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101116, at 23 (1989). The final rule retains the NPRM language in paragraph (d)(5). Proposed Sec.36.309 has been omitted from the final rule because the Department has determined that its requirements are more properly addressed under other sections, and because there are currently no appropriate accessibility standards addressing many types of furniture and equipment. This is a frequent basis of exclusion from a variety of community activities and is prohibited by this part. Overview. A public entity shall not ask about the nature or extent of a persons disability, but may make two inquiries to determine whether an animal qualifies as a service animal. (3) Reasonable modification. The Department considered these concerns carefully and has decided to continue with the general approach proposed in the NPRM. Thus, the Department finds that strongly encouraging consultation with persons with disabilities, in lieu of mandating primary consideration of their expressed choice, is consistent with congressional intent. Other commenters asserted that certain species of animals (e.g., reptiles) cannot be trained to do work or perform tasks, so these animals would not be covered. These tasks are based upon input from mental health practitioners, dog trainers, and individuals with a history of working with psychiatric service dogs. (e) Social service center establishments. Alternatively, a public entity might release tickets for accessible seating only when a purchaser who does not need its features agrees that he or she has no guarantee of or right to the same seats in the following season, or that if season tickets are guaranteed for the following season, the purchaser agrees that the offer to purchase tickets is limited to non-accessible seats having to the extent practicable, comparable price, view, and amenities to the accessible seats such individuals held in the prior year. Paragraph (b)(2) provides that if existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of appendix A (ADAAG). The animal can only be removed if it engages in the behaviors mentioned in 36.302(c) (as revised in the final rule) or if the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation. The Department believes that the limitations on the effective communication requirements, which provide that a covered entity does not have to take measures that would result in a fundamental alteration of its program or would cause undue burdens, provide adequate protection to covered entities that operate ATMs. The Department does not believe that the error substantively affected the comments on this issue. Finally, if an elevator is installed in the future for any reason, full access to the floor will be facilitated. (a) This part shall not be construed to prohibit or restrict . These commenters felt that a mere inquiry into whether the device is being used for a mobility disability was an insufficient mechanism by which to detect fraud by other power-driven mobility device users who do not have mobility disabilities. Instead, the commenters grouped the questions together and provided comments accordingly. The traditional service animal is a dog, which has a long history of guiding individuals who are blind or have low vision, and over time dogs have been trained to perform an even wider variety of services for individuals with all types of disabilities. Wed like to highlight that from time to time, we may miss a potentially malicious software program. The final rule, therefore, clarifies this point by including a general provision that will explicitly apply not only to auxiliary aids and services but across-the-board to include other relevant areas such as, for example, modifications in policies, practices, and procedures (35.130(b)(7)). 110730, pt. 12101 - 12213 and 47 U.S.C. The rule requires, as does the statute, that covered newly constructed facilities be readily accessible to and usable by individuals with disabilities. 2 - Rail. Facilities with more than 50 units should be scoped individually in accordance with the table. One commenter representing individuals with disabilities expressed support for the proposed language, noting that [m]any people with disabilities have limited resources and requiring them to hire an expert witness to confirm their disability would pose an insurmountable barrier that could prevent them from pursuing their ADA cases., Commenters representing testing entities objected to this language arguing that they needed scientific, medical, or statistical evidence in order to determine whether an individual has a learning disability or ADHD. As a result, the Departments position remains consistent with the (f) Housing at a place of education. The Department notes that there are occasions when a person with a disability is confined to bed in a hospital for a period of time. 08 404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway PT as a mobility device where an individual agrees to all of a malls policies for use of the device, except indemnification); Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010). As the Department stated in the preamble to the original title II regulation, [a]ll governmental activities of public entities are covered, even if they are carried out by contractors. 