was intended to have general application in the proposed rule in all contexts where it was relevant. The final rule, therefore, clarifies this point by

including a general provision that will explicitly apply not only to auxiliary aids and services but across-the-board to include other relevant areas such

as, for example, modifications in policies, practices, and procedures ({35.130(b)(7)). The language of {35.135 parallels an analogous provision in the

Department's title III regulations (28 CFR {36.306) but preserves the explicit reference to "readers for personal use or study" in {35.160(b)(2) of the

proposed rule. This section does not preclude the short-term loan of personal receivers that are part of an assistive listening system.

 

Subpart C -- Employment

 

{35.140 Employment discrimination prohibited.

 

Title II of the ADA applies to all activities of public entities, including their employment practices. The proposed rule cross-referenced the definitions,

requirements, and procedures of title I of the ADA, as established by the Equal Employment Opportunity Commission in 29 CFR Part 1630. This proposal would

have resulted in use, under {35.140, of the title I definition of "employer," so that a public entity with 25 or more employees would have become subject

to the requirements of {35.140 on July 26, 1992, one with 15 to 24 employees on July 26, 1994, and one with fewer than 15 employees would have been excluded

completely.

 

The Department received comments objecting to this approach. The commenters asserted that Congress intended to establish nondiscrimination requirements

for employment by all public entities, including those that employ fewer than 15 employees; and that Congress intended the employment requirements of title

II to become effective at the same time that the other requirements of this regulation become effective, January 26, 1992. The Department has reexamined

the statutory language and legislative history of the ADA on this issue and has concluded that Congress intended to cover the employment practices of all

public entities and that the applicable effective date is that of title II.

 

The statutory language of section 204(b) of the ADA requires the Department to issue a regulation that is consistent with the ADA and the Department's coordination

regulation under section 504, 28 CFR part 41. The coordination regulation specifically requires nondiscrimination in employment, 28 CFR {{41.52-41.55,

and does not limit coverage based on size of employer. Moreover, under all section 504 implementing regulations issued in accordance with the Department's

coordination regulation, employment coverage under section 504 extends to all employers with federally assisted programs or activities, regardless of size,

and the effective date for those employment requirements has always been the same as the effective date for nonemployment requirements established in the

same regulations. The Department therefore concludes that {35.140 must apply to all public entities upon the effective date of this regulation.

 

In the proposed regulation the Department cross-referenced the regulations implementing title I of the ADA, issued by the Equal Employment Opportunity Commission

at 29 CFR part 1630, as a compliance standard for {35.140 because, as proposed, the scope of coverage and effective date of coverage under title II would

have been coextensive with title I. In the final regulation this language is modified slightly. Subparagraph (1) of new paragraph (b) makes it clear that

the standards established by the Equal Employment Opportunity Commission in 29 CFR part 1630 will be the applicable compliance standards if the public

entity is subject to title I. If the public entity is not covered by title I, or until it is covered by title I, subparagraph (b)(2) cross- references

section 504 standards for what constitutes employment discrimination, as established by the Department of Justice in 28 CFR part 41. Standards for title

I of the ADA and section 504 of the Rehabilitation Act are for the most part identical because title I of the ADA was based on requirements set forth in

regulations implementing section 504.

 

The Department, together with the other Federal agencies responsible for the enforcement of Federal laws prohibiting employment discrimination on the basis

of disability, recognizes the potential for jurisdictional overlap that exists with respect to coverage of public entities and the need to avoid problems

related to overlapping coverage. The other Federal agencies include the Equal Employment Opportunity Commission, which is the agency primarily responsible

for enforcement of title I of the ADA, the Department of Labor, which is the agency responsible for enforcement of section 503 of the Rehabilitation Act

of 1973, and 26 Federal agencies with programs of Federal financial assistance, which are responsible for enforcing section 504 in those programs. Section

107 of the ADA requires that coordination mechanisms be developed in connection with the administrative enforcement of complaints alleging discrimination

under title I and complaints alleging discrimination in employment in violation of the Rehabilitation Act. Although the ADA does not specifically require

inclusion of employment complaints under title II in the coordinating mechanisms required by title I, Federal investigations of title II employment complaints

will be coordinated on a government-wide basis also. The Department is currently working with the EEOC and other affected Federal agencies to develop effective

coordinating mechanisms, and final regulations on this issue will be issued on or before January 26, 1992.

 

Subpart D -- Program Accessibility

 

{35.149 Discrimination prohibited.

 

Section 35.149 states the general nondiscrimination principle underlying the program accessibility requirements of {{35.150 and 35.151.

 

{35.150 Existing facilities.

 

Consistent with section 204(b) of the Act, this regulation adopts the program accessibility concept found in the section 504 regulations for federally conducted

programs or activities (e.g., 28 CFR Part 39). The concept of "program accessibility" was first used in the section 504 regulation adopted by the Department

of Health, Education, and Welfare for its federally assisted programs and activities in 1977. It allowed recipients to make their federally assisted programs

and activities available to individuals with disabilities without extensive retrofitting of their existing buildings and facilities, by offering those

programs through alternative methods. Program accessibility has proven to be a useful approach and was adopted in the regulations issued for programs and

activities conducted by Federal Executive agencies. The Act provides that the concept of program access will continue to apply with respect to facilities

now in existence, because the cost of retrofitting existing facilities is often prohibitive.

 

Section 35.150 requires that each service, program, or activity conducted by a public entity, when viewed in its entirety, be readily accessible to and

usable by individuals with disabilities. The regulation makes clear, however, that a public entity is not required to make each of its existing facilities

accessible ({35.150(a)(1)). Unlike title III of the Act, which requires public accommodations to remove architectural barriers where such removal is "readily

achievable," or to provide goods and services through alternative methods, where those methods are "readily achievable," title II requires a public entity

to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial

and administrative burdens. Congress intended the "undue burden" standard in title II to be significantly higher than the "readily achievable" standard

in title III. Thus, although title II may not require removal of barriers in some cases where removal would be required under title III, the program access

requirement of title II should enable individuals with disabilities to participate in and benefit from the services, programs, or activities of public

entities in all but the most unusual cases.

 

Paragraph (a)(2), which establishes a special limitation on the obligation to ensure program accessibility in historic preservation programs, is discussed

below in connection with paragraph (b).

 

Paragraph (a)(3), which is taken from the section 504 regulations for federally conducted programs, generally codifies case law that defines the scope of

the public entity's obligation to ensure program accessibility. This paragraph provides that, in meeting the program accessibility requirement, a public

entity is not required to take any action that would result in a fundamental alteration in the nature of its service, program, or activity or in undue

financial and administrative burdens. A similar limitation is provided in {35.164.

 

This paragraph does not establish an absolute defense; it does not relieve a public entity of all obligations to individuals with disabilities. Although

a public entity is not required to take actions that would result in a fundamental alteration in the nature of a service, program, or activity or in undue

financial and administrative burdens, it nevertheless must take any other steps necessary to ensure that individuals with disabilities receive the benefits

or services provided by the public entity.

 

It is the Department's view that compliance with {35.150(a), like compliance with the corresponding provisions of the section 504 regulations for federally

conducted programs, would in most cases not result in undue financial and administrative burdens on a public entity. In determining whether financial and

administrative burdens are undue, all public entity resources available for use in the funding and operation of the service, program, or activity should

be considered. The burden of proving that compliance with paragraph (a) of {35.150 would fundamentally alter the nature of a service, program, or activity

or would result in undue financial and administrative burdens rests with the public entity.

 

The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee and must be

accompanied by a written statement of the reasons for reaching that conclusion. The Department recognizes the difficulty of identifying the official responsible

for this determination, given the variety of organizational forms that may be taken by public entities and their components. The intention of this paragraph

is that the determination must be made by a high level official, no lower than a Department head, having budgetary authority and responsibility for making

spending decisions.

 

Any person who believes that he or she or any specific class of persons has been injured by the public entity head's decision or failure to make a decision

may file a complaint under the compliance procedures established in subpart F.

