BREAKING NEWS

Text of Title II Regulation to Be Published in the Federal Register in August

From http://www.ada.gov/regs2010/titleII_2010/titleII_combined.html

Changes are indicated in bold print.


Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.§
35.101

Subpart A -- General

§35.101 Purpose.

The purpose of this part is to effectuate subtitle A of title II
of the Americans with Disabilities Act of 1990, which prohibits
discrimination on the basis of disability by public entities.

§ 35.102 Application.

(a) Except as provided in paragraph (b) of this section, this part
applies to all services, programs, and activities provided or made
available by public entities.

(b) To the extent that public transportation services, programs,
and activities of public entities are covered by subtitle B of title
II of the ADA, they are not subject to the requirements of this part.

§ 35.103 Relationship to other laws

(a) Rule of interpretation. Except as otherwise provided in this
part, this part shall not be construed to apply a lesser standard
than the standards applied under title V of the Rehabilitation Act of
1973 or the regulations issued by Federal agencies pursuant to that
title.

(b) Other laws. This part does not invalidate or limit the
remedies, rights, and procedures of any other Federal laws, or State
or local laws (including State common law) that provide greater or
equal protection for the rights of individuals with disabilities or
individuals associated with them.

§ 35.104 Definitions.

For purposes of this part, the term --

1991 Standards means the
requirements set forth in the ADA Standards for Accessible Design,
codified at 28 CFR part 36, app. A (2009).

2004 ADAAG means the
requirements set forth in appendices B and D to 36 CFR part 1191
(2009).

2010 Standards means the 2010
ADA Standards for Accessible Design, which consist of the 2004 ADAAG
and the requirements contained in § 35.151.

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 on-site or through video remote
interpreting (VRI) services; notetakers; real-time computer-aided
transcription services; written materials; exchange of written notes;
telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed
caption decoders, open and closed captioning including real-time
captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications
devices; videotext displays; accessible electronic and information
technology; or other effective methods of making aurally delivered
information available to individuals who are deaf or hard of hearing;

(2) Qualified readers; taped texts; audio recordings;
brailled materials and displays; screen reader software;
magnification software; optical readers; secondary auditory programs
(SAP); large print materials; accessible electronic and information
technology; or other effective methods of making visually delivered
materials available to individuals who are blind or have low vision;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

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.

Direct threat means a
significant risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices or procedures, or
by the provision of auxiliary aids or services as provided in §
35.139.

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 v(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).

Existing facility means a
facility in existence on any given date, without regard to whether
the facility may also be considered newly constructed or altered
under this part.

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.

Housing at a place of education means housing operated by
or on behalf of an elementary, secondary, undergraduate, or
postgraduate school, or other place of education, including
dormitories, suites, apartments, or other places of residence.

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.

Other power-driven mobility device means any mobility
device powered by batteries, fuel, or other engines––whether
or not designed primarily for use by individuals with mobility
disabilities––that is used by individuals with mobility
disabilities for the purpose of locomotion, including golf cars,
electronic personal assistance mobility devices (EPAMDs), such as the
Segway® PT, or any mobility device designed to operate in areas
without defined pedestrian routes, but that is not a wheelchair
within the meaning of this section. This definition does not apply to
Federal wilderness areas; wheelchairs in such areas are defined in
section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Public entity means --

(1) Any State or local government

(2) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service
Act).

Qualified individual with a disability means an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.

Qualified interpreter means an interpreter who, via a
video remote interpreting (VRI) service or an on-site appearance, is
able to interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary. Qualified interpreters include, for example, sign
language interpreters, oral transliterators, and cued-language
transliterators.

Qualified reader means a person
who is able to read effectively, accurately, and impartially using
any necessary specialized vocabulary.

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.

Service animal means any dog
that is individually trained to do work or perform tasks for the
benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. Other
species of animals, whether wild or domestic, trained or untrained,
are not service animals for the purposes of this definition. The work
or tasks performed by a service animal must be directly related to
the handler's disability. Examples of work or tasks include, but are
not limited to, assisting individuals who are blind or have low
vision with navigation and other tasks, alerting individuals who are
deaf or hard of hearing to the presence of people or sounds,
providing non-violent protection or rescue work, pulling a
wheelchair, assisting an individual during a seizure, alerting
individuals to the presence of allergens, retrieving items such as
medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities,
and helping persons with psychiatric and neurological disabilities by
preventing or interrupting impulsive or destructive behaviors. The
crime deterrent effects of an animal's presence and the provision of
emotional support, well-being, comfort, or companionship do not
constitute work or tasks for the purposes of this definition.

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.

Video remote interpreting (VRI) service means an
interpreting service that uses video conference technology over
dedicated lines or wireless technology offering high-speed,
wide-bandwidth video connection that delivers high-quality video
images as provided in § 35.160(d).

Wheelchair means a manually-operated or power-driven
device designed primarily for use by an individual with a mobility
disability for the main purpose of indoor, or of both indoor and
outdoor locomotion. This definition does not apply to Federal
wilderness areas; wheelchairs in such areas are defined in section
508(c)(2) of the ADA, 42 U.S.C. 12207 (c)(2).

§ 35.105 Self-evaluation.

(a) A public entity shall, within one year of the effective date
of this part, evaluate its current services, policies, and practices,
and the effects thereof, that do not or may not meet the requirements
of this part and, to the extent modification of any such services,
policies, and practices is required, the public entity shall proceed
to make the necessary modifications.

(b) A public entity shall provide an opportunity to interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
self-evaluation process by submitting comments.

(c) A public entity that employs 50 or more persons shall, for at
least three years following completion of the self-evaluation,
maintain on file and make available for public inspection:

(1) A list of the interested persons consulted;

(2) A description of areas examined and any problems identified;
and

(3) A description of any modifications made.

(d) If a public entity has already complied with the
self-evaluation requirement of a regulation implementing section 504
of the Rehabilitation Act of 1973, then the requirements of this
section shall apply only to those policies and practices that were
not included in the previous self- evaluation.

§ 35.106 Notice

A public entity shall make available to applicants, participants,
beneficiaries, and other interested persons information regarding the
provisions of this part and its applicability to the services,
programs, or activities of the public entity, and make such
information available to them in such manner as the head of the
entity finds necessary to apprise such persons of the protections
against discrimination assured them by the Act and this part.

§ 35.107 Designation of responsible employee and adoption of
grievance procedures

(a) Designation of responsible employee. A public entity
that employs 50 or more persons shall designate at least one employee
to coordinate its efforts to comply with and carry out its
responsibilities under this part, including any investigation of any
complaint communicated to it alleging its noncompliance with this
part or alleging any actions that would be prohibited by this part.
The public entity shall make available to all interested individuals
the name, office address, and telephone number of the employee or
employees designated pursuant to this paragraph.

(b) Complaint procedure. A public entity that employs 50
or more persons shall adopt and publish grievance procedures
providing for prompt and equitable resolution of complaints alleging
any action that would be prohibited by this part.

§§ 35.108 - 35.129 [Reserved]

Subpart B -- General Requirements

§ 35.130 General prohibitions against discrimination

(a) No qualified individual with a disability shall, on the basis
of disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any public entity.

(b)(1) A public entity, in providing any aid, benefit, or service,
may not, directly or through contractual, licensing, or other
arrangements, on the basis of disability --

(i) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an
opportunity to participate in or benefit from the aid, benefit, or
service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an
aid, benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or
to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is
necessary to provide qualified individuals with disabilities with
aids, benefits, or services that are as effective as those provided
to others;

(v) Aid or perpetuate discrimination against a qualified
individual with a disability by providing significant assistance to
an agency, organization, or person that discriminates on the basis of
disability in providing any aid, benefit, or service to beneficiaries
of the public entity's program;

(vi) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards;

(vii) Otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a
disability the opportunity to participate in services, programs, or
activities that are not separate or different, despite the existence
of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or
other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the public entity's
program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity
if both public entities are subject to common administrative control
or are agencies of the same State.

