[Code of Federal Regulations]
[Title 28 Volume 1, Parts 0 to 42]
[Revised as of July 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR35]
[Page 462-502]
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE
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.
[[Page 463]]
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).
Source: Order No. 1512-91, 56 FR 35716, July 26, 1991, unless
otherwise noted.
Subpart A--General
Sec. 35.101 Purpose.
The purpose of this part is to effectuate subtitle A of title II of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12131), which
prohibits discrimination on the basis of disability by public entities.
Sec. 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 (42 U.S.C. 12141), they are not subject to the requirements of
this part.
Sec. 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
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant
to that title.
(b) Other laws. This part does not invalidate or limit the remedies,
rights, and procedures of any other Federal 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.
Sec. 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.
[[Page 464]]
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--
[[Page 465]]
(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.
Sec. 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.
(Approved by the Office of Management and Budget under control number
1190-0006)
[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR
17521, Apr. 5, 1993]
Sec. 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.
Sec. 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
[[Page 466]]
shall adopt and publish grievance procedures providing for prompt and
equitable resolution of complaints alleging any action that would be
prohibited by this part.
Secs. 35.108--35.129 [Reserved]
Subpart B--General Requirements
Sec. 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,
[[Page 467]]
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.
Sec. 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.
[[Page 468]]
Sec. 35.132 Smoking.
This part does not preclude the prohibition of, or the imposition of
restrictions on, smoking in transportation covered by this part.
Sec. 35.133 Maintenance of accessible features.
(a) A public entity shall maintain in operable working condition
those features of facilities and equipment that are required to be
readily accessible to and usable by persons with disabilities by the Act
or this part.
(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR
17521, Apr. 5, 1993]
Sec. 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.
Sec. 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.
Secs. 35.136--35.139 [Reserved]
Subpart C--Employment
Sec. 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.
Secs. 35.141--35.148 [Reserved]
Subpart D--Program Accessibility
Sec. 35.149 Discrimination prohibited.
Except as otherwise provided in Sec. 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.
Sec. 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
[[Page 469]]
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 Sec. 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 Sec. 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
Sec. 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
January 26, 1992, but in any event as expeditiously as possible.
(d) Transition plan. (1) In the event that structural changes to
facilities will be undertaken to achieve program accessibility, a public
entity that employs 50 or more persons shall develop, within six months
of January 26, 1992, a transition plan setting forth the steps necessary
to complete such changes. A public entity shall provide an opportunity
to interested persons, including individuals with disabilities or
organizations representing individuals with
[[Page 470]]
disabilities, to participate in the development of the transition plan
by submitting comments. A copy of the transition plan shall be made
available for public inspection.
(2) If a public entity has responsibility or authority over streets,
roads, or walkways, its transition plan shall include a schedule for
providing curb ramps or other sloped areas where pedestrian walks cross
curbs, giving priority to walkways serving entities covered by the Act,
including State and local government offices and facilities,
transportation, places of public accommodation, and employers, followed
by walkways serving other areas.
(3) The plan shall, at a minimum--
(i) Identify physical obstacles in the public entity's facilities
that limit the accessibility of its programs or activities to
individuals with disabilities;
(ii) Describe in detail the methods that will be used to make the
facilities accessible;
(iii) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(iv) Indicate the official responsible for implementation of the
plan.
(4) If a public entity has already complied with the transition plan
requirement of a Federal agency regulation implementing section 504 of
the Rehabilitation Act of 1973, then the requirements of this paragraph
(d) shall apply only to those policies and practices that were not
included in the previous transition plan.
(Approved by the Office of Management and Budget under control number
1190-0004)
[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR
17521, Apr. 5, 1993]
Sec. 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 28 CFR part 36) shall be deemed to
comply with the requirements of this section with respect to those
facilities, except that the elevator exemption contained at section
4.1.3(5) and section 4.1.6(1)(k) 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 section
4.1.7 of UFAS or section 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 Sec. 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.
[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR
17521, Apr. 5, 1993]
[[Page 471]]
Secs. 35.152--35.159 [Reserved]
Subpart E--Communications
Sec. 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.
Sec. 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.
Sec. 35.162 Telephone emergency services.
Telephone emergency services, including 911 services, shall provide
direct access to individuals who use TDD's and computer modems.
Sec. 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.
Sec. 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.
Secs. 35.165--35.169 [Reserved]
Subpart F--Compliance Procedures
Sec. 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
[[Page 472]]
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 Sec. 35.171(a)(2).
Sec. 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.
Sec. 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
Secs. 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.
[[Page 473]]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Secs. 35.179--35.189 [Reserved]
Subpart G--Designated Agencies
Sec. 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) through (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
[[Page 474]]
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.
Secs. 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 35696, July 26, 1991).
Section-by-Section Analysis
Subpart A--General
Section 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.
Section 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 Sec. 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
[[Page 475]]
of their instrumentalities or agencies, regardless of the receipt of
Federal financial assistance. Except as provided in Sec. 35.l34, 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 Sec. 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
Sec. 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.
Section 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
[[Page 476]]
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.
Section 35.104 Definitions
``Act.'' The word ``Act'' is used in this part to refer to the
Americans with Disabilities Act of 1990, Public Law 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 Sec. 35.104 provided a list of
examples of auxiliary aids and services that were taken from the
definition of auxiliary aids and services in section 3(1) of the ADA and
were 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.
[[Page 477]]
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 (Sec. 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 Sec. 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
[[Page 478]]
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
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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 modification 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.
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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:
(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.
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,
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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 Sec. 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 Sec. 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 Secs. 35.150 (a)(2) and
(b)(2), which relate to accessibility of historic preservation programs,
and Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 482]]
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'' (Sec. 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.
Section 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 Sec. 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
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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, Public Law
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.
Section 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
Sec. 35.160. The preamble to that section gives guidance on how to
effectively communicate with individuals with disabilities.
Section 35.107 Designation of Responsible Employee and Adoption of
Grievance Procedures
Consistent with Sec. 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 Sec. 35.107.
Commenters recommended either that all public entities be subject to
Sec. 35.107, or that ``50 or more persons'' be changed to ``15 or more
persons.'' As explained in the discussion of Sec. 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
Sec. 35.170(b).
Subpart B--General Requirements
Section 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, Sec. 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.
[[Page 484]]
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 Sec. 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 Sec. 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,
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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 Sec. 35.130(b)(1)(iv), and section
302(b)(1)(B) includes the same requirement for ``the most integrated
setting appropriate'' as in Sec. 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
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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
Sec. 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
Sec. 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
[[Page 487]]
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 Sec. 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
[[Page 488]]
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)(1)(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.
Section 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 Sec. 35.131
(although alcoholics are individuals with disabilities, subject to the
protections of the statute).
A distinction is also made between the