 

Paragraph (b)(1) sets forth a number of means by which program accessibility may be achieved, including redesign of equipment, reassignment of services

to accessible buildings, and provision of aides.

 

The Department wishes to clarify that, consistent with longstanding interpretation of section 504, carrying an individual with a disability is considered

an ineffective and therefore an unacceptable method for achieving program accessibility. Department of Health, Education, and Welfare, Office of Civil

Rights, Policy Interpretation No. 4, 43 Fed. Reg. 36035 (August 14, 1978). Carrying will be permitted only in manifestly exceptional cases, and only if

all personnel who are permitted to participate in carrying an individual with a disability are formally instructed on the safest and least humiliating

means of carrying. "Manifestly exceptional" cases in which carrying would be permitted might include, for example, programs conducted in unique facilities,

such as an oceanographic vessel, for which structural changes and devices necessary to adapt the facility for use by individuals with mobility impairments

are unavailable or prohibitively expensive. Carrying is not permitted as an alternative to structural modifications such as installation of a ramp or a

chairlift.

 

In choosing among methods, the public entity shall give priority consideration to those that will be consistent with provision of services in the most integrated

setting appropriate to the needs of individuals with disabilities. Structural changes in existing facilities are required only when there is no other feasible

way to make the public entity's program accessible. (It should be noted that "structural changes" include all physical changes to a facility; the term

does not refer only to changes to structural features, such as removal of or alteration to a load-bearing structural member.) The requirements of {35.151

for alterations apply to structural changes undertaken to comply with this section. The public entity may comply with the program accessibility requirement

by delivering services at alternate accessible sites or making home visits as appropriate.

 

Historic preservation programs. In order to avoid possible conflict between the congressional mandates to preserve historic properties, on the one hand,

and to eliminate discrimination against individuals with disabilities on the other, paragraph (a)(2) provides that a public entity is not required to take

any action that would threaten or destroy the historic significance of an historic property. The special limitation on program accessibility set forth

in paragraph (a)(2) is applicable only to historic preservation programs, as defined in {35.104, that is, programs that have preservation of historic properties

as a primary purpose. Narrow application of the special limitation is justified because of the inherent flexibility of the program accessibility requirement.

Where historic preservation is not a primary purpose of the program, the public entity is not required to use a particular facility. It can relocate all

or part of its program to an accessible facility, make home visits, or use other standard methods of achieving program accessibility without making structural

alterations that might threaten or destroy significant historic features of the historic property. Thus, government programs located in historic properties,

such as an historic State capitol, are not excused from the requirement for program access.

 

Paragraph (a)(2), therefore, will apply only to those programs that uniquely concern the preservation and experience of the historic property itself. Because

the primary benefit of an historic preservation program is the experience of the historic property, paragraph (b)(2) requires the public entity to give

priority to methods of providing program accessibility that permit individuals with disabilities to have physical access to the historic property. This

priority on physical access may also be viewed as a specific application of the general requirement that the public entity administer programs in the most

integrated setting appropriate to the needs of qualified individuals with disabilities ({35.130(d)). Only when providing physical access would threaten

or destroy the historic significance of an historic property, or would result in a fundamental alteration in the nature of the program or in undue financial

and administrative burdens, may the public entity adopt alternative methods for providing program accessibility that do not ensure physical access. Examples

of some alternative methods are provided in paragraph (b)(2).

 

Time periods. Paragraphs (c) and (d) establish time periods for complying with the program accessibility requirement. Like the regulations for federally

assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c) requires the public entity to make any necessary structural changes in facilities as soon as practicable,

but in no event later than three years after the effective date of this regulation.

 

The proposed rule provided that, aside from structural changes, all other necessary steps to achieve compliance with this part must be taken within sixty

days. The sixty day period was taken from regulations implementing section 504, which generally were effective no more than thirty days after publication.

Because this regulation will not be effective until January 26, 1992, the Department has concluded that no additional transition period for non-structural

changes is necessary, so the sixty day period has been omitted in the final rule. Of course, this section does not reduce or eliminate any obligations

that are already applicable to a public entity under section 504.

 

Where structural modifications are required, paragraph (d) requires that a transition plan be developed by an entity that employs 50 or more persons, within

six months of the effective date of this regulation. The legislative history of title II of the ADA makes it clear that, under title II, "local and state

governments are required to provide curb cuts on public streets." Education and Labor report at 84. As the rationale for the provision of curb cuts, the

House report explains, "The employment, transportation, and public accommodation sections of . . . [the ADA] would be meaningless if people who use wheelchairs

were not afforded the opportunity to travel on and between the streets." Id. Section 35.151(e), which establishes accessibility requirements for new construction

and alterations, requires that all newly constructed or altered streets, roads, or highways must contain curb ramps or other sloped areas at any intersection

having curbs or other barriers to entry from a street level pedestrian walkway, and all newly constructed or altered street level pedestrian walkways must

have curb ramps or other sloped areas at intersections to streets, roads, or highways. A new paragraph (d)(2) has been added to the final rule to clarify

the application of the general requirement for program accessibility to the provision of curb cuts at existing crosswalks. This paragraph requires that

the transition plan include a schedule for providing curb ramps or other sloped areas at existing pedestrian walkways, giving priority to walkways serving

entities covered by the Act, including State and local government offices and facilities, transportation, public accommodations, and employers, followed

by walkways serving other areas. Pedestrian "walkways" include locations where access is required for use of public transportation, such as bus stops that

are not located at intersections or crosswalks.

 

Similarly, a public entity should provide an adequate number of accessible parking spaces in existing parking lots or garages over which it has jurisdiction.

 

Paragraph (d)(3) provides that, if a public entity has already completed a transition plan required by a regulation implementing section 504, the transition

plan required by this part will apply only to those policies and practices that were not covered by the previous transition plan. Some commenters suggested

that the transition plan should include all aspects of the public entity's operations, including those that may have been covered by a previous transition

plan under section 504. The Department believes that such a duplicative requirement would be inappropriate. Many public entities may find, however, that

it will be simpler to include all of their operations in the transition plan than to attempt to identify and exclude specifically those that were addressed

in a previous plan. Of course, entities covered under section 504 are not shielded from their obligations under that statute merely because they are included

under the transition plan developed under this section.

 

{35.151 New construction and alterations.

 

Section 35.151 provides that those buildings that are constructed or altered by, on behalf of, or for the use of a public entity shall be designed, constructed,

or altered to be readily accessible to and usable by individuals with disabilities if the construction was commenced after the effective date of this part.

Facilities under design on that date will be governed by this section if the date that bids were invited falls after the effective date. This interpretation

is consistent with Federal practice under section 504.

 

Section 35.151(c) establishes two standards for accessible new construction and alteration. Under paragraph (c), design, construction, or alteration of

facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) or with the Americans with Disabilities Act Accessibility Guidelines

for Buildings and Facilities (hereinafter ADAAG) shall be deemed to comply with the requirements of this section with respect to those facilities except

that, if ADAAG is chosen, the elevator exemption contained at {{36.401(d) and 36.404 does not apply. ADAAG is the standard for private buildings and was

issued as guidelines by the Architectural and Transportation Barriers Compliance Board (ATBCB) under title III of the ADA. It has been adopted by the Department

of Justice and is published as Appendix A to the Department's title III rule in today's Federal Register. Departures from particular requirements of these

standards by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby

provided. Use of two standards is a departure from the proposed rule.

 

The proposed rule adopted UFAS as the only interim accessibility standard because that standard was referenced by the regulations implementing section 504

of the Rehabilitation Act promulgated by most Federal funding agencies. It is, therefore, familiar to many State and local government entities subject

to this rule. The Department, however, received many comments objecting to the adoption of UFAS. Commenters pointed out that, except for the elevator exemption,

UFAS is not as stringent as ADAAG. Others suggested that the standard should be the same to lessen confusion.

 

Section 204(b) of the Act states that title II regulations must be consistent not only with section 504 regulations but also with "this Act." Based on this

provision, the Department has determined that a public entity should be entitled to choose to comply either with ADAAG or UFAS.