(4) A public entity may not, in determining the site or location
of a facility, make selections --

(i) That have the effect of excluding individuals with
disabilities from, denying them the benefits of, or otherwise
subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the service,
program, or activity with respect to individuals with disabilities.

(5) A public entity, in the selection of procurement contractors,
may not use criteria that subject qualified individuals with
disabilities to discrimination on the basis of disability.

(6) A public entity may not administer a licensing or
certification program in a manner that subjects qualified individuals
with disabilities to discrimination on the basis of disability, nor
may a public entity establish requirements for the programs or
activities of licensees or certified entities that subject qualified
individuals with disabilities to discrimination on the basis of
disability. The programs or activities of entities that are licensed
or certified by a public entity are not, themselves, covered by this
part.

(7) A public entity shall make reasonable modifications in
policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability, unless
the public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or activity.

(8) A public entity shall not impose or apply eligibility criteria
that screen out or tend to screen out an individual with a disability
or any class of individuals with disabilities from fully and equally
enjoying any service, program, or activity, unless such criteria can
be shown to be necessary for the provision of the service, program,
or activity being offered.

(c) Nothing in this part prohibits a public entity from providing
benefits, services, or advantages to individuals with disabilities,
or to a particular class of individuals with disabilities beyond
those required by this part.

(d) A public entity shall administer services, programs, and
activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.

(e)(1) Nothing in this part shall be construed to require an
individual with a disability to accept an accommodation, aid,
service, opportunity, or benefit provided under the ADA or this part
which such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative
or guardian of an individual with a disability to decline food,
water, medical treatment, or medical services for that individual.

(f) A public entity may not place a surcharge on a particular
individual with a disability or any group of individuals with
disabilities to cover the costs of measures, such as the provision of
auxiliary aids or program accessibility, that are required to provide
that individual or group with the nondiscriminatory treatment
required by the Act or this part.

(g) A public entity shall not exclude or otherwise deny equal
services, programs, or activities to an individual or entity because
of the known disability of an individual with whom the individual or
entity is known to have a relationship or association.

(h) A public entity may impose legitimate safety
requirements necessary for the safe operation of its services,
programs, or activities. However, the public entity must ensure that
its safety requirements are based on actual risks, not on mere
speculation, stereotypes, or generalizations about individuals with
disabilities.

§ 35.131 Illegal use of drugs

(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.

(2) A public entity shall not discriminate on the basis of illegal
use of drugs against an individual who is not engaging in current
illegal use of drugs and who--

(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program; or

(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services. (1) A public
entity shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the basis of
that individual's current illegal use of drugs, if the individual is
otherwise entitled to such services.

(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs while
they are in the program.

(c) Drug testing. (1) This part does not prohibit a
public entity from adopting or administering reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual who formerly engaged in the illegal use of
drugs is not now engaging in current illegal use of drugs.

(2) Nothing in paragraph (c) of this section shall be construed to
encourage, prohibit, restrict, or authorize the conduct of testing
for the illegal use of drugs.

§ 35.132 Smoking

This part does not preclude the prohibition of, or the imposition
of restrictions on, smoking in transportation covered by this part.

§ 35.133 Maintenance of accessible features

(a) A public accommodation shall maintain in operable working
condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons with
disabilities by the Act or this part.

(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.

(c) If the 2010 Standards reduce the technical
requirements or the number of required accessible elements below the
number required by the 1991 Standards, the technical requirements or
the number of accessible elements in a facility subject to this part
may be reduced in accordance with the requirements of the 2010
Standards.

§ 35.134 Retaliation or coercion

(a) No private or public entity shall discriminate against any
individual because that individual has opposed any act or practice
made unlawful by this part, or because that individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any
other individual in the exercise or enjoyment of, any right granted
or protected by the Act or this part.

§ 35.135 Personal devices and services

This part does not require a public entity to provide to
individuals with disabilities personal devices, such as wheelchairs;
individually prescribed devices, such as prescription eyeglasses or
hearing aids; readers for personal use or study; or services of a
personal nature including assistance in eating, toileting, or
dressing.

§ 35.136 Service animals

(a) General. Generally, a public entity shall modify its
policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.

(b) Exceptions. A public entity may ask an individual with
a disability to remove a service animal from the premises if:

(1) The animal is out of control and the animal's handler
does not take effective action to control it; or

(2) The animal is not housebroken.

(c) If an animal is properly excluded. If a public entity
properly excludes a service animal under § 35.136(b), it shall
give the individual with a disability the opportunity to participate
in the service, program, or activity without having the service
animal on the premises.

(d) Animal under handler's control. A service animal shall
be under the control of its handler. A service animal shall have a
harness, leash, or other tether, unless either the handler is unable
because of a disability to use a harness, leash, or other tether, or
the use of a harness, leash, or other tether would interfere with the
service animal's safe, effective performance of work or tasks, in
which case the service animal must be otherwise under the handler's
control (e.g., voice control, signals, or other effective means).

(e) Care or supervision. A public entity is not
responsible for the care or supervision of a service animal.

(f) Inquiries. A public entity shall not ask about the
nature or extent of a person's disability, but may make two inquiries
to determine whether an animal qualifies as a service animal. A
public entity may ask if the animal is required because of a
disability and what work or task the animal has been trained to
perform. A public entity shall not require documentation, such as
proof that the animal has been certified, trained, or licensed as a
service animal. Generally, a public entity may not make these
inquiries about a service animal when it is readily apparent that an
animal is trained to do work or perform tasks for an individual with
a disability (e.g., the dog is observed guiding an individual who is
blind or has low vision, pulling a person's wheelchair, or providing
assistance with stability or balance to an individual with an
observable mobility disability).

(g) Access to areas of a public entity. Individuals with
disabilities shall be permitted to be accompanied by their service
animals in all areas of a public entity's facilities where members of
the public, participants in services, programs or activities, or
invitees, as relevant, are allowed to go.

(h) Surcharges. A public entity shall not ask or require
an individual with a disability to pay a surcharge, even if people
accompanied by pets are required to pay fees, or to comply with other
requirements generally not applicable to people without pets. If a
public entity normally charges individuals for the damage they cause,
an individual with a disability may be charged for damage caused by
his or her service animal.

(i) Miniature horses. (A) A public entity shall make
reasonable modifications in policies, practices, or procedures to
permit the use of a miniature horse by an individual with a
disability if the miniature horse has been individually trained to do
work or perform tasks for the benefit of the individual with a
disability.

(B) Assessment factors. In determining whether reasonable
modifications in policies, practices, or procedures can be made to
allow a miniature horse into a specific facility, a public entity
shall consider:

(1) The type, size, and weight of the miniature horse and
whether the facility can accommodate these features;

(2) Whether the handler has sufficient control of the
miniature horse;

(3) Whether the miniature horse is housebroken; and

(4) Whether the miniature horse's presence in a specific
facility compromises legitimate safety requirements that are
necessary for safe operation.

(C) Other requirements. Paragraphs 35.136 (c) through (h)
of this section, which apply to service animals, shall also apply to
miniature horses.

§ 35.137 Mobility devices

(a) Use of wheelchairs and manually-powered mobility aids.
A public entity shall permit individuals with mobility disabilities
to use wheelchairs and manually-powered mobility aids, such as
walkers, crutches, canes, braces, or other similar devices designed
for use by individuals with mobility disabilities in any areas open
to pedestrian use.