28 CFR part 35, app. The ticketing policies and practices of public accommodations, however, are subject to title IIIs nondiscrimination provisions. The use of captioning (1) Definitions. Because numerous jurisdictions have already adopted the 48-inch side-reach requirement, the Departments failure to adopt the 48-inch side-reach requirement in the 2010 Standards, in the view of many commenters, would result in a significant reduction in accessibility, and would frustrate efforts that have been made to harmonize private sector model construction and accessibility codes with Federal accessibility requirements. A public accommodation may ask an individual with a disability to remove a service animal from the premises if: (i) The animal is out of control and the animals handler does not take effective action to control it; or (5) Performance requirements for captioning devices and audio description devices. As a result, in the first set of alternate IBC baseline analyses, the Final RIA assumes that all of the three IBC model codesIBC 2000, IBC 2003, and IBC 2006have been fully adopted by all jurisdictions and apply to all facilities nationwide. The Department believes that, while given the choice some individuals may prefer to use a pay phone that is at a higher height, the availability of some phones at a lower height will not deter individuals from making needed calls. 110730, pt. Under this provision, public accommodations must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. When accessible rooms are not fully dispersed, a person with a disability is often placed in an accessible room in an area that is not medically appropriate for his or her condition, and is thus denied quick access to staff with expertise in that medical specialty and specialized equipment. Thus, if a church itself operates a day care center, a nursing home, a private school, or a diocesan school system, the operations of the center, home, school, or schools would not be subject to the requirements of the ADA or this part. The 1991 Standards at section 4.2.6 establish a maximum side-reach height of 54 inches. The Department declines to adopt such an exception. For example, if a dormitory has 150 rooms, the transient lodging standards would require 7 accessible rooms, while the residential standards would require 8. It is not a defense to coverage that the skin rash was objectively transitory and minor because the covered entity took the prohibited action based on a perceived impairment, HIV, that is not transitory and minor. Entitled "The Festival of the Flame", the ceremony was themed around the gathering of people in celebration, and was directed by Kim Gavin, who also directed the closing ceremony of the Summer Olympics just a few weeks prior. respect to adding requirements beyond those proposed in the NPRM. In response to comments, the term auxiliary aids and services is used in place of auxiliary aids in the final rule. For example, if a dormitory had 150 rooms, the transient lodging standards would require seven accessible rooms while the residential standards would require eight. Rather than aligning enforcement discretion of title II complaints with the discretion under the enforcement procedures of title III, the commenters favored obtaining additional resources to address more complaints. The second statutory provision provides an exception to the regarded as prong for impairments that are both transitory and minor. Public entities and businesses located in older buildings need not comply with this requirement where it is technically infeasible to do so. This rule, which is designed to prevent a public entity from placing wheelchair spaces and companion seats on one side of the facility only, is consistent with the Departments enforcement practices and reflects its interpretation of section 4.33.3 of the 1991 Standards. Subpart F effectuates the congressional intent by deferring to section 504 procedures where those procedures are applicable, that is, where a Federal agency has jurisdiction under section 504 by virtue of its provision of Federal financial assistance to the program or activity in which the discrimination is alleged to have occurred. Finally, employing the readily achievable standard for small saunas and steam rooms is consistent with the Departments decisions regarding the proposed exemptions for play areas and swimming pools. Other commenters identified nonviolent behavioral tasks that could be construed as minimally protective, such as interrupting self-mutilation, providing safety checks and room searches, reminding the individual to take medications, and protecting the individual from injury resulting from seizures or unconsciousness. Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDDs and computer modems. 2000a - 3(a)) which is incorporated by reference in the ADA. The Department further noted that Federal agencies or departments promulgating regulations relating to small businesses usually use SBA size criteria, and they otherwise must be prepared to justify how they arrived at a different standard and why the SBAs regulations do not satisfy the agencys program requirements. Paragraphs 35.190(c) and (d), respectively, grant the Department discretion to designate further oversight responsibilities for matters not specifically assigned or where there are apparent conflicts of jurisdiction. Treatment of manually-powered mobility aids. The Departments NPRM did not define the term manually-powered mobility aids. Instead, the NPRM included a non-exhaustive list of examples in 36.311(a). One commenter noted that the NPRM did not track the EEOCs language with respect to the manner in which it identified a major bodily function that is substantially limited by epilepsy, muscular dystrophy, or multiple sclerosis in 29CFR1630.2(j)(3)(iii). The vast majority of the new requirements are incremental changes subject to a safe harbor. According to several commenters, less than 1 percent of all movies being exhibited in theaters are shown with captions. A number of commenters noted that the exclusion of impairments from the predictable assessments list could be seen as supporting an inference that the impairments that are not mentioned should not easily be found to be disabilities. One commenter stated that since it was not possible for operators of rental programs offering privately owned condominiums to comply with accessible scoping, the Department should create exemptions from the accessible scoping, especially for existing facilities. 