 

Public entities who choose to follow ADAAG, however, are not entitled to the elevator exemption contained in title III of the Act and implemented in the

title III regulation at {36.401(d) for new construction and {36.404 for alterations. Section 303(b) of title III states that, with some exceptions, elevators

are not required in facilities that are less than three stories or have less than 3000 square feet per story. The section 504 standard, UFAS, contains

no such exemption. Section 501 of the ADA makes clear that nothing in the Act may be construed to apply a lesser standard to public entities than the standards

applied under section 504. Because permitting the elevator exemption would clearly result in application of a lesser standard than that applied under section

504, paragraph (c) states that the elevator exemption does not apply when public entities choose to follow ADAAG. Thus, a two-story courthouse, whether

built according to UFAS or ADAAG, must be constructed with an elevator. It should be noted that Congress did not include an elevator exemption for public

transit facilities covered by subtitle B of title II, which covers public transportation provided by public entities, providing further evidence that Congress

intended that public buildings have elevators.

 

Section 504 of the ADA requires the ATBCB to issue supplemental Minimum Guidelines and Requirements for Accessible Design of buildings and facilities subject

to the Act, including title II. Section 204(c) of the ADA provides that the Attorney General shall promulgate regulations implementing title II that are

consistent with the ATBCB's ADA guidelines. The ATBCB has announced its intention to issue title II guidelines in the future. The Department anticipates

that, after the ATBCB's title II guidelines have been published, this rule will be amended to adopt new accessibility standards consistent with the ATBCB's

rulemaking. Until that time, however, public entities will have a choice of following UFAS or ADAAG, without the elevator exemption.

 

Existing buildings leased by the public entity after the effective date of this part are not required by the regulation to meet accessibility standards

simply by virtue of being leased. They are subject, however, to the program accessibility standard for existing facilities in {35.150. To the extent the

buildings are newly constructed or altered, they must also meet the new construction and alteration requirements of {35.151.

 

The Department received many comments urging that the Department require that public entities lease only accessible buildings. Federal practice under section

504 has always treated newly leased buildings as subject to the existing facility program accessibility standard. Section 204(b) of the Act states that,

in the area of "program accessibility, existing facilities," the title II regulations must be consistent with section 504 regulations. Thus, the Department

has adopted the section 504 principles for these types of leased buildings. Unlike the construction of new buildings where architectural barriers can be

avoided at little or no cost, the application of new construction standards to an existing building being leased raises the same prospect of retrofitting

buildings as the use of an existing Federal facility, and the same program accessibility standard should apply to both owned and leased existing buildings.

Similarly, requiring that public entities only lease accessible space would significantly restrict the options of State and local governments in seeking

leased space, which would be particularly burdensome in rural or sparsely populated areas.

 

On the other hand, the more accessible the leased space is, the fewer structural modifications will be required in the future for particular employees whose

disabilities may necessitate barrier removal as a reasonable accommodation. Pursuant to the requirements for leased buildings contained in the Minimum

Guidelines and Requirements for Accessible Design published under the Architectural Barriers Act by the ATBCB, 36 CFR 1190.34, the Federal Government may

not lease a building unless it contains (1) one accessible route from an accessible entrance to those areas in which the principal activities for which

the building is leased are conducted, (2) accessible toilet facilities, and (3) accessible parking facilities, if a parking area is included within the

lease (36 CFR 1190.34). Although these requirements are not applicable to buildings leased by public entities covered by this regulation, such entities

are encouraged to look for the most accessible space available to lease and to attempt to find space complying at least with these minimum Federal requirements.

 

Section 35.151(d) gives effect to the intent of Congress, expressed in section 504(c) of the Act, that this part recognize the national interest in preserving

significant historic structures. Commenters criticized the Department's use of descriptive terms in the proposed rule that are different from those used

in the ADA to describe eligible historic properties. In addition, some commenters criticized the Department's decision to use the concept of "substantially

impairing" the historic features of a property, which is a concept employed in regulations implementing section 504 of the Rehabilitation Act of 1973.

Those commenters recommended that the Department adopt the criteria of "adverse effect" published by the Advisory Council on Historic Preservation under

the National Historic Preservation Act, 36 CFR 800.9, as the standard for determining whether an historic property may be altered.

 

The Department agrees with these comments to the extent that they suggest that the language of the rule should conform to the language employed by Congress

in the ADA. A definition of "historic property," drawn from section 504 of the ADA, has been added to {35.104 to clarify that the term applies to those

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

 

The Department intends that the exception created by this section be applied only in those very rare situations in which it is not possible to provide access

to an historic property using the special access provisions established by UFAS and ADAAG. Therefore, paragraph (d)(1) of {35.151 has been revised to clearly

state that alterations to historic properties shall comply, to the maximum extent feasible, with section 4.1.7 of UFAS or section 4.1.7 of ADAAG. Paragraph

(d)(2) has been revised to provide that, if it has been determined under the procedures established in UFAS and ADAAG that it is not feasible to provide

physical access to an historic property in a manner that will not threaten or destroy the historic significance of the property, alternative methods of

access shall be provided pursuant to the requirements of {35.150.

 

In response to comments, the Department has added to the final rule a new paragraph (e) setting out the requirements of {36.151 as applied to curb ramps.

Paragraph (e) is taken from the statement contained in the preamble to the proposed rule that all newly constructed or altered streets, roads, and highways

must contain curb ramps at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, and that all newly constructed

or altered street level pedestrian walkways must have curb ramps at intersections to streets, roads, or highways.

 

Subpart E -- Communications

 

{35.160 General.

 

Section 35.160 requires the public entity to take such steps as may be necessary to ensure that communications with applicants, participants, and members

of the public with disabilities are as effective as communications with others.

 

Paragraph (b)(1) requires the public entity to furnish appropriate auxiliary aids and services when necessary to afford an individual with a disability

an equal opportunity to participate in, and enjoy the benefits of, the public entity's service, program, or activity. The public entity must provide an

opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. This expressed choice shall be given primary

consideration by the public entity (Sec.35.160(b)(2)). The public entity shall honor the choice unless it can demonstrate that another effective means

of communication exists or that use of the means chosen would not be required under Sec.35.164.

 

Deference to the request of the individual with a disability is desirable because of the range of disabilities, the variety of auxiliary aids and services,

and different circumstances requiring effective communication. For instance, some courtrooms are now equipped for ``computer-assisted transcripts,'' which

allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays. Such a system might be an effective auxiliary aid

or service for a person who is deaf or has a hearing loss who uses speech to communicate, but may be useless for someone who uses sign language.

 

Although in some circumstances a notepad and written materials may be sufficient to permit effective communication, in other circumstances they may not

be sufficient. For example, a qualified interpreter may be necessary when the information being communicated is complex, or is exchanged for a lengthy

period of time. Generally, factors to be considered in determining whether an interpreter is required include the context in which the communication is

taking place, the number of people involved, and the importance of the communication.

 

Several commenters asked that the rule clarify that the provision of readers is sometimes necessary to ensure access to a public entity's services, programs

or activities. Reading devices or readers should be provided when necessary for equal participation and opportunity to benefit from any governmental service,

program, or activity, such as reviewing public documents, examining demonstrative evidence, and filling out voter registration forms or forms needed to

receive public benefits. The importance of providing qualified readers for examinations administered by public entities is discussed under Sec.35.130.

Reading devices and readers are appropriate auxiliary aids and services where necessary to permit an individual with a disability to participate in or

benefit from a service, program, or activity.

 

Section 35.160(b)(2) of the proposed rule, which provided that a public entity need not furnish individually prescribed devices, readers for personal use

or study, or other devices of a personal nature, has been deleted in favor of a new section in the final rule on personal devices and services (see Sec.35.135).

 

In response to comments, the term ``auxiliary aids and services'' is used in place of ``auxiliary aids'' in the final rule. This phrase better reflects

the range of aids and services that may be required under this section.