(b) (1) Use of other power-driven mobility devices. A
public entity shall make reasonable modifications in its policies,
practices, or procedures to permit the use of other power-driven
mobility devices by individuals with mobility disabilities, unless
the public entity can demonstrate that the class of other
power-driven mobility devices cannot be operated in accordance with
legitimate safety requirements that the public entity has adopted
pursuant to § 35.130(h).

(2) Assessment factors. In determining whether a
particular other power-driven mobility device can be allowed in a
specific facility as a reasonable modification under paragraph (b)(1)
of this section, a public entity shall consider:

(i) The type, size, weight, dimensions, and speed of the
device;

(ii) The facility's volume of pedestrian traffic (which
may vary at different times of the day, week, month, or year);

(iii) The facility's design and operational
characteristics (e.g., whether its service, program, or activity is
conducted indoors, its square footage, the density and placement of
stationary devices, and the availability of storage for the device,
if requested by the user);

(iv) Whether legitimate safety requirements can be
established to permit the safe operation of the other power-driven
mobility device in the specific facility; and

(v) Whether the use of the other power-driven mobility
device creates a substantial risk of serious harm to the immediate
environment or natural or cultural resources, or poses a conflict
with Federal land management laws and regulations.

(c)(1) Inquiry about disability. A public entity shall not
ask an individual using a wheelchair or other power-driven mobility
device questions about the nature and extent of the individual's
disability.

(2) Inquiry into use of other power-driven mobility
device. A public entity may ask a person using an other power-driven
mobility device to provide a credible assurance that the mobility
device is required because of the person's disability. A public
entity that permits the use of an other power-driven mobility device
by an individual with a mobility disability shall accept the
presentation of a valid, State-issued, disability parking placard or
card, or other State-issued proof of disability, as a credible
assurance that the use of the other power-driven mobility device is
for the individual's mobility disability. In lieu of a valid,
State-issued disability parking placard or card, or State-issued
proof of disability, a public entity shall accept as a credible
assurance, a verbal representation, not contradicted by observable
fact, that the other power-driven mobility device is being used for a
mobility disability. A “valid” disability placard or card
is one that is presented by the individual to whom it was issued and
is otherwise in compliance with the State of issuance’s
requirements for disability placards or cards.

§ 35.138 Ticketing

(a) (1) For the purposes of this section, “accessible
seating” is defined as wheelchair spaces and companion seats
that comply with sections 221 and 802 of the 2010 Standards along
with any other seats required to be offered for sale to the
individual with a disability pursuant to paragraph (d) of this
section.

(2) Ticket sales. A public entity that sells tickets for a
single event or series of events shall modify its policies,
practices, or procedures to ensure that individuals with disabilities
have an equal opportunity to purchase tickets for accessible seating:

(i) During the same hours;

(ii) During the same stages of ticket sales, including,
but not limited to, presales, promotions, lotteries, wait-lists, and
general sales;

(iii) Through the same methods of distribution;

(iv) In the same types and numbers of ticketing sales
outlets, including telephone service, in-person ticket sales at the
facility, or third-party ticketing services, as other patrons; and

(v) Under the same terms and conditions as other tickets
sold for the same event or series of events.

(b) Identification of available accessible seating. A
public entity that sells or distributes tickets for a single event or
series of events shall, upon inquiry:

(1) Inform individuals with disabilities, their
companions, and third parties purchasing tickets for accessible
seating on behalf of individuals with disabilities, of the locations
of all unsold or otherwise available accessible seating for any
ticketed event or events at the facility;

(2) Identify and describe the features of available
accessible seating in enough detail to reasonably permit an
individual with a disability to assess independently whether a given
accessible seating location meets his or her accessibility needs; and

(3) Provide materials, such as seating maps, plans,
brochures, pricing charts, or other information, that identify
accessible seating and information relevant thereto with the same
text or visual representations as other seats, if such materials are
provided to the general public.

(c) Ticket prices. The price of tickets for accessible
seating for a single event or series of events shall not be set
higher than the price for other tickets in the same seating section
for the same event or series of events. Tickets for accessible
seating must be made available at all price levels for every event or
series of events. If tickets for accessible seating at a particular
price level are not available because of inaccessible features, then
the percentage of tickets for accessible seating that should have
been available at that price level (determined by the ratio of the
total number of tickets at that price level to the total number of
tickets in the assembly area) shall be offered for purchase, at that
price level, in a nearby or similar accessible location.

(d) Purchasing multiple tickets. (1) General. For each
ticket for a wheelchair space purchased by an individual with a
disability or a third-party purchasing such a ticket at his or her
request, a public entity shall make available for purchase three
additional tickets for seats in the same row that are contiguous with
the wheelchair space, provided that at the time of purchase there are
three such seats available. A public entity is not required to
provide more than three contiguous seats for each wheelchair space.
Such seats may include wheelchair spaces.

(2) Insufficient additional contiguous seats available. If
patrons are allowed to purchase at least four tickets, and there are
fewer than three such additional contiguous seat tickets available
for purchase, a public entity shall offer the next highest number of
such seat tickets available for purchase and shall make up the
difference by offering tickets for sale for seats that are as close
as possible to the accessible seats.

(3) Sales limited to less than four tickets. If a public
entity limits sales of tickets to fewer than four seats per patron,
then the public entity is only obligated to offer as many seats to
patrons with disabilities, including the ticket for the wheelchair
space, as it would offer to patrons without disabilities.

(4) Maximum number of tickets patrons may purchase exceeds
four. If patrons are allowed to purchase more than four tickets, a
public entity shall allow patrons with disabilities to purchase up to
the same number of tickets, including the ticket for the wheelchair
space.

(5) Group sales. If a group includes one or more
individuals who need to use accessible seating because of a mobility
disability or because their disability requires the use of the
accessible features that are provided in accessible seating, the
group shall be placed in a seating area with accessible seating so
that, if possible, the group can sit together. If it is necessary to
divide the group, it should be divided so that the individuals in the
group who use wheelchairs are not isolated from their group.

(e) (1) Hold-and-release of tickets for accessible
seating. Tickets for accessible seating may be released for sale in
certain limited circumstances. A public entity may release unsold
tickets for accessible seating for sale to individuals without
disabilities for their own use for a single event or series of events
only under the following circumstances:

(i) When all non-accessible tickets (excluding luxury
boxes, club boxes, or suites) have been sold;

(ii) When all non-accessible tickets in a designated
seating area have been sold and the tickets for accessible seating
are being released in the same designated area; or

(iii) When all non-accessible tickets in a designated
price category have been sold and the tickets for accessible seating
are being released within the same designated price category.

(2) No requirement to release accessible tickets. Nothing
in this paragraph requires a facility to release tickets for
accessible seating to individuals without disabilities for their own
use.

(3) Release of series-of-events tickets on a
series-of-events basis. (i) Series-of-events tickets sell-out when no
ownership rights are attached. When series-of-events tickets are sold
out and a public entity releases and sells accessible seating to
individuals without disabilities for a series of events, the public
entity shall establish a process that prevents the automatic
reassignment of the accessible seating to such ticket holders for
future seasons, future years, or future series so that individuals
with disabilities who require the features of accessible seating and
who become newly eligible to purchase tickets when these
series-of-events tickets are available for purchase have an
opportunity to do so.

(ii) Series-of-events tickets when ownership rights are
attached. When series-of-events tickets with an ownership right in
accessible seating areas are forfeited or otherwise returned to a
public entity, the public entity shall make reasonable modifications
in its policies, practices, or procedures to afford individuals with
mobility disabilities or individuals with disabilities that require
the features of accessible seating an opportunity to purchase such
tickets in accessible seating areas.