36.406(f) to supplement the assembly area requirements of the 2004 ADAAG, which the Department is adopting as part of the 2010 Standards. A representative from a cruise line association opined, however, that if a guest chose to cruise without an interpreter or companion, the ship would not be compelled to provide an interpreter for the medical facility. Further, it would not be a violation of this section for an establishment to offer recreational programs specially designed for children with mobility impairments in those limited circumstances. The proposed language would have required public entities to ensure that individuals with disabilities are housed in the most integrated setting appropriate to the needs of the individual. It would, likewise, be a violation of the Act and this part for a private entity to take adverse action against an employee who appeared as a witness on behalf of an individual who sought to enforce the Act. In those circumstances where a venue has accessible seating vacant at the time an individual with a disability who needs accessible seating presents his ticket for inaccessible seating at the box office, the venue must allow the individual to exchange his ticket for an accessible seat in a comparable location if such an accessible seat is vacant. If the download doesn't start automatically, click here. Some commenters noted that many local governments and park authorities that operate public golf courses have already provided accessible golf cars. In the original 1991 regulatory text, this phrase was intended to identify service animals that alert individuals who are deaf or hard of hearing to the presence of others. The Department has decided to adopt the language of the proposed rule without change. The Department is persuaded by these comments. It means, with respect to a facility or a portion of a facility, that it can be approached, entered, and used by individuals with disabilities (including mobility, sensory, and cognitive impairments) easily and conveniently. it would not be a fundamental alteration of the business of showing movies in (i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability. (a) If the Assistant Attorney General makes a preliminary determination to deny certification of a code under 36.603, he or she shall notify the submitting official of the determination. From these investigations, the Department has concluded that public entities sometimes misunderstand the scope of their obligations under the statute and the regulation. A substantial number of commenters suggested that additional examples be added to this list. This requirement is based on section 302(b)(2)(A)(v) of the ADA. (2). Inquiry into the use of other power-driven mobility device. 42 U.S.C. Section 603.2.3 of the 2010 Standards maintains the prohibition on doors swinging into the clear floor space or clearance required for any fixture, except that they permit the doors of toilet or bathing rooms to swing into the required turning space, provided that there is sufficient clearance space for the wheelchair outside the door swing. The first sentence in 35.160(b)(2) codifies the axiom that the type of auxiliary aid or service necessary to ensure effective communication will vary with the situation, and provides factors for consideration in making the determination, including the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. Sept. 16, 2008) (Statement of the Managers). Paragraph (b) provides that no private entity or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise of his or her rights under this part or because that individual aided or encouraged any other individual in the exercise or enjoyment of any right granted or protected by the Act or this part. The guidelines include requirements for ground-level and elevated play components, accessible routes connecting the components, accessible ground surfaces, and maintenance of those surfaces. So, for example, a venue may not determine on an ad hoc basis that a group of seats at the orchestra level is a designated seating area in order to release unsold accessible seating in that area. 12186(c). For example, while many commenters supported the use of an other power-driven mobility device if the device were a Segway PT, because of environmental and health concerns they did not offer the same level of support if the device were an off-highway vehicle, all-terrain vehicle (ATV), golf car, or other device with a fuel-powered or combustion engine. This is enabled by combining transportation services from public and private transportation providers through a unified gateway that creates and manages the trip, which users can pay for with a single account. However, if the facility must be redesigned for other reasons, such as a change in density or environmental preservation, and the final permit is based on a new application, the rule would require accessibility if that application was certified complete after January 26, 1992. The interplay between the Fair Housing Act and the ADA with respect to those facilities that are "places of public accommodation was the subject of many comments and is addressed in the preamble discussion of the definition of "place of public accommodation.. The Department has considered all of these comments and has decided to use the phrase dyslexia and other specific learning disabilities in the final rule. of paragraph (g) of this section, and the Department instead will require compliance Section 504(a) of the ADA requires the ATBCB to issue minimum guidelines to supplement the existing Minimum Guidelines and Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for purposes of title III. Some commenters asked for more detailed requirements for auxiliary aids for persons with vision disabilities. The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids. When the venue had to be changed for another concert to an accessible auditorium, the band director made sure to comment that he was unhappy with the switch. In general, they argued that current reservations database systems may not contain s guests, travel agents, or other third-party reservations services to select the most appropriate room without consulting directly with the hotel, and that updating these systems might be expensive and time consuming. 