 

A number of comments raised questions about the extent of a public entity's obligation to provide access to television programming for persons with hearing

impairments. Television and videotape programming produced by public entities are covered by this section. Access to audio portions of such programming

may be provided by closed captioning.

 

{35.161 Telecommunication Devices for the Deaf (TDD's)

 

Section 35.161 requires that, where a public entity communicates with applicants and beneficiaries by telephone, TDD's or equally effective telecommunication

systems be used to communicate with individuals with impaired speech or hearing.

 

Problems arise when a public entity which does not have a TDD needs to communicate with an individual who uses a TDD or vice versa. Title IV of the ADA

addresses this problem by requiring establishment of telephone relay services to permit communications between individuals who communicate by TDD and individuals

who communicate by the telephone alone. The relay services required by title IV would involve a relay operator using both a standard telephone and a TDD

to type the voice messages to the TDD user and read the TDD messages to the standard telephone user.

 

Section 204(b) of the ADA requires that the regulation implementing title II with respect to communications be consistent with the Department's regulation

implementing section 504 for its federally conducted programs and activities at 28 CFR part 39. Section 35.161, which is taken from Sec.39.160(a)(2) of

that regulation, requires the use of TDD's or equally effective telecommunication systems for communication with people who use TDD's. Of course, where

relay services, such as those required by title IV of the ADA are available, a public entity may use those services to meet the requirements of this section.

 

Many commenters were concerned that public entities should not rely heavily on the establishment of relay services. The commenters explained that while

relay services would be of vast benefit to both public entities and individuals who use TDD's, the services are not sufficient to provide access to all

telephone services. First, relay systems do not provide effective access to the increasingly popular automated systems that require the caller to respond

by pushing a button on a touch tone phone. Second, relay systems cannot operate fast enough to convey messages on answering machines, or to permit a TDD

user to leave a recorded message. Third, communication through relay systems may not be appropriate in cases of crisis lines pertaining to rape, domestic

violence, child abuse, and drugs. The Department believes that it is more appropriate for the Federal Communications Commission to address these issues

in its rulemaking under title IV.

 

Some commenters requested that those entities with frequent contacts with clients who use TDD's have on-site TDD's to provide for direct communication between

the entity and the individual. The Department encourages those entities that have extensive telephone contact with the public such as city halls, public

libraries, and public aid offices, to have TDD's to insure more immediate access. Where the provision of telephone service is a major function of the entity,

TDD's should be available.

 

{35.162 Telephone Emergency Services

 

Many public entities provide telephone emergency services by which individuals can seek immediate assistance from police, fire, ambulance, and other emergency

services. These telephone emergency services -- including ``911'' services -- are clearly an important public service whose reliability can be a matter

of life or death. The legislative history of title II specifically reflects congressional intent that public entities must ensure that telephone emergency

services, including 911 services, be accessible to persons with impaired hearing and speech through telecommunication technology (Conference report at

67; Education and Labor report at 84 - 85).

 

Proposed Sec.35.162 mandated that public entities provide emergency telephone services to persons with disabilities that are ``functionally equivalent''

to voice services provided to others. Many commenters urged the Department to revise the section to make clear that direct access to telephone emergency

services is required by title II of the ADA as indicated by the legislative history (Conference report at 67 - 68; Education and Labor report at 85). In

response, the final rule mandates ``direct access,'' instead of ``access that is functionally equivalent'' to that provided to all other telephone users.

Telephone emergency access through a third party or through a relay service would not satisfy the requirement for direct access.

 

Several commenters asked about a separate seven-digit emergency call number for the 911 services. The requirement for direct access disallows the use of

a separate seven-digit number where 911 service is available. Separate seven-digit emergency call numbers would be unfamiliar to many individuals and also

more burdensome to use. A standard emergency 911 number is easier to remember and would save valuable time spent in searching in telephone books for a

local seven-digit emergency number.

 

Many commenters requested the establishment of minimum standards of service (e.g., the quantity and location of TDD's and computer modems needed in a given

emergency center). Instead of establishing these scoping requirements, the Department has established a performance standard through the mandate for direct

access.

 

Section 35.162 requires public entities to take appropriate steps, including equipping their emergency systems with modern technology, as may be necessary

to promptly receive and respond to a call from users of TDD's and computer modems. Entities are allowed the flexibility to determine what is the appropriate

technology for their particular needs. In order to avoid mandating use of particular technologies that may become outdated, the Department has eliminated

the references to the Baudot and ASCII formats in the proposed rule.

 

Some commenters requested that the section require the installation of a voice amplification device on the handset of the dispatcher's telephone to amplify

the dispatcher's voice. In an emergency, a person who has a hearing loss may be using a telephone that does not have an amplification device. Installation

of speech amplification devices on the handsets of the dispatchers' telephones would respond to that situation. The Department encourages their use.

 

Several commenters emphasized the need for proper maintenance of TDD's used in telephone emergency services. Section 35.133, which mandates maintenance

of accessible features, requires public entities to maintain in operable working condition TDD's and other devices that provide direct access to the emergency

system.

 

{35.163 Information and Signage

 

Section 35.163(a) requires the public entity to provide information to individuals with disabilities concerning accessible services, activities, and facilities.

Paragraph (b) requires the public entity to provide signage at all inaccessible entrances to each of its facilities that directs users to an accessible

entrance or to a location with information about accessible facilities.

 

Several commenters requested that, where TDD-equipped pay phones or portable TDD's exist, clear signage should be posted indicating the location of the

TDD. The Department believes that this is required by paragraph (a). In addition, the Department recommends that, in large buildings that house TDD's,

directional signage indicating the location of available TDD's should be placed adjacent to banks of telephones that do not contain a TDD.

 

{35.164 Duties

 

Section 35.164, like paragraph (a)(3) of Sec.35.150, is taken from the section 504 regulations for federally conducted programs. Like paragraph (a)(3),

it limits the obligation of the public entity to ensure effective communication in accordance with Davis and the circuit court opinions interpreting it.

It also includes specific requirements for determining the existence of undue financial and administrative burdens. The preamble discussion of Sec.35.150(a)

regarding that determination is applicable to this section and further explains the public entity's obligation to comply with Sec.35.160 - 35.164. Because

of the essential nature of the services provided by telephone emergency systems, the Department assumes that Sec.35.164 will rarely be applied to Sec.35.162.

 

Subpart F -- Compliance Procedures

 

Subpart F sets out the procedures for administrative enforcement of this part. Section 203 of the Act provides that the remedies, procedures, and rights

set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) for enforcement of section 504 of the Rehabilitation Act, which prohibits discrimination

on the basis of handicap in programs and activities that receive Federal financial assistance, shall be the remedies, procedures, and rights for enforcement

of title II. Section 505, in turn, incorporates by reference the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964

(42 U.S.C. 2000d to 2000d - 4a). Title VI, which prohibits discrimination on the basis of race, color, or national origin in federally assisted programs,

is enforced by the Federal agencies that provide the Federal financial assistance to the covered programs and activities in question. If voluntary compliance

cannot be achieved, Federal agencies enforce title VI either by the termination of Federal funds to a program that is found to discriminate, following

an administrative hearing, or by a referral to this Department for judicial enforcement.

 

Title II of the ADA extended the requirements of section 504 to all services, programs, and activities of State and local governments, not only those that

receive Federal financial assistance. The House Committee on Education and Labor explained the enforcement provisions as follows:

 

It is the Committee's intent that administrative enforcement of section 202 of the legislation should closely parallel the Federal government's experience

with section 504 of the Rehabilitation Act of 1973. The Attorney General should use section 504 enforcement procedures and the Department's coordination

role under Executive Order 12250 as models for regulation in this area.

 

The Committee envisions that the Department of Justice will identify appropriate Federal agencies to oversee compliance activities for State and local governments.

As with section 504, these Federal agencies, including the Department of Justice, will receive, investigate, and where possible, resolve complaints of

discrimination. If a Federal agency is unable to resolve a complaint by voluntary means, . . . the major enforcement sanction for the Federal government

will be referral of cases by these Federal agencies to the Department of Justice.