(f) Ticket transfer. Individuals with disabilities who
hold tickets for accessible seating shall be permitted to transfer
tickets to third parties under the same terms and conditions and to
the same extent as other spectators holding the same type of tickets,
whether they are for a single event or series of events.

(g) Secondary ticket market. (1) A public entity shall
modify its policies, practices, or procedures to ensure that an
individual with a disability may use a ticket acquired in the
secondary ticket market under the same terms and conditions as other
individuals who hold a ticket acquired in the secondary ticket market
for the same event or series of events.

(2) If an individual with a disability acquires a ticket
or series of tickets to an inaccessible seat through the secondary
market, a public entity shall make reasonable modifications to its
policies, practices, or procedures to allow the individual to
exchange his ticket for one to an accessible seat in a comparable
location if accessible seating is vacant at the time the individual
presents the ticket to the public entity.

(h) Prevention of fraud in purchase of tickets for
accessible seating. A public entity may not require proof of
disability, including, for example, a doctor's note, before selling
tickets for accessible seating.

(1) Single-event tickets. For the sale of single-event
tickets, it is permissible to inquire whether the individual
purchasing the tickets for accessible seating has a mobility
disability or a disability that requires the use of the accessible
features that are provided in accessible seating, or is purchasing
the tickets for an individual who has a mobility disability or a
disability that requires the use of the accessible features that are
provided in the accessible seating.

(2) Series-of-events tickets. For series-of-events
tickets, it is permissible to ask the individual purchasing the
tickets for accessible seating to attest in writing that the
accessible seating is for a person who has a mobility disability or a
disability that requires the use of the accessible features that are
provided in the accessible seating.

(3) Investigation of fraud. A public entity may
investigate the potential misuse of accessible seating where there is
good cause to believe that such seating has been purchased
fraudulently.

§ 35.139 Direct threat

(a) This part does not require a public entity to permit
an individual to participate in or benefit from the services,
programs, or activities of that public entity when that individual
poses a direct threat to the health or safety of others.

(b) In determining whether an individual poses a direct
threat to the health or safety of others, a public entity must make
an individualized assessment, based on reasonable judgment that
relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures or the provision of auxiliary aids or services will
mitigate the risk.

Subpart C -- Employment

§ 35.140 Employment discrimination prohibited

(a) No qualified individual with a disability shall, on the basis
of disability, be subjected to discrimination in employment under any
service, program, or activity conducted by a public entity.

(b)(1) For purposes of this part, the requirements of title I of
the Act, as established by the regulations of the Equal Employment
Opportunity Commission in 29 CFR part 1630, apply to employment in
any service, program, or activity conducted by a public entity if
that public entity is also subject to the jurisdiction of title I.

(2) For the purposes of this part, the requirements of section 504
of the Rehabilitation Act of 1973, as established by the regulations
of the Department of Justice in 28 CFR Part 41, as those requirements
pertain to employment, apply to employment in any service, program,
or activity conducted by a public entity if that public entity is not
also subject to the jurisdiction of title I.

§§ 35.141 - 35.148 [Reserved]

Subpart D -- Program Accessibility

§ 35.149 Discrimination prohibited.

Except as otherwise provided in § 35.150, no qualified
individual with a disability shall, because a public entity's
facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any public entity.

§ 35.150 Existing facilities

(a) General. A public entity shall operate each service, program,
or activity so that the service, program, or activity, when viewed in
its entirety, is readily accessible to and usable by individuals with
disabilities. This paragraph does not --

(1) Necessarily require a public entity to make each of its
existing facilities accessible to and usable by individuals with
disabilities;

(2) Require a public entity to take any action that would threaten
or destroy the historic significance of an historic property; or

(3) Require a public entity to take any action that it can
demonstrate would result in a fundamental alteration in the nature of
a service, program, or activity or in undue financial and
administrative burdens. In those circumstances where personnel of the
public entity believe that the proposed action would fundamentally
alter the service, program, or activity or would result in undue
financial and administrative burdens, a public entity has the burden
of proving that compliance with {35.150(a) of this part would result
in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the head of a
public entity or his or her designee after considering all resources
available for use in the funding and operation of the service,
program, or activity, and must be accompanied by a written statement
of the reasons for reaching that conclusion. If an action would
result in such an alteration or such burdens, a public entity shall
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that individuals with
disabilities receive the benefits or services provided by the public
entity.

(b) Methods. (1) General. A public entity may comply with the
requirements of this section through such means as redesign or
acquisition
of equipment, reassignment of services to
accessible buildings, assignment of aides to beneficiaries, home
visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock or other conveyances, or any other
methods that result in making its services, programs, or activities
readily accessible to and usable by individuals with disabilities. A
public entity is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with this section. A public entity, in making alterations to existing
buildings, shall meet the accessibility requirements of §
35.151. In choosing among available methods for meeting the
requirements of this section, a public entity shall give priority to
those methods that offer services, programs, and activities to
qualified individuals with disabilities in the most integrated
setting appropriate.

(2) (i) Safe harbor. Elements that have not been altered
in existing facilities on or after [INSERT DATE 18 MONTHS AFTER THE
DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER] and that
comply with the corresponding technical and scoping specifications
for those elements in either the 1991 Standards or in the Uniform
Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part
101–19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7,
1984), are not required to be modified in order to comply with the
requirements set forth in the 2010 Standards.

(2)(ii) The safe harbor provided in § 35.150(b)(2)(i)
does not apply to those elements in existing facilities that are
subject to supplemental requirements (i.e., elements for which there
are neither technical nor scoping specifications in the 1991
Standards). Elements in the 2010 Standards not eligible for the
element-by-element safe harbor are identified as follows––

(A) Residential facilities dwelling units, sections 233
and 809.

(B) Amusement rides, sections 234 and 1002; 206.2.9;
216.12.

(C) Recreational boating facilities, sections 235 and
1003; 206.2.10.

(D) Exercise machines and equipment, sections 236 and
1004; 206.2.13.

(E) Fishing piers and platforms, sections 237 and 1005;
206.2.14.

(F) Golf facilities, sections 238 and 1006; 206.2.15.

(G) Miniature golf facilities, sections 239 and 1007;
206.2.16.

(H) Play areas, sections 240 and 1008; 206.2.17.

(I) Saunas and steam rooms, sections 241 and 612.

(J) Swimming pools, wading pools, and spas, sections 242
and 1009.

(K) Shooting facilities with firing positions, sections
243 and 1010.

(L) Miscellaneous.

(1) Team or player seating,
section 221.2.1.4.

(2) Accessible route to bowling
lanes, section. 206.2.11.

(3) Accessible route in court
sports facilities, section 206.2.12.

(3) Historic preservation programs. In meeting the
requirements of § 35.150(a) in historic preservation programs, a
public entity shall give priority to methods that provide physical
access to individuals with disabilities. In cases where a physical
alteration to an historic property is not required because of
paragraph (a)(2) or (a)(3) of this section, alternative methods of
achieving program accessibility include --

(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;

(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or

(iii) Adopting other innovative methods.

(c) Time period for compliance. Where structural changes
in facilities are undertaken to comply with the obligations
established under this section, such changes shall be made within
three years of the effective date of this part, but in any event as
expeditiously as possible.

(d) Transition plan. (1) In the event that structural
changes to facilities will be undertaken to achieve program
accessibility, a public entity that employs 50 or more persons shall
develop, within six months of the effective date of this part, a
transition plan setting forth the steps necessary to complete such
changes. A public entity shall provide an opportunity to interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
development of the transition plan by submitting comments. A copy of
the transition plan shall be made available for public inspection.