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. The Access Boards publication of the 2004 ADA/ABA Guidelines was the culmination of a long-term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. However, the Department does recognize that in some circumstances, such as an alteration to a primary function area, the ability to provide a direct accessible route to a stage may be costly or technically infeasible, the auditorium owner is not precluded by the revised requirement from asserting defenses available under the regulation. Finally, the public accommodation should endeavor to provide individuals with disabilities who use other power-driven mobility devices with advanced notice of its policy regarding the use of such devices and what rules apply to the operation of these devices. 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. 67 FR 56352 (Sept. 3, 2002). "Undue burden. The definition of "undue burden is analogous to the statutory definition of "undue hardship in employment under section 101(10) of the ADA. Tasks performed by psychiatric service animals may include reminding the individual to take medicine, providing safety checks or room searches for individuals with PTSD, interrupting self-mutilation, and removing disoriented individuals from dangerous situations. The interplay of the ADA and Fair Housing Act with respect to such facilities is addressed in the preamble discussion of the definition of "place of public accommodation in Sec.36.104. The commenters highlighted the advantage afforded by Federal involvement in complaint investigations in securing favorable voluntary resolutions. Section 36.303(g)(6) They indicated that such devices create a host of safety, cost, and fraud issues that do not exist with wheelchairs. These provisions address only how to evaluate whether an impairment substantially limits a major life activity, and the Departments proposed language appropriately reflects Congresss intent to ensure that individuals with disabilities are not precluded from seeking protection under the ADA because of overbroad, burdensome, and generally unnecessary evidentiary requirements. Paragraph (b)(1)(iii) requires that examinations be administered in facilities that are accessible to individuals with disabilities or alternative accessible arrangements are made. The comments have provided the Department with significant information on the state of the movie industry with regard to the availability of captioning and video description, the status of closed captioning technology, and the status of the transition to digital cinema. The guidelines adopted by the Access Board are minimum guidelines. 42 U.S.C. The element-by-element safe harbor referenced in 35.150(b)(2) has no effect on new or altered elements in existing facilities that were subject to the 1991 Standards or UFAS on the date that they were constructed or altered, but do not comply with the technical and scoping specifications for those elements in the 1991 Standards or UFAS. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. These comments came from individuals, disability advocacy and recreation groups, a manufacturer of accessible golf cars, and representatives of local government. Equipment and furniture are covered under the Departments ADA regulations, including under the provision requiring modifications in policies, practices, and procedures and the provision requiring barrier removal. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Departments legal and practical experiences in enforcing the ADA since 1991. (ii) Applying these principles, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraph (a)(1)(i) of this section (the actual disability prong) or paragraph (a)(1)(ii) of this section (the record of prong). It has been brought to the attention of the Department that there is some misunderstanding about the scope of the elevator exemption as it applies to the professional office of a health care provider. In addition, these commenters argued that the path of travel exemption has the effect of placing new limitations on the obligations to provide program access. The Department has added a new definition to 35.104, housing at a place of education, to clarify the types of educational housing programs that are covered by this title. The Department is convinced that ADAAG as adopted in its final form is appropriate for these purposes. Advocacy, nonprofit, and several individual commenters supported the definition of other power-driven mobility device because it allows new technologies to be added in the future, maintains the existing legal protections for wheelchairs, and recognizes that some devices, particularly the Segway PT, which are not designed primarily for individuals with mobility disabilities, have beneficial uses for individuals with mobility disabilities. On consideration, the Department agrees that, due to the prevalence of ADHD but lack of public understanding of the condition, inclusion of ADHD among the examples set forth in 35.108(b)(2) and 36.105(b)(2) will provide appropriate and helpful guidance to the public. In the NPRM, the Department proposed 35.138(c), which, as modified and renumbered as paragraph (b)(3) in the final rule, requires a facility to identify available accessible seating through seating maps, brochures, or other methods if that information is made available about other seats sold to the general public. Accordingly, other Federal agency regulations, case law, and possibly State or local laws governing those situations may provide appropriately for increased access for animals other than service animals as defined under the ADA. He observed that the ability to access and operate these machines becomes ever more critical to function in society, and, on that basis, urged the Department to adopt the 