 

The Department of Justice may then proceed to file suits in Federal district court. As with section 504, there is also a private right of action for persons

with disabilities, which includes the full panoply of remedies. Again, consistent with section 504, it is not the Committee's intent that persons with

disabilities need to exhaust Federal administrative remedies before exercising their private right of action.

 

Education & Labor report at 98. See also S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58 (1989).

 

Subpart F effectuates the congressional intent by deferring to section 504 procedures where those procedures are applicable, that is, where a Federal agency

has jurisdiction under section 504 by virtue of its provision of Federal financial assistance to the program or activity in which the discrimination is

alleged to have occurred. Deferral to the 504 procedures also makes the sanction of fund termination available where necessary to achieve compliance. Because

the Civil Rights Restoration Act (Pub. L. 100-259) extended the application of section 504 to all of the operations of the public entity receiving the

Federal financial assistance, many activities of State and local governments are already covered by section 504. The procedures in subpart F apply to complaints

concerning services, programs, and activities of public entities that are covered by the ADA.

 

Subpart G designates the Federal agencies responsible for enforcing the ADA with respect to specific components of State and local government. It does not,

however, displace existing jurisdiction under section 504 of the various funding agencies. Individuals may still file discrimination complaints against

recipients of Federal financial assistance with the agencies that provide that assistance, and the funding agencies will continue to process those complaints

under their existing procedures for enforcing section 504. The substantive standards adopted in this part for title II of the ADA are generally the same

as those required under section 504 for federally assisted programs, and public entities covered by the ADA are also covered by the requirements of section

504 to the extent that they receive Federal financial assistance. To the extent that title II provides greater protection to the rights of individuals

with disabilities, however, the funding agencies will also apply the substantive requirements established under title II and this part in processing complaints

covered by both this part and section 504, except that fund termination procedures may be used only for violations of section 504.

 

Subpart F establishes the procedures to be followed by the agencies designated in subpart G for processing complaints against State and local government

entities when the designated agency does not have jurisdiction under section 504.

 

{35.170 Complaints.

 

Section 35.170 provides that any individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis

of disability by a public entity may, by himself or herself or by an authorized representative, file a complaint under this part within 180 days of the

date of the alleged discrimination, unless the time for filing is extended by the agency for good cause. Although {35.107 requires public entities that

employ 50 or more persons to establish grievance procedures for resolution of complaints, exhaustion of those procedures is not a prerequisite to filing

a complaint under this section. If a complainant chooses to follow the public entity's grievance procedures, however, any resulting delay may be considered

good cause for extending the time allowed for filing a complaint under this part.

 

Filing the complaint with any Federal agency will satisfy the requirement for timely filing. As explained below, a complaint filed with an agency that has

jurisdiction under section 504 will be processed under the agency's procedures for enforcing section 504.

 

Some commenters objected to the complexity of allowing complaints to be filed with different agencies. The multiplicity of enforcement jurisdiction is the

result of following the statutorily mandated enforcement scheme. The Department has, however, attempted to simplify procedures for complainants by making

the Federal agency that receives the complaint responsible for referring it to an appropriate agency.

 

The Department has also added a new paragraph (c) to this section providing that a complaint may be filed with any agency designated under subpart G of

this part, or with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice. Under

{35.171(a)(2), the Department of Justice will refer complaints for which it does not have jurisdiction under section 504 to an agency that does have jurisdiction

under section 504, or to the agency designated under subpart G as responsible for complaints filed against the public entity that is the subject of the

complaint or in the case of an employment complaint that is also subject to title I of the Act, to the Equal Employment Opportunity Commission. Complaints

filed with the Department of Justice may be sent to the Coordination and Review Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice,

Washington, D.C. 20035-6118.

 

{35.171 Acceptance of complaints.

 

Section 35.171 establishes procedures for determining jurisdiction and responsibility for processing complaints against public entities. The final rule

provides complainants an opportunity to file with the Federal funding agency of their choice. If that agency does not have jurisdiction under section 504,

however, and is not the agency designated under subpart G as responsible for that public entity, the agency must refer the complaint to the Department

of Justice, which will be responsible for referring it either to an agency that does have jurisdiction under section 504 or to the appropriate designated

agency, or in the case of an employment complaint that is also subject to title I of the Act, to the Equal Employment Opportunity Commission.

 

Whenever an agency receives a complaint over which it has jurisdiction under section 504, it will process the complaint under its section 504 procedures.

When the agency designated under subpart G receives a complaint for which it does not have jurisdiction under section 504, it will treat the complaint

as an ADA complaint under the procedures established in this subpart.

 

Section 35.171 also describes agency responsibilities for the processing of employment complaints. As described in connection with {35.140, additional procedures

regarding the coordination of employment complaints will be established in a coordination regulation issued by DOJ and EEOC. Agencies with jurisdiction

under section 504 for complaints alleging employment discrimination also covered by title I will follow the procedures established by the coordination

regulation for those complaints. Complaints covered by title I but not section 504 will be referred to the EEOC, and complaints covered by this part but

not title I will be processed under the procedures in this part.

 

{35.172 Resolution of complaints.

 

Section 35.172 requires the designated agency to either resolve the complaint or issue to the complainant and the public entity a Letter of Findings containing

findings of fact and conclusions of law and a description of a remedy for each violation found.

 

The Act requires the Department of Justice to establish administrative procedures for resolution of complaints, but does not require complainants to exhaust

these administrative remedies. The Committee Reports make clear that Congress intended to provide a private right of action with the full panoply of remedies

for individual victims of discrimination. Because the Act does not require exhaustion of administrative remedies, the complainant may elect to proceed

with a private suit at any time.

 

{35.173 Voluntary compliance agreements.

 

Section 35.173 requires the agency to attempt to resolve all complaints in which it finds noncompliance through voluntary compliance agreements enforceable

by the Attorney General.

 

{35.174 Referral.

 

Section 35.174 provides for referral of the matter to the Department of Justice if the agency is unable to obtain voluntary compliance.

 

{35.175 Attorney's fees.

 

Section 35.175 states that courts are authorized to award attorneys fees, including litigation expenses and costs, as provided in section 505 of the Act.

Litigation expenses include items such as expert witness fees, travel expenses, etc. The Judiciary Committee Report specifies that such items are included

under the rubric of "attorneys fees" and not "costs" so that such expenses will be assessed against a plaintiff only under the standard set forth in Christiansburg

Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary report at 73.)

 

{35.176 Alternative means of dispute resolution.

 

Section 35.176 restates section 513 of the Act, which encourages use of alternative means of dispute resolution.

 

{35.177 Effect of unavailability of technical assistance.

 

Section 35.177 explains that, as provided in section 506(e) of the Act, a public entity is not excused from compliance with the requirements of this part

because of any failure to receive technical assistance.

 

{35.178 State immunity.

 

Section 35.178 restates the provision of section 502 of the Act that a State is not immune under the eleventh amendment to the Constitution of the United

States from an action in Federal or State court for violations of the Act, and that the same remedies are available for any such violations as are available

in an action against an entity other than a State.

 

Subpart G -- Designated Agencies

 

{35.190 Designated agencies.

 

Subpart G designates the Federal agencies responsible for investigating complaints under this part. At least 26 agencies currently administer programs of

Federal financial assistance that are subject to the nondiscrimination requirements of section 504 as well as other civil rights statutes. A majority of

these agencies administer modest programs of Federal financial assistance and/or devote minimal resources exclusively to "external" civil rights enforcement

activities. Under Executive Order 12250, the Department of Justice has encouraged the use of delegation agreements under which certain civil rights compliance

responsibilities for a class of recipients funded by more than one agency are delegated by an agency or agencies to a "lead" agency. For example, many

agencies that fund institutions of higher education have signed agreements that designate the Department of Education as the "lead" agency for this class

of recipients.

 

The use of delegation agreements reduces overlap and duplication of effort, and thereby strengthens overall civil rights enforcement. However, the use of

these agreements to date generally has been limited to education and health care recipients. These classes of recipients are funded by numerous agencies

and the logical connection to a lead agency is clear (e.g., the Department of Education for colleges and universities, and the Department of Health and

Human Services for hospitals).