(2) If a public entity has responsibility or authority over
streets, roads, or walkways, its transition plan shall include a
schedule for providing curb ramps or other sloped areas where
pedestrian walks cross curbs, giving priority to walkways serving
entities covered by the Act, including State and local government
offices and facilities, transportation, places of public
accommodation, and employers, followed by walkways serving other
areas.

(3) The plan shall, at a minimum --

(i) Identify physical obstacles in the public entity's facilities
that limit the accessibility of its programs or activities to
individuals with disabilities;

(ii) Describe in detail the methods that will be used to make the
facilities accessible;

(iii) Specify the schedule for taking the steps necessary to
achieve compliance with this section and, if the time period of the
transition plan is longer than one year, identify steps that will be
taken during each year of the transition period; and

(iv) Indicate the official responsible for implementation of the
plan.

(4) If a public entity has already complied with the transition
plan requirement of a Federal agency regulation implementing section
504 of the Rehabilitation Act of 1973, then the requirements of this
paragraph shall apply only to those policies and practices that were
not included in the previous transition plan.

§ 35.151 New construction and alterations

(a) Design and construction. (1) 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.

(2) Exception for structural impracticability. (i) Full
compliance with the requirements of this section is not required
where a public entity can demonstrate that it is structurally
impracticable to meet the requirements. Full compliance will be
considered structurally impracticable only in those rare
circumstances when the unique characteristics of terrain prevent the
incorporation of accessibility features.

(ii) If full compliance with this section would be
structurally impracticable, compliance with this section is required
to the extent that it is not structurally impracticable. In that
case, any portion of the facility that can be made accessible shall
be made accessible to the extent that it is not structurally
impracticable.

(iii) If providing accessibility in conformance with this
section to individuals with certain disabilities (e.g., those who use
wheelchairs) would be structurally impracticable, accessibility shall
nonetheless be ensured to persons with other types of disabilities,
(e.g., those who use crutches or who have sight, hearing, or mental
impairments) in accordance with this section.

(b) Alteration. (1) Each facility or part of a facility
altered by, on behalf of, or for the use of a public entity in a
manner that affects or could affect the usability of the facility or
part of the facility shall, to the maximum extent feasible, be
altered in such manner that the altered portion of the facility is
readily accessible to and usable by individuals with disabilities, if
the alteration was commenced after January 26, 1992.

(2) The path of travel requirements of § 35.151(b)(4)
shall apply only to alterations undertaken solely for purposes other
than to meet the program accessibility requirements of § 35.150.

(3) (i) Alterations to historic properties shall comply,
to the maximum extent feasible, with the provisions applicable to
historic properties in the design standards specified in §
35.151(c).

(ii) If it is not feasible to provide physical access to
an historic property in a manner that will not threaten or destroy
the historic significance of the building or facility, alternative
methods of access shall be provided pursuant to the requirements of §
35.150.

(4) Path of travel. An alteration that affects or could
affect the usability of or access to an area of a facility that
contains a primary function shall be made so as to ensure that, to
the maximum extent feasible, the path of travel to the altered area
and the restrooms, telephones, and drinking fountains serving the
altered area, are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs, unless
the cost and scope of such alterations is disproportionate to the
cost of the overall alteration.

(i) Primary function. A “primary function” is
a major activity for which the facility is intended. Areas that
contain a primary function include, but are not limited to, the
dining area of a cafeteria, the meeting rooms in a conference center,
as well as offices and other work areas in which the activities of
the public entity using the facility are carried out.

(A) Mechanical rooms, boiler rooms, supply storage rooms,
employee lounges or locker rooms, janitorial closets, entrances, and
corridors are not areas containing a primary function. Restrooms are
not areas containing a primary function unless the provision of
restrooms is a primary purpose of the area, e.g., in highway rest
stops.

(B) For the purposes of this section, alterations to
windows, hardware, controls, electrical outlets, and signage shall
not be deemed to be alterations that affect the usability of or
access to an area containing a primary function.

(ii) A “path of travel” includes a continuous,
unobstructed way of pedestrian passage by means of which the altered
area may be approached, entered, and exited, and which connects the
altered area with an exterior approach (including sidewalks, streets,
and parking areas), an entrance to the facility, and other parts of
the facility.

(A) An accessible path of travel may consist of walks and
sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and other
improved areas; parking access aisles; elevators and lifts; or a
combination of these elements.

(B) For the purposes of this section, the term “path
of travel” also includes the restrooms, telephones, and
drinking fountains serving the altered area.

(C) Safe harbor. If a public entity has constructed or
altered required elements of a path of travel in accordance with the
specifications in either the 1991 Standards or the Uniform Federal
Accessibility Standards before [INSERT DATE 18 MONTHS AFTER THE DATE
OF PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER], the public
entity is not required to retrofit such elements to reflect
incremental changes in the 2010 Standards solely because of an
alteration to a primary function area served by that path of travel.

(iii) Disproportionality. (A) Alterations made to provide
an accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds 20 %
of the cost of the alteration to the primary function area.

(B) Costs that may be counted as expenditures required to
provide an accessible path of travel may include:

(1) Costs associated with providing an accessible entrance
and an accessible route to the altered area, for example, the cost of
widening doorways or installing ramps;

(2) Costs associated with making restrooms accessible,
such as installing grab bars, enlarging toilet stalls, insulating
pipes, or installing accessible faucet controls;

(3) Costs associated with providing accessible telephones,
such as relocating the telephone to an accessible height, installing
amplification devices, or installing a text telephone (TTY); and

(4) Costs associated with relocating an inaccessible
drinking fountain.

(iv) Duty to provide accessible features in the event of
disproportionality. (A) When the cost of alterations necessary to
make the path of travel to the altered area fully accessible is
disproportionate to the cost of the overall alteration, the path of
travel shall be made accessible to the extent that it can be made
accessible without incurring disproportionate costs.

(B) In choosing which accessible elements to provide,
priority should be given to those elements that will provide the
greatest access, in the following order:

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a
single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as
parking, storage, and alarms.

(v) Series of smaller alterations. (A) The obligation to
provide an accessible path of travel may not be evaded by performing
a series of small alterations to the area served by a single path of
travel if those alterations could have been performed as a single
undertaking.

(B)(1) If an area containing a primary function has been
altered without providing an accessible path of travel to that area,
and subsequent alterations of that area, or a different area on the
same path of travel, are undertaken within three years of the
original alteration, the total cost of alterations to the primary
function areas on that path of travel during the preceding three-year
period shall be considered in determining whether the cost of making
that path of travel accessible is disproportionate.

(2) Only alterations undertaken on or after [INSERT DATE
SIX MONTHS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN FEDERAL
REGISTER] shall be considered in determining if the cost of providing
an accessible path of travel is disproportionate to the overall cost
of the alterations.

(c) Accessibility standards and compliance date.

(1) If physical construction or alterations commence after
July 26, 1992, but prior to the [INSERT PUBLICATION DATE OF THIS RULE
IN THE FEDERAL REGISTER], then new construction and alterations
subject to this section must comply with either UFAS or the 1991
Standards except that the elevator exemption contained at section
4.1.3(5) and section 4.1.6(1)(j) of the 1991 Standards shall not
apply. Departures from particular requirements of either standard by
the use of other methods shall be permitted when it is clearly
evident that equivalent access to the facility or part of the
facility is thereby provided.

(2) If physical construction or alterations commence on or
after [INSERT PUBLICATION DATE OF THIS RULE IN THE FEDERAL REGISTER]
and before [INSERT DATE 18 MONTHS AFTER THE PUBLICATION OF THIS RULE
IN THE FEDERAL REGISTER], then new construction and alterations
subject to this section may comply with one of the following: the
2010 Standards, UFAS, or the 1991 Standards except that the elevator
exemption contained at section 4.1.3(5) and section 4.1.6(1)(j) of
the 1991 Standards shall not apply. Departures from particular
requirements of either standard by the use of other methods shall be
permitted when it is clearly evident that equivalent access to the
facility or part of the facility is thereby provided.