48-inch side-reach requirement. movie-going experience for individuals without disabilities. These may include provision of the course through videotape, cassettes, or prepared notes. A person who is covered because of being regarded as having an impairment is not required to show that the public entitys perception is inaccurate (e.g., that he will be accepted by others) in order to receive benefits from the public entity. Proposed Sec.36.406(b) is not included in the final rule. Advocacy groups were opposed to the safe harbor for compliant elements in existing facilities. Commenters argued that the cost of making Web sites accessible through Web site design is minimal, yet critical, to enabling individuals with disabilities to benefit from the goods and services an entity offers through its Web site. This section states that a public accommodation is not required to provide its customers, clients, or participants with personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting, or dressing. (i) The definition of disability shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. For example, if a daycare center refused to admit a child with burn scars because of the presence of the scars, then the daycare center regarded the child as an individual with a disability, regardless of whether the childs scars substantially limited a major life activity. One commenter, while supporting the use of transient lodging standards in this area, argued that the Department also should develop regulations relating to the usability of equipment in housing facilities by persons who are blind or visually impaired. (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. In the NPRM, the Department used the term audio description to refer to the spoken description of information describing the visual elements of a movie to an individual who is blind or has low vision and who is unable to see the images and action on the screen. This provision is intended to prevent the practice of steering individuals with disabilities to certain accessible seating so that the facility can maximize potential ticket sales by releasing unsold accessible seating, especially in preferred or desirable locations, for sale to the general public. In the final rule, the Department has rearranged some wording and has made some changes in the terminology used in the definition of wheelchair, but essentially has retained the definition, and therefore the rationale, that was set forth in the NPRM. As the situation develops and the diagnosis and recommended course of action evolve into surgery, an interpreter likely will be necessary. We got Jack on board with implementing this for civic integrity in the near term, but were going to need to make a more robust case to get this into our repertoire of policy remediations especially for other policy domains, added Roth. (a) Alterations to buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 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. The Department therefore concludes that 35.140 must apply to all public entities upon the effective date of this. The Department believes that while given the choice some individuals may prefer to use a pay phone that is at a higher height, the availability of some phones at a lower height will not deter individuals from making needed calls. The final rule contains a new Sec. 110730 pt. In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. The broadcaster also stated that it had to make editorial decisions on which events to air during periods where a large number of events were in progress. The Departments position is based on the fact that the title II and title III regulations govern a wider range of public settings than the housing and transportation settings for which the Department of Housing and Urban Development (HUD) and the DOT regulations allow emotional support animals or comfort animals. These commenters asserted that the adoption of this safe harbor would permit and sanction the retention of outdated access standards even in cases where retrofitting to the 2010 Standards would be readily achievable. In the NPRM, the Department proposed adopting the technical specifications in the 2004 ADAAG for ALS that are intended to ensure better quality and effective delivery of sound and information for persons with hearing impairments, especially those using hearing aids. 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). The fact that the Department has certified a code with provisions concerning waivers, variances, or equivalent facilitation shall not be interpreted as an endorsement of actions taken pursuant to those provisions. In places of public accommodation such as restaurants, theaters, or hotels, where the contact between the public accommodation and its clients is transitory, the uniform application of an eligibility standard precluding violent or disruptive behavior by any client or customer should be sufficient to enable a public accommodation to conduct its business in an orderly manner. (These same commenters were silent with regard to video description on this issue.) In order to facilitate seating of wheelchair users who wish to transfer to existing seating, paragraph (a)(1) of the final rule adds a requirement that, to the extent readily achievable, a reasonable number of seats with removable aisle-side armrests must be provided. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. (1) Coercing an individual to deny or limit the benefits, services, or advantages to which he or she is entitled under the Act or this part; (2) Threatening, intimidating, or interfering with an individual who is seeking to obtain or use the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation; (3) Intimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by the Act or this part to exercise those rights; or. ) this part together and provided comments accordingly the advantage afforded by involvement. 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