 

The ADA's expanded coverage of State and local government operations further complicates the process of establishing Federal agency jurisdiction for the

purpose of investigating complaints of discrimination on the basis of disability. Because all operations of public entities now are covered irrespective

of the presence or absence of Federal financial assistance, many additional State and local government functions and organizations now are subject to Federal

jurisdiction. In some cases, there is no historical or single clear-cut subject matter relationship with a Federal agency as was the case in the education

example described above. Further, the 33,000 governmental jurisdictions subject to the ADA differ greatly in their organization, making a detailed and

workable division of Federal agency jurisdiction by individual State, county, or municipal entity unrealistic.

 

This regulation applies the delegation concept to the investigation of complaints of discrimination on the basis of disability by public entities under

the ADA. It designates eight agencies, rather than all agencies currently administering programs of Federal financial assistance, as responsible for investigating

complaints under this part. These "designated agencies" generally have the largest civil rights compliance staffs, the most experience in complaint investigations

and disability issues, and broad yet clear subject area responsibilities. This division of responsibilities is made functionally rather than by public

entity type or name designation. For example, all entities (regardless of their title) that exercise responsibilities, regulate, or administer services

or programs relating to lands and natural resources fall within the jurisdiction of the Department of Interior.

 

Complaints under this part will be investigated by the designated agency most closely related to the functions exercised by the governmental component against

which the complaint is lodged. For example, a complaint against a State medical board, where such a board is a recognizable entity, will be investigated

by the Department of Health and Human Services (the designated agency for regulatory activities relating to the provision of health care), even if the

board is part of a general umbrella department of planning and regulation (for which the Department of Justice is the designated agency). If two or more

agencies have apparent responsibility over a complaint, section 35.190(c) provides that the Assistant Attorney General shall determine which one of the

agencies shall be the designated agency for purposes of that complaint.

 

Thirteen commenters, including four proposed designated agencies, addressed the Department of Justice's identification in the proposed regulation of nine

"designated agencies" to investigate complaints under this part. Most comments addressed the proposed specific delegations to the various individual agencies.

The Department of Justice agrees with several commenters who pointed out that responsibility for "historic and cultural preservation" functions appropriately

belongs with the Department of Interior rather than the Department of Education. The Department of Justice also agrees with the Department of Education

that "museums" more appropriately should be delegated to the Department of Interior, and that "preschool and daycare programs" more appropriately should

be assigned to the Department of Health and Human Services, rather than to the Department of Education. The final rule reflects these decisions.

 

The Department of Commerce opposed its listing as the designated agency for "commerce and industry, including general economic development, banking and

finance, consumer protection, insurance, and small business". The Department of Commerce cited its lack of a substantial existing section 504 enforcement

program and experience with many of the specific functions to be delegated. The Department of Justice accedes to the Department of Commerce's position,

and has assigned itself as the designated agency for these functions.

 

In response to a comment from the Department of Health and Human Services, the regulation's category of "medical and nursing schools" has been clarified

to read "schools of medicine, dentistry, nursing, and other health-related fields". Also in response to a comment from the Department of Health and Human

Services, "correctional institutions" have been specifically added to the public safety and administration of justice functions assigned to the Department

of Justice.

 

The regulation also assigns the Department of Justice as the designated agency responsible for all State and local government functions not assigned to

other designated agencies. The Department of Justice, under an agreement with the Department of the Treasury, continues to receive and coordinate the investigation

of complaints filed under the Revenue Sharing Act. This entitlement program, which was terminated in 1986, provided civil rights compliance jurisdiction

for a wide variety of complaints regarding the use of Federal funds to support various general activities of local governments. In the absence of any similar

program of Federal financial assistance administered by another Federal agency, placement of designated agency responsibilities for miscellaneous and otherwise

undesignated functions with the Department of Justice is an appropriate continuation of current practice.

 

The Department of Education objected to the proposed rule's inclusion of the functional area of "arts and humanities" within its responsibilities, and the

Department of Housing and Urban Development objected to its proposed designation as responsible for activities relating to rent control, the real estate

industry, and housing code enforcement. The Department has deleted these areas from the lists assigned to the Departments of Education and Housing and

Urban Development, respectively, and has added a new paragraph (c) to section 35.190, which provides that the Department of Justice may assign responsibility

for components of State or local governments that exercise responsibilities, regulate, or administer services, programs, or activities relating to functions

not assigned to specific designated agencies by paragraph (b) of this section to other appropriate agencies. The Department believes that this approach

will provide more flexibility in determining the appropriate agency for investigation of complaints involving those components of State and local governments

not specifically addressed by the listings in paragraph (b). As provided in {{35.170 and 35.171, complaints filed with the Department of Justice will be

referred to the apropriate agency.

 

Several commenters proposed a stronger role for the Department of Justice, especially with respect to the receipt and assignment of complaints, and the

overall monitoring of the effectiveness of the enforcement activities of Federal agencies. As discussed above, {{35.170 and 35.171 have been revised to

provide for referral of complaints by the Department of Justice to appropriate enforcement agencies. Also, language has been added to {35.190(a) of the

final regulation stating that the Assistant Attorney General shall provide policy guidance and interpretations to designated agencies to ensure the consistent

and effective implementation of this part.

 

List of Subjects in 28 CFR Part 35

 

Administrative practice and procedure, Alcoholism, Americans with disabilities, Buildings, Civil rights, Drug abuse, Handicapped, Historic preservation,

Intergovernmental relations, Reporting and recordkeeping requirements.

 

By the authority vested in me as Attorney General by 28 U.S.C. 509, 510, 5 U.S.C. 301, and section 204 of the Americans with Disabilities Act, and for the

reasons set forth in the preamble, chapter I of Title 28 of the Code of Federal Regulations is amended by adding a new Part 35 to read as follows:

 

Part 35 - NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES

 

Subpart A -- General

 

Sec.

 

35.101

Purpose.

35.102

Application.

35.103 Relationship to other laws.

35.104 Definitions.

35.105 Self-evaluation.

35.106 Notice.

35.107 Designation of responsible employee and adoption of grievance procedures.

 

35.108 - 35.129 [Reserved]

 

Subpart B -- General Requirements

35.130 General prohibitions against discrimination.

35.131 Illegal use of drugs.

35.132 Smoking.

35.133 Maintenance of accessible features.

35.134 Retaliation or coercion.

35.135 Personal devices and services.

 

35.136 - 35.139 [Reserved]

 

Subpart C -- Employment

35.140 Employment discrimination prohibited.

 

35.141 - 35.148 [Reserved]

 

Subpart D -- Program Accessibility

35.149 Discrimination prohibited.

35.150 Existing facilities.

35.151 New construction and alterations.

 

35.152 - 35.159 [Reserved]

 

Subpart E -- Communications

35.160 General.

35.161 Telecommunication devices for the deaf (TDD's).

35.162 Telephone emergency services.

35.163 Information and signage.

35.164 Duties.

 

35.165 - 35.169 [Reserved]

 

Subpart F -- Compliance Procedures

35.170 Complaints.

35.171 Acceptance of complaints.

35.172 Resolution of complaints.

35.173 Voluntary compliance agreements.

35.174 Referral.

35.175 Attorney's fees.

35.176 Alternative means of dispute resolution.

35.177 Effect of unavailability of technical assistance.

35.178 State immunity.

 

35.179 - 35.189 [Reserved]

 

Subpart G -- Designated Agencies

35.190 Designated agencies.

 

35.191 - 35.999 [Reserved]

 

Appendix A to Part 35 -- Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services (Published July 26,

1991)

 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L. 101-336 (42 U.S.C. 12134).

 

Subpart A -- General

 

{35.101 Purpose.

 

The purpose of this part is to effectuate subtitle A of title II of the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis

of disability by public entities.

 

{35.102 Application.

 

(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public

entities.

 

(b) To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they

are not subject to the requirements of this part.