(3) If physical construction or alterations commence on or
after [INSERT DATE 18 MONTHS AFTER THE PUBLICATION OF THIS RULE IN
THE FEDERAL REGISTER], then new construction and alterations subject
to this section shall comply with the 2010 Standards.

(4) For the purposes of this section, ceremonial
groundbreaking or razing of structures prior to site preparation do
not commence physical construction or alterations.

(5) Noncomplying new construction and alterations. (i)
Newly constructed or altered facilities or elements covered by §§
35.151(a) or (b) that were constructed or altered before [INSERT DATE
18 MONTHS AFTER THE DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL
REGISTER] and that do not comply with the 1991 Standards or with UFAS
shall be made accessible in accordance with either the 1991
Standards, UFAS, or the 2010 Standards.

(ii) Newly constructed or altered facilities or elements
covered by §§ 35.151(a) or (b) that are constructed or
altered on or after [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER] and that do not
comply with the 1991 Standards or with UFAS shall be made accessible
in accordance with the 2010 Standards.

Appendix to § 35.151(c)

Compliance Dates for New Construction and Alterations

Applicable Standards

Before [Insert Publication Date of this Rule in the FR]

1991 Standards or UFAS

On or after [Insert Publication Date of this rule] and before
[Insert Date 18 months after Publication Date of this Rule]

1991 Standards, UFAS, or 2010 Standards

On or after [Insert Date 18 months after Publication Date of
this rule]

2010 Standards

(d) Scope of coverage. The 1991 Standards and the 2010
Standards apply to fixed or built-in elements of buildings,
structures, site improvements, and pedestrian routes or vehicular
ways located on a site. Unless specifically stated otherwise, the
advisory notes, appendix notes, and figures contained in the 1991
Standards and the 2010 Standards explain or illustrate the
requirements of the rule; they do not establish enforceable
requirements.

(e) Social service center establishments. Group homes,
halfway houses, shelters, or similar social service center
establishments that provide either temporary sleeping accommodations
or residential dwelling units that are subject to this section shall
comply with the provisions of the 2010 Standards applicable to
residential facilities, including, but not limited to, the provisions
in sections 233 and 809.

(1) In sleeping rooms with more than 25 beds covered by
this section, a minimum of 5% of the beds shall have clear floor
space complying with section 806.2.3 of the 2010 Standards.

(2) Facilities with more than 50 beds covered by this
section that provide common use bathing facilities, shall provide at
least one roll-in shower with a seat that complies with the relevant
provisions of section 608 of the 2010 Standards. Transfer-type
showers are not permitted in lieu of a roll-in shower with a seat,
and the exceptions in sections 608.3 and 608.4 for residential
dwelling units are not permitted. When separate shower facilities are
provided for men and for women, at least one roll-in shower shall be
provided for each group.

(f) Housing at a place of education. Housing at a place of
education that is subject to this section shall comply with the
provisions of the 2010 Standards applicable to transient lodging,
including, but not limited to, the requirements for transient lodging
guest rooms in sections 224 and 806 subject to the following
exceptions. For the purposes of the application of this section, the
term "sleeping room" is intended to be used interchangeably
with the term "guest room" as it is used in the transient
lodging standards.

(1) Kitchens within housing units containing accessible
sleeping rooms with mobility features (including suites and clustered
sleeping rooms) or on floors containing accessible sleeping rooms
with mobility features shall provide turning spaces that comply with
section 809.2.2 of the 2010 Standards and kitchen work surfaces that
comply with section 804.3 of the 2010 Standards.

(2) Multi-bedroom housing units containing accessible
sleeping rooms with mobility features shall have an accessible route
throughout the unit in accordance with section 809.2 of the 2010
Standards.

(3) Apartments or townhouse facilities that are provided
by or on behalf of a place of education, which are leased on a
year-round basis exclusively to graduate students or faculty, and do
not contain any public use or common use areas available for
educational programming, are not subject to the transient lodging
standards and shall comply with the requirements for residential
facilities in sections 233 and 809 of the 2010 Standards.

(g) Assembly areas. Assembly areas subject to this section
shall comply with the provisions of the 2010 Standards applicable to
assembly areas, including, but not limited to, sections 221 and 802.
In addition, assembly areas shall ensure that:

(1) In stadiums, arenas, and grandstands, wheelchair
spaces and companion seats are dispersed to all levels that include
seating served by an accessible route;

(2) Assembly areas that are required to horizontally
disperse wheelchair spaces and companion seats by section 221.2.3.1
of the 2010 Standards and have seating encircling, in whole or in
part, a field of play or performance area shall disperse wheelchair
spaces and companion seats around that field of play or performance
area;

(3) Wheelchair spaces and companion seats are not located
on (or obstructed by) temporary platforms or other movable
structures, except that when an entire seating section is placed on
temporary platforms or other movable structures in an area where
fixed seating is not provided, in order to increase seating for an
event, wheelchair spaces and companion seats may be placed in that
section. When wheelchair spaces and companion seats are not required
to accommodate persons eligible for those spaces and seats,
individual, removable seats may be placed in those spaces and seats;

(4) Stadium-style movie theaters shall locate wheelchair
spaces and companion seats on a riser or cross-aisle in the stadium
section that satisfies at least one of the following criteria:

(i) It is located within the rear 60% of the seats
provided in an auditorium; or

(ii) It is located within the area of an auditorium in
which the vertical viewing angles (as measured to the top of the
screen) are from the 40th to the 100th percentile of vertical viewing
angles for all seats as ranked from the seats in the first row (1st
percentile) to seats in the back row (100th percentile).

(h) Medical care facilities. Medical care facilities that
are subject to this section shall comply with the provisions of the
2010 Standards applicable to medical care facilities, including, but
not limited to, sections 223 and 805. In addition, medical care
facilities that do not specialize in the treatment of conditions that
affect mobility shall disperse the accessible patient bedrooms
required by section 223.2.1 of the 2010 Standards in a manner that is
proportionate by type of medical specialty.

(i) 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.

(j) Facilities with residential dwelling units for sale to
individual owners.

(1) Residential dwelling units designed and constructed or
altered by public entities that will be offered for sale to
individuals shall comply with the requirements for residential
facilities in the 2010 Standards including sections 233 and 809.

(2) The requirements of paragraph (1) also apply to
housing programs that are operated by public entities where design
and construction of particular residential dwelling units takes place
only after a specific buyer has been identified. In such programs,
the covered entity must provide the units that comply with the
requirements for accessible features to those pre-identified buyers
with disabilities who have requested such a unit.

(k) Detention and correctional facilities. (1) New
construction of jails, prisons, and other detention and correctional
facilities shall comply with the 2010 Standards except that public
entities shall provide accessible mobility features complying with
section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer
than one, of the total number of cells in a facility. Cells with
mobility features shall be provided in each classification level.

(2) Alterations to detention and correctional facilities.
Alterations to jails, prisons, and other detention and correctional
facilities shall comply with the 2010 Standards except that public
entities shall provide accessible mobility features complying with
section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer
than one, of the total number of cells being altered until at least
3%, but no fewer than one, of the total number of cells in a facility
shall provide mobility features complying with section 807.2. Altered
cells with mobility features shall be provided in each classification
level. However, when alterations are made to specific cells,
detention and correctional facility operators may satisfy their
obligation to provide the required number of cells with mobility
features by providing the required mobility features in substitute
cells (cells other than those where alterations are originally
planned), provided that each substitute cell—

(i) Is located within the same prison site;

(ii) Is integrated with other cells to the maximum extent
feasible;

(iii) Has, at a minimum, equal physical access as the
altered cells to areas used by inmates or detainees for visitation,
dining, recreation, educational programs, medical services, work
programs, religious services, and participation in other programs
that the facility offers to inmates or detainees; and,

(iv) If it is technically infeasible to locate a
substitute cell within the same prison site, a substitute cell must
be provided at another prison site within the corrections system.

(3) With respect to medical and long-term care facilities
in jails, prisons, and other detention and correctional facilities,
public entities shall apply the 2010 Standards technical and scoping
requirements for those facilities irrespective of whether those
facilities are licensed.

§ 35.152 Jails, detention and correctional
facilities, and community correctional facilities.

(a) General. This section applies to public entities that
are responsible for the operation or management of adult and juvenile
justice jails, detention and correctional facilities, and community
correctional facilities, either directly or through contractual,
licensing, or other arrangements with public or private entities, in
whole or in part, including private correctional facilities.

(b) Discrimination prohibited. (1) Public entities shall
ensure that qualified inmates or detainees with disabilities shall
not, because a facility is inaccessible to or unusable by individuals
with disabilities, be excluded from participation in, or be denied
the benefits of, the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity.

(2) Public entities shall ensure that inmates or detainees
with disabilities are housed in the most integrated setting
appropriate to the needs of the individuals. Unless it is appropriate
to make an exception, a public entity–

(i) Shall not place inmates or detainees with disabilities
in inappropriate security classifications because no accessible cells
or beds are available;

(ii) Shall not place inmates or detainees with
disabilities in designated medical areas unless they are actually
receiving medical care or treatment;

(iii) Shall not place inmates or detainees with
disabilities in facilities that do not offer the same programs as the
facilities where they would otherwise be housed; and

(iv) Shall not deprive inmates or detainees with
disabilities of visitation with family members by placing them in
distant facilities where they would not otherwise be housed.

(3) Public entities shall implement reasonable policies,
including physical modifications to additional cells in accordance
with the 2010 Standards, so as to ensure that each inmate with a
disability is housed in a cell with the accessible elements necessary
to afford the inmate access to safe, appropriate housing.

§§ 35.153 -35.139 [reserved]

Subpart E -- Communications

§ 35.160 General.

(a)(1) A public entity shall take appropriate steps to ensure that
communications with applicants, participants, members of the public,
and companions with disabilities
are as effective as
communications with others.

(2) For purposes of this section, “companion”
means a family member, friend, or associate of an individual seeking
access to a service, program or activity of a public entity, who,
along with such individual, is an appropriate person with whom the
public entity should communicate.

(b)(1) A public entity shall furnish appropriate auxiliary aids
and services where necessary to afford qualified individuals with
disabilities, including applicants, participants, companions,
and members of the public
, an equal opportunity to
participate in, and enjoy the benefits of, a service, program, or
activity of a public entity.

(2) The type of auxiliary aid or service necessary to
ensure effective communication will vary in accordance with the
method of communication used by the individual, the nature, length,
and complexity of the communication involved, and the context in
which the communication is taking place.
In determining what
types of auxiliary aids and services are necessary, a public entity
shall give primary consideration to the requests of individuals with
disabilities. In order to be effective, auxiliary aids and
services must be provided in accessible formats, in a timely manner,
and in such a way so as to protect the privacy and independence of
the individual with a disability.

(c)(1) A public entity shall not require an individual
with a disability to bring another individual to interpret for him or
her.

(2) A public entity shall not rely on an adult
accompanying an individual with a disability to interpret or
facilitate communication, except -

(i) In an emergency involving an imminent threat to the
safety or welfare of an individual or the public where there is no
interpreter available; or

(ii) Where the individual with a disability specifically
requests that the accompanying adult interpret or facilitate
communication, the accompanying adult agrees to provide such
assistance, and reliance on that adult for such assistance is
appropriate under the circumstances.

(3) A public entity shall not rely on a minor child to
interpret or facilitate communication, except in an emergency
involving an imminent threat to the safety or welfare of an
individual or the public where there is no interpreter available.

(d) Video remote interpreting (VRI) services. A public
entity that chooses to provide qualified interpreters via VRI
services shall ensure that it provides-

(1) Real-time, full-motion video and audio over a
dedicated high-speed, wide-bandwidth video connection or wireless
connection that delivers high-quality video images that do not
produce lags, choppy, blurry, or grainy images, or irregular pauses
in communication;

(2) A sharply delineated image that is large enough to
display the interpreter's face, arms, hands, and fingers, and the
participating individual's face, arms, hands, and fingers, regardless
of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other
involved individuals so that they may quickly and efficiently set up
and operate the VRI.

§ 35.161 Telecommunications

(a) Where a public entity communicates by telephone with
applicants and beneficiaries, text telephones (TTYs)
or equally effective telecommunications systems shall be used to
communicate with individuals who are deaf or hard of hearing
or have speech
impairments.

(b) When a public entity uses an automated-attendant
system, including, but not limited to, voice mail and messaging, or
an interactive voice response system, for receiving and directing
incoming telephone calls, that system must provide effective
real-time communication with individuals using auxiliary aids and
services, including TTYs or all forms of FCC-approved
telecommunications relay system, including Internet-based relay
systems.

(c) A public entity shall respond to telephone calls from
a telecommunications relay service established under title IV of the
ADA in the same manner that it responds to other telephone calls.

§ 35.162 Telephone emergency services

Telephone emergency services, including 911 services, shall
provide direct access to individuals who use TDD's and computer
modems.

§ 35.163 Information and signage

(a) A public entity shall ensure that interested persons,
including persons with impaired vision or hearing, can obtain
information as to the existence and location of accessible services,
activities, and facilities.

(b) A public entity shall provide signage at all inaccessible
entrances to each of its facilities, directing users to an accessible
entrance or to a location at which they can obtain information about
accessible facilities. The international symbol for accessibility
shall be used at each accessible entrance of a facility.

§ 35.164 Duties

This subpart does not require a public entity to take any action
that it can demonstrate would result in a fundamental alteration in
the nature of a service, program, or activity or in undue financial
and administrative burdens. In those circumstances where personnel of
the public entity believe that the proposed action would
fundamentally alter the service, program, or activity or would result
in undue financial and administrative burdens, a public entity has
the burden of proving that compliance with this subpart would result
in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the head of the
public entity or his or her designee after considering all resources
available for use in the funding and operation of the service,
program, or activity and must be accompanied by a written statement
of the reasons for reaching that conclusion. If an action required to
comply with this subpart would result in such an alteration or such
burdens, a public entity shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits or services provided by the public
entity.

§§ 35.165 - 35.169 [Reserved]

Subpart F - Compliance Procedures

§ 35.170 Complaints

(a) Who may file. An individual who believes that he or
she or a specific class of individuals has been subjected to
discrimination on the basis of disability by a public entity may, by
himself or herself or by an authorized representative, file a
complaint under this part.

(b) Time for filing. A complaint must be filed not later
than 180 days from the date of the alleged discrimination, unless the
time for filing is extended by the designated agency for good cause
shown. A complaint is deemed to be filed under this section on the
date it is first filed with any Federal agency.

(c) Where to file. An individual may file a complaint
with any agency that he or she believes to be the appropriate agency
designated under subpart G of this part, or with any agency that
provides funding to the public entity that is the subject of the
complaint, or with the Department of Justice for referral as provided
in {35.171(a)(2).