 

{35.103 Relationship to other laws.

 

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied

under title V of the Rehabilitation Act of 1973 or the regulations issued by Federal agencies pursuant to that title.

 

(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including

State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

 

{35.104 Definitions.

 

For purposes of this part, the term --

 

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

 

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

 

Auxiliary aids and services includes--

 

(1) Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive

listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons

(TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

 

(2) Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered

materials available to individuals with visual impairments;

 

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

 

(4) Other similar services and actions.

 

Complete complaint means a written statement that contains the complainant's name and address and describes the public entity's alleged discriminatory action

in sufficient detail to inform the agency of the nature and date of the alleged violation of this part. It shall be signed by the complainant or by someone

authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the

alleged victims of discrimination.

 

Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current

or that continuing use is a real and ongoing problem.

 

Designated agency means the Federal agency designated under subpart G of this part to oversee compliance activities under this part for particular components

of State and local governments.

 

Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such

individual; a record of such an impairment; or being regarded as having such an impairment.

 

(1)(i) The phrase physical or mental impairment means --

 

(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological,

musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic,

skin, and endocrine;

 

(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

 

(ii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic,

visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation,

emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

 

(iii) The phrase physical or mental impairment does not include homosexuality or bisexuality.

 

(2) The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.

 

(3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially

limits one or more major life activities.

 

(4) The phrase is regarded as having an impairment means-

 

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a public entity as constituting such

a limitation;

 

(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment;

or

 

(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by a public entity as having such an impairment.

 

(5) The term disability does not include --

 

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

behavior disorders;

 

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

 

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

 

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

 

Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways,

parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.

 

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

 

Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated

as historic under State or local law.

 

Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C.

812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized

by the Controlled Substances Act or other provisions of Federal law.

 

Individual with a disability means a person who has a disability. The term individual with a disability does not include an individual who is currently

engaging in the illegal use of drugs, when the public entity acts on the basis of such use.

 

Public entity means --

 

(1) Any State or local government;

 

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

 

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

 

Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices,

the removal of architectural, communication, or transportation barriers, or the provision of

 

auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided

by a public entity.

 

Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any

necessary specialized vocabulary.

 

Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.

 

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

of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.

 

{35.105 Self-evaluation.

 

(a) A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof,

that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the

public entity shall proceed to make the necessary modifications.

 

(b) A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals

with disabilities, to participate in the self-evaluation process by submitting comments.

 

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

available for public inspection:

 

(1) A list of the interested persons consulted;

 

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

 

(3) A description of any modifications made.

 

(d) If a public entity has already complied with the self-evaluation requirement of a regulation implementing section 504 of the Rehabilitation Act of 1973,

then the requirements of this section shall apply only to those policies and practices that were not included in the previous self- evaluation.

 

{35.106 Notice.

 

A public entity shall make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of this

part and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as

the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.

 

{35.107 Designation of responsible employee and adoption of grievance procedures.

 

(a) Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts

to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance

with this part or alleging any actions that would be prohibited by this part. The public entity shall make available to all interested individuals the

name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.

 

(b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable

resolution of complaints alleging any action that would be prohibited by this part.

 

{{35.108 - 35.129 [Reserved]

 

Subpart B -- General Requirements

 

{35.130 General prohibitions against discrimination.

 

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any public entity.

 

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

of disability --

 

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

 

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

that afforded others;

 

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain

the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

 

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is

provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective

as those provided to others;

 

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or

person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program;

 

(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

 

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving

the aid, benefit, or service.

 

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not

separate or different, despite the existence of permissibly separate or different programs or activities.

 

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

 

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

 

(ii) That have the purpose or effect of defeating or

 

substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

 

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

the same State.

 

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

 

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

or

 

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

respect to individuals with disabilities.

 

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

on the basis of disability.

 

(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination

on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject

qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified

by a public entity are not, themselves, covered by this part.

 

(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination

on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service,

program, or activity.

 

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of

individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for

the provision of the service, program, or activity being offered.

 

(c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular

class of individuals with disabilities beyond those required by this part.

 

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

with disabilities.

 

(e)(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit

provided under the ADA or this part which such individual chooses not to accept.

 

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

or medical services for that individual.

 

(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs

of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory

treatment required by the Act or this part.

 

     (g)  A public entity shall not exclude or otherwise deny equal

services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known

to have a relationship or association.

 

{35.131 Illegal use of drugs.

 

(a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual's

current illegal use of drugs.

 

(2) A public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs

and who--

 

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

 

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

 

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

 

(b) Health and drug rehabilitation services. (1) A public entity shall not deny health services, or services provided in connection with drug rehabilitation,

to an individual on the basis of that individual's current illegal use of drugs, if the individual is otherwise entitled to such services.

 

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

 

(c) Drug testing. (1) This part does not prohibit a public entity from adopting or administering reasonable policies or procedures, including but not limited

to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.

 

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

of drugs.

 

{35.132 Smoking.

 

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

 

{35.133 Maintenance of accessible features.

 

(a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible

to and usable by persons with disabilities by the Act or this part.

 

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

 

{35.134 Retaliation or coercion.

 

(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this

part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the

Act or this part.

 

(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his

or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right

granted or protected by the Act or this part.

 

{35.135 Personal devices and services.

 

This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices,

such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting,

or dressing.

 

{{35.136 - 35.139 [Reserved]

 

Subpart C -- Employment

 

{35.140 Employment discrimination prohibited.

 

(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program,

or activity conducted by a public entity.

 

(b)(1) For purposes of this part, the requirements of title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission

in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the

jurisdiction of title I.

 

(2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department

of Justice in 28 CFR Part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public

entity if that public entity is not also subject to the jurisdiction of title I.

 

{{35.141 - 35.148 [Reserved]

 

Subpart D -- Program Accessibility

 

{35.149 Discrimination prohibited.

 

Except as otherwise provided in {35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable

by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any public entity.

 

{35.150 Existing facilities.

 

(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is

readily accessible to and usable by individuals with disabilities. This paragraph does not --

 

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

 

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

 

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or

activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action

would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden

of proving that compliance with {35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration

or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation

of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result

in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would

nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

 

(b) Methods. (1) General. A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of

services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of

existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making

its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural

changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing

buildings, shall meet the accessibility requirements of {35.151. In choosing among available methods for meeting the requirements of this section, a public

entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated

setting appropriate.

 

(2) Historic preservation programs. In meeting the requirements of {35.150(a) in historic preservation programs, a public entity shall give priority to

methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required because

of paragraph (a)(2) or (a)(3) of this section, alternative methods of achieving program accessibility include --

 

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

 

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

 

(iii) Adopting other innovative methods.

 

(c) Time period for compliance. Where structural changes in facilities are undertaken to comply with the obligations established under this section, such

changes shall be made within three years of the effective date of this part, but in any event as expeditiously as possible.

 

(d) Transition plan. (1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs

50 or more persons shall develop, within six months of the effective date of this part, a transition plan setting forth the steps necessary to complete

such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing

individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be

made available for public inspection.

 

(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb

ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local

government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

 

(3) The plan shall, at a minimum --

 

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

 

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

 

(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer

than one year, identify steps that will be taken during each year of the transition period; and

 

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

 

(4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation implementing section 504 of the Rehabilitation

Act of 1973, then the requirements of this paragraph shall apply only to those policies and practices that were not included in the previous transition

plan.

 

{35.151 New construction and alterations.

 

(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed

in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was

commenced after January 26, 1992.

 

(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect

the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the

facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

 

(c) Accessibility standards. Design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (Appendix

A to 41 CFR Part 101-19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) (Appendix A to the

Department of Justice's final rule implementing title III of the ADA, _____ F.R. _____) shall be deemed to comply with the requirements of this section

with respect to those facilities, except that the elevator exemption contained at {4.1.3(5) and {4.1.6(1)(j) of ADAAG shall not apply. Departures from

particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility

or part of the facility is thereby provided.