§ 35.171 Acceptance of complaints

(a) Receipt of complaints. (1)(i) Any Federal agency that
receives a complaint of discrimination on the basis of disability by
a public entity shall promptly review the complaint to determine
whether it has jurisdiction over the complaint under section 504.

(ii) If the agency does not have section 504 jurisdiction, it
shall promptly determine whether it is the designated agency under
subpart G of this part responsible for complaints filed against that
public entity.

(2)(i) If an agency other than the Department of Justice
determines that it does not have section 504 jurisdiction and is not
the designated agency, it shall promptly refer the complaint to
the appropriate designated agency, the agency that has section 504
jurisdiction, or the Department of Justice, and so notify the
complainant.

(ii) When the Department of Justice receives a complaint for which
it does not have jurisdiction under section 504 and is not the
designated agency, it may exercise jurisdiction pursuant to §
35.190(e) or refer the complaint to an agency that does have
jurisdiction under section 504
or to the appropriate agency
designated in subpart G of this part or, in the case of an employment
complaint that is also subject to title I of the Act, to the Equal
Employment Opportunity Commission.

(3)(i) If the agency that receives a complaint has section 504
jurisdiction, it shall process the complaint according to its
procedures for enforcing section 504.

(ii) If the agency that receives a complaint does not have section
504 jurisdiction, but is the designated agency, it shall process the
complaint according to the procedures established by this subpart.

(b) Employment complaints. (1) If a complaint alleges
employment discrimination subject to title I of the Act, and the
agency has section 504 jurisdiction, the agency shall follow the
procedures issued by the Department of Justice and the Equal
Employment Opportunity Commission under section 107(b) of the Act.

(2) If a complaint alleges employment discrimination subject to
title I of the Act, and the designated agency does not have section
504 jurisdiction, the agency shall refer the complaint to the Equal
Employment Opportunity Commission for processing under title I of the
Act.

(3) Complaints alleging employment discrimination subject to this
part, but not to title I of the Act shall be processed in accordance
with the procedures established by this subpart.

(c) Complete complaints. (1) A designated agency shall
accept all complete complaints under this section and shall promptly
notify the complainant and the public entity of the receipt and
acceptance of the complaint.

(2) If the designated agency receives a complaint that is not
complete, it shall notify the complainant and specify the additional
information that is needed to make the complaint a complete
complaint. If the complainant fails to complete the complaint, the
designated agency shall close the complaint without prejudice.

§ 35.172 Resolution of complaints

(a) The designated agency shall investigate complaints for
which it is responsible under § 35.171.

(b) The designated agency may conduct compliance reviews
of public entities in order to ascertain whether there has been a
failure to comply with the nondiscrimination requirements of this
part.

(c) Where appropriate, the designated agency shall attempt
informal resolution of any matter being investigated under this
section, and, if resolution is not achieved and a violation is found,
issue to the public entity and the complainant, if any, a Letter of
Findings that shall include--

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found
(including compensatory damages where appropriate); and

(3) Notice of the rights and procedures available under
paragraph (d) of this section and §§ 35.173 and 35.174.

(d) At any time, the complainant may file a private suit
pursuant to section 203 of the Act, 42 U.S.C. 12133, whether or not
the designated agency finds a violation.

§ 35.173 Voluntary compliance agreements

(a) When the designated agency issues a noncompliance Letter of
Findings, the designated agency shall--

(1) Notify the Assistant Attorney General by forwarding a copy of
the Letter of Findings to the Assistant Attorney General; and

(2) Initiate negotiations with the public entity to secure
compliance by voluntary means.

(b) Where the designated agency is able to secure voluntary
compliance, the voluntary compliance agreement shall --

(1) Be in writing and signed by the parties;

(2) Address each cited violation;

(3) Specify the corrective or remedial action to be taken, within
a stated period of time, to come into compliance;

(4) Provide assurance that discrimination will not recur; and

(5) Provide for enforcement by the Attorney General.

§ 35.174 Referral

If the public entity declines to enter into voluntary compliance
negotiations or if negotiations are unsuccessful, the designated
agency shall refer the matter to the Attorney General with a
recommendation for appropriate action.

§ 35.175 Attorney's fees

In any action or administrative proceeding commenced pursuant to
the Act or this part, the court or agency, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses, and costs,
and the United States shall be liable for the foregoing the same as a
private individual.

§ 35.176 Alternative means of dispute resolution

Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes
arising under the Act and this part.

§ 35.177 Effect of unavailability of technical assistance

A public entity shall not be excused from compliance with the
requirements of this part because of any failure to receive technical
assistance, including any failure in the development or dissemination
of any technical assistance manual authorized by the Act.

§ 35.178 State immunity

A State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or State
court of competent jurisdiction for a violation of this Act. In any
action against a State for a violation of the requirements of this
Act, remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such remedies
are available for such a violation in an action against any public or
private entity other than a State.

§§ 35.179 - 35.189 [Reserved]

Subpart G -- Designated Agencies

§ 35.190 Designated Agencies

(a) The Assistant Attorney General shall coordinate the compliance
activities of Federal agencies with respect to State and local
government components, and shall provide policy guidance and
interpretations to designated agencies to ensure the consistent and
effective implementation of the requirements of this part.

(b) The Federal agencies listed in paragraph (b)(1)-(8) of this
section shall have responsibility for the implementation of subpart F
of this part for components of State and local governments that
exercise responsibilities, regulate, or administer services,
programs, or activities in the following functional areas.

(1) Department of Agriculture: all programs, services, and
regulatory activities relating to farming and the raising of
livestock, including extension services.

(2) Department of Education: all programs, services, and
regulatory activities relating to the operation of elementary and
secondary education systems and institutions, institutions of higher
education and vocational education (other than schools of medicine,
dentistry, nursing, and other health-related schools), and libraries.

(3) Department of Health and Human Services: all programs,
services, and regulatory activities relating to the provision of
health care and social services, including schools of medicine,
dentistry, nursing, and other health-related schools, the operation
of health care and social service providers and institutions,
including "grass-roots" and community services
organizations and programs, and preschool and daycare programs.

(4) Department of Housing and Urban Development: all programs,
services, and regulatory activities relating to state and local
public housing, and housing assistance and referral.

(5) Department of Interior: all programs, services, and regulatory
activities relating to lands and natural resources, including parks
and recreation, water and waste management, environmental protection,
energy, historic and cultural preservation, and museums.

(6) Department of Justice: all programs, services, and regulatory
activities relating to law enforcement, public safety, and the
administration of justice, including courts and correctional
institutions; commerce and industry, including general economic
development, banking and finance, consumer protection, insurance, and
small business; planning, development, and regulation (unless
assigned to other designated agencies); state and local government
support services (e.g., audit, personnel, comptroller, administrative
services); all other government functions not assigned to other
designated agencies.

(7) Department of Labor: all programs, services, and regulatory
activities relating to labor and the work force.

(8) Department of Transportation: all programs, services, and
regulatory activities relating to transportation, including highways,
public transportation, traffic management (non-law enforcement),
automobile licensing and inspection, and driver licensing.

(c) Responsibility for the implementation of subpart F of this
part for components of State or local governments that exercise
responsibilities, regulate, or administer services, programs, or
activities relating to functions not assigned to specific designated
agencies by paragraph (b) of this section may be assigned to other
specific agencies by the Department of Justice.

(d) If two or more agencies have apparent responsibility over a
complaint, the Assistant Attorney General shall determine which one
of the agencies shall be the designated agency for purposes of that
complaint.

(e) When the Department receives a complaint directed to
the Attorney General alleging a violation of this part that may fall
within the jurisdiction of a designated agency or another Federal
agency that may have jurisdiction under section 504, the Department
may exercise its discretion to retain the complaint for investigation
under this part.

§§ 35.191 - 35.999 [Reserved]