 

(d) Alterations: Historic properties. (1) Alterations to historic properties shall comply, to the maximum extent feasible, with {4.1.7 of UFAS or {4.1.7

of ADAAG.

 

(2) If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of

the building or facility, alternative methods of access shall be provided pursuant to the requirements of {35.150.

 

(e) Curb ramps. (1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs

or other barriers to entry from a street level pedestrian walkway.

 

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

 

{{35.152 - 35.159 [Reserved]

 

Subpart E -- Communications

 

{35.160 General.

 

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities

are as effective as communications with others.

 

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity

to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

 

(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual

with disabilities.

 

{35.161 Telecommunication devices for the deaf (TDD's).

 

Where a public entity communicates by telephone with applicants and beneficiaries, TDD's or equally effective telecommunication systems shall be used to

communicate with individuals with impaired hearing or speech.

 

{35.162 Telephone emergency services.

 

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

 

{35.163 Information and signage.

 

(a) A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence

and location of accessible services, activities, and facilities.

 

(b) A public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location

at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance

of a facility.

 

{35.164 Duties.

 

This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service,

program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed

action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the

burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration

or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation

of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required

to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such

an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or

services provided by the public entity.

 

{{35.165 - 35.169 [Reserved]

 

Subpart F - Compliance Procedures

 

{35.170 Complaints.

 

(a) Who may file. An individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability

by a public entity may, by himself or herself or by an authorized representative, file a complaint under this part.

 

(b) Time for filing. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended

by the designated agency for good cause shown. A complaint is deemed to be filed under this section on the date it is first filed with any Federal agency.

 

(c) Where to file. An individual may file a complaint with any agency that he or she believes to be the appropriate agency designated under subpart G of

this part, or with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice for referral

as provided in {35.171(a)(2).

 

{35.171 Acceptance of complaints.

 

(a) Receipt of complaints. (1)(i) Any Federal agency that receives a complaint of discrimination on the basis of disability by a public entity shall promptly

review the complaint to determine whether it has jurisdiction over the complaint under section 504.

 

(ii) If the agency does not have section 504 jurisdiction, it shall promptly determine whether it is the designated agency under subpart G of this part

responsible for complaints filed against that public entity.

 

(2)(i) If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it

shall promptly refer the complaint, and notify the complainant that it is referring the complaint to the Department of Justice.

 

(ii) When the Department of Justice receives a complaint for which it does not have jurisdiction under section 504 and is not the designated agency, it

shall refer the complaint to an agency that does have jurisdiction under section 504 or to the appropriate agency designated in subpart G of this part

or, in the case of an employment complaint that is also subject to title I of the Act, to the Equal Employment Opportunity Commission.

 

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

504.

 

(ii) If the agency that receives a complaint does not have section 504 jurisdiction, but is the designated agency, it shall process the complaint according

to the procedures established by this subpart.

 

(b) Employment complaints. (1) If a complaint alleges employment discrimination subject to title I of the Act, and

 

the agency has section 504 jurisdiction, the agency shall follow the procedures issued by the Department of Justice and the Equal Employment Opportunity

Commission under section 107(b) of the Act.

 

(2) If a complaint alleges employment discrimination subject to title I of the Act, and the designated agency does not have section 504 jurisdiction, the

agency shall refer the complaint to the Equal Employment Opportunity Commission for processing under title I of the Act.

 

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

established by this subpart.

 

(c) Complete complaints. (1) A designated agency shall accept all complete complaints under this section and shall promptly notify the complainant and the

public entity of the receipt and acceptance of the complaint.

 

(2) If the designated agency receives a complaint that is not complete, it shall notify the complainant and specify the additional information that is needed

to make the complaint a complete complaint. If the complainant fails to complete the complaint, the designated agency shall close the complaint without

prejudice.

 

{35.172 Resolution of complaints.

 

(a) The designated agency shall investigate each complete complaint, attempt informal resolution, and, if resolution is not achieved, issue to the complainant

and the public entity a Letter of Findings that shall include --

 

(1) Findings of fact and conclusions of law;

 

(2) A description of a remedy for each violation found; and

 

(3) Notice of the rights available under paragraph (b) of this section.

 

(b) If the designated agency finds noncompliance, the procedures in {{35.173 and 35.174 shall be followed. At any time, the complainant may file a private

suit pursuant to section 203 of the Act, whether or not the designated agency finds a violation.

 

{35.173 Voluntary compliance agreements.

 

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

 

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

 

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

 

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

 

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

 

(2) Address each cited violation;

 

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

 

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

 

(5) Provide for enforcement by the Attorney General.

 

{35.174 Referral.

 

If the public entity declines to enter into voluntary compliance negotiations or if negotiations are unsuccessful, the designated agency shall refer the

matter to the Attorney General with a recommendation for appropriate action.

 

{35.175 Attorney's fees.

 

In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the

foregoing the same as a private individual.

 

{35.176 Alternative means of dispute resolution.

 

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation,

facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Act and this part.

 

{35.177 Effect of unavailability of technical assistance.

 

A public entity shall not be excused from compliance with the requirements of this part because of any failure to receive technical assistance, including

any failure in the development or dissemination of any technical assistance manual authorized by the Act.

 

{35.178 State immunity.

 

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent

jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both

at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any

public or private entity other than a State.

 

{{35.179 - 35.189 [Reserved]

 

Subpart G -- Designated Agencies

 

{35.190 Designated agencies.

 

(a) The Assistant Attorney General shall coordinate the compliance activities of Federal agencies with respect to State and local government components,

and shall provide policy guidance and interpretations to designated agencies to ensure the consistent and effective implementation of the requirements

of this part.

 

(b) The Federal agencies listed in paragraph (b)(1)-(8) of this section shall have responsibility for the implementation of subpart F of this part for components

of State and local governments that exercise responsibilities, regulate, or administer services, programs, or activities in the following functional areas.

 

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

 

(2) Department of Education: all programs, services, and regulatory activities relating to the operation of elementary and secondary education systems and

institutions, institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools),

and libraries.

 

(3) Department of Health and Human Services: all programs, services, and regulatory activities relating to the provision of health care and social services,

including schools of medicine, dentistry, nursing, and other health-related schools, the operation of health care and social service providers and institutions,

including "grass-roots" and community services organizations and programs, and preschool and daycare programs.

 

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

assistance and referral.

 

(5) Department of Interior: all programs, services, and regulatory activities relating to lands and natural resources, including parks and recreation, water

and waste management, environmental protection, energy, historic and cultural preservation, and museums.

 

(6) Department of Justice: all programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice,

including courts and correctional institutions; commerce and industry, including general economic development, banking and finance, consumer protection,

insurance, and small business; planning, development, and regulation (unless assigned to other designated agencies); state and local government support

services (e.g., audit, personnel, comptroller, administrative services); all other government functions not assigned to other designated agencies.

 

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

 

(8) Department of Transportation: all programs, services, and regulatory activities relating to transportation, including highways, public transportation,

traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing.

 

(c) Responsibility for the implementation of subpart F of this part for components of State or local governments that exercise responsibilities, regulate,

or administer services, programs, or activities relating to functions not assigned to specific designated agencies by paragraph (b) of this section may

be assigned to other specific agencies by the Department of Justice.

 

(d) If two or more agencies have apparent responsibility over a complaint, the Assistant Attorney General shall determine which one of the agencies shall

be the designated agency for purposes of that complaint.

 

{{35.191 - 35.999 [Reserved]

 

Appendix A to Part 35 -- Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services (Published July 26,

1991)

 

NOTE: For the convenience of the reader, this appendix contains the text of the preamble to the final regulation on nondiscrimination on the basis of disability

in State and local government services beginning at the heading "Section-by- Section Analysis" and ending before "List of Subjects in 28 CFR Part 35" (56

FR [INSERT FR PAGE CITATIONS]; July 26, 1991).

 

______________                          ___________________

Date                                    Dick Thornburgh

Attorney General

 

Last Updated October 5